Legislature(1997 - 1998)

02/03/1998 01:08 PM House RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE RESOURCES STANDING COMMITTEE                                    
                  February 3, 1998                                             
                     1:08 p.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Bill Hudson, Co-Chairman                                        
Representative Scott Ogan, Co-Chairman                                         
Representative Beverly Masek, Vice Chair                                       
Representative Fred Dyson                                                      
Representative Joe Green                                                       
Representative Irene Nicholia                                                  
Representative Reggie Joule                                                    
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Ramona Barnes                                                   
Representative William K.(Bill) Williams                                       
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
SUBSISTENCE WORK SESSION:     OVERVIEW OF SUBSISTENCE PROPOSALS                
                              PAST AND PRESENT                                 
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
No previous action to record                                                   
                                                                               
WITNESS REGISTER                                                               
                                                                               
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 technical questions.                             
                                                                               
RON SOMERVILLE, Contractor                                                     
   to House and Senate Majority                                                
4506 Robbie Road                                                               
Juneau, Alaska 99801                                                           
Telephone:  (907) 463-3830                                                     
POSITION STATEMENT: Presented a cross comparison of existing                   
                    statutory provisions, the subsistence task                 
                    force proposal, and HB 320.                                
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-4, SIDE A                                                              
Number 0001                                                                    
                                                                               
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing                     
Committee meeting to order at 1:08 p.m.  Members present at the                
call to order were Representatives Ogan, Dyson and Green.  Co-                 
chairman Hudson arrived at 1:09 p.m.  Representatives Nicholia,                
Masek and Joule arrived at 1:10 p.m., 1:11 p.m., and 1:12 p.m.,                
respectively.                                                                  
                                                                               
SUBSISTENCE WORK SESSION:  OVERVIEW OF SUBSISTENCE PROPOSALS PAST              
AND PRESENT                                                                    
                                                                               
Number 0107                                                                    
                                                                               
CO-CHAIRMAN OGAN stated achieving a subsistence solution requires              
navigating through very treacherous waters which takes a good                  
vessel, crew and compass.  The House Resources Standing Committee              
is the vessel and crew.  And, the compass is the Constitution of               
the State of Alaska to the north; the Alaska Statehood Act to the              
south; the public trust doctrine to the west; and the Constitution             
of the United States of America to the east.  But, most                        
importantly, an accurate chart is needed which is what the House               
Resources Standing Committee will attempt to create.  There have               
been quite a few soundings taken already including the current                 
Governor's task force and past governors' task forces.  Today is an            
overview of previous work on building the chart.  In addition, any             
time one looks at a chart there is always deviation from true                  
magnetic north; therefore, it is important to identify and look at             
the deviations to prevent getting hung up on rocks somewhere.                  
                                                                               
Number 0301                                                                    
                                                                               
CO-CHAIRMAN BILL HUDSON added a good lifeboat is also needed.                  
                                                                               
Number 0331                                                                    
                                                                               
REPRESENTATIVE FRED DYSON added it always makes sense to pay                   
attention to the tide, weather and wind.                                       
                                                                               
CO-CHAIRMAN OGAN called Mr. Popely and Somerville to the table to              
continue their presentation from last week.                                    
                                                                               
Number 0536                                                                    
                                                                               
THEODORE POPELY, Legislative Assistant to House and Senate                     
Majority, Alaska State Legislature, stated he made a presentation              
last week and called on Mr. Somerville to continue the presentation            
with a statutory comparison of the provisions.                                 
                                                                               
Number 0563                                                                    
                                                                               
RON SOMERVILLE, Contractor to House and Senate Majority, explained             
there are a lot of similarities  between the existing state statute            
and the proposals.  And, there are some distinct philosophical                 
policy decisions made in the changes.  The major issue is the                  
assumption and the necessity to pass a constitutional amendment.               
The assumption is intrinsically tied to the implementation of the              
proposal.  This is primarily to give the legislature permission to             
discriminate based on residency.  There is a presumption that this             
can not be implemented because of the McDowell and Kenaitze cases.             
                                                                               
MR. SOMERVILLE further stated, in addition, the definition of                  
subsistence is the same as in state law, except for the elimination            
of the clause, "by resident domicile in a rural area of the state."            
It is not an attempt to shift the emphasis away from rural but to              
reconstruct the statutes elsewhere.  The subsistence task force                
proposal defines subsistence as, "areas and communities classified             
as rural."  It also defines rural community or area as, "a                     
community or area substantially dependent on fish and wildlife for             
nutritionally and other subsistence uses."  There is a link even               
though there is a slight change.  In terms of policy, it is                    
basically the same.                                                            
                                                                               
MR. SOMERVILLE further stated, in addition, the subsistence task               
force proposal retains a lot of what already exists in state                   
statute in terms of a tiered system.  In other words, if there are             
adequate resources to meet all of the needs, then all uses are                 
provided for including subsistence.  If there is not enough                    
resources to accommodate all the nonsubsistence uses, the boards               
are instructed to "ratchet down" the regulations in such a fashion             
to give a preference to subsistence uses and to provide for other              
uses.  In the last tier under the subsistence task force proposal,             
if there is not enough to meet the human consumptive subsistence               
uses, then the boards are instructed to further restrict it amongst            
the subsistence users themselves.  This is the first time the                  
verbiage "human consumptive users" appears.                                    
                                                                               
MR. SOMERVILLE further stated, in reference to the definition of               
rural community or area, the language "substantially dependent" is             
not defined in statute.  In terms of implementing a rural                      
preference or priority, the subsistence task force proposal takes              
the approach of institutionalizing the nonsubsistence areas                    
currently in law.  However, boards would be given the opportunity              
to review the areas in terms of their dependency to determine their            
correct classification.                                                        
                                                                               
