Legislature(1997 - 1998)
03/05/1998 01:08 PM House RES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
March 5, 1998
1:08 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Fred Dyson
Representative Joe Green
Representative William K. (Bill) Williams
Representative Irene Nicholia (via teleconference)
Representative Reggie Joule
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative Jeannette James
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 (H) READ THE FIRST TIME - REFERRAL(S)
02/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE
02/17/98 (H) RES AT 1:00 PM CAPITOL 124
02/17/98 (H) MINUTE(RES)
02/21/98 (H) RES AT 1:00 PM CAPITOL 124
02/21/98 (H) MINUTE(RES)
02/24/98 (H) RES AT 1:00 PM CAPITOL 124
02/24/98 (H) MINUTE(RES)
02/27/98 (H) JUD AT 1:00 PM CAPITOL 120
02/27/98 (H) MINUTE(JUD)
02/28/98 (H) RES AT 9:00 AM CAPITOL 124
02/28/98 (H) MINUTE(RES)
03/03/98 (H) RES AT 1:00 PM CAPITOL 124
03/03/98 (H) MINUTE(RES)
03/04/98 (H) JUD AT 1:00 PM CAPITOL 120
03/04/98 (H) MINUTE(JUD)
03/05/98 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
STEPHEN WHITE, Assistant Attorney General
Natural Resources Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Answered questions of the committee members on
HB 406.
GEORGE UTERMOHLE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions of the committee members on
HB 406.
PETE SCHAEFFER
P.O. Box 296
Kotzebue, Alaska 99752
Telephone: (907) 442-3467
POSITION STATEMENT: Provided testimony on HB 406.
WAYNE HEIMER
1098 Chena Pump Road
Fairbanks, Alaska 99709
Telephone: (907) 451-6847
POSITION STATEMENT: Provided testimony on HB 406.
JOHN SHRADER
P.O. Box 873429
Wasilla, Alaska 99687
Telephone: (907) 357-3972
POSITION STATEMENT: Provided testimony on HB 406.
DAN SENTZ
901 McAdoo Way
Wasilla, Alaska 99654
Telephone: (907) 376-4574
POSITION STATEMENT: Provided testimony on HB 406.
MICHAEL PATKOTAK
P.O. Box 610
Barrow, Alaska 99723
Telephone: (907) 852-2182
POSITION STATEMENT: Provided testimony on HB 406.
DON WESTLUND
P.O. Box 7883
Ketchikan, Alaska 99901
Telephone: (907) 225-9319
POSITION STATEMENT: Provided testimony on HB 406.
NICK SZABO
P.O. Box 1633
Kodiak, Alaska 99615
Telephone: (907) 486-3853
POSITION STATEMENT: Provided testimony on HB 406.
LEE TITUS
P.O. Box 516
Northway, Alaska 99764
Telephone: (907) 778-2311
POSITION STATEMENT: Provided testimony on HB 406.
HUGH DOOGAN
1359 Slater Street
Fairbanks, Alaska 99701
Telephone: (907) 456-1869
POSITION STATEMENT: Provided testimony on HB 406.
DEAN PADDOCK
P.O. Box 21951
Juneau, Alaska 99802
Telephone: (907) 463-4976
POSITION STATEMENT: Provided testimony on HB 406.
MICHAEL COONS
P.O. Box 4229
Palmer, Alaska 99645
Telephone: (907) 745-6779
POSITION STATEMENT: Provided testimony on HB 406.
MYRON NANENG
P.O. Box 219
Bethel, Alaska 99559
Telephone: (907) 543-3521
POSITION STATEMENT: Provided testimony on HB 406.
DICK BISHOP
P.O. Box 73902
Fairbanks, Alaska 99707
Telephone: (907) 455-4262
POSITION STATEMENT: Read testimony on behalf of his wife, Mary
Bishop.
ROBERT HALL, Representative
Houston Chamber of Commerce
P.O. Box 871506
Wasilla, Alaska 99687
Telephone: (Not provided)
POSITION STATEMENT: Provided testimony on HB 406.
DICK STOFFEL
H.C. 33 Box 3174-S
Wasilla, Alaska 99654
Telephone: (907) 376-1691
POSITION STATEMENT: Provided testimony on HB 406.
GLORIA STICKWAN
Drawer H
Copper Center, Alaska 99573
Telephone: (907) 822-5241
POSITION STATEMENT: Provided testimony on HB 406.
TOM SCARBOROUGH
1676 Taroka Drive
Fairbanks, Alaska 99709
Telephone: (907) 479-3412
POSITION STATEMENT: Provided testimony on HB 406.
ROD ARNO, President
211 4th Street, Number 302A
Juneau, Alaska 99801
Telephone: (907) 463-3830
POSITION STATEMENT: Provided testimony on HB 406.
EMIL PORTSCHELLER
P.O. Box 2544
Palmer, Alaska 99645
Telephone: (907) 746-4165
POSITION STATEMENT: Provided testimony on HB 406.
ROB BEACH
(Address not provided)
Telephone: (Not provided)
POSITION STATEMENT: Provided testimony on HB 406.
LINDA ANDERSON
P.O. Box 872092
Wasilla, Alaska 99687
Telephone: (907) 376-6721
POSITION STATEMENT: Provided testimony on HB 406.
TOM LAKOSH
P.O. Box 100648
Anchorage, Alaska 99510
Telephone: (907) 263-7380
POSITION STATEMENT: Provided testimony on HB 406.
DANNY GRANGAARD
P.O. Box 11
Tok, Alaska 99780
Telephone: (907) 883-5380
POSITION STATEMENT: Provided testimony on HB 406.
PATRICK SAMSON
P.O. Box 219
Bethel, Alaska 99559
Telephone: (907) 543-7361
POSITION STATEMENT: Provided testimony on HB 406.
MARTINA RAPOZA
P.O. Box 219
Bethel, Alaska 99559
Telephone: (907) 543-7361
POSITION STATEMENT: Provided testimony on HB 406.
VIRGINIA CHARLIE
P.O. Box 219
Bethel, Alaska 99559
Telephone: (907) 543-7361
POSITION STATEMENT: Provided testimony on HB 406.
FRED SMITH
P.O. Box 219
Bethel, Alaska 99559
Telephone: (907) 543-7375
POSITION STATEMENT: Provided testimony on HB 406.
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: Provided testimony on HB 406.
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 on
HB 406.
THEODORE POPELY, Legislative Assistant
to House and Senate Majority
Alaska State Legislature
Capitol Building, Room 208
Juneau, Alaska 99801
Telephone: (907) 465-3720
POSITION STATEMENT: Answered questions of the committee members on
HB 406.
WARREN FOX (PH)
(Address not provided)
Telephone: (Not provided)
POSITION STATEMENT: Provided testimony on the board process.
ACTION NARRATIVE
TAPE 98-26, 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 Hudson, Ogan, Masek, Barnes,
Dyson, Green, Williams and Joule. Representative Nicholia joined
the meeting via teleconference sometime after the call to order.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
CO-CHAIRMAN OGAN announced the only order of business was House
Bill No. 406, "An Act relating to subsistence uses of fish and
game."
REPRESENTATIVE RAMONA BARNES stated the last time the committee met
she made a statement about welfare and its five-year effect on the
rural areas that was incorrect. She read the following statement
written by Chris Ashenbrenner to correct the record:
"Here is a brief synopsis of the information you requested about
welfare reform in regard to the Native village exemption to the 60-
month time limit.
"The federal welfare reform legislation included a provision that
exempts from the time limit any month a family lives in an Alaskan
Native village or reservation in which 50 percent of the adults are
not employed - Section 4.08.(a)(7)(d) of the Personal
Responsibility and Work Opportunities Act of 1996, as amended by
the Balanced Budget Act of 1997. The exemption is outside of the
general 20 percent except allowances to the time limit. The 20
percent allowance is applied to families that have parents or
caretakers who are unable to work for a good reason. Such
incapacity is a parent or a child or a domestic violence and it is
determined and applied once the family has used their 60 months.
The DHSS (Department of Health and Social Services) with the help
of the Department of Labor is in the process of determining a
reasonable way to calculate how many adults in each village are not
employed. This has been quite a challenge because population and
employment data at the village level is only gathered with a
census. And the 1990-census information is a bit stale by now. We
believe we are close to the development of a methodology where this
determination hopes to publish the policy within the next few
months.
"I hope this helps."
REPRESENTATIVE BARNES stated Senator Stevens put into the budget a
section that says, any Native village in Alaska where there is 50
percent unemployment, the five-year limitation does not apply.
Thus, by-en-large all rural villages in the state will continue
under the Welfare Act. The Welfare Reform Act will not touch them.
Number 0400
CO-CHAIRMAN OGAN announced Representative James has joined the
meeting.
Number 0412
REPRESENTATIVE JEANNETTE JAMES stated there is another part of the
Welfare Reform Act that will affect Native villages. Native people
who are currently living in urban areas and can not find work might
move back to the villages.
REPRESENTATIVE IRENE NICHOLIA announced she is present via
teleconference in Fairbanks.
CO-CHAIRMAN OGAN announced he would explain the proposed committee
substitute for HB 406, version 0-LS1573\P, Utermohle, 3/5/98.
Number 0481
CO-CHAIRMAN OGAN explained that three new paragraphs have been
added to the Findings and Intent section. They were taken out of
former Governor Hickel's task force findings. The most significant
paragraph added is the following:
"(4) there are Alaskans, both Native and non-Native, who
have a traditional, social, or cultural relationship to
and dependence upon the wild renewable resources produced
by Alaska's land and water; the harvest and use of fish
and game for personal and family consumption is an
integral part of those relationships;"
CO-CHAIRMAN OGAN stated he wanted to acknowledge the importance of
culture, customs and traditions.
CO-CHAIRMAN OGAN further explained that Section 16.16.020(b) has
been added. It reads as follows:
"(b) If the Board of Fisheries or the Board of Game
determines that the projected level of harvest of a fish
stock or game population in an area would exceed the
sustainable level of harvest under the sustained yield
principle, the appropriate board shall allocate,
notwithstanding AS 16.05.251(e), the harvestable portion
of the stock or population in that area among user groups
in accordance with a ranking of beneficial uses of the
stock or population that assigns the highest preference
to consumptive use for personal and family use for
sustenance."
CO-CHAIRMAN OGAN stated the authority for the subsection comes
under Article VIII, Section 4, "Sustained Yield," of the state
constitution. There can be a preference amongst beneficial uses -
sustenance, personal, commercial or any other use. "We can and we
do have the authority in times of shortage under sustained yield to
give a preference."
CO-CHAIRMAN OGAN further explained that Section 16.16.020(b) has
been rewritten to require concurrence of the Department of Fish and
Game with a finding of shortage by the Board of Fisheries or the
Board of Game.
