Legislature(1997 - 1998)

02/17/1998 01:05 PM House RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE RESOURCES STANDING COMMITTEE                                    
                 February 17, 1998                                             
                     1:05 p.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Bill Hudson, Co-Chairman                                        
Representative Scott Ogan, Co-Chairman                                         
Representative Joe Green                                                       
Representative William K. (Bill) Williams                                      
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Beverly Masek, Vice Chair                                       
Representative Ramona Barnes                                                   
Representative Fred Dyson                                                      
Representative Reggie Joule                                                    
Representative Irene Nicholia                                                  
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
* HOUSE BILL NO. 406                                                           
"An Act relating to subsistence uses of fish and game."                        
                                                                               
     - HEARD AND HELD                                                          
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL: HB 406                                                                   
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME                                 
SPONSOR(S): RESOURCES                                                          
                                                                               
Jrn-Date    Jrn-Page           Action                                          
02/12/98      2312     (HB)  READ THE FIRST TIME - REFERRAL(S)                 
02/12/98      2312     (HB)  RESOURCES, JUDICIARY, FINANCE                     
02/17/98               (HB)  RES AT 1:00 PM CAPITOL 124                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
LANCE NELSON, Assistant Attorney General                                       
Natural Resources Section                                                      
Department of Law                                                              
1031 West 4th Avenue, Suite 200                                                
Anchorage, Alaska 99501-1994                                                   
Telephone:  (907) 269-5100                                                     
POSITION STATEMENT:  Answered questions of the committee members.              
                                                                               
RON SOMERVILLE, Contractor                                                     
   to House and Senate Majority                                                
4506 Robbie Road                                                               
Juneau, Alaska 99801                                                           
Telephone:  (907) 463-3830                                                     
POSITION STATEMENT:  Answered questions of the committee members.              
                                                                               
GERON BRUCE, Legislative Liaison                                               
Office of the Commissioner                                                     
Department of Fish and Game                                                    
P.O. Box 25526                                                                 
Juneau, Alaska 99802-5526                                                      
Telephone:  (907) 465-6143                                                     
POSITION STATEMENT:  Answered questions of the committee members.              
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-12, SIDE A                                                             
Number 0001                                                                    
                                                                               
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing                     
Committee meeting to order at 1:05 p.m.  Members present at the                
call to order were Representatives Ogan.  Co-Chairman Hudson                   
arrived at 1:09 p.m.  Representatives Green and Williams arrived at            
1:08 p.m. and 1:11 p.m., respectively.                                         
HB 406 - SUBSISTENCE USES OF FISH AND GAME                                     
                                                                               
CO-CHAIRMAN OGAN explained there is not a quorum yet so he will                
talk about the Alaska Statehood Act under "special orders of the               
chairman."                                                                     
                                                                               
Number 0031                                                                    
                                                                               
CO-CHAIRMAN OGAN referred to the Alaska Statehood Act and read the             
following section:                                                             
                                                                               
     "Section 3.  The constitution of the State of Alaska                      
     shall always be republican in form and shall not be                       
     repugnant to the Constitution of the United States and                    
     the principles of the Declaration of Independence."                       
                                                                               
CO-CHAIRMAN OGAN explained his favorite part of the Declaration of             
Independence is "we hold these truths to be self evident that all              
men are created equal, endowed by their creator with certain                   
inalienable rights to life, liberty and the pursuit of happiness."             
The declaration is followed with a duty to change the government               
and even overthrow it, if necessary.  "Now don't get me wrong on               
that.  I'm not advocating secession or overthrowing the                        
government."  It is just interesting to note that part of the                  
Alaska Statehood Act indicates nothing shall be repugnant in the               
state constitution.  He believes in working within the system to               
change it.                                                                     
                                                                               
CO-CHAIRMAN OGAN further stated when Alaska became a state, it                 
became a state on equal footing with the rights, responsibilities,             
and privileges as all the rest of the states.  The other states                
have the right to manage their fish and game.  He believes it was              
not the intent of Congress to create a different "species" of                  
states with Alaska.  In addition, the Tenth Amendment of the                   
Constitution of the United States says powers not delegated to the             
federal government are reserved to the states and people.  The                 
states empowered the federal government to exist, not the other way            
around.                                                                        
                                                                               
Number 0233                                                                    
                                                                               
CO-CHAIRMAN OGAN stated he would also like to talk about the                   
termination of federal functions in Alaska and explained fish and              
game in Alaska were such a unique situation the United States                  
Secretary of Interior had to certify that Alaska had an appropriate            
management scenario in place before he would relinquish the right              
of the state to manage them.  When he certified it, he relinquished            
the full right.                                                                
                                                                               
Number 0300                                                                    
                                                                               
CO-CHAIRMAN OGAN announced the arrival of Representative Green and             
explained that Representative Barnes will not be here today because            
her plane is late due to inclement weather.                                    
                                                                               
CO-CHAIRMAN OGAN cited Executive Order 10857 - termination of                  
federal functions in Alaska - and read the following provision:                
                                                                               