Number 1066                                                                    
                                                                               
MR. SOMERVILLE further stated the subsistence task force proposal              
strengthens the role of the advisory committees by requiring                   
deference to their proposals as they go through the process.  It               
requires the creation of regional subsistence councils similar in              
structure to federal law today.  Thus, all subsistence proposals               
from advisory committees would have to go through the proposed                 
regional subsistence councils, and the boards would have to give               
them deference, especially unanimous recommendations.                          
                                                                               
MR. SOMERVILLE further stated the subsistence task force proposal              
expands the proxy system to accommodate some urban subsistence                 
users with family ties in rural areas.  The subsistence task force             
proposal also retains the concept of maintaining a reasonable                  
opportunity, not a guarantee of taking.  The subsistence task force            
proposal also establishes a provision for educational hunting and              
fishing permits that clarifies what has been attempted by the                  
Department of Fish and Game.                                                   
                                                                               
Number 1196                                                                    
                                                                               
CO-CHAIRMAN OGAN stated the root of the problem with subsistence is            
the fact that both rural and Native people feel disenfranchised                
with the process.  He asked Mr. Popely whether there was a lot of              
discussion about that in the meetings.                                         
                                                                               
Number 1225                                                                    
                                                                               
MR. POPELY replied there was a substantial amount of discussion and            
input on local control and trying to regain local management                   
authority.  The subsistence task force proposal tries to encompass             
those feelings.  It is an accurate depiction of the motivation; he             
is not speaking for anyone on the subsistence task force, however.             
                                                                               
Number 1265                                                                    
                                                                               
CO-CHAIRMAN OGAN stated it is a point that the House Resources                 
Standing Committee members should keep in mind as an alternative               
solution is drafted.  Similarly, there has also been a lot of                  
discussion in regards to the trust-relationship that the United                
States government has with the Natives.  According to testimony                
during the interim, there is a lack of trust on the part of the                
rural people in the state of Alaska.  It is a point that should                
also be kept in mind as an Alaskan-first solution develops.  The               
advisory council now in place in statute is probably one of the                
most democratic systems in the country in terms of input to the                
boards.  The advisory councils, however, feel that the main board              
does not listen to them too well.  It is something that will need              
to be addressed during the deliberations.                                      
                                                                               
Number 1325                                                                    
                                                                               
REPRESENTATIVE REGGIE JOULE stated, in regards to the feelings of              
a lack of involvement by rural Alaskans, it is also safe to say                
that other user groups probably felt left out of the process.                  
However, there is a proposal now and the legislative session has               
begun allowing the continuation of the public process.                         
                                                                               
Number 1386                                                                    
                                                                               
CO-CHAIRMAN OGAN stated there are two processes being discussed -              
people who felt left out of the subsistence task force process and             
people who feel left out of the day-to-day management of the fish              
and game in the state.  He meant there was a genuine attempt on the            
part of the subsistence task force to include the people who feel              
they are left out of the day-to-day management of the fish and game            
in the state.                                                                  
                                                                               
Number 1440                                                                    
                                                                               
REPRESENTATIVE JOE GREEN stated it is his understanding, and                   
according to comments made by Senator Frank Murkowski, that the                
House Resources Standing Committee is operating from the premise of            
a wide latitude to resolve the problem that might also involve                 
certain tweaks to the Alaska National Interest Lands Conservation              
Act (ANILCA).                                                                  
                                                                               
Number 1474                                                                    
                                                                               
CO-CHAIRMAN OGAN read the following comments made by Senator Frank             
Murkowski in the Anchorage Daily News dated Thursday, January 29,              
1998:                                                                          
                                                                               
     "This Legislature has the opportunity to provide me with                  
     recommendations on amendments to ANILCA.  As chairman of                  
     the Energy and Natural Resources Committee, my intention,                 
     after Alaska lawmakers complete their work and make their                 
     recommendations, is to conduct hearing and to legislate                   
     any additional changes to ANILCA."                                        
                                                                               
CO-CHAIRMAN OGAN stated the comments made by Senator Murkowski                 
afford an opportunity that he has not seen since following the                 
subsistence issue which is longer than he has been in the                      
legislature.  He reiterated he intends to come up with an Alaskan              
solution including support of the congressional delegation to make             
the appropriate changes to ANILCA.  He repeated, as Senator                    
Murkowski stated in his address to the legislature, that a repeal              
of Title VIII is just not possible.                                            
                                                                               
Number 1549                                                                    
                                                                               
CO-CHAIRMAN OGAN explained the reason for his actions last week was            
to remove the subsistence task force proposal as the only solution.            
The Governor's bill is flawed in the fact that it is based on a                
constitutional amendment and a rural priority.                                 
                                                                               
Number 1579                                                                    
                                                                               
REPRESENTATIVE IRENE NICHOLIA stated it will have to go through the            
process whether there is a rural priority or not.  She asked Mr.               
Somerville whether the process to select a regional subsistence                
council would restrict a nomination from the Tanana Chiefs Council,            
Incorporated in the Interior, for example.                                     
                                                                               
Number 1635                                                                    
                                                                               
MR. SOMERVILLE replied Section 16.05.262(b) under the subsistence              
task force proposal would read as follows:                                     
                                                                               
     "(b) Each regional subsistence council must have ten                      
     members, four of whom shall be selected from nominees who                 
     reside in that region of the state submitted by tribal                    
     councils in the region and six of whom shall be selected                  
     from nominees submitted by local governments and local                    
     advisory committees.  Three of these six must be                          
     subsistence users who reside in the region and three must                 
     be sport or commercial users.  Sport or commercial                        
     representatives may be residents of any subsistence                       
     resource region."                                                         
                                                                               