CO-CHAIRMAN OGAN further explained that Section 16.16.020(C) has
been rewritten to substitute regional fish and game board for local
fish and game advisory committee and to delete requirements for the
use of a certain number of species and for sharing of resources in
order to qualify for personal and family use for sustenance as a
preference. It was rewritten in response to public testimony. In
a time of shortage, if there are a lot of hoops to jump through and
it is expensive, the rural communities might not do it.
CO-CHAIRMAN OGAN further explained that Section 16.16.020(d) has
been rewritten to substitute regional fish and game board for local
fish and game advisory committee.
CO-CHAIRMAN OGAN further explained that Section 16.16.020(e) and
(f) have been combined into a new subsection (e) to reflect the
elimination of the role of the local advisory committees in the
process for determining eligibility. According to testimony, to
have the actual local advisory committees making the determination
of who will and who will not have a preference in a time of
shortage is a sticky situation.
CO-CHAIRMAN OGAN further explained that a definition of the term
"preference" has been added to Section 16.16.095.
CO-CHAIRMAN OGAN further explained that a definition of the term
"shortage" has been rewritten in Section 16.16.095.
CO-CHAIRMAN OGAN further explained that a reference to the
sustained yield principle has been added to Section
16.05.245(b)(2).
CO-CHAIRMAN OGAN further explained that Section 16.05.260(e) has
been rewritten to eliminate the requirement that the governor
appoint members of the regional fish and game boards from lists of
persons submitted by the local fish and game advisory committees.
CO-CHAIRMAN OGAN further explained that Section 16.05.260(h) and
(i) have been rewritten and subsection (j) has been deleted to
reflect the elimination of deference to the local fish and game
advisory committees, and to eliminate delegation of authority from
the commissioner to the regional boards. It gives more authority
to the regional boards and makes the advisory boards true
"advisory" boards. He does not want to delegate too much of the
legislature's authority down to the advisory committees. He is
also concerned about the appropriateness of allowing the
commissioner the authority to delegate to regional boards. It
would be appropriate if the main boards want to delegate authority
to the regional boards, but he does not want the commissioner to be
able to sidestep and undermine the board process. If the main
boards want to take some of their workload off and give it to the
regional boards, it would be appropriate because the members are
appointed by the governor and confirmed by the legislature.
Number 1188
REPRESENTATIVE BARNES stated the only authority that the Board of
Fisheries and Board of Game have are those that have been delegated
to them by the legislature. Therefore, any authority that they
would delegate is authority of the legislature.
Number 1224
CO-CHAIRMAN OGAN further explained that Section 32 of the bill has
been amended to add 16.05.940(7) and (27) to repeal the definitions
of the terms "customary and traditional" and "rural areas."
CO-CHAIRMAN OGAN further explained that Sections 37-40 have been
added to provide an advisory vote on a preference for the use of
fish and game for personal and family use for sustenance. The
question reads as follows:
"Shall a law (HB 406) passed by the legislature which
grants a preference in times of shortage for use of fish
and game for personal and family use for sustenance take
effect and shall the federal law (Alaska National
Interest Lands Conservation Act) be amended to conform to
state law regarding use of fish and game?
Yes[ ] No[ ]"
CO-CHAIRMAN OGAN stated he worked long and hard on the verbiage to
make it clear so that the ordinary person could understand it. The
reason for an advisory vote in the primary election is because it
would take place in August and would give the state time to take
action in the event the people reject it before the December 1,
1998-deadline. "If we wait till November, then we have less than
one month."
Number 1349
REPRESENTATIVE BILL WILLIAMS stated the question sounds clear. He
wondered how it would work logistically in relation to the
adjournment time for Congress this year.
Number 1372
CO-CHAIRMAN OGAN replied Congress adjourns sometime in October this
year.
REPRESENTATIVE WILLIAMS stated Congress would not go back to
session until the first of the next year. He wondered how that
would affect the December 1, 1998 deadline.
Number 1385
CO-CHAIRMAN OGAN replied he envisions, if the bill passes, both
houses of the legislature taking action then the congressional
delegation making changes to the Alaska National Interest Lands
Conservation Act (ANILCA), assuming that the people ratify the
question. If the people do not ratify the question then the
legislature would probably have to deal with the issue in a special
session. If the people do ratify the question then the
congressional delegation would have to get it out in a fairly short
order. They could get it out in a fairly short order, especially
if there is a consensus. "Our congressional delegation has
repeatedly said 'bring us a consensus.' And I think if the Alaskan
people bring them a consensus they should represent us and make the
appropriate changes to the federal law."
Number 1457
REPRESENTATIVE BARNES asked Co-Chairman Ogan to discuss the
language on page 24, lines 21-23.
"(E) the portion of sec. 316(b)(3)(B) of P.L. 105-83
relating to the management of fish and wildlife for
subsistence uses on public lands in Alaska by the
Secretary of the Interior is repealed."
Number 1473
CO-CHAIRMAN OGAN replied section 316(b) of Public Law (P.L.) 105-83
are the changes made to ANILCA by the appropriation writer last
year. The changes read as follows:
"In accordance with Title VIII of this Act, the Secretary
of Interior is required to manage fish and wildlife for
subsistence uses on all public lands in Alaska because of
the failure of state law to provide a rural preference."
CO-CHAIRMAN OGAN explained he wants that portion repealed from
ANILCA. "Now, the effective date of this ANILCA change is if we
don't act this goes away. When we don't act on amending our
constitution for a rural priority this goes away. But, I want to
make sure it doesn't come back." It is inappropriate and the
language in the provision "all public lands" could be interpreted
to include state lands and navigable waters. It is ambiguous and
ripe for litigation. Section 40(C) of the bill reads, "(C) the
definition of 'public lands' in the Alaska National Interest Lands
Conservation Act is amended to exclude state and private land and
water, including navigable water;" These are some of the
provisions that he would like to see amended in ANILCA. He is also
open to others being amended at the will of the committee members.
Number 1575
REPRESENTATIVE BARNES stated, according to her understanding, it
becoming law is contingent upon passing a constitutional amendment
as well as legislation that completely tracks ANILCA. She asked
Co-Chairman Ogan whether that is his understanding also.
Number 1597
CO-CHAIRMAN OGAN replied, "That's my understanding."
REPRESENTATIVE BARNES stated, if we do not do a constitutional
amendment and we do a bill that is not what was put into Title
VIII, it should go away automatically.
CO-CHAIRMAN OGAN replied, "It should go away automatically, that's
correct." But, he wants to make sure that it does not show its
ugly head again. That much specific authority to the Secretary of
Interior, with all due respect to our senior Senator, reduces the
state to territorial status.
Number 1633
REPRESENTATIVE WILLIAMS asked Co-Chairman Ogan whether the changes
made by Senator Stevens last year would go away, if we don't live
up to ANILCA.
CO-CHAIRMAN OGAN replied if we don't pass a rural priority the
changes go away. If we pass a rural priority then the Secretary of
Interior's authority is specifically expanded.
REPRESENTATIVE WILLIAMS asked Co-Chairman Ogan where that is stated
in the bill again.
CO-CHAIRMAN OGAN replied it is on page 24, lines 21-23.
Number 1671
REPRESENTATIVE BARNES stated there is a lot of concern over what
will really happen. A lot of people don't really understand that
for the first time ever, under the language that was put into the
appropriation bill by Senator Stevens, the Secretary's authority
over fish, wildlife, land and water will be expanded if we pass a
constitutional amendment to comply with Title VIII of ANILCA. If
we don't, then the language goes away and we won't have that
federal oversight expanded beyond what it is today in Title VIII.
Number 1714
CO-CHAIRMAN OGAN stated that is absolutely correct. The effective
date reads as follows:
"Subsection (b) shall be repealed on such date if such
laws have not been adopted."
CO-CHAIRMAN OGAN stated, if we don't adopt a rural priority, the
expansion of the Secretary's authority would go away. He addressed
it specifically in the bill because he does not want it to come
back.
Number 1776
REPRESENTATIVE BARNES stated not only would the Secretary of
Interior's authority be expanded, but for the first time ever the
federal courts would have oversight as well. She asked Co-Chairman
Ogan whether that is correct.
CO-CHAIRMAN OGAN replied, "Correct."
REPRESENTATIVE WILLIAMS asked Co-Chairman Ogan whether George
Utermohle, drafter of the bill, will be here to help explain his
legal opinion.
CO-CHAIRMAN OGAN replied he will be here later.
Number 1810
REPRESENTATIVE BEVERLY MASEK asked Co-Chairman Ogan whether the
Department of Law is here.
CO-CHAIRMAN OGAN replied the Department of Law is here.
Number 1821
REPRESENTATIVE WILLIAMS stated, in regards to the timing of the
advisory vote, he has been informed that in order to get a
constitutional amendment on the ballot it has to be presented by
late July. The advisory vote would take place in August. He asked
Co-Chairman Ogan how he would get around that.
CO-CHAIRMAN OGAN replied if the measure failed then we would have
to go into a special session to determine what to do. He believes
that there could be a special election before the December 1, 1998-
deadline.
Number 1875
REPRESENTATIVE WILLIAMS stated in order to get something on the
ballot in November we have to have something to present to the
lieutenant governor by late July, but according to the bill, the
question would be placed before the voters at the next primary
election in August. He asked Co-Chairman Ogan whether he is saying
that there would have to be a special session before August 1,
1998.
Number 1913
CO-CHAIRMAN OGAN replied if the measure failed we could be called
into special session the next day to look at the options.
REPRESENTATIVE WILLIAMS stated there must be some logistical
problems in calling a special session.
REPRESENTATIVE BARNES explained a special session requires a 15-day
notice.
REPRESENTATIVE WILLIAMS stated, according to Co-Chairman Ogan, if
the vote does not work, the legislature would still have time to
come up with a constitutional amendment.
Number 1949
CO-CHAIRMAN BILL HUDSON stated November 5, 1998 is the general
election. It would have to be presented to the lieutenant governor
for affirmation in order to be place on the ballot.
Number 1970
CO-CHAIRMAN OGAN announced the intention of the meeting today is to
have the Administration come forward first. Public testimony will
be from 3:00 to 5:00 p.m. Each testifier will be given three
minutes. Committee deliberations will begin at 5:00 p.m.
Hopefully, the bill will be passed out of the committee today.
Number 2046
CO-CHAIRMAN HUDSON referred to page 5, line 2, and wondered whether
the language still reads "and." He wondered whether it should read
"or."
CO-CHAIRMAN OGAN replied it still says "and".
CO-CHAIRMAN HUDSON replied then it still is for a low-income person
who submits a written statement and so on.
CO-CHAIRMAN OGAN replied, correct, as it is written now.
CO-CHAIRMAN OGAN called on Stephen White from the Department of
Law.
Number 2122
STEPHEN WHITE, Assistant Attorney General, Natural Resources
Section, Department of Law, stated he has been involved with the
subsistence issue for the past eight years in the capacity of
advising both the Board of Fisheries and Board of Game, and
defending the state when the subsistence law was challenged. He
has argued two subsistence cases before the Alaska Supreme Court.