     "it provides that the administration and management of                    
     fish and wildlife resources of Alaska shall be                            
     transferred to the state of Alaska on the first day of                    
     the first calendar year following the expiration of the                   
     90 calendar days after the Secretary of Interior                          
     certifies to the Congress that the Alaska State                           
     Legislature has made adequate provision for the                           
     administration, management and conservation of such                       
     resources in a broad national interest."                                  
                                                                               
CO-CHAIRMAN OGAN explained the executive order was signed by                   
President Dwight D. Eisenhower.  He gave, without a doubt, the                 
right of the state of Alaska to manage its fish and game.                      
                                                                               
CO-CHAIRMAN OGAN announced the arrival of Co-Chairman Hudson.                  
                                                                               
CO-CHAIRMAN OGAN explained while he was back in his district                   
recently a Native elder commented she prays for him because she                
believes he is against subsistence.  He said, "I don't know one                
person in this legislature that's against subsistence.  There's a              
perception that we are.  And, I would like just to state, here and             
for the record, and every chance I get, that we are trying to work             
out an equitable system of management that....I'm merely against               
discriminating or creating different groups of people - the haves              
and have nots.  And, I don't think that solves the problem."  In               
addition, the division between rural-urban and whites-Natives will             
not go away with a rural priority.  There needs to be healing in               
the state and the House Resources Standing Committee is the place              
to start.                                                                      
                                                                               
Number 0566                                                                    
                                                                               
REPRESENTATIVE JOE GREEN agreed with Co-Chairman Ogan that a lot of            
people in Alaska are not aware.  There, probably, is not anyone in             
the legislature opposed to a subsistence preference.  In addition,             
reasonable people should be able to work it out.                               
                                                                               
Number 0629                                                                    
                                                                               
CO-CHAIRMAN OGAN stated the legislature has the constitutional                 
authority to go in the direction of the sustained yield principle -            
Article VIII, Section 4 - that reads as follows:                               
                                                                               
     "Fish, forests, wildlife, grasslands, and all other                       
     replenishable resources belonging to the State shall be                   
     utilized, developed, and maintained on the sustained                      
     yield principle, subject to preferences among beneficial                  
     uses."                                                                    
                                                                               
CO-CHAIRMAN OGAN explained preferences can not be given to "users"             
or people because of their protected constitutional rights, but                
animals do not have constitutional rights.  Therefore, he would                
like the committee members to look at "uses" to come up with a                 
system of preference that would accommodate the needs of rural                 
Alaskans and that would not discriminate against any particular                
group of people.                                                               
                                                                               
Number 0763                                                                    
                                                                               
CO-CHAIRMAN OGAN announced that Representative Masek is excused                
from today's meeting.                                                          
                                                                               
CO-CHAIRMAN OGAN announced he would discuss House Bill No. 406 now,            
"An Act relating to subsistence uses of fish and game."                        
                                                                               
Number 0791                                                                    
                                                                               
CO-CHAIRMAN OGAN explained HB 406 only contains, at this point,                
findings and intent language.  He read the following from the bill:            
                                                                               
     "Section 1.  FINDINGS AND INTENT.  (a) The Alaska State                   
     Legislature finds that                                                    
                                                                               
          (1) the ability to harvest fish and game for                         
          personal and family use for sustenance is a                          
          fundamental right under the Constitution of the                      
          State of Alaska;"                                                    
                                                                               
CO-CHAIRMAN OGAN noted that the Alaska Federation of Natives (AFN)             
in its guiding principles talks about subsistence as a "basic human            
right."  Therefore, subsection (1) is a good place to start because            
recognizing the ability to obtain food for existence is a right                
declared in the Declaration of Independence - "life," liberty, and             
the pursuit of happiness.                                                      
                                                                               
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:                                                                
                                                                               
          "(2) the common use clause of the Constitution of                    
          the State of Alaska imposes on the state a trust                     
          duty to manage the fish, game, and water resources                   
          of the state for the benefit of all the people;"                     
                                                                               
CO-CHAIRMAN OGAN explained there will be a briefing by Gregory                 
Frank Cook, a noted public trust attorney, on Tuesday, February 24,            
1998.  He will explain the trust-responsibilities of the state to              
manage its fish and game to benefit all of the people.  The people             
in the state are unique because everyone owns the resources in                 
common.  The people own the oil, timber, and minerals, for example.            
The people receive dividends from the oil revenues - the permanent             
fund dividend.  The dividend represents the earnings of the shares             
held in trust.  The United States Supreme Court has ruled that the             
state can not discriminate against a person's right to a dividend              
based on his or her length of residency.  He said, "I believe, just            
as we cannot discriminate based on how long someone has lived in               
the state with the permanent fund, I believe the U.S. Supreme Court            
would probably rule that we cannot discriminate with another public            
trust, resource of fish and game, based on where a person lives."              
                                                                               
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:                                                                
                                                                               
          "(3) the harvest of fish and game for personal and                   
          family use for sustenance is the highest and best                    
          use of fish and game;                                                
                                                                               