MR. SOMERVILLE stated it is possible, depending on how the area is             
defined, that some members of the Tanana Chiefs Council,                       
Incorporated that might not reside in the area, could be excluded              
from that specific regional council.  There are provisions,                    
however, to help solve interregional conflicts.                                
                                                                               
Number 1692                                                                    
                                                                               
REPRESENTATIVE JOULE announced to the committee members that                   
Senator Murkowski favors a constitutional amendment.                           
                                                                               
CO-CHAIRMAN OGAN replied the point is well taken.  A constitutional            
amendment would be an easier solution for Senator Murkowski.  But,             
changing ANILCA would not be easy.  Senator Murkowski also said he             
would be willing to follow the recommendation of the legislature               
which is a heartening departure from the past.                                 
                                                                               
Number 1738                                                                    
                                                                               
CO-CHAIRMAN HUDSON stated it is important that the committee                   
members understand that the subsistence task force proposal,                   
embodied in HB 320, has provided a blueprint for discussions.  The             
proposal was used as an item of discussion in the hearings in                  
Bethel, Ketchikan, and Kenai resulting in comments by constituents.            
Therefore, it is important to recognize it as a valuable tool to               
help formulate any changes that constituents do not support.  It is            
also important to identify any constitutional changes and/or                   
changes to ANILCA in order that a final solution reflects good                 
public policy.  In his opinion, a constitutional change will                   
probably be the solution in order to satisfy everybody in the                  
state, not on a basis of rural residency, but on some other element            
yet to be fabricated.                                                          
                                                                               
Number 1900                                                                    
                                                                               
CO-CHAIRMAN OGAN stated he did not have a problem taking a look at             
the current proposal and other proposals.  The hearing today is not            
on HB 320.  It is important to understand constitutional                       
responsibilities and public-trust responsibilities before any                  
decisions are made.                                                            
                                                                               
Number 1947                                                                    
                                                                               
MR. SOMERVILLE referred to a handout titled "A Cross Comparison of             
Existing Statutory Provisions in AS 16 with the Subsistence Task               
Force Proposal and HB 320 Submitted by the Governor" and explained             
there are a relatively few minor differences between the                       
subsistence task force proposal and HB 320.  But, there are some               
reconstruction differences between the two which will be pointed               
out later.                                                                     
                                                                               
Number 1967                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.258(a) and explained the              
subsistence task force proposal would modify the section to read as            
follows:                                                                       
                                                                               
     "In areas and communities classified as rural, the Board                  
     of Fisheries and the Board of Game shall identify...."                    
                                                                               
MR. SOMERVILLE explained it is just a relocation of the emphasis of            
the priority on areas and communities classified as rural.  House              
Bill 320 is the same as the subsistence task force proposal.                   
                                                                               
Number 1989                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.258(b)(4) and explained               
the fourth tier would include the language "human consumptive                  
uses."  Otherwise, the tier process is the same as the current                 
statute.                                                                       
                                                                               
Number 2002                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.258(c) and explained the              
subsistence task force proposal would use the nonsubsistence areas             
as a tool to implement the consideration of outside areas as rural             
and inside areas as non-rural.  The boards would be empowered to               
review the areas to determine their correct classification.  House             
Bill 320 would add a new section - Section 28 - to do the same                 
thing, it is just worded slightly different.                                   
                                                                               
Number 2045                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.258(d) and explained it is            
included because of the addition of the reference to "areas or                 
communities classified as rural" under the subsistence task force              
proposal.  House Bill 320 is essentially the same with some minor              
changes in the wording.                                                        
                                                                               
Number 2067                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.258(f) and explained the              
subsistence task force proposal and HB 320 retain the reasonable               
opportunity standard/criteria.  He noted the language "that                    
provides a normally diligent participant" should be included after             
the word "fishery" under the state statutory provision.  The                   
subsistence task force proposal would put emphasis on the language             
"consistent with customary and traditional uses" and would delete              
the language "that provides a normally diligent participant."                  
Otherwise, it would be the same as in existing statute.  House Bill            
320 is the same as the subsistence task force proposal.                        
                                                                               
Number 2135                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Somerville whether the language                     
"customary and traditional uses" has been a federal determination.             
                                                                               
Number 2151                                                                    
                                                                               
MR. SOMERVILLE replied currently the board must identify stocks                
that are taken customarily and traditionally for subsistence uses -            
the same in federal law.  He thought the reference to "customary               
and traditional uses" was included in the subsistence task force               
proposal because of complaints from people in rural areas over the             
methods and means of uses not being accommodated.                              
                                                                               
Number 2179                                                                    
                                                                               
CO-CHAIRMAN OGAN stated there have been customary and traditional              
findings by the Federal Subsistence Board that, according to the               
Department of Fish and Game, are not consistent with the sustained             
yield principle proscribed in the Constitution of the State of                 
Alaska.  There is nothing in federal law that mandates management              
on a sustained yield principle.                                                
                                                                               
Number 2198                                                                    
                                                                               
MR. SOMERVILLE replied ANILCA has a provision that refers to                   
conservation of healthy populations.  It is not the same in state              
statute, however.  A change in 1992 put more emphasis on sustained             
yield and there is a reference in ANILCA that subsistence is not               
intended to drive the stocks to zero.                                          
                                                                               
Number 2236                                                                    
                                                                               
CO-CHAIRMAN OGAN stated, in an attempt to adequately enfranchise               
locals in rural areas to the process, the Federal Subsistence Board            
is flawed.  The board's customary and traditional findings have                
given too much deference to local folks harming the wildlife                   
populations.                                                                   
                                                                               