He does not have a prepared statement today. He has drafted a
statement in response to Representative Nicholia's question of the
bill's compliance and constitutionality. He is here to answer any
legal questions.
Number 2170
REPRESENTATIVE MASEK referred to page 4, lines 26-29, and stated
the language is an attempt to have a rural preference without
calling it rural. She asked Mr. White whether it would violate the
state constitution, and the right to travel under the Constitution
of the United States.
Number 2200
MR. WHITE replied the "eat-it-where-you-shoot-it" provision raises
a constitutional problem under the common use and other equal
access clauses of the state constitution. In Kenaitze the state
supreme court said there is a problem with attempting to
distinguish a subsistence user by residency. In McDowell the court
struck down the preference in tier II based on a proximity to the
resource. A "use-it-where-you-shoot-it" provision would give an
advantage to those in the area because practically they would be
the only people who could use it.
Number 2254
REPRESENTATIVE MASEK asked Mr. White to comment on whether the
language is attempting a rural preference without saying rural.
Number 2262
MR. WHITE replied it does the same thing as a rural preference in
the sense that it establishes a preference based on where people
live. A rural preference gives people absolute priority to become
a subsistence user because of where they live. The language is not
as direct, but it gives people a practical advantage to the
resources in a region. It is different in the sense that it is not
absolute. It is a regional preference, but the effect on the
constitution would be the same.
Number 2294
REPRESENTATIVE MASEK asked Mr. White if the bill passed could it be
challenged as unconstitutional.
Number 2300
MR. WHITE replied this particular provision would be very difficult
to defend because of state supreme court decisions. In Kenaitze
the courts were looking back at McDowell and the tier II proximity
requirement. He read the following provision from the decision:
"We both quoted and stressed language holding that people
who reside in their fish or game population do not have
a higher claim to that population than state residents
who's domiciled or more distant. Just as eligibility to
participate in all subsistence hunting and fishing cannot
be dependent on whether one lives in an urban or rural
area. Eligibility to participate in tier II subsistence
hunting or fishing cannot be based on how close one lives
to a given fish or game population."
MR. WHITE stated the language tells him that the state supreme
court unequivocally would strike down anything that gives people an
advantage to the resources based on their proximity to them.
Number 2358
REPRESENTATIVE MASEK stated as soon as she shoots a moose it
becomes her property. It does not belong to the state. She
wondered whether the provision would violate her right to travel
with it since it is her personal property.
Number 2378
MR. WHITE replied the right to travel falls under the Constitution
of the United States. It is not a very well developed area of law.
It is something that the courts often resort to when they can't
find something else. It is often used in the area of commerce. A
court would say that, practically, the only people who are going to
be able to use the resource for sustenance are those that live in
the area. No one would choose to set up a temporary domicile in
order to consume game for sustenance.
Number 2433
MR. WHITE further stated that the common use clause says, "Wherever
occurring in their natural state, fish, wildlife, and waters are
reserved to the people for common use." The state supreme court
pointed to the language "wherever occurring" as another reason for
it to look skeptically at anything that allocates or gives
advantages to resources based upon where people live.
Number 2451
CO-CHAIRMAN OGAN stated the property clause does not allow people
to take alcohol into certain villages....
TAPE 98-26, SIDE B
Number 0000
CO-CHAIRMAN OGAN continued. There are any number of
discriminations that we put into place. He asked Mr. White whether
the legislature has the authority under Article VIII, Section 4,
"Sustained Yield," to give a preference of beneficial uses.
According to Lance Nelson, it gets right to the crux of things.
Mr. Nelson said, "There is some idea how the courts would interpret
the language because of the McDowell and Kenaitze cases. In
McDowell some of the permissible criteria are demonstrated -
dependence, reliance, participation in a hunt or fishery. The
location of residence is not acceptable criteria to determine
whether someone is similarly situated with respect to resource."
Mr. Nelson further said, "In McDowell the court indicated that an
individual qualification system would be acceptable for preference.
And, 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." The bill talks about need, dependence and reliance as
a criteria for preferential use. In addition, the legislature's
attorney will take a different position that it is constitutional.
"I guess the only attorney's opinion that really counts is the guy
that wears the black bathrobe." Co-Chairman Ogan stated he thought
about putting Mr. White under oath because he works for the
attorney general and the attorney general represents the governor's
position, not necessarily the people's position. The current
Governor's position is that anything outside of his task force
proposal is unacceptable. He asked Mr. White, if he felt and
believed differently than the Governor, would he have the liberty
to express it.
Number 0119
MR. WHITE replied, "Absolutely." He puts objectivity above his job
and above the fact that he works for the executive branch. "I have
often advised against things to my clients and they've gone ahead
and adopted them and then it's my obligation to defend them." His
opinion that there are constitutional problems with the bill is not
based upon the fact that he is part of the executive branch and
that it has another bill. Anybody in his department would say the
same thing. "We do not get involved with policy. I limit my
comments to what I interpret the law to be, and what I perceive the
courts would do and that's where I draw the line. I don't let my
personal opinion or my personal beliefs--I try not to mix that with
my legal opinions."
Number 0168
CO-CHAIRMAN OGAN stated to Mr. White, "Please do not interpret this
as a personal attack on your integrity." He simply wanted it
stated for the record.
Number 0177
CO-CHAIRMAN HUDSON asked Mr. White how could we comport with the
definition of the term "rural" in federal law (a community or area
substantially dependent on fish and wildlife for nutritional and
other subsistence uses) without saying "rural," but define areas
and give those that live in the areas a preference.
Number 0348
MR. WHITE replied we could argue that it does not say "rural," but
in practicality it is rural. If the state does not adopt a rural
preference, the definitions are repealed and we would go back to
the definition of the term "rural" according to the Ninth Circuit
Court of Appeals which is based on population. Any court would
look at the federal and state definitions to determine whether
substantially the same people qualify under each definition. If
that can be argued, then it is the same using a different term.
There would be a stronger argument if there were more differences
between the two. It is a matter of how many people would qualify
and how many would not qualify before a court finds out that
substantially it is rural without calling it rural.
Number 0438
CO-CHAIRMAN HUDSON asked Mr. White whether it would comport with
the state constitution.
Number 0442
MR. WHITE replied, whenever some people are disqualified admission
into a user group based on criteria, it questions the common use
and equal access clauses. The courts have said that residency is
a problem. Limiting a harvest can be done because it is a use, not
a qualification. In fact, that is what the state has done with
non-subsistence areas.
Number 0570
REPRESENTATIVE JAMES stated the real problem of defining rural is
the drawing of lines. Someone on one side of the line is included
who is not similarly situated, while someone on the other side of
the line is excluded who is similarly situated. This is where the
common use issue breaks. Of course, there can be delineations of
similarly situated. She asked Mr. White to explain the term
"similarly situated" and what it really entails.
Number 0517
MR. WHITE replied similarly situated is from Article VIII, Section
17, "Uniform Application." A law and regulation has to be
uniformly applied to people who are similarly situated. The only
time in which the provision has come up before the state supreme
court was in a case of fish harvesting between two different user
groups based on different opportunities - gillnetters and seiners.
The court said that the two groups were different. They were not
similarly situated because of their harvest history, gear, and
membership.
Number 0570
REPRESENTATIVE JAMES asked Mr. White whether a need or lifestyle,
no matter where a person lives, qualifies as similarly situated.
MR. WHITE replied, "Correct."
Number 0589
CO-CHAIRMAN OGAN stated, as long as we treat each region equally in
a time of shortage and give the use to people who qualify under a
set of criteria, we can give a preference based on beneficial use.
He asked Mr. White how long did the different attorneys general
maintain that McDowell was wrong.
Number 0649
MR. WHITE replied the state had a rural priority for nine years.
In order to have state management, the state adopted a rural
priority first by regulation and then by statute. The state
supreme court surprised everybody by saying a rural priority is not
possible under the common use clause. The state supreme court had
not really dealt with the common use and other equal access clauses
until 1988 - Owsichek. The next four to five years the court
elaborated on what the common use and other equal access clauses
meant, and each time it was a revelation to the attorneys who were
working in the area. They are clauses unique to Alaska, therefore,
an attorney can't look to any other state constitutions or
interpretations to determine why they were included by the
drafters.
Number 0718
CO-CHAIRMAN OGAN stated politics sometimes obstructs accurate
readings on things. For nine years the attorneys general argued
that a rural priority was constitutional until it was struck down
by the state supreme court. From Payton he read, "Evidence before
the board indicated that people in this area probably do take fish
and game that are reasonably accessible from their homes and do not
regularly travel to other parts of Alaska to salmon hunt." It
seems that if there is a rational criteria and a shortage, the
legislature has the authority to give a preference. He asked Mr.
White whether the legislature has the authority to give a
preference under Article VIII, Section 4.
Number 0777
MR. WHITE replied a preference can be given under beneficial uses -
sport, commercial, subsistence, and personal.
Number 0799
CO-CHAIRMAN OGAN said, "So, subsistence or sustenance, which is
basically the same thing, could be a preferential use. And the
preference is certainly being given in times of shortage which is
where the sustained yield portion kicks in. And, you can't just
take it out of the area where you shot it. And it has the effect
of--I'm not gonna want to go hunting in an area that's declared a
shortage because I can't remove the meat so it does give a defacto
preference that way, unless competition. I think that it has the
effect of that. But, if I want to go hunt there, I can still go
hunt there. I can kill the animal. I can bring the trophy home
and I leave the meat in the village."
Number 0832
MR. WHITE replied the amendment says it now has to be "used" within
the region, not just eaten - an even broader disadvantage to people
outside of the area. The courts not only look at what is said, but
the practical effect and intent as well. The intent is to
discourage people outside the area from coming in and taking the
resource.
Number 0876
CO-CHAIRMAN OGAN asked Mr. White what if the law says "processed"
in an area before it is removed such as preserved, cooked or eaten.
Practically, it is almost impossible for a fish and game officer to
look at a freezer full of meat and make a correlation of where it
was taken. In that effect, it is not very enforceable. According
to bag limits for fish, once it is processed it does not count
towards possession. He asked Mr. White whether that would give him
more comfort.
Number 0962
MR. WHITE replied the courts would want to know the purpose of a
process requirement in an area. Is it necessary so that the meat
does not spoil? he asked. If it serves that type of purpose, we
would have a better chance of defending it. But, if the purpose is
to discourage people from coming into an area, we would be back to
having the same problem when defending the tier II proximity
requirement.
Number 1042
REPRESENTATIVE BARNES stated, to correct the record, not everybody
was surprised about the McDowell decision. She had submitted bills
that would have repealed what was found unconstitutional in
McDowell. She asked Mr. White whether he came on board just before
former Governor Hickel.
MR. WHITE replied he was hired at the end of former Governor
Cowper's Administration.