          "(4) the fish and game resources of Alaska have                      
          adequate biological and reproductive capacity to                     
          provide an abundance of fish and game for all                        
          users."                                                              
                                                                               
CO-CHAIRMAN OGAN stated, if directives were given to the Department            
of Fish and Game and boards to manage for consumption and                      
abundance, it would go a long way towards reducing the "allocative"            
conflict.                                                                      
                                                                               
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:                                                                
                                                                               
     "(b) It is the intent of the Alaska State Legislature to                  
     provide                                                                   
                                                                               
          "(1) for a preference for personal and family use                    
          of fish and game for sustenance that parallels the                   
          Congressional intent underlying the subsistence                      
          preference under Title VIII of the Alaska National                   
          Interest Lands Conservation Act but does not                         
          violate the fundamental constitutional rights of                     
          Alaskans to subsistence, equal protection, and                       
          common use of fish and game under the Constitution                   
          of the State of Alaska;"                                             
                                                                               
CO-CHAIRMAN OGAN stated the provision is a tall order because it               
would not conform with the rural priority in federal law.  But,                
there is more than one way to look at it.  There is agreement with             
some members of the Alaskan congressional delegation to do it, if              
the needs can be met.                                                          
                                                                               
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:                                                                
                                                                               
          "(2) a greater role for local fish and game                          
          advisory committees and regional fish and game                       
          councils in the review and approval of regulations                   
          governing the use of fish and game resources;"                       
                                                                               
CO-CHAIRMAN OGAN explained one of the biggest roots of the problem             
is that rural people feel disenfranchised of the process.  It was              
heard at the hearings during the interim that rural people want                
federal management because the federal government listens to them              
and does a better job of meeting their needs.  The Natives have a              
legal trust-relationship with the United States Department of                  
Interior.  Therefore, the state needs to start building a trust-               
relationship in spirit first with rural Alaskans then legally.                 
Rural Alaskans need to trust their state government.  And, the way             
is to set up a regional management to give them more of a say and              
authority.                                                                     
                                                                               
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:                                                                
                                                                               
          "(3) for a greater abundance of fish and game                        
          resources to serve as a source of food for persons                   
          who depend on those resources for personal and                       
          family use for sustenance."                                          
                                                                               
CO-CHAIRMAN OGAN explained he intended to introduce a committee                
substitute that would add a new section today - Section 2.  But,               
there is not a quorum to adopt it.  The new section needs to be                
expanded.  It is fairly extensive and the bill drafter could not               
get it done in time.  Hopefully, it will be done by Saturday.                  
                                                                               
Number 1194                                                                    
                                                                               
REPRESENTATIVE GREEN asked Co-Chairman Ogan whether the bill will              
be heard again on Thursday as well as Saturday with the changes.               
                                                                               
CO-CHAIRMAN OGAN replied, "No."  Other bills are scheduled for                 
Thursday.                                                                      
                                                                               
REPRESENTATIVE GREEN asked Co-Chairman Ogan whether Section 2 of               
the committee substitute will be discussed on Saturday even if                 
there is not a quorum.                                                         
                                                                               
CO-CHAIRMAN replied, "Right."                                                  
                                                                               
Number 1246                                                                    
                                                                               
CO-CHAIRMAN OGAN called for a brief at ease at 1:20 p.m.  Co-                  
Chairman Ogan called the meeting back to order at 1:29 p.m.                    
                                                                               
Number 1267                                                                    
                                                                               
CO-CHAIRMAN OGAN explained there still is not a quorum so action               
can not be taken on the bill.                                                  
                                                                               
CO-CHAIRMAN OGAN announced he intends to have Saturday meetings                
starting at 9:00 a.m.  Saturdays will be a good time to take public            
testimony.                                                                     
                                                                               
Number 1304                                                                    
                                                                               
REPRESENTATIVE GREEN asked Co-Chairman Ogan whether he will have an            
expanded version of the committee substitute by Saturday and take              
public testimony.                                                              
                                                                               
CO-CHAIRMAN OGAN replied he is not sure if the bill drafter will be            
able to get it done by Saturday.                                               
                                                                               
REPRESENTATIVE GREEN explained he is concerned about the                       
Legislative Information Offices getting the committee substitute in            
time to the people who want to testify.                                        
                                                                               
CO-CHAIRMAN OGAN replied it will depend on the bill drafter.  It               
might mean limiting public testimony on Saturday.  The findings and            
intent language are enough to discuss, nonetheless.                            
                                                                               
CO-CHAIRMAN OGAN explained he would like to move the bill out of               
the committee by the end of the month, if possible.  He would like             
to see most of the work done in the Resources before sending it to             
the next committees of referral - Judiciary and Finance.                       
                                                                               
Number 1384                                                                    
                                                                               
CO-CHAIRMAN OGAN stated there has been a lot of discussion about               
"uses" and "users."  An amendment to the state constitution to                 
allow for a "user" preference, as proposed by the Governor's                   
subsistence task force, would require amending Article I, Section              
1; Article VIII, Section 14; Article VIII, Section 16; and,                    
possibly, Article VIII, Section 17.                                            
                                                                               