Number 2276                                                                    
                                                                               
MR. SOMERVILLE stated, as a former member of the Department of Fish            
and Game, there are cases where the Federal Subsistence Board and              
the state boards have disagreed on the stocks.  The Federal                    
Subsistence Board can allocate a number for subsistence use thereby            
requiring the state boards to shut down the season in order to                 
maintain a sustained yield and healthy population as mandated in               
the state constitution.  The Federal Subsistence Board and the                 
state boards run under different mandates.                                     
                                                                               
Number 2324                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.258 and explained the                 
subsistence task force proposal would add the following new                    
subsection:                                                                    
                                                                               
     "(g) No provision of this section requires the Board of                   
     Fisheries to close non-retention fishing if the board has                 
     made a finding that the mortality caused by non-retention                 
     fishing does not jeopardize subsistence uses or the                       
     conservation of healthy stocks."                                          
                                                                               
Number 2341                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.260 and explained the                 
subsistence task force proposal would add the following new                    
subsection:                                                                    
                                                                               
     "(c) Recommendations from the advisory committees on                      
     subsistence uses shall be sent to regional subsistence                    
     councils.  If the regional subsistence council does not                   
     adopt the recommendation of the advisory committee, the                   
     council shall inform the advisory committee, state the                    
     reasons, and forward the advisory committee                               
     recommendation to the board."                                             
                                                                               
MR. SOMERVILLE explained the council could not stop the process,               
but it would require the recommendations to go through the regional            
councils before being sent to a board.                                         
                                                                               
Number 2369                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Mr. Somerville to explain the relationship            
between the advisory committees and the regional councils.                     
                                                                               
Number 2378                                                                    
                                                                               
MR. SOMERVILLE replied there are around 80 advisory committees                 
throughout Alaska that were created in state law.  The subsistence             
task force proposal would not do away with the advisory committees,            
but would attempt to strengthen their roles by forcing them to use             
the regional councils and by giving them deference in the process.             
                                                                               
Number 2407                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Mr. Somerville whether the advisory                   
committees go beyond subsistence into bag limits and sports                    
fishing, for example.                                                          
                                                                               
Number 2425                                                                    
                                                                               
MR. SOMERVILLE replied, "Correct."  However, the subsistence task              
force proposal would require only subsistence proposals to go                  
through the regional councils.  Personally, it would be impossible             
for the regional councils not to look at proposals in terms of a               
total context.                                                                 
                                                                               
Number 2444                                                                    
                                                                               
REPRESENTATIVE NICHOLIA stated she is a former member of an                    
advisory committee.  The subsistence task force proposal is the                
same as what is practiced.  Every proposal adopted by a local                  
advisory committee is sent to a regional council anyway for more               
support in front of a board.                                                   
                                                                               
TAPE 98-4, SIDE B                                                              
Number 0000                                                                    
                                                                               
MR. SOMERVILLE explained the subsistence task force proposal would             
add a new section - Section 16.05.262 - and read the following                 
subsection:                                                                    
                                                                               
     "(b) Each regional subsistence council must have ten                      
     members, four of whom shall be selected from nominees who                 
     reside in that region of the state submitted by tribal                    
     councils in the region and six of whom shall be selected                  
     from nominees submitted by local governments and local                    
     advisory committees.  Three of these six must be                          
     subsistence users who reside in the region and three must                 
     be sport or commercial users.  Sport or commercial                        
     representatives may be residents of any subsistence                       
     resource region."                                                         
                                                                               
MR. SOMERVILLE stated seven members would be from the region while             
still allowing for commercial and sport interests in the remaining             
three members.                                                                 
                                                                               
MR. SOMERVILLE continued reading the following subsections:                    
                                                                               
     "(c) Councils shall strive for consensus but may decide                   
     by a majority vote.                                                       
                                                                               
     "(d) Each council has the authority to make                               
     recommendations to boards on regulations, policies, or                    
     any matter related to subsistence uses; comment on                        
     nonsubsistence proposals; make recommendations on                         
     permits; submit annual reports to state and federal                       
     agencies concerning subsistence identification, needs,                    
     strategies, policies, standards, guidelines and                           
     regulations.                                                              
                                                                               
     "(e) Assist local fish and game advisory committees in                    
     achieving local participation.                                            
                                                                               
     "(f) Requires regulatory proposals relating to                            
     subsistence be reviewed by appropriate regional council                   
     before the board takes action.                                            
                                                                               
     "(g) Provides for councils to meet on interregional                       
     proposals.                                                                
                                                                               
Number 0104                                                                    
                                                                               
REPRESENTATIVE NICHOLIA explained the Yukon River Drainage Fishing             
Association was formed in response to interregional issues.  The               
Yukon River is the longest river in North America.  There are major            
differences.  The association gets together twice a year to tell               
their differences before going to the Board of Fisheries.                      
                                                                               
Number 0124                                                                    
                                                                               
MR. SOMERVILLE continued reading the following subsections:                    
                                                                               
     "(h) The appropriate board shall consider the reports and                 
     recommendations of the regional subsistence councils and                  
     shall give deference to their subsistence                                 
     recommendations.  If the council recommendation is                        
     unanimous, there is a presumption in favor of adoption.                   
     The board may decide not to adopt a recommendation that                   
     violates the sustained yield principle, is not supported                  
     by substantial evidence, is detrimental to subsistence                    
     uses, involves an unresolved statewide or interregional                   
     subsistence management issue, or is contrary to an                        
     overriding statewide fish or wildlife management                          
     interest.  A written statement shall be provided for all                  
     rejected recommendations.                                                 
                                                                               
MR. SOMERVILLE noted that the changes to ANILCA are not identical              
to this provision.                                                             
                                                                               
MR. SOMERVILLE continued reading the following subsections:                    
                                                                               
     "(i) Regional councils shall give deference to proposals                  
     from local governments, tribal councils and local                         
     advisory committees related to subsistence.                               
                                                                               