REPRESENTATIVE BARNES asked Mr. White whether the bills introduced
under Hickel contained an "eat-it-where-you-kill-it" provision.
MR. WHITE replied he does not recall.
REPRESENTATIVE BARNES asked Mr. White to make available to the
committee members information on all of the "kill-it-you-eat-it"
provisions at his earliest convenience.
MR. WHITE replied we are in the process of responding to a public
request on everything that has been written on subsistence that
will take a lot of time.
REPRESENTATIVE BARNES stated she does not care what the public has
asked for. Right now, we are trying to write a piece of
legislation. She wants Mr. White to get a copy of every opinion
written on that subject before the end of the day. There can't be
that many.
Number 1181
REPRESENTATIVE BARNES asked Mr. White whether he agrees that the
legislature has the general authority over fish, wildlife and other
replenishable resources under the general authority clause of the
state constitution.
MR. WHITE replied, "I think that's correct."
REPRESENTATIVE BARNES stated the bill by Co-Chairman Ogan has
followed the general authority, common use and sustained yield
clauses of the constitution. She asked Mr. White whether he agrees
that the legislature has, as part of its authority, delegated a
portion of its authority to the Board of Fisheries and Board of
Game to establish seasons and bag limits, according to the language
"subject to preferences among beneficial uses."
Number 1266
MR. WHITE replied, "Yes." Seasons and bag limits are one way of
regulating the management of fish and game.
REPRESENTATIVE BARNES asked Mr. White whether that is the general
way the legislature operates.
MR. WHITE replied, "Yes."
REPRESENTATIVE BARNES stated, if there is a shortage in an
established region, the boards can limit the uses to sustain a
yield according to the sustained yield principle. Yet, Mr. White
says that the boards cannot constitutionally say the people living
in a region can't harvest through seasons and bag limits when it is
done now through units.
Number 1389
MR. WHITE replied seasons and bag limits are applied evenly to all
Alaskans. Anybody can subsistence hunt in Kotzebue, for example,
under the "all-Alaskan" interpretation of the present subsistence
law. Under the proposed committee substitute and the "use-it-
where-you-shoot-it" provision, a person would have to stay in an
area until all of the game was used. It would discourage a person
from going there and, therefore, discriminate.
Number 1441
REPRESENTATIVE BARNES replied, if we say a person can't eat it
there, and apply another criteria such as a $5 license fee to
protect the resource, would it be constitutional.
Number 1463
MR. WHITE replied, certainly, if there was a license fee that
applied equally to everybody regardless of where they lived.
REPRESENTATIVE BARNES asked Mr. White if the "use-it-where-you-
take-it" provision is gone would it be constitutional.
MR. WHITE replied, "Correct."
Number 1568
MR. WHITE stated he will get all of the opinions dealing with an
"eat-it-and-shoot-it" provision.
REPRESENTATIVE BARNES stated she knows as chair of the Legislative
Council committee that he has files on the subject of subsistence
of what is and what is not constitutional. She would like by 5:00
p.m. all of the opinions on "eat-it-and-shoot-it" and tomorrow she
would like the rest.
MR. WHITE replied he will do what he can before 5:00 p.m.
Number 1611
CO-CHAIRMAN OGAN stated he would like information on former
Governor Hammond's proposal similar to the provision. Hammond
talked about it a lot, but he does not know whether it was ever put
in law.
MR. WHITE stated he will find whatever he can on that.
CO-CHAIRMAN OGAN called on George Utermohle from the Legislative
Affairs Agency.
Number 1660
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, stated he is here to answer
any questions of the committee members.
Number 1688
REPRESENTATIVE JOE GREEN asked Mr. Utermohle whether the bill will
or will not pass constitutional muster.
Number 1699
MR. UTERMOHLE replied, focusing on a regional preference, the bill
gives the Board of Fisheries and Board of Game in a time of
shortage the authority to provide for a use of a fish or game
population on the condition that the resource is used where it is
taken. "I don't see that provision as violating the constitution.
I think it is within the power of the legislature to provide for
preferences among beneficial uses. This is just an establishment
of a particular preference and authorizing the boards of fish and
game to take action under that and to implement that provision.
That is where the constitutional problems may well arise--is how
the board would go about implementing that provision." Under the
constitution, the state supreme court has said that any criteria to
determine access to a user groups based on a geographical residency
requirement is virtually per se unconstitutional (McDowell and
Kenaitze). If the Department of Law has suggested that the
provision of "use-it-where-you-take-it" is construed to be a
regional preference, then he suspects the courts would strike it
down. However, he thinks that the provision does not create such
a preference. The preference would be available to any person in
the state who satisfies the criteria for dependence, and that
person would be able to go into an area and take fish or game. The
provision does not pose a bar to people living outside of an area
from coming in to take fish and game. It poses an inconvenience of
the same nature of other provisions in law of limiting access to
areas such as the prohibition of mechanized vehicles to an area.
This provision is analogous to those types of restrictions. The
court looked at an issue similar to this in Kenaitze and determined
that nonsubsistence areas were not unconstitutional merely because
they require a person to go from his home into an area to take fish
and game for subsistence uses. The court considered that to be
merely an inconvenience and an inconvenience does not rise to the
level of limiting access to user groups and is not protected by the
equal access clauses of the state constitution. The ultimate
decision of the courts will depend on whether they determine it is
a residency-based preference, which he suspects it is not, or
merely a burden on the use of the resources in the area.
Number 1984
REPRESENTATIVE GREEN asked Mr. Utermohle, in terms of economical
conditions, if user "X" qualifies in area "Y" where there is a
lower standard of living, what would happen if user "X" comes into
area "Y" that has been declared a dependent use area, while others
are barred who have a lower income level. He wondered whether that
would pose a constitutional problem.
Number 2118
MR. UTERMOHLE replied that would certainly raise constitutional
questions under the equal protection and uniform application
clauses of the state constitution. There would be people similarly
situated subject to different entry criteria into the user group.
The bill provides for a uniform statewide income ceiling.
Number 2154
REPRESENTATIVE GREEN stated it is his understanding that it would
be determined by regions.
Number 2166
CO-CHAIRMAN OGAN stated the criteria would be the same for everyone
and each region would be treated the same.
Number 2176
REPRESENTATIVE GREEN stated the criteria would be the same, but the
regions determine the cutoff limit. He wondered whether they would
be applied statewide.
REPRESENTATIVE BARNES replied they would be applied region wide.
REPRESENTATIVE GREEN replied that is his point. There might be
different cutoffs.
Number 2211
MR. UTERMOHLE stated the provisions in the bill call for a
statewide criteria to determine who is eligible for a preference.
Once a person meets the criteria and qualifies, he can go any where
in the state where there is a preference.
REPRESENTATIVE GREEN asked Mr. Utermohle whether everybody
throughout the state would be treated economically the same in
terms of a cutoff, or would each region have its own ability to
make those decisions. If each region has its own ability to
determine cutoff limits, there could be different qualifications.
Number 2262
MR. UTERMOHLE replied if there were different income levels for
each region, there could be constitutional problems. However, the
bill provides for one statewide income level.
Number 2324
REPRESENTATIVE NICHOLIA asked Mr. Utermohle whether the state would
regain management under the proposed committee substitute. If not,
she wondered what amendments would be needed to comply with federal
law.
Number 2346
MR. UTERMOHLE replied he does not see that it is possible for the
state to satisfy the requirements of ANILCA to regain management in
this bill. The necessary changes are very substantial. The bill
would have to establish a criteria for sustenance uses equivalent
to the definition of the term "rural" in the federal Act. It would
also have to provide a system of advisory boards and regional
councils as required in the federal Act.
Number 2440
CO-CHAIRMAN OGAN asked Mr. Utermohle to address the provision that
requires ANILCA to be amended to conform to state law.
Number 2457
MR. UTERMOHLE replied the fact that the bill does not comply with
the current requirements in ANILCA is emphasized in the last
portion of the bill.
TAPE 98-27, SIDE A
Number 0025
REPRESENTATIVE BARNES stated, in reference to Representative
Green's question, regions would be established and each one would
be treated equally. Each person who qualifies would be treated
exactly the same. Therefore, it would not be possible for each
region to establish different criteria.
MR. UTERMOHLE stated that is true.
Number 0131
REPRESENTATIVE GREEN referred to page 3, line 18, "dependence on
fish and game in the context of the totality of the following
socioeconomic characteristics of the area:". He asked Mr.
Utermohle how can the criteria be applied statewide when the
language says "area."
Number 0179
MR. UTERMOHLE replied the criteria would be used to identify fish
and game dependent use areas by the boards, not the people who
would be permitted to participate in those areas.
Number 0255
CO-CHAIRMAN OGAN asked Mr. Utermohle whether that language is in
state law currently.
MR. UTERMOHLE replied, "Yes." It is the criteria used to identify
subsistence areas.
Number 0287
REPRESENTATIVE JAMES asked Mr. Utermohle whether a person from a
region who is poor and has to eat the meat taken in another region
is being discriminated against because of where that person lives.
Number 0379
MR. UTERMOHLE replied there is an impediment to his use by virtue
of the fact that it is inconvenient for him to use that resource in
the area in which it was taken. The preference provided for in the
bill would apply only to species or populations on a stock basis in
which case the person would still be eligible to participate in
fish and game dependent uses when the stocks or populations are not
experiencing a shortage.
Number 0432
REPRESENTATIVE JAMES asked Mr. Utermohle whether a person could get
all the rabbits he needs and take them back home, but not a moose,
for example.
Number 0443
MR. UTERMOHLE replied assuming there was a shortage of moose and
that the Board of Game had established a preference in order to
satisfy the needs for sustenance use, yes.
REPRESENTATIVE JAMES stated if there are two people who want to eat
one would still not be able to because he lives on the other side
of the line.
MR. UTERMOHLE replied it is not because he lives on the other side
of the line. It is because he can not consume the resource in the
area in which it was taken.
REPRESENTATIVE JAMES stated the practical sense in a court of law
would be that he is denied.
MR. UTERMOHLE stated that is certainly something the courts would
look at - a balancing test under the equal protection analysis
looking at the purpose of the regulation, equal access to the
resource, interest of the state versus the individual, and
intrusiveness of the process.
Number 0551
CO-CHAIRMAN OGAN stated the person could cross the line and
participate, if he is eligible.
Number 0572
REPRESENTATIVE WILLIAMS asked Mr. Utermohle whether the bill
complies with ANILCA as amended by Senator Stevens. He also asked
Mr. Utermohle whether Senator Stevens' amendments expand ANILCA.
Number 0632
MR. UTERMOHLE replied no the bill does not comply with ANILCA. The
amendments made by Senator Stevens found on page 24, lines 21-23,
refer to one provision of the additional findings that he attached
to ANILCA.
Number 0692
REPRESENTATIVE WILLIAMS asked Mr. Utermohle what would be needed to
comply with ANILCA. He also asked Mr. Utermohle whether the bill
is trying to change public law in ANILCA.