Number 1469                                                                    
                                                                               
CO-CHAIRMAN BILL HUDSON wondered whether Co-Chairman Ogan is also              
looking at the constitutionality of whatever is being developed.               
                                                                               
Number 1491                                                                    
                                                                               
CO-CHAIRMAN OGAN stated he has been discussing the constitution.               
He announced Lance Nelson from the Department of Law is listening              
in Anchorage as well.                                                          
                                                                               
Number 1524                                                                    
                                                                               
CO-CHAIRMAN HUDSON stated, according to state and federal courts,              
a rural preference is unconstitutional.  The Governor's subsistence            
task force, the congressional delegation, and the Administration               
are moving towards an application of rural by modifying the state              
constitution.  It seems to be unworkable primarily because Juneau              
would not be considered rural while Sitka would be considered                  
rural, for example.  The proposal by Co-Chairman Ogan is to                    
predicate subsistence on "use" versus "users."  He wondered where              
"use" is expressed in the state constitution as a right.  He also              
wondered, if it is not expressed in the state constitution, how                
could it be expressed in the least damageable way in terms of the              
common use, equal rights, and no exclusive rights of harvest                   
provisions.                                                                    
                                                                               
Number 1652                                                                    
                                                                               
CO-CHAIRMAN OGAN explained he is basing it on Article VIII, Section            
4, the sustained yield principle.  In order to get to the sustained            
yield principle, the state needs to manage for abundance, not just             
to sustain it.  The state is allowed to give preference amongst                
beneficial uses.  It does it now with seasons and bag limits.  For             
example, in regulation, there are areas where a hunter can shoot a             
certain amount of caribou, but only take a few out of the area.                
                                                                               
Number 1716                                                                    
                                                                               
REPRESENTATIVE BILL WILLIAMS explained Representative Nicholia has             
some communities that are not tied in with the Legislative                     
Information Offices.  The committee substitute needs to be faxed to            
them.                                                                          
                                                                               
Number 1756                                                                    
                                                                               
REPRESENTATIVE WILLIAMS stated, in regards to a constitutional                 
amendment, he hopes that a piece of legislation will be drafted                
considering where subsistence comes from.  Subsistence was a                   
negotiated issue in the Alaska Native Claims Settlement Act                    
(ANCSA).  It was part of a negotiated agreement.  He said, "What               
I'm afraid of, Mr. Chairman, is that we're going to get up here and            
hold the Alaska constitution up and say we protected the Alaska                
constitution but we're not in control of our resources.  We don't              
want that to happen."  So, let's continue to remember that the                 
state of Alaska paid $500 million to the Alaskan Natives so that               
they could have their lands, money, and subsistence way of life,               
even if it would mean a constitutional amendment.  Past testimony              
has indicated that a rural priority will hurt Alaska because its               
rural communities are growing in population.  He said, "We have to             
make this Alaska Native Claims Settlement Act a better piece of                
legislation so that we can have a subsistence lifestyle of the                 
Alaskan Natives.  I think that's a question that we should all                 
answer ourselves also.  Do we want to have Alaska Natives to have              
those subsistence lifestyles?  Do we want them to continue on with             
a culture?  If we don't, then let's say that; let's not try to get             
around it.  And, if we do, let's say it, so that we can craft this             
piece of legislation to that."  He suggested looking at former                 
Governor Hickel's regional proposal.  He reiterated he does not                
want to get bogged down in trying to protect the state                         
constitution.                                                                  
                                                                               
Number 1975                                                                    
                                                                               
CO-CHAIRMAN OGAN replied he is glad to hear representative Williams            
mention a rural preference will not take care of the issue.  A                 
rural preference will not protect many Natives in several of the               
voting districts of the committee members.  In addition, a rural               
priority would give up some equal protections that might never be              
returned.                                                                      
                                                                               
Number 2011                                                                    
                                                                               
REPRESENTATIVE WILLIAMS reiterated it is important to remember what            
was negotiated in 1971 - a subsistence lifestyle for Alaskan                   
Natives.                                                                       
                                                                               
Number 2021                                                                    
                                                                               
CO-CHAIRMAN OGAN replied the conference report, similar to intent              
language of a bill, assumed that the state and federal governments             
would take care of the subsistence needs of Native Alaskans.                   
However, the conference report does not have the force of law, and             
the law (ANCSA) said aboriginal hunting, fishing, and property                 
rights were extinguished in exchange for forty-four million acres              
of land and a billion dollars.  Therefore, the only way to take                
care of the intent language of the conference report would be to               
give a Native preference, and to remove the extinguishing language             
from ANCSA, which is not going to happen.                                      
                                                                               