     "(j) Authorizes use of mediation process.                                 
                                                                               
     "(k) Requires use of knowledge of subsistence users.                      
     Authorizes the department to contract with subsistence                    
     users and local groups for utilization of local special                   
     knowledge.                                                                
                                                                               
     "(l) Requires adequate funding for councils."                             
                                                                               
Number 0175                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Popely whether subsection (l) would bind            
future legislatures.                                                           
                                                                               
Number 0192                                                                    
                                                                               
MR. POPELY replied a subsequent legislature could refuse to fund it            
and by defacto amend the statute.  However, as long as the statute             
is in effect, the current legislature would be required to fund the            
councils under the terms of the statute.                                       
                                                                               
Number 0211                                                                    
                                                                               
REPRESENTATIVE JOULE wondered how the regional councils existed in             
the past.                                                                      
                                                                               
Number 0229                                                                    
                                                                               
MR. SOMERVILLE replied in 1992 the regional councils were                      
eliminated from state law by the legislature when the federal                  
regional councils came into effect.                                            
                                                                               
Number 0247                                                                    
                                                                               
REPRESENTATIVE JOULE stated he took some exception to the unanimous            
recommendation.  It would also mean less deference or weight would             
be given to a recommendation if the outside people on the councils             
disagreed.                                                                     
                                                                               
Number 0309                                                                    
                                                                               
MR. SOMERVILLE replied the provision does not say a degree of                  
deference.  A board would be restricted as to how to reject a                  
proposal whether it was unanimous or not.  But, Representative                 
Joule is correct because the three people who do not reside in the             
area could create a stumbling block.                                           
                                                                               
Number 0369                                                                    
                                                                               
REPRESENTATIVE NICHOLIA suggested inviting the former commissioner             
of fish and game in the audience to the table to answer                        
Representative Joule's first question.                                         
                                                                               
CO-CHAIRMAN OGAN replied he did not want to take testimony at this             
time from anybody other than Mr. Somerville and Mr. Popely.                    
                                                                               
REPRESENTATIVE NICHOLIA made the suggestion because they could not             
answer his question.                                                           
                                                                               
CO-CHAIRMAN OGAN stated he did not want to open up the meeting to              
other testifiers.  Mr. Popely and Mr. Somerville could research                
questions further and get back to the committee members.                       
                                                                               
Number 0406                                                                    
                                                                               
REPRESENTATIVE GREEN asked Mr. Somerville how differing                        
interregional opinions would be resolved and has it been an issue              
in the past.                                                                   
                                                                               
Number 0428                                                                    
                                                                               
MR. SOMERVILLE replied the board would probably send a                         
recommendation back to the adjacent regional councils to                       
consolidate and come up with a unified recommendation.  The                    
provision would also allow the regional councils to use the                    
mediation process in the event there was a real stumbling block.               
                                                                               
Number 0466                                                                    
                                                                               
REPRESENTATIVE GREEN wondered whether a board could reject a                   
mediated or agreed upon compromise.                                            
                                                                               
Number 0481                                                                    
                                                                               
MR. SOMERVILLE replied, yes, as long as it meets one of the                    
rejection criteria provided for in the provision.                              
                                                                               
Number 0492                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task                 
force discussed the balance of the advisory councils.  The                     
membership would boil down to three sport and four commercial                  
members.  It seemed there would never be a majority.                           
                                                                               
Number 0559                                                                    
                                                                               
MR. POPELY replied he did not know.  He was no there for the                   
discussions.  He does not know the rationale behind the numbers                
chosen.                                                                        
                                                                               
Number 0580                                                                    
                                                                               
MR. SOMERVILLE stated the primary responsibility of the regional               
councils is related to subsistence.  They could make                           
recommendations on a variety of things, but their only legal                   
authority is with subsistence uses.  The potential problem would be            
in defining which regulations are subsistence regulations.                     
                                                                               
Number 0610                                                                    
                                                                               
REPRESENTATIVE JOULE announced the subsistence director is in the              
audience who could answer the question.                                        
                                                                               
CO-CHAIRMAN OGAN stated he did not want to bring to the table other            
testifiers.                                                                    
                                                                               
CO-CHAIRMAN OGAN stated a perception of bias is not in the best                
interest of anyone.  It would just exacerbate the hard feelings                
between the different user groups.                                             
                                                                               
Number 668                                                                     
                                                                               
REPRESENTATIVE JOULE said, "Within our state we have 200 some                  
communities some of which choose to have municipal government and              
others which choose to have tribal governments, others choose to               
have boroughs.  Those are local decisions because that is the area             
they are looked to make decisions on because that's the area that              
they live in.  And, with regards to the makeup of the councils, the            
resources are out in those areas.  And, I think, in part, that was             
how some of the recommendations were made to say this is why it may            
be weighted this way because these are the people that live closest            
to the resources, and understand the resources and the patterns of             
them."                                                                         
                                                                               
Number 0709                                                                    
                                                                               
CO-CHAIRMAN OGAN stated no one really owns the resources, according            
to the public trust doctrine.  The common use clause of the state              
constitution was founded in the public trust doctrine.  In                     
addition, there is quite a bit of case law that says no one really             
owns the resource until he or she takes possession by skillful                 
apprehension.  Nonetheless, a solution needs to be balanced and                
fair.  Rural people have a leg up because of the fact that they                
live in a rural area.  He called it a priority by natural                      
selection.                                                                     
                                                                               
Number 0764                                                                    
                                                                               
REPRESENTATIVE NICHOLIA stated the best "biologists" are the people            
who live in the area.  They know exactly what is going on with the             
resources.  The fish and game biologists depend on the local                   
advisory committees and people to tell them what is going on which             
creates a good working relationship.                                           
                                                                               