Number 0718
MR. UTERMOHLE replied in order to comply with ANILCA the state
would have to adopt something equivalent to a rural subsistence
preference, a system of advisory committees, and regional councils.
The bill is asking for the elimination of that finding in ANILCA.
Number 0756
REPRESENTATIVE WILLIAMS asked Mr. Utermohle whether the state would
be telling Congress to change ANILCA.
MR. UTERMOHLE replied, "Yes."
Number 0789
CO-CHAIRMAN HUDSON asked Mr. Utermohle whether the state would be
divided into areas and in a time of shortage people may apply for
the use if they live in the area.
Number 0820
MR. UTERMOHLE replied the boards acting jointly would identify the
areas of the state that are dependent upon fish and game for
personal use for sustenance (dependent use areas). Fish and game
dependent uses would occur within the areas.
Number 0840
CO-CHAIRMAN HUDSON said the whole state would be divided up
according to the levels of criteria in the bill and anybody could
apply for the use, as long as he meets the $5-criteria and submits
something in writing that he is dependent upon fish and game for
personal and family sustenance, or has no alternative means of
sustenance in the absence of a cash-based economy, or the decision
to adopt a dependent life style. The major difference from ANILCA
is that anybody could submit a written request to qualify. He
asked Mr. Utermohle whether a person would have to live in a
dependent use area to qualify.
MR. UTERMOHLE replied, "No."
CO-CHAIRMAN HUDSON replied then he could live anywhere and qualify
by submitting a written statement.
MR. UTERMOHLE replied true.
CO-CHAIRMAN HUDSON stated within the preference there could be
noncommercial bartering at a documented historical level.
MR. UTERMOHLE stated any resident of the state without further
documentation may participate as a fish and game dependent user.
The criteria would only come into play when the boards identify a
shortage in a particular population.
CO-CHAIRMAN HUDSON replied he assumed that the shortage triggers
the preference. The bill also says that the boards shall set a
level of allowable noncommercial barter at a documented historical
level that would not subject the barter to fall under the commerce
clause of the Constitution of the United States. It seems that
everybody in Alaska who declares indigent could go anywhere
designated as a dependent use area, take, and eat game there.
Number 1037
MR. UTERMOHLE replied that only comes into play when there is a
shortage.
CO-CHAIRMAN HUDSON stated, "We're really only talking about apples
and apples with the subsistence issue in ANILCA that is necessary
for us to regain management somehow. Either they got to amend with
us or we got to amend with them or we got to come close enough
together to where some court would decide that we've met the
criteria."
CO-CHAIRMAN HUDSON stated anybody in the state of Alaska would
qualify as dependent if he possess a $5 license or submits in
writing that he is dependent on fish and game with no alternative
means for sustenance as the result of the absence of a cash-based
economy in the area where he lives - rural Alaska. He wondered
whether the bill really identifies rural Alaska by using the
language "and" instead of "or" in the bill on page 5, line 2.
Almost everywhere in Alaska there is a cash-based economy. Every
little village has some type of cash-based economy. They all have
a store. There has got to be a payroll, the legislature has put
$30 million into sewer and water projects. He understands the
intention to meet the equal protection and common use provisions of
the state constitution, but it does not meet them.
CO-CHAIRMAN OGAN opened the meeting up to public testimony and the
teleconference network.
Number 1357
PETE SCHAEFFER testified via teleconference in Kotzebue. The bill
clearly intends to reconfigure the regional councils and the
advisory committee systems. The old way of doing business is quite
effective. The regional boards would be required to do
significantly more work by determining who qualifies. The intent
of the changes do not necessarily serve the rural areas any better.
The rural areas have had regional councils before prior to
McDowell. In addition, the terms "subsistence" and "sustenance" in
the dictionary are the same. He wonders whether the change is to
divert attention away from what constituted the main argument for
subsistence. It is best to see the bill move out of the committee
for purposes of what it is suppose to accomplish.
Number 1450
WAYNE HEIMER testified via teleconference in Fairbanks. He prefers
this bill to the Stevens-Knowles approach. Dealing with use
instead of lifestyle is a great step forward. He is concerned
about subsection (6) in the findings and intent language of Section
1 in regards to a pressure on the resources driving the need for a
preference. We were driven to ANILCA because of the manipulated
perception of an impending disaster. Sections 801 and 802 of
ANILCA contain dire predictions of the anti-development hysteria
that has not come to pass in the last 20 years. In addition,
subsection (7) in the findings and intent language of Section 1 is
inconsistent with subsection (6). If subsection (7) is true, he
questions the need for a preference of any kind. Any preference -
local, rural or economic - provides a disincentive for those with
the preference to fix any problems of a shortage. Locals really
don't have an interest in non-locals being in their area,
therefore, why would they want to invite the board to fix a
shortage when they are getting everything that they need. The use
of personal and family use for food should be kept, but he
questions using the term "sustenance" because it is vague. The
text passed in ANILCA was a compromise 20 years ago and it
contained no federal takeover language. It still doesn't. He
suggests holding the feds to the text of Title VIII of ANILCA as a
matter of law. He does not think the constitution should be
amended. "We should call the fed's bluff and let it try to take
over legally, and let it sue us for a while."
Number 1639
CO-CHAIRMAN OGAN stated, in regards to Mr. Heimer's comments on
local control, it is whatever the main boards want to delegate.
Usually, boards react to crises rather than manage fish and game,
and hopefully that will be the way it pans out.
Number 1692
JOHN SHRADER testified via teleconference in Mat-Su. The bill
looks good. In regards to the debate on using the fish and game in
the region it was taken, he is not as likely to go into an area
where there is a shortage when there are other places that might be
better. He does not see a problem with going to an area for a
trophy hunt and making arrangements with the locals for the meat.
Given the size of the state, the regional fish and game boards is
a remarkable concept. The advisory vote is a good thing to show
Congress our understanding of the state's position.
Number 1813
DAN SENTZ testified in Juneau. He is representing himself, his
neighbors and eight people from work. He has been studying the
issue and likes the bill. It treats all of the people in the state
the same. It is controlled at the grassroots level. It has
protection for those that need it in a time of shortage. The bill
appears to hold with the spirit of ANILCA, then the federal
government needs to do whatever is necessary to amend it. The
state constitution should not be amended. "The only thing about
the constitution that we can change is going to be the equal
protection clause - Article I, Section 1. If we change that, we've
lost more than our fish and game."
Number 1907
MICHAEL PATKOTAK testified via teleconference in Barrow. Even with
the changes, it does not comply with Title VIII of ANILCA. The
bill is about special interest. When he faced Representative
Barnes years ago her arguments were in favor of special interests
in order to override Native issues. In addition, if the federal
poverty level was applied with a replacement factor of 3.5 percent,
many of the villages would be in poverty with an average income of
$59,000. If it was interpreted at less than 1 percent, the
directors of the regional corporations would be disqualified. In
conclusion, Representative Barnes is misrepresenting the history of
the interpretation of subsistence.
Number 2053
DON WESTLUND testified via teleconference in Ketchikan. He agrees
the state constitution should not be changed. He suggested
changing the language on page 5, line 2, from "and" to "or". He
also suggested deleting (B) on page 24. He referred to page 24,
lines 21-23, and indicated he was confused. Would the state
continue to manage fish and game if it passes an amendment, or if
it does not pass an amendment, would it continue to manage fish and
game? he asked.
Number 2110
VICE CHAIR MASEK replied section 316(b)(3)(B) of P.L. 105-83
extends the moratorium to December 1, 1998 that contains an
effective date until laws are adopted in Alaska that provides for
the definition, preference, and participation specified in Sections
803, 804 and 805 of ANILCA. The amendments made by (b) of Section
316 shall be effective only for the purposes of determining whether
the state laws provide for such definition, preference, and
participation. The Secretary shall certify before December 1,
1998, if such laws have been adopted in the state of Alaska.
Number 2164
MR. WESTLUND asked, if the bill passes, would it mean that the
state has complied with ANILCA.
VICE CHAIR MASEK replied, if the bill passes, the provisions that
she just read would be repealed.
MR. WESTLUND asked for the provisions to be faxed to him.
Number 2211
CO-CHAIRMAN OGAN explained the amendment in the subsection made to
ANILCA in the conference committee reads as follows:
"In accordance with Title VIII of this Act, the Secretary
of Interior is required to manage fish and game for
subsistence uses on all public lands in Alaska because of
the failure of state law to provide a rural preference."
MR. WESTLUND asked Co-Chairman Ogan, if the bill passes, would the
state continue to manage.
CO-CHAIRMAN OGAN replied actually it is the other way around. If
a rural priority is passed, as proposed in the Governor's proposal,
the language in ANILCA would remain. If a rural priority is not
accepted, it would go away. If the bill is passed, it should go
away, but he included the language to make sure that it would not
reappear.
Number 2281
MR. WESTLUND asked ,if the bill passes, would the state be under
the federal government's jurisdiction.
CO-CHAIRMAN OGAN replied, "No." If the bill passes, an advisory
vote would go to the ballot asking that ANILCA be amended to
conform to state law.
Number 2335
NICK SZABO testified via teleconference in Kodiak. He supports the
concept of the bill, but is still troubled by the definition of the
term "shortage." It should consider the availability of
alternative resources. If there is a sufficient abundance of
protein from one or more species to provide for the needs of
sustenance users, then they should not necessarily have a
preference over other species in the area just because they are not
in abundance. For example, if there is a sport fishery in the
area, it should not be preempted by dependent users, if their needs
can be met by an abundance of salmon at the same time. He
suggested including the language "and there are no other similar
fish and game stocks available to meet the dependent use needs."
after the word "sustenance;" on page 6, line 22. In closing, he
supports the effort to solve the problem.
CO-CHAIRMAN OGAN stated it is a very good suggestion.
Number 2419
LEE TITUS testified via teleconference in Northway. There are a
lot of problems with the bill as written, such as the $5-license
requirement. The bill does not address the true intent of what the
state is trying to do. He explained the subsistence issue was a
cry from the Native elders throughout Alaska, and Title VIII of
ANILCA addressed their cry. Now, the state is watering down the
issue by not dealing with the Indians and by not having them
participate in writing a bill.
TAPE 98-27, SIDE B
Number 0000
MR. TITUS continued. He wondered whether there should be another
section to the ballot to change the state constitution to give a
choice. In conclusion, elections are coming up so it will be a
campaign issue for those involved. "I don't know, maybe we'll see
some changes there in Juneau next year."
Number 0106
HUGH DOOGAN testified via teleconference in Fairbanks. He is
approaching his sixty-seventh year of residency in Alaska. The
Alaska National Interest Lands Conservation Act is discrimination
because it leaves out the people living in urban areas of the
state. The $5-license fee has been talked about, but not the
senior citizen or sport fishing license fee. Before he was a
senior citizen, he had to use a sport fishing license to
subsistence fish in Chitina. Cash of an individual should not be
used. The Indians of Alaska have a net worth in the 13
corporations formed under the Alaska Native Claims Settlement Act.