Number 2094                                                                    
                                                                               
REPRESENTATIVE WILLIAMS stated that is not what he is asking.  The             
Alaska Native Claims Settlement Act should be remembered as a                  
promise.  He said, "And you and I know what happens at the end of              
a session, when there are things to be done.  We have made                     
promises.  We just did this year on the concealed gun bill.  We                
promised the Governor and the people of the state of Alaska that we            
were going to fix it and we aren't today."  In 1971, it was                    
promised that subsistence would be taken care of for the Alaskan               
Natives.  He is not asking to go back to it.  He is asking the                 
promise be kept in mind all of the time.  It was part of a deal.               
                                                                               
REPRESENTATIVE WILLIAMS further explained that the oil companies               
and the lobbyists pushed for the settlement in order to get to the             
oil in Prudhoe Bay and for the pipeline.  It was not a push to take            
care of Alaskan Natives, otherwise it would not be an issue today.             
He said, "The oil lobbyists back in 1971 were pushing to get the               
Alaska Native Claims Settlement Act so we could unfreeze the land              
so that the state could select lands so that the pipeline could go             
through.  That was it.  We wanted the oil up in Prudhoe Bay.  The              
push was there and what happened then is, okay, Alaskan Natives,               
don't worry, we'll take care of you.  We'll take care of you.                  
We'll mention it in the conference report.  We won't put it in a               
piece of legislation, but we expect the Secretary of Interior and              
the state to take care of the subsistence needs of Alaskan                     
Natives."                                                                      
                                                                               
Number 2195                                                                    
                                                                               
CO-CHAIRMAN OGAN replied he will commit to keep it in mind, as long            
as he understands that it is impossible to meet the needs for every            
Alaskan Native.                                                                
                                                                               
REPRESENTATIVE WILLIAMS stated he is not asking for that.  He is               
asking to craft a piece of legislation that will come close to the             
promise that was made in 1971.                                                 
                                                                               
CO-CHAIRMAN OGAN replied, he thinks, it can be done.  When there is            
an abundance of resource there is not a conflict.  And, when there             
is a shortage of resources, it is a matter of how to manage it in              
an equitable way.  He believes that every person in the capitol                
building, the legislature, and the room believes that the people               
who live the lifestyle should have the priority.                               
                                                                               
CO-CHAIRMAN OGAN further said, if a model of who would get the                 
priority in a time of shortage in a village could be determined, it            
could be applied to the whole state.  A regional board system could            
make the determination.  The people in the local areas know who                
needs the resources.  It would not require an amendment to the                 
state constitution.  He wondered how powerful the state of Alaska              
could be if it could start concentrating on managing its fish and              
game instead of fighting over allocation.                                      
                                                                               
Number 2343                                                                    
                                                                               
REPRESENTATIVE GREEN called the issue divisive and suggested                   
crafting legislation that is agreeable to Natives, non-Natives,                
rural inhabitants, and urban inhabitants.  The House Resources                 
Standing Committee should be the committee that determines and                 
concentrates on what it really wants for Alaskans, it should not be            
bound by any legal issues.  The legal issues will be handled in the            
Judiciary committee.  And, the financial issues will be handled in             
the Finance committee.                                                         
                                                                               
Number 2427                                                                    
                                                                               
CO-CHAIRMAN OGAN stated he concurs wholeheartedly with                         
Representative Green.                                                          
                                                                               
Number 2432                                                                    
                                                                               
CO-CHAIRMAN HUDSON stated the House Resources Standing Committee is            
the committee to develop public policy.  A bill will have to be                
constitutional, otherwise it will be written off immediately by the            
attorney general once it is signed into law.  Thus, the first thing            
that has to be done....                                                        
                                                                               
TAPE 98-12, SIDE B                                                             
Number 0000                                                                    
                                                                               
CO-CHAIRMAN HUDSON continued.  Thus, the first thing that has to be            
done is determine whether it will work.  Anytime something is                  
isolated to a village or region, the common use clause of the state            
constitution is treaded on.  The beneficial users concept was                  
written originally into the state constitution to make certain that            
there was a separation between survival of the species, personal               
use, sport, and commercial fishing.  He referred to the concept of             
"uses" rather than "users" and stated in some respect it are the               
users that end up with the opportunity to use the resources making             
it hard to separate.  While, Representative Williams is suggesting             
that the true subsistence guarantee is met as suggested by the                 
testimony during the interim.  He is deeply concerned about the                
practicality of managing whatever system is determined.  He said,              
"I personally favor true subsistence uses.  I'd like to see a                  
constitutionally provided for a preference when harvests are low to            
true users."  It does not have to substitute for other beneficial              
users, such as, commercial and guided sports.  It would require                
going to the constitution to identify where the state could limit              
access by users when the harvest is low.  He said, "I don't want to            
see subsistence available all over the state of Alaska because                 
we're afraid of the constitution."  In some areas, subsistence is              
not a way of life, there are other uses such as, personal and sport            
fishing.  It would have to be as equitable as possible in order                
that it would not violate the common use and equal rights clauses.             
At this point, he would like to see a complete bill and to hear                
from witnesses.  He likes some of the concepts in the findings and             
intent language in HB 406 and the sentiment of a consensus because             
of the trust issue.                                                            
                                                                               