Number 0839                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.330(c) and explained the              
subsistence task force proposal would add the following language:              
                                                                               
     "To be eligible to take fish or wildlife in a rural                       
     community or area using the subsistence priority in AS                    
     16.05.258, a person must be a resident domiciled in that                  
     community or area."                                                       
                                                                               
MR. SOMERVILLE further explained the subsistence task force                    
proposal would add the following new subsection:                               
                                                                               
     "(e) Provides authority for the Commissioner to issue                     
     permits for taking fish and wildlife in order to teach                    
     and preserve historic or traditional uses and harvest                     
     practices.  Does not have a priority."                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.405, "Taking fish and game            
by proxy" and explained the subsistence task force proposal would              
add the following new subsection:                                              
                                                                               
     "(g) Authorizes a permit for a resident who is member of                  
     the family of a resident of a rural community or area or                  
     any person who is a resident of a rural community or area                 
     to participate in subsistence harvest activities as a                     
     proxy, regardless of the eligible resident's age or                       
     physical ability to hunt or fish.  Fish or wildlife taken                 
     by proxy under this section shall belong to the person on                 
     whose behalf it was taken and the majority of the fish                    
     and wildlife taken by proxy shall remain in the community                 
     or area. No person may give or receive cash remuneration                  
     in connection with any proxy harvest."                                    
                                                                               
MR. SOMERVILLE explained the provision is an expansion of the                  
existing proxy system.  House Bill 320 is the same as the                      
subsistence task force proposal.                                               
                                                                               
Number 0946                                                                    
                                                                               
CO-CHAIRMAN OGAN stated the proxy system is tough to enforce.  The             
provision appears to be a nightmare.                                           
                                                                               
Number 0970                                                                    
                                                                               
MR. SOMERVILLE referred to Section 16.05.940, "Definitions" and                
explained the subsistence task force proposal and HB 320 would use             
the term "wildlife" rather than "game."  A difference between HB
320 and the subsistence task force proposal is in (7), the                     
definition of "customary and traditional."  Existing law calls for             
the consistent taking of "and" reliance upon fish or game, while               
the subsistence task force proposal would call for the consistent              
taking of "or" reliance upon fish or wildlife.  House Bill 320                 
would call for the consistent taking of "and" reliance upon fish or            
wildlife.  There is a difference between "and" and "or."                       
                                                                               
CO-CHAIRMAN OGAN stated "or" would mean one or the other, while                
"and" would be all inclusive.                                                  
                                                                               
Number 1046                                                                    
                                                                               
MR. POPELY explained, according to the attorney's general office,              
there should not be a difference between the subsistence task force            
proposal and HB 320.  House Bill 320 should read "or" instead of               
"and."  It was a typo.                                                         
                                                                               
Number 1062                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task                 
force proposal would broaden the criteria of who would qualify for             
subsistence with the addition of the language "or."                            
                                                                               
Number 1092                                                                    
                                                                               
MR. POPELY replied, "Correct."  He could have the intention                    
backwards.  It could be "and" instead of "or."                                 
                                                                               
Number 1113                                                                    
                                                                               
CO-CHAIRMAN OGAN stated, according to the hearings earlier in the              
year, there was discussion in regards to the expansion of who would            
qualify under customary and traditional by using the language "or"             
instead of "and."  He asked Mr. Popely what was amended in ANILCA.             
                                                                               
Number 1131                                                                    
                                                                               
MR. POPELY replied it would include the "or" language.                         
                                                                               
Number 1153                                                                    
                                                                               
CO-CHAIRMAN OGAN stated the amendment to ANILCA would expand the               
group defined under the customary and traditional provision.                   
                                                                               
MR. POPELY replied he believed so but he would double check.                   
                                                                               
MR. SOMERVILLE referred to Section 16.05.940 "Definitions" and                 
explained under the subsistence task force proposal "minimal                   
quantities" would be set rather than "minimal amounts of cash" as              
in state law because of the varying types of species and their                 
financial worth.  A limited amount of cash in one species could                
severally restrict another species.   Similarly, a little bit of               
herring roe is very valuable while a lot of something else might               
not be very valuable.  It is a policy decision.                                
                                                                               
MR. SOMERVILLE referred to Section 16.05.940(11) and explained the             
subsistence task force proposal would delete the following language            
in existing law:                                                               
                                                                               
     "domicile may be proved by presenting evidence acceptable                 
     to the Boards of Fisheries and Game;"                                     
                                                                               
MR. SOMERVILLE referred to Section 16.05.940(27) and explained the             
subsistence task force proposal language would read as follows:                
                                                                               
     "(27) 'rural community or area' is a community or area                    
     substantially dependent on fish and wildlife for                          
     nutritional and other subsistence uses;"                                  
                                                                               
MR. SOMERVILLE explained HB 320 is the same as the subsistence task            
force proposal.                                                                
                                                                               
MR. SOMERVILLE referred to Section 16.05.940(30), (31), and (32)               
and explained the subsistence task force proposal would delete the             
following language from the provisions:                                        
                                                                               
     "by a resident domiciled in a rural area of the state"                    
                                                                               
MR. SOMERVILLE further explained HB 320 would add the following new            
section:                                                                       
                                                                               
     "Section 31.  Provides that the Act takes effect on the                   
     effective date of an amendment to the Constitution of the                 
     State of Alaska, approved by the voters in 1998,                          
     authorizing a priority for subsistence uses of renewable                  
     natural resources that is based on place of residence."                   
                                                                               
MR. SOMERVILLE lastly explained the present subsistence law would              
revert to 1986 law on January 1, 1999, if the 1992 law is not                  
extended.  The legislature has been extending the law every year by            
one year.                                                                      
                                                                               