He will let them fight for their subsistence rights and let them
fight for his also.
Number 0215
CO-CHAIRMAN OGAN stated the assets of the Native corporations are
not considered when determining eligibility for public assistance.
The $5-license is an appropriate barometer. A person would qualify
for a $5 license, if he is on public assistance or makes below
$8,200.
Number 0240
REPRESENTATIVE FRED DYSON asked Co-Chairman Ogan whether it is
necessary to adopt the proposed committee substitute that testimony
is being heard on.
CO-CHAIRMAN OGAN replied he meant to do it after the overview. He
entertained a motion to adopt the proposed committee substitute.
Number 0252
REPRESENTATIVE DYSON made a motion to adopt the proposed committee
substitute for HB 406, version 0-LS1573\P, Utermohle, 3/5/98.
There being no objection, it was so adopted.
Number 0270
MR. DOOGAN further stated that he does not believe in changing the
state constitution because it protects everybody in Alaska equally
for the use of the resources. "Let the feds sue us, and stand by
our guns and our constitution."
Number 0295
REPRESENTATIVE BARNES asked Mr. Doogan whether he was part of the
constitutional convention.
MR. DOOGAN replied, "No." His brother Jim was part of the
constitutional convention. He has talked to many members of the
convention. They worked hard on it. It is one of the best
constitutions ever written.
REPRESENTATIVE BARNES asked Mr. Doogan whether he is related to Mr.
Doogan of the Anchorage Daily News.
MR. DOOGAN replied he is Jim Doogan's son and his nephew.
Number 0330
DEAN PADDOCK testified in Juneau. He is representing himself.
Today, he is well into five decades of research, management and
harvest of the fish and wildlife of Alaska. He belongs to the
school of whatever it takes to avoid a federal takeover. He agrees
with Senator Stevens that federal management would be hell. "I
believe that the management scheme as it's presently conceived is
virtually unworkable." Senator Stevens used another word that
resonated with him - a seamless society.
Number 0215
CO-CHAIRMAN OGAN asked Mr. Paddock if the management scheme he is
referring to is the one in ANILCA.
MR. PADDOCK replied, "Yes."
MR. PADDOCK stated prior to statehood he came to Alaska under the
Territorial Department of Fisheries as a young, idealistic and
naive biologist. He believed in a seamless society then and still
does. He strongly supports an Alaskan solution. The
responsibility for the management of fish and game has been
delegated to the boards thereby it is their responsibility to bring
subsistence use into the mainstream of the new paradigm of one
state-one people. Under former Governor Jay Hammond, he worked
with the advisory committees and felt that rural input was being
overlooked, ignored and occasionally repressed by fish and game
managers. It is his belief that the paradigm of a seamless society
failed largely due to resistance and negative attitudes by
professionals in the Department of Fish and Game. The boards
tried, but they were not provided with adequate input. Some of the
boards with power simply did not encourage rural input that would
have led rural users to regard the process as their own. The
created a subsistence section within the Department of Fish and
Game, followed by a subsistence division, followed by a subsistence
preference. The bill is not perfect, but he gives due credit to
those that have put it together.
Number 0563
REPRESENTATIVE DYSON stated it seems the bill tries to empower
local advisory boards. He asked Mr. Paddock how that part could be
done better.
Number 0574
MR. PADDOCK replied he has not had time to study the bill in
detail. In the past, there has been a reluctance to decentralize
control over fish and game resources. Advisory committees were
originally conceived as "advisory." With the right blend of local
and central authority, there is "light at the end of the tunnel."
Number 0623
REPRESENTATIVE DYSON stated he would appreciate further scrutiny by
Mr. Paddock and any suggestions. He sees a problem with migrating
species and competition for their uses on the borders of the
regions. There needs to be a central conflict of resolution for
their preservation.
Number 0660
MICHAEL COONS testified via teleconference in Mat-Su. He opposes
a constitutional amendment to bring a state constitution in-line
with a federal statute. The way ANILCA has been implemented in the
past is an abomination of the state's rights. Changing the
constitution under the guns of tyranny is in direct violation of
the public's trust. The voters could defeat the issue, but he
shudders at the prospect of a vote. The issue has been filled with
false information from the media, Governor's office, and Senator
Stevens' office. He wonders whether the voters have an accurate
understanding of what exactly would happen if the constitution is
changed. He is concerned that, if the constitution is changed,
President Clinton would not sign major legislation to give the
state full rights to fish and game management. President Clinton
and Vice President Gore have not shown one reason to trust them
when it comes to hunting, fishing or land use issues. Senator
Stevens has warned the state that the President would mostly likely
close federal lands to firearms and hunting if a constitutional
amendment is not passed. He strongly supports the bill in its
entirety. He also supports the federal lawsuit brought forth by
the legislature. "Yes, I am concerned that if we loose in our
present approach to maintain our state's rights in land and fish
and game management, that we'll be worse off than we are now.
However, the United States Supreme Court has not ruled on what is
happening in our state. I am confident that the U.S. Supreme Court
will rule in our favor if we get to that point." In closing, the
issue has never been about ensuring fish and game for rural people,
it is about federal control over states. President Clinton and his
environmental buddies want total control of the land, and it should
never be given to them under any circumstances.
Number 0853
MYRON NANENG testified via teleconference in Bethel. A lot of
people don't realize that in 1971 the state of Alaska made a
promise to protect subsistence because of the state's failure to
recognize Title VIII of ANILCA. Many people in rural Alaska
welcome federal management because the state's management system
has not been equitable. The bill would take the state back to the
days of the suppression of the rural people. Management structures
would be set up once again the way urban people want it to be at
the expense of the rural people. The bill fails to recognize
subsistence. It fails to recognize that people in villages are
just as much a part of fish and game management. It fails to
recognize the people who have utilized the resources from time
immemorial. It fails to recognize tribal co-management. The bill
needs to be rewritten to recognize subsistence. It is hard to put
on paper the very reason why people still live in places to hunt
and fish for their existence.
Number 0975
REPRESENTATIVE JAMES referred to the moose situation in Togiak
where it was suggested to hunt for caribou 200 miles up river in
order to build up the moose herd. The people wanted to hunt for
them nearby. She asked Mr. Naneng whether he is familiar with the
case.
MR. NANENG replied he is not familiar with the case. However, if
there is a need for food for subsistence, a person is not going to
go to an agency for a $5 license. They will go out and hunt for
their food. They might need the $5 for gas or ammunition in order
to go hunting.
REPRESENTATIVE JAMES stated it sounded like the Federal Subsistence
Board was not very sensitive to the issue in Togiak.
MR. NANENG replied the Federal Subsistence Board is made out of
people who live in Anchorage. A regional council would be more
supportive. Even the state managers are out of reach and in many
instances really don't know the issues that affect rural people.
The bill does not address these concerns.
REPRESENTATIVE JAMES asked Mr. Naneng whether that is the reason
why he suggests cooperative management.
MR. NANENG responded the federal and state managers have said that
the only way to manage resources is through tribal co-management.
The Native community has worked cooperatively with the state on
issues like migratory birds, and their population numbers have
increased.
Number 1129
REPRESENTATIVE BARNES stated it was the local advisory board, not
somebody out of Anchorage, who wanted to build the herd up to 600
animals. It was the local people who did not want the hunt to take
place.
Number 1166
DICK BISHOP testified via teleconference in Fairbanks. He read the
following testimony from Mary Bishop:
"I'm sorry I could not stay to testify. However, I do not want to
leave you with these comments before your final committee
deliberations. Even though I have only had about two hours to
contemplate this bill, I've spent two decades working with the
issue.
"(1) The bill looks like an acceptable vehicle for working towards
an Alaskan solution. I particularly feel it is important to have
a public vote and I'm pleased that addition has been made.
"(2) Your bill appears to provide what Alaskans probably wanted
and thought they had all along. That is, a preference for resource
dependent people in times of shortage. Many people assumes that is
what ANILCA gives us right now, but most of here in this room know
differently. The federal law gives all rural residents a strong
priority or customary and traditional use all the time. Back when
the state was incompliance, one village had a six-month moose and
eight-month caribou season. The federal judge in this 1989 case
ruled that it was not consistent with the federal law. He required
the Board of Game to submit new regulations. The judge finally
allowed almost year-round not bag limit seasons because, 'need is
not the standard. Again, it matters not that other food sources
maybe available. The standard is customary and traditional use of
game.' And customary and traditional use meant opportunistic year-
round hunting. We cannot continue to have a law that allows that
type of judicial interpretation. In summary, I like the direction.
I like the public vote. It would be okay by me to add refutable
presumption for all members of very small communities that have
limited job opportunities to have the preference. This was done in
the federal bill, but it gave it to too many larger communities.
I have a problem with the idea of regional boards and the 'eat-it-
where-you-shoot-it" provisions. I've got to think a lot more about
that. It may not be necessary to change the subsistence division,
although you might consider putting that division in the community
and regional affairs rather than in the fish and game department.
Senator Lincoln often says and I agree with her that subsistence is
far more than just hunting and fishing. I can't exactly say what
subsistence is. I just know that the concept is very important and
almost spiritual. I know it involves more than just hunting and
fishing. But, what we are debating is a priority for hunting and
fishing, not all of subsistence. I agree subsistence is a basic
human right and I don't want to take it away from anyone. I
certainly don't want to take ir or give it on the basis of zip
codes. But, I am perfectly willing to realistically limit those
people who have a hunting and fishing priority to those who are
truly resource dependent.
"Thank you. You are moving in the right direction."
Number 1361
ROBERT HALL, Representative, Houston Chamber of Commerce, testified
via teleconference in Mat-Su. We appreciate the amount of work
done, but the there are many details and definitions that need to
be worked on. The statement that the best use of fish and game is
for family and personal use is very important. Any legislation
should establish a preference for Alaskans to feed their families
over other uses. The establishment of regional boards is a
positive step. There needs to be a definition of the terms
"dependance" and "subsistence." The word "subsistence" might need
to be used instead of sustenance to work with ANILCA. The effort
to establish an "eat-it-where-you-shoot-it" provision is good, but
needs some fine tuning to make it work. A rural preference or
advantage is implied by the regional board concept. Please, don't
be afraid of a federal takeover. It already manages game in the
state. It is really a threat to takeover the allocation of fishery
resources. Most people in the Mat-Su valley are not really pleased
or satisfied with the current state management anyway. He
understands the pressure on the Resources committee to move a bill
out, but unless one is passed out that a majority of Alaskans
understand and agree on, it will be radically changed before it
gets to the Floor. However, the Resources committee is the
appropriate place to do the majority of the work and make most of
the changes.
Number 1536
DICK STOFFEL testified via teleconference in Mat-Su. He is happy
with the fact that the bill gives a preference for those who really
need it in areas when there are a shortage. He is more excited
about the stipulation that conforms the federal law to the state
law.