Number 0229                                                                    
                                                                               
CO-CHAIRMAN OGAN stated there needs to be a commitment on the part             
of the committee members as well.  Today, there are only four                  
members present.  Three are excused, but it can not be done without            
the minority.  They are here today, but, unfortunately, not at the             
meeting.  He does not want to be accused of not listening to the               
Natives when their representatives are not at the meetings.                    
                                                                               
CO-CHAIRMAN OGAN further stated that AFN held a subsistence summit             
in the fall and he had to track down a copy of their wants.  He                
said, "We're used to kind of whipping ourselves up into a froth                
amongst our groups, our own individual groups, and drawing lines in            
the sand.  It's time to set some of that aside and show up to the              
table.  They're welcome here.  AFN is welcome here for their views.            
The minority members are welcome here.  We've got to hold it                   
together as a committee."                                                      
                                                                               
Number 0310                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson whether he could give a briefing             
on Article VIII, Section 4, "subject to preferences among                      
beneficial uses.", of the state constitution in regards to the                 
difference between "uses" and "users."                                         
                                                                               
Number 0331                                                                    
                                                                               
LANCE NELSON, Assistant Attorney General, Natural Resources                    
Section, Department of Law, explained the phrase "subject to                   
preferences among beneficial uses" has been quoted in quite a few              
court cases, including McDowell, as the authority to make                      
allocation decisions between sport, commercial, personal and                   
subsistence users.  The state supreme court has stated that the                
legislature indeed has the ability to make allocation decisions                
that prefer one use over another use.  In McDowell, the state                  
supreme court qualifies it by stating that the authority does not              
imply a power to limit admission to a user group.  The legislature             
does have the authority to prefer a particular use over other uses,            
but not users over other users.  In addition, the legislature does             
not have the authority to discriminate amongst users that are                  
similarly situated in respect to a resource - McDowell and                     
Kenaitze.                                                                      
                                                                               
Number 0441                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson whether subsistence as a use                 
could be the highest priority.                                                 
                                                                               
Number 0451                                                                    
                                                                               
MR. NELSON replied, "Yes."  It could be the preferred use.                     
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson whether there has been any other             
past attempts by the legislature to do that.                                   
                                                                               
Number 0474                                                                    
                                                                               
MR. NELSON replied, "Yes."  In 1986, an attempt was formalized                 
after the Madison decision.  In 1992, legislation was amended to               
keep a preference for subsistence uses.  For the last 15 years or              
so, there has been a legislative preference for subsistence uses.              
                                                                               
Number 0529                                                                    
                                                                               
CO-CHAIRMAN OGAN read from the committee substitute, "The harvest              
of fish and game for personal or family use for sustenance by                  
residents is the highest and best use of fish and game," and asked             
Mr. Nelson whether the provision is appropriate.                               
                                                                               
Number 0570                                                                    
                                                                               
MR. NELSON replied, "Yes."  It is within the legislature's power               
and discretion.  It is not required by the constitution, however.              
                                                                               
Number 0587                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson whether it would be appropriate              
for the legislature to give direction to the Board of Fisheries,               
Board of Game, and the Department of Fish and Game to adopt                    
regulations, policies, and management plans to implement a                     
preference for consumptive use of fish and game for personal or                
family use for sustenance over other uses.                                     
                                                                               
Number 0601                                                                    
                                                                               
MR. NELSON replied the "appropriateness" would be up to                        
legislature.  It would be within the authority of the legislature              
and consistent with the spirit of past patterns set by the                     
legislature.                                                                   
                                                                               
Number 0623                                                                    
                                                                               
CO-CHAIRMAN OGAN explained subsistence use of fisheries constitutes            
about 1 percent of the total take of fish.  He said, "I'm                      
personally appalled that the Secretary of Interior is threatening              
to take over 100 percent of the management of fisheries and                    
navigable waters for 1 percent of the fish."  He wondered whether              
the legislature could allocate subsistence use as the highest                  
priority of fish and asked Mr. Nelson whether it was a fair                    
statement.                                                                     
                                                                               
Number 0665                                                                    
                                                                               
MR. NELSON replied, "Yes."  It is consistent with what he said                 
before.                                                                        
                                                                               
Number 0676                                                                    
                                                                               
CO-CHAIRMAN HUDSON stated there has never been any question that               
the legislature, under the beneficial uses provision, can not                  
designate subsistence as the highest use.                                      
                                                                               
CO-CHAIRMAN HUDSON further stated the federal law says there can be            
a preference, but only for rural residents.  Yet, testimony has                
indicated that the definition of rural is too ill-defined.  In                 
addition, the attorney general and others say a defined area or                
defined group of people would be in violation of the state                     
constitution as currently written.  He wondered, what is true.                 
                                                                               
Number 0733                                                                    
                                                                               
MR. NELSON replied there would be a constitutional problem as it               
stands right now, if it excluded somebody who is similarly situated            
with somebody who gets to participate.                                         
                                                                               
Number 0769                                                                    
                                                                               
CO-CHAIRMAN OGAN called Mr. Somerville to the table.                           
                                                                               