Number 1365                                                                    
                                                                               
CO-CHAIRMAN OGAN referred to Section 16.05.940(8) and asked Mr.                
Popely what were the changes to ANILCA in this section.  According             
to the Peratrovich case, herring, roe and kelp can be sold for up              
to a total of $15,000 per person creating a legal precedence.  A               
lot of people feel this is commercial use, not subsistence use.                
                                                                               
Number 1440                                                                    
                                                                               
MR. POPELY replied Section 803(4) "Customary Trade" in ANILCA was              
changed to read, "except for money sales of furs and furbearers,               
the limited, non-commercial exchange for money of fish and wildlife            
or their parts in minimal quantities."                                         
                                                                               
Number 1460                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Popely whether the language was tight               
enough to prevent litigation.                                                  
                                                                               
Number 1508                                                                    
                                                                               
MR. POPELY replied the idea of the subsistence task force proposal             
and Stevens' amendment was to affect the Peratrovich decision.  The            
decision could judicially increase over time to the point of                   
blurring the line between true subsistence fishing and a commercial            
venture.  Most of the policy makers involved with the task force               
and Stevens' amendments wanted to preclude that from happening thru            
restricting the customary trade of subsistence caught resources.               
In a lot of cases it is appropriate to recognize the use and                   
benefit of allowing subsistence resources to be sold to acquire                
other subsistence resources.  He believed the language was                     
reasonably tight.  The terms "minimal" and "noncommercial" could               
have been defined so that reasonable people could understand what              
they mean.  In addition, the terms "amounts" and "quantities" could            
also have been defined in statute to directly pinpoint what is                 
customary and commercial trade.  The danger, however, is that                  
times, markets and the value of the dollar change so that an                   
arbitrary figure picked in 1998 might not be applicable in ten                 
years or so.  It is up to the committee members to decide.  The                
standard put to the language in a time of litigation would be a                
reasonable understanding of the terms "noncommercial" and "minimal             
quantities."                                                                   
                                                                               
Number 1673                                                                    
                                                                               
CO-CHAIRMAN OGAN stated a lot of time federal law looks to the                 
state law.  He asked Mr. Popely whether it would be helpful to                 
expand the definitions to include a more articulated wording of                
each term in statute.  He also asked Mr. Popely whether that was               
considered in the subsistence task force.                                      
                                                                               
Number 1703                                                                    
                                                                               
MR. POPELY replied he believed a conscious decision was made by the            
subsistence task force to leave the determination of the precise               
figures of noncommercial exchange to the boards.  But, yes, the                
surest way to prevent problems in the future is to identify figures            
in statute leaving no room for judicial interpretation.                        
                                                                               
Number 1765                                                                    
                                                                               
REPRESENTATIVE NICHOLIA stated for the record she agreed with Mr.              
Popely's answer.  It is hard to predict the future in terms of the             
price of the dollar.  She cited an example where elders give money             
for gas to get their favorite meat that is not available in the                
village - beaver.  The barter is money for gas; they are not going             
to the store to buy food.                                                      
                                                                               
Number 1825                                                                    
                                                                               
CO-CHAIRMAN OGAN stated this is an area that needs to be explored              
given that there is a lot of local knowledge of the committee                  
members.  Identifying the types of customary and traditional things            
as part of a definition could remove any ambiguity.  Most people               
believe subsistence is a noncommercial activity.                               
                                                                               
Number 1859                                                                    
                                                                               
REPRESENTATIVE JOULE stated there were people from the Department              
of Law in the audience and suggested hearing from them on this                 
issue.                                                                         
                                                                               
Number 1884                                                                    
                                                                               
CO-CHAIRMAN OGAN replied he would call on people from the audience             
to testify if there was enough time.                                           
                                                                               
Number 1945                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Popely whether the term "rural community            
or area" was amended in ANILCA, and was it the same under the                  
subsistence task force proposal.                                               
                                                                               
Number 1962                                                                    
                                                                               
MR. POPELY replied, "Yes."                                                     
                                                                               
Number 1980                                                                    
                                                                               
CO-CHAIRMAN OGAN stated, according to his understanding, the term              
"rural community or area" could be interpreted broader than in                 
current state statute.  He wondered what was meant by "rural area."            
He lives in a farming area where bears and moose go through his                
yard yet, it is classified as urban.  In addition, the area of                 
Fairbanks has relied substantially for a number of years on fish               
from the Copper River.  People from Anchorage travel to the Copper             
River to dip net for salmon as well.  The problem with a definition            
of "rural priority" is that it does not meet the needs of those                
living in "urban" Alaska that have a substantial dependency on fish            
and wildlife resources as a sustenance.  He asked Mr. Popely how               
much wiggle-room is there in the description since it has been                 
amended in the proposed changes to ANILCA.                                     
                                                                               
Number 2084                                                                    
                                                                               
MR. POPELY replied a rural definition is not contained in ANILCA               
today which causes the biggest problem when implementing Title                 
VIII.  The definition under the subsistence task force proposal has            
a certain level of intentional breadth.  For procedural purposes,              
an existing list of rural areas would go into effect.  Beyond the              
list, the boards would be directed to apply the definitions and                
other principles to determine what communities would be considered             
rural.  Thus, there is a substantial amount of latitude given to               
the boards to determine the meaning of the term "substantially                 
dependent."  There was talk in the subsistence task force to                   
specifically layout the rural areas in the state.  A specific list             
would nail down the issue with certainty.  It is a policy decision,            
however, and it would be a difficult decision to make.                         
                                                                               