Number 1640
GLORIA STICKWAN testified via teleconference in Glennallen.
[DUE TO TECHNICAL DIFFICULTIES, HER TESTIMONY IS INAUDIBLE]
CO-CHAIRMAN OGAN asked Ms. Stickwan to fax her testimony to the
committee.
Number 1876
TOM SCARBOROUGH testified via teleconference in Fairbanks. He
appreciates the efforts of Representative Ogan and the committee
for dealing with the subsistence issues created by Senator Stevens.
There is still a preference in the proposed committee substitute.
A preference is still a preference and will discriminate against
somebody resulting in a violation of individual rights. Natural
resources in Alaska are held as common property and belong to all
residents - a right granted by the state constitution. It cannot
be voted away at the ballot box, even if it is a preference for
those that buy a $5 license. Article I of the Fourteenth Amendment
of the Constitution of the United States says, "No state shall make
or enforce any law which shall abridge the privilege or immunities
of a citizen of the United States; or shall any state deprive any
person of life, liberty or property without due process law; or
deny any person within its jurisdiction the equal protection of the
law." It is clear that the Founding Fathers foresaw a time when a
state would give a preference to some portion of its population
violating the right of the other citizens. The Fourteenth
Amendment prohibits the state from establishing a preferential
right to discriminate, and the federal supreme court will not go
for it. It is also very clear that Article I, Section 1 of the
Constitution of the State of Alaska spells out the equal rights of
the state citizens. There is no doubt that Title 16 would need a
lot of revision to establish that personal use is the highest and
best use of the fish and game resources. He opposes HB 406, as
written, because of the preference, but there are a lot of good
sections that are valid. "If you take out the preference, why we
would be marching down the right path." It is not going to please
the federal government, but the real decision is to determine
whether Alaska is going to be a state with equal status of the
other forty-nine, or is it going to continue to be a federal
territory under the illusion of a state.
Number 2170
ROD ARNO, President, Alaska Outdoor Council (AOC), testified in
Juneau. He applauds the efforts of the House Resources committee
in its attempt to craft legislation to resolve Alaska's loss of
fish and game management to federal land managers considering
Article I, Section 1; Article VIII, Sections 3, 15 and 17 of the
state constitution. With the emphasis on more local control of
fish and game through statute, more trust is needed between urban
and rural hunters. In that spirit, there are numerous
opportunities to work together and move forward such as the
(indisc.) bison reintroduction. An example of co-management
problems is Proposal 73 before the Board of Game where state policy
has been to re-establish musk oxen throughout their former range on
the North Slope, but the shareholders have agreed that the
principle goal of musk oxen management should be to restrict the
herd. On the North Slope there are approximately one-half million
caribou that migrate across and less than two thousand musk oxen.
They were put there on a reintroduction program using Pittman-
Robertson federal matching funds with the hope that they would be
allowed to expand so that urban hunters could harvest them by
entering federal lands, but if they are not allowed to expand, it
will not happen. Urban hunters were not part of the coalition that
put together the proposal, but rather the North Slope Borough's
Department of Wildlife Management and the Alaska Department of Fish
and Game. The AOC values biological, sustainable uses of fish and
game first and human use second. Thus, there is concern about
subsection (7) on page 2. After 33 years of guiding in rural areas
in Alaska, he can say that there will come a time when the state
will not be able to adequately provide the biological and
reproductive capabilities to provide abundance for all uses.
TAPE 98-28, SIDE A
Number 0000
MR. ARNO continued. Taking out P.L. 105-83 of ANILCA to ensure
that the Secretary of Interior does not have the authority to
manage fish and game for subsistence uses on public lands is not
part of ANILCA today. Section 5 states that the subsistence
priority required on public lands under Section 804 of the Act
applies to navigable waters in the U.S. as reserved water rights.
Number 0109
REPRESENTATIVE BARNES asked Mr. Arno whether the Pittman-Robertson
funds are used primarily for buying fish and game hunting licenses,
ammunition, sports gear, etc.
MR. ARNO replied, "Correct." It is an excise tax and provides 85
percent of the resources for fish and game management in the state
today.
REPRESENTATIVE BARNES asked Mr. Arno whether he said the funds are
85 percent of the budget for managing sports hunting and fishing in
the state today.
MR. ARNO replied, "Yes."
REPRESENTATIVE BARNES asked Mr. Arno whether the Pittman-Robertson
funds are primarily derived from the non-rural areas of the state.
MR. ARNO replied they are mainly derived from outside of the state
the nonresidents who come to the state which averages about 8,000
to 10,000 licenses annually. It has been that way for the past 23
years.
REPRESENTATIVE BARNES asked Mr. Arno, if those funds were not
provided or were in jeopardy, would the state have to come up with
a much larger dollar amount to put into its budget each year.
MR. ARNO replied yes for the level of management that the state has
today which has been budgeted based on the amount of funds made
available through license sales and federal excise taxes.
REPRESENTATIVE BARNES asked Mr. Arno whether a few years ago some
of the Pittman-Robertson funds moved out of its category for
hatcheries.
MR. ARNO replied he does not feel qualified to answer that.
REPRESENTATIVE BARNES stated she thinks it is a fact. She asked
Mr. Arno, if the Pittman-Robertson fund was used for the herd he
talked about and it was not managed for the purposes of the funds,
what kind of problems could the state encounter.
MR. ARNO replied there could be ramifications. In the mid-1970s
there were open meetings where a plan was developed to reintroduce
the musk oxen back into the North Slope. It was presented to
sportsmen nationally as a good use of that money with the idea that
in the future the hunters would be allowed to harvest the herd on
federal lands.
REPRESENTATIVE BARNES asked Mr. Arno how long he has been involved
with the Alaska Outdoor Council.
MR. ARNO replied five years.
REPRESENTATIVE BARNES asked Mr. Arno whether the Alaska Outdoor
Council used to be called the Alaska Conservation Council.
MR. ARNO replied it used to be called the Fish and Wildlife
Federation for Alaska.
REPRESENTATIVE BARNES asked Mr. Arno in the time that he has been
involved with the organization whether he has known it to come out
with a position in support of amending Alaska's constitution.
MR. ARNO replied, "No."
Number 0526
REPRESENTATIVE DYSON stated hopefully in a week or so he will have
a bill before the House Resources committee that will legalize
farming of moose and caribou to provide a basis for more
reintroduction. He would enjoy the support of the AOC.
Number 0589
EMIL PORTSCHELLER testified via teleconference in Mat-Su. In
general he supports the legislation. The committee members deserve
praise for taking on such a stressful and political issue. He has
been involved for about 30 years in resource use and management in
the state. Many who worked in the resource field several decades
ago were fearful that the state was heading in the wrong direction
with the development and implementation of ANILCA and the Alaska
Native Claims Settlement Act (ANCSA). In fact, many felt it was
wrong to pass them. They have amounted to a political wedge
between the people of the state. Amending the state constitution
to conform with ANILCA is the wrong direction. The state
constitution represents a much more appropriate approach in dealing
with equal opportunity to access the natural resources than what is
provided for in any of the provisions in ANILCA. He agrees, in
part, with the attorney general's representative that the "use-it-
where-you-hunt-it" segment would infringe on some people in the
state. He opposes the idea of establishing regional boards and
committees. They tend to become politically and sometimes racially
charged to the extent that they become ineffective. They also
represent a redundancy within the political system. When there are
effective legislators in place such as Representative Ogan and
Barnes there is a significant avenue to provide input on natural
resources. He strongly suggests deleting from (C) on page 4 to (3)
on page 7. He has spoken with a number of resource managers about
this particular area and it seems to represent an intrusion by
government into the private lives of Alaskan residents. There
really is no functional need for the provisions. In addition,
having talked to a number of federal resource managers, they have
indicated that they should serve only as an additional resource to
state managers. He also agrees with Ms. Bishop's comments earlier
that the proposed legislation is a reasonable vehicle to accomplish
addressing the subsistence issue in general. In regards to the
"use-it-where-you-hunt-it" provision, if he shot a moose across the
border of a given region or resource management unit, he would have
to set up camp there, even if his cabin was a short distance away.
Potential circumstances like this need to be addressed.
Number 0981
REPRESENTATIVE WILLIAMS asked Mr. Portscheller how to get around
the agreement made with ANCSA. It takes both sides to break an
agreement.
Number 1030
MR. PORTSCHELLER replied frankly there are several avenues to
pursue to accomplish the necessary changes in ANILCA. The primary
problem is a lack of zealousness by the congressional delegation.
Senator Stevens has not represented Alaska in the most positive
light when dealing with natural resource use. Many who have worked
in the natural resource realm have long discerned an agenda with
regard to ANILCA with the congressional delegation.
Number 1083
REPRESENTATIVE WILLIAMS stated ANCSA says in order to fulfill the
policies of the Act as a matter of equity it is necessary for
Congress to invoke its constitutional authority over Native affairs
and its constitutional authority over the property and commerce
clause to protect and provide opportunity for continued subsistence
uses on the public lands by the Natives and non-Natives and rural
residents. He asked Mr. Portscheller how to get around the promise
made in ANCSA.
Number 1146
MR. PORTSCHELLER replied ultimately it is necessary to reconsider
the ANCSA situation as a whole. He recalled in the earliest period
of the implementation of ANCSA that there was a tremendous amount
of angst on the part of resource managers that has led to the
wedges between the people. There were enough provisions in place
to provide for subsistence opportunities before ANCSA was
developed. The Alaska Native Claims Settlement Act was the initial
political bias placed into the resource management picture in the
state, and most people have been afraid to touch it because of the
underlying racial and ethnic issues. If those issues can be
addressed more openly, history will show that there was not a
considerable need to establish ANCSA and ANILCA as once was
thought.
Number 1244
REPRESENTATIVE BARNES explained the conference committee report
indicates that the Secretary of Interior and the state are expected
to address the subsistence needs of the Natives. However, a law
was adopted and it extinguished the titles to lands, fish and
wildlife. The conference report was simply made part of
congressional record. It was never adopted into law.
Number 1282
MR. PORTSCHELLER stated he applauds Representative Barnes'
historical record.
Number 1290
REPRESENTATIVE WILLIAMS stated along those same lines subsistence
was part of the negotiations in 1971. It was part of the senate
bill which resulted in the conference committee. The push to
settle the negotiations was the need for an oil pipeline. The
state of Alaska tried to take care of the subsistence needs of the
Natives in 1975 and 1976, but it did not come forth with a solution
resulting in ANILCA.
Number 1409
CO-CHAIRMAN OGAN stated the only way to meet the intent of the
conference report is to give a Native preference, and that is not
practical.
Number 1423
REPRESENTATIVE WILLIAMS replied he is not trying to go for that.
He is trying to keep the promise out in front.