Number 0814                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Somerville whether a person could still             
take six caribou, but only take two out of the area, for example.              
                                                                               
Number 0827                                                                    
                                                                               
RON SOMERVILLE, Contractor to House and Senate Majority, replied a             
regulation has been in effect for quite a while for the western                
Arctic caribou herd.  He suggested asking Geron Bruce from the                 
Department of Fish and Game for further information.                           
                                                                               
Number 0840                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Bruce whether the regulations is still              
in effect.                                                                     
                                                                               
Number 0851                                                                    
                                                                               
GERON BRUCE, Legislative Liaison, Office of the Commissioner,                  
Department of Fish and Game, replied he could not answer the                   
question off the top-of-his-head.  He would get back to him with an            
answer.                                                                        
                                                                               
Number 0875                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Mr. Nelson, if the legislature were to                
pass a bill that established the harvest of fish and game for                  
personal and family use for sustenance as the highest and best use             
and gave the boards a protocol, would they be able to restrict it              
by regions, areas, or proximity of domicile, without changing                  
Article VIII of the state constitution.                                        
                                                                               
Number 0931                                                                    
                                                                               
MR. NELSON replied a large part would depend on the particular                 
limitations that the boards would come up with.  Generally, a                  
limitation of a fish or hunt to local residents is a problem under             
the current constitution.  There are practical things boards could             
do so that local residents would have a more "convenient access" to            
the resources.  The state constitution does not require equality in            
terms of convenience of access, but the boards can not limit any               
participation or admission into a user group.                                  
                                                                               
Number 1070                                                                    
                                                                               
CO-CHAIRMAN HUDSON referred to Article VIII, Section 3 and 17, and             
asked Mr. Nelson whether they were the two provisions that                     
principally applied to the courts striking down a preference or                
restriction to people in one area over people in another area.                 
                                                                               
Number 1128                                                                    
                                                                               
MR. NELSON replied, generally, Section 3 and 17, state people can              
not be treated unfairly and they have to be given access, if they              
are similarly situated to others who are given access - the basis              
for the McDowell and Kenaitze decisions.                                       
                                                                               
Number 1161                                                                    
                                                                               
CO-CHAIRMAN HUDSON referred to Article VIII, Section 15, and asked             
Mr. Nelson whether it was added later to allow for limited entry.              
                                                                               
Number 1180                                                                    
                                                                               
MR. NELSON replied Section 15 was a concern because of the economic            
situation at the time the state constitution was framed - fish                 
traps and other grants of monopoly to fishing interests.  Section              
15 was amended later to allow for limitations in the commercial                
fishing user groups under certain conditions authorizing limited               
entry.                                                                         
                                                                               
Number 1223                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Mr. Nelson whether there is anything                  
outstanding in the courts in regards to Section 15.                            
                                                                               
Number 1241                                                                    
                                                                               
MR. NELSON replied not to his knowledge.  It has held up in the                
courts.  It was held up in Ostrosky and has withstood a                        
constitutional challenge since.  There have been provisions of the             
Limited Entry Act that have been changed after court rulings, but              
the concept of limited entry into a commercial fishery when certain            
conditions are present has withstood the challenge.                            
                                                                               
Number 1275                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Mr. Nelson whether the justification for              
limited entry was for resource conservation to prevent economic                
distress among fishermen and those dependent upon them.                        
                                                                               
Number 1324                                                                    
                                                                               
MR. NELSON replied, "Correct."                                                 
                                                                               
Number 1330                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Mr. Nelson why the provision, "to promote             
the efficient development of aquaculture in the State.", is in                 
Section 15.                                                                    
                                                                               
Number 1344                                                                    
                                                                               
MR. NELSON replied, according to his understanding, it is to allow             
the establishment of hatcheries to take fish when others might not             
be able to in order to fund their development.                                 
                                                                               
CO-CHAIRMAN HUDSON stated people who live in rural Alaska view                 
subsistence as an absolute essential need, yet they do not want the            
legislature to designate it on a needs-basis.  People who live in              
urban Alaska feel they might be giving up equity for the use of the            
resources.  He asked Mr. Nelson whether he has taken a look at the             
findings and intent language of HB 406.                                        
                                                                               
Number 1440                                                                    
                                                                               
MR. NELSON replied, "Yes."                                                     
                                                                               
CO-CHAIRMAN HUDSON further asked Mr. Nelson whether there is                   
anything in the findings and intent language that strikes him as               
problematic with the constitution.                                             
                                                                               
Number 1450                                                                    
                                                                               
MR. NELSON replied the only obvious issue to a lawyer is in Section            
1 (a)(1) - "fundamental right."  There are grave implications in               
defining a fundamental right because it can be restricted under a              
compelling state interest.  It might create a lot of management                
issues for the Department of Fish and Game down the road as well.              
                                                                               
Number 1539                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Mr. Nelson whether the provision could                
shut down commercial fishing to sustenance, unless it was clearly              
identified.                                                                    
                                                                               