Number 2349                                                                    
                                                                               
CO-CHAIRMAN OGAN stated the two egregious cases that stand out in              
his mind as an irrational description of rural are Saxman and                  
Ninilchik.  Saxman is a one-square-mile area inside a classified               
urban area.  Ninilchik is on an intrastate highway within a few                
miles of jobs, stores, trails and boat ramp launch.  The same type             
of accesses as Anchor Point, for example.  It causes hard feelings             
between neighbors, families, and communities.                                  
                                                                               
TAPE 98-5, SIDE A                                                              
Number 0000                                                                    
                                                                               
REPRESENTATIVE JOULE stated the impetus is to manage the resources             
well enough so that there is not a problem.  Under a good                      
management system, both personal and sport users have access to the            
resources.  A rural priority would only be invoked in times of a               
shortage of the resources.  The incentive is to manage the                     
resources well.                                                                
                                                                               
Number 0128                                                                    
                                                                               
CO-CHAIRMAN OGAN stated there is not anything in ANILCA that talks             
about a rural priority in a time of shortage.                                  
                                                                               
Number 0155                                                                    
                                                                               
MR. POPELY replied it is a popular misconception.  In fact, there              
is nothing in Title VIII that specifies in times of shortage, it               
specifies restrictions.  It is open to interpretation, however,                
because there are restrictions on virtually every game and fish                
stock in the state.  But the language referring to restrictions                
does not mean the same as a shortage.  He understood the argument              
under the tiers of use as a resource shortens, but at all times                
there is a subsistence priority.                                               
                                                                               
Number 0240                                                                    
                                                                               
REPRESENTATIVE NICHOLIA stated, according to her understanding, a              
restriction really means a shortage.  For example, there was a                 
restriction placed on fall chum because of a low run.  The only                
activity allowed was a subsistence take.  There was no commercial              
or personal take allowed.  The fishermen gathered for a summit and             
decided to take only what was needed for the winter.  "Right now,              
you don't see those restrictions very often in the state of Alaska.            
What you see is the general hunt, it's none of the general hunt,               
and that's where it applied to everybody.  Everybody and anybody               
can come into any area in Alaska and hunt and they do that.  It's              
done in Tanana.  We get hunters not only from in the state, but we             
also get hunters from anywhere from Texas to New York.  You know,              
they're all there.  That's what....I just wanted to give you what's            
these interpretations mean to us there and what's in place."                   
                                                                               
Number 0355                                                                    
                                                                               
CO-CHAIRMAN OGAN stated, if there was an abundance and no shortage             
anywhere in the state, there would not be seasons or bag limits.               
There is a shortage because there is virtually a season and bag                
limit on almost everything in the state, except some of the caribou            
herds in the north.                                                            
                                                                               
Number 0439                                                                    
                                                                               
CO-CHAIRMAN HUDSON stated the entire proposal leans on a rural                 
application.  The major policy question is found in Section                    
16.05.258(c).  The legislature should make the decisions to                    
determine what is in or out rather than a citizen board.                       
                                                                               
Number 0583                                                                    
                                                                               
REPRESENTATIVE DYSON stated, according to the governmental system,             
when ANILCA was passed some folks assumed it was designed to fix               
things that were not right in the Alaska Native Claims Settlement              
Act (ANCSA).  Some say because ANILCA came later Congress did it               
differently to fix ANCSA.  He asked Mr. Popely whether that was a              
logical assumption.                                                            
                                                                               
Number 0669                                                                    
                                                                               
MR. POPELY replied there is a faction that believes ANILCA is                  
remedial Indian legislation and was designed to fix the ills of the            
past in regards to Native subsistence rights.  There are an equal              
number of people who believe it was designed to establish the                  
opposite - a non-Native subsistence preference.  There was at one              
time an amendment to ANILCA that included a Native rather than a               
rural preference that did not pass.  Therefore, there are people               
who believe the rural preference was designed to be a defacto                  
Native preference.  And, there are an equal number of people who               
argue that the non-Native population exceeds the Native population             
in the rural areas causing tension between the groups.  At the time            
ANILCA was passed, there was language from the conference committee            
report that discussed the notion of a Native preference.                       
                                                                               
Number 0789                                                                    
                                                                               
REPRESENTATIVE DYSON stated it seems illogical to assume that a                
later law supersedes an earlier law in areas of conflict.  He asked            
Mr. Popely whether it would take a court challenge and                         
interpretation to determine if a later law superseded an earlier               
law.                                                                           
                                                                               
Number 0835                                                                    
                                                                               
MR. POPELY replied it is not a legally sound argument to say "last             
in time is first in right."  But, at the same time, there is no                
clear answer until a judge determines the true congressional intent            
in order that one supersedes the other.                                        
                                                                               
Number 0880                                                                    
                                                                               
REPRESENTATIVE DYSON stated he is trying to find all the old laws              
and make the necessary corrections when crafting new legislation.              
He assumed that the national legislators also made the necessary               
corrections, if the intent of a new law is to supersede the old                
laws.                                                                          
                                                                               
Number 0907                                                                    
                                                                               
MR. POPELY replied the intent should be explicitly stated in the               
new law.  Otherwise, the last law in time is the current law.                  
                                                                               
Number 0945                                                                    
                                                                               
CO-CHAIRMAN OGAN stated the more ambiguous a law is the more                   
litigation.  Therefore, the more specific the contentious                      
definitions are in statute the less time will be spent in court.               
                                                                               
CO-CHAIRMAN OGAN announced in the coming weeks there will be at                
least one hearing a week on subsistence.  He would also like to                
meet individually with the committee members during the week.  Next            
week there will be a presentation on former Governor Hickel's                  
proposal.                                                                      
                                                                               
ADJOURNMENT                                                                    
                                                                               
Number 1165                                                                    
                                                                               
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee              
meeting at 2:58 p.m.                                                           
                                                                               
                                                                               

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