Number 1582                                                                    
                                                                               
MR. NELSON replied he is not sure of the potential issues that                 
might arise at this time.  But, it is the kind of thing that would             
need to be thought about before adopting that type of language.                
The state supreme court has called subsistence an "important                   
right," deemed lower in priority to a fundamental right.  The                  
language, therefore, would elevate it higher than what the state               
supreme court has found so far.  It is conceivable that there could            
be unforseen consequences, unless it is clearly defined in the                 
following sections of the bill.                                                
                                                                               
Number 1642                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson if the language was changed to               
"important right" from "fundamental right" would it coincide with              
the state supreme court findings to date.                                      
                                                                               
Number 1660                                                                    
                                                                               
MR. NELSON replied, "Yes."  It would be more consistent with the               
findings of the state supreme court so far.                                    
                                                                               
Number 1685                                                                    
                                                                               
CO-CHAIRMAN OGAN said, "Here we are finally agreeing with AFN on               
something and our own attorneys are shooting us down here."                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson to explain the purpose of                    
findings and intent language in a bill.                                        
                                                                               
Number 1704                                                                    
                                                                               
MR. NELSON replied findings and intent language is to formally                 
declare the intent of how the rest of the bill is to be interpreted            
and treated.                                                                   
                                                                               
Number 1745                                                                    
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson whether the courts would rule on             
the side of a statute or the findings and intent language in the               
event of ambiguity.                                                            
                                                                               
Number 1763                                                                    
                                                                               
MR. NELSON replied the courts would, generally, go by the language             
of the statute, unless there was ambiguity that could be further               
clarified by the intent language.                                              
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson to brief the committee members on            
Article VIII, Section 17, in reference to the language "similarly              
situated."                                                                     
                                                                               
Number 1822                                                                    
                                                                               
MR. NELSON replied it is a very good question.  It gets right to               
the crux of things.  There is some idea how the courts would                   
interpret the language because of McDowell and Kenaitze.  In                   
McDowell, some of the permissible criteria are a demonstrated                  
dependence, reliance, or participation in a hunt or fishery.  The              
location of residence is not an acceptable criterion to determine              
whether someone is similarly situated with respect to a resource.              
                                                                               
Number 1884                                                                    
                                                                               
CO-CHAIRMAN OGAN wondered whether a customary and tradition                    
determination or a history of use based on number of years would be            
acceptable under the state constitution in the event of a shortage.            
                                                                               
Number 1952                                                                    
                                                                               
MR. NELSON replied in McDowell the court indicated that an                     
individual qualification system would be acceptable for a                      
preference.  In Kenaitze, the court indicated that an individual               
qualification based on need, dependence, and reliance in relation              
to alternative resources available would be acceptable for a                   
preference.                                                                    
                                                                               
Number 2035                                                                    
                                                                               
CO-CHAIRMAN OGAN stated, in the event of a shortage, people in a               
particular region would have more of an advantage as long as others            
were not excluded from other areas.  He asked Mr. Nelson whether               
that is tier two of the state system.                                          
                                                                               
MR. NELSON replied, "Correct."                                                 
                                                                               
CO-CHAIRMAN OGAN expressed his appreciation to Mr. Nelson for his              
willingness to answer questions when he was unprepared.                        
                                                                               
Number 2100                                                                    
                                                                               
CO-CHAIRMAN OGAN explained the caribou regulation limiting the                 
number taken south of the Yukon River was declared unconstitutional            
by the attorney's general office.  He asked Mr. Nelson whether he              
was aware of that decision.                                                    
                                                                               
Number 2113                                                                    
                                                                               
MR. NELSON replied he was not involved in that decision.  He                   
understood that the regulation was repealed by the Board of Game on            
the advise of the attorney's general office.                                   
                                                                               
CO-CHAIRMAN OGAN asked Mr. Nelson whether it has ever been                     
litigated.                                                                     
                                                                               
MR. NELSON replied, to his knowledge, it has never been litigated.             
                                                                               
Number 2193                                                                    
                                                                               
CO-CHAIRMAN HUDSON asked Co-Chairman Ogan when the committee                   
members should expect to see the rest of the bill.                             
                                                                               
CO-CHAIRMAN OGAN replied he will get on the phone with the bell                
drafter after the meeting.                                                     
                                                                               
CO-CHAIRMAN HUDSON wondered whether it will be available by                    
Saturday.                                                                      
                                                                               
CO-CHAIRMAN OGAN replied, hopefully, it will be available by                   
Saturday.  He would, at least, like to have the issue of delegating            
authority to the advisory committee systems and a regional approach            
on the table for discussion.                                                   
                                                                               
Number 2280                                                                    
                                                                               
REPRESENTATIVE GREEN stated he is concerned about the public having            
the additions to the bill before testifying.                                   
                                                                               
CO-CHAIRMAN OGAN agreed with Representative Green and announced it             
will be a hearing-only meeting on Saturday.                                    
ADJOURNMENT                                                                    
                                                                               
Number 2349                                                                    
                                                                               
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee              
meeting at 2:43 p.m.                                                           

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