Number 1434
REPRESENTATIVE BARNES stated, looking at the ANCSA debates,
originally there was going to be only 5 million acres given to the
Natives, then 10 million acres. Finally, 44 million acres and $1
billion were given to extinguish aboriginal rights to lands,
waters, and etc, if there were any. A conference committee report
is one thing, but it did not became part of the law. "You can't
say something was part of a negotiated settlement when it wasn't
put into the law. So, you have to keep trying to reach a consensus
on it that works for everybody, and I think that's what were trying
to do."
Number 1529
ROB BEACH testified via teleconference in Fairbanks. If he killed
260 moose a month and left them he would be thrown in jail. The
train runs over more moose than any Indian in the Interior has
killed in one year. The amount of highway kills have been
averaging 20 per week on the Sterling Highway. In the Anchorage
area there is another 20 per week. In total, that is 260 per month
wasted. Anybody with common sense could see that the resources are
not unlimited. There have been shortages ever since the buffalo
have been extinct. There has been a shortage since Elmendorf Air
Force Base killed off all of the ducks. There has been a shortage
since Hinchenbrook (ph) made the navy look like a boat parade. "We
would appreciate that you have consideration and kindness towards
our outlook on life. I don't see any of you out here in the bush
trying to stir up some agricultural development. Maybe brining in
some other game into this area so that there would be plenty enough
for everybody. Now, if you'll just take a minute and have it
understood that I'm totally upset. I just...I just cannot believe
the pipeline and the amount of people that came from all over the
world and came up here and started shooting anything that moved and
not a word was said about that. But, as soon as an Indian gets
down to the nitty gritty here and there's a last moose out there,
who's going to have to give up on that last moose? he asked. Now,
before we get to that point, I would like to appreciate this whole
committee to understand that you can work with us or you know just
go on about and starve just like you're making us have to do. You
cut us off from the fish when we were fishing back in the 70s with
our fish wheels and found that was illegal. You found us taking
game out of your supposed seasons was illegal because we could
transport the game a lot easier in the winter and we didn't have to
worry so much about the storage because it was frozen. Now, we've
given and we've given and we've given. It's just too bad that I
don't have the old people around anymore, the people from Tetlin
that first sat down with the people with paper to have to work out
this subsistence and every other issue that comes along. I just
wish I could hurry up and be with them."
Number 1738
CO-CHAIRMAN OGAN explained the bill would give a preference to the
people who depend on the resource in a time of shortage.
MR. BEACH stated that will be the train line.
Number 1769
LINDA ANDERSON testified via teleconference in Mat-Su. She is
concerned about the language, "principle characteristic of the
economy and way of life of an area depending on the relative
important of the dependence of the fish and game." These days
living in the bush is a choice "no matter who you are." And, if
"you can't feed and cloth your children then you have to go where
your job can go, or where you need to go to feed and cloth your
children." Jobs are few in the bush, but it is a choice to live in
a remote area these days. The world has gotten so small. She has
American Indian in her family, but she does not want any special
rights. Every person has the same right to vote and send public
opinion messages to be involved. It is 1998, and according to
history, people have migrated from everywhere to everywhere. A
constitutional amendment is not needed. Her family, although not
living in rural Alaska, depends on meat for food. It is a lot
cleaner and healthier to hunt and fish. She endorses, trusts and
supports Mr. Ogan and the board's efforts. She wants to see
equality, not special rights given to a particular race or group of
people.
Number 1940
TOM LAKOSH testified via teleconference in Anchorage.
Representative Ogan's suggestion of subsistence and personal use be
the superior public purpose and beneficial use of fish and game is
a "no brainer." It is purposely implied by the state constitution.
In Kenaitze the superior court judge hit the nail on the head when
he found that subsistence is an inherently local use. It is clear
that locals should be given some priority, as long as all Alaskans
have priority of their area of residency. It was found that since
personal use regulations allowed for the same thing as subsistence
us regulations, they were effectively the same opportunity. Now,
however, there is no longer the same type of access to the
fisheries for personal use in the urban areas (non-subsistence
areas). He wondered whether a commercial fisherman who ate all of
his fish would be in violation of this proposed law.
Number 2059
CO-CHAIRMAN OGAN replied it does not apply to commercial fishing at
all. It only ties to sustenance/personal use in a time or
shortage.
MR. LAKOSH replied that is the point.
Number 2079
DANNY GRANGAARD testified via teleconference in Tok. "If you're
gonna put this bill 406 up to the constitution that don't meet
ANILCA, I think we're beating our head against the wall,
personally." The other major problem is the $5 license. The
people who live in a village and who make too much money will not
be able to hunt. The people who work in a gas station making $10
an hour won't qualify and they probably need the meat more than
anybody, but they will still be over the $5-requirement. Basing it
on welfare is a mistake, otherwise it is a good bill. It looks
like it is designed to eliminate as many rural residents as
possible. Somebody could move from the Lower Forty-Eight and one
year later join welfare and go hunting, when people who have lived
here for 30 years would not qualify. That's not fair. A lot of
rural people, including village people, will not vote for this bill
as it stands now. If the rural people don't vote for it and it
won't meet Title VIII of ANILCA, then what is the point.
Number 2153
REPRESENTATIVE BARNES stated while the bill does not qualify with
Title VIII of ANILCA and the rural people in the state might not
support it, the attempt is to make sure that all people in the
state are treated equally.
Number 2187
PATRICK SAMSON testified via teleconference in Bethel. The rural
areas are being left out. The remote rural people of Alaska make
up most of the subsistence use which only harvests 3 to 6 percent
of the natural resources. Sport and commercial fishing take up the
rest of the harvest. The high cost of living is offset by the
subsistence harvest in the rural areas, especially remote rural
areas. Basing the requirements on income and welfare is all wrong
because people in the remote areas have jobs to finance their
subsistence activity who in turn almost always share their harvest
with those who cannot finance their subsistence activities.
Number 2233
CO-CHAIRMAN OGAN explained the bill has two tiers. In a time of
shortage, the board "shall" allocate according to the highest and
best priority (tier I). The only time the boards would
differentiate amongst people who qualify would be when there is not
enough to go around after allocating for subsistence/sustenance use
(tier II).
Number 2274
MARTINA RAPOZA testified via teleconference in Bethel. She is
originally from the village of Kipnuk. Not enough time and
information has been given on the bill to give adequate testimony.
But, even if enough time and information had been given, there are
many subsistence users that do not have the means to testify.
Number 2295
CO-CHAIRMAN OGAN stated there was five and one-half hours of
testimony from the public last Saturday.
Number 2307
VIRGINIA CHARLIE testified via teleconference in Bethel. The
subsistence issue is important enough to at least include all
parties, especially the subsistence users.
Number 2330
REPRESENTATIVE REGGIE JOULE stated, if the bill should move from
the House Resources committee, there will be further opportunities
to testify in the next committees of referral - Judiciary and
Finance.
Number 2347
CO-CHAIRMAN OGAN stated that is a very good point. It will also go
to the Senate with at least two to three committee referrals.
Number 2381
MS. CHARLIE replied even with more time there are no teleconference
sites available for subsistence users.
Number 2389
CO-CHAIRMAN OGAN stated that is a problem. There have been people
who call in through the bridge. There is also the mail and faxes.
Number 2412
FRED SMITH testified via teleconference in Bethel. He is
originally from Napaskiak. He opposes any actions that would
diminish the intent of ANILCA and that would threaten livelihoods
of many rural Alaskans including their cultures and values. The
Administration and the legislature need to accept the premise that
Congress has accepted and acted on. The one thing that has led the
state down the wrong direction is the premise of one state-one
people when that is not the case. There are tribes in rural Alaska
with federal recognition and certain protections. If the state
can't meet those protections in place then maybe it is not the best
one to manage the fish and game resources.
TAPE 98-28, SIDE B
Number 0017
CO-CHAIRMAN OGAN closed the public testimony portion of the
committee hearing.
Number 0023
CO-CHAIRMAN OGAN called for a recess until 6:00 p.m.
CO-CHAIRMAN OGAN called the meeting back to order at 6:07 p.m.
CO-CHAIRMAN OGAN asked for a roll call. Members present at the
roll call were Representatives Barnes, Dyson, Green, Joule, Masek,
Hudson and Ogan. Representative Williams arrived at 6:10 p.m.
CO-CHAIRMAN OGAN called on Geron Bruce from the Department of Fish
and Game.
Number 0075
GERON BRUCE, Legislative Liaison, Office of the Commissioner,
Department of Fish and Game, stated the department has looked at
the changes and continues to have concerns as expressed in a letter
from the Department of Law, the commissioner, and Mary Pete. The
proposed committee substitute still does nothing to stop a federal
takeover of fish and game management. The individual eligibility
system is inconsistent with the traditional patterns of community
sharing, the hallmark of a subsidence economy. It still has
burdensome requirements on persons who want to take fish and game
for subsistence use - the application procedure. It places
additional responsibilities on the boards that are already
struggling with their present responsibilities. The subsistence
conflict can be solved if it is approached practically by
recognizing a priority consistent with federal law while still
providing an abundant opportunity for other uses. A management
system can be constructed to achieve that. It may not be perfect,
especially at first, but the problems could be worked out over
time.
Number 0201
REPRESENTATIVE GREEN asked Mr. Bruce why the bill would not prevent
a federal takeover if the constitutional portion is resolved by
tweaking ANILCA.
Number 0223
MR. BRUCE replied, according to the newspaper, an official from the
Department of Interior said the bill would not comply with ANILCA,
and it would not prevent a federal takeover because it would not
provide for a rural priority.
Number 0250
REPRESENTATIVE GREEN wondered what version the official in
Washington D.C. looked at. It certainly was not this version. He
asked Mr. Bruce whether the official is a decision making type or
just an average person like the rest of us.
Number 0280
MR. BRUCE replied it was Deborah Williams, the Secretary of
Interior's assistant in the state.
Number 0292
CO-CHAIRMAN OGAN stated the job of the Department of Fish and Game
is to not worry about setting policy, but to worry about managing
fish and game. "I don't think you need to come in here and remind
us that this doesn't conform with ANILCA. We're aware of that.
So, I'd appreciate it if you would keep your comments to--I think
the last comments you made was about the additional regulations
were probably the most appropriate that you made in this committee.
We'll worry about the policy. You guys worry about how you manage
it."
CO-CHAIRMAN OGAN stated the revised bill allows the boards to
delegate some authority to the regional boards, a tool to take off
some of its workload, especially the Board of Fisheries. In
addition, the simplified qualifications greatly reduces the burden
of the boards - a $5 license and a signed statement.
Number 0362
MR. BRUCE stated there is an adjudicative process with the boards
acting together to decide any denials referred to them. An
adjudicative process can be very lengthy, contentious and
expensive. The Commercial Fisheries Entry Commission adjudicates
permit denials that take years. It is a whole realm of work that
historically the boards have never done and now would be required
to do.
CO-CHAIRMAN OGAN stated the point is well taken.
Number 0411
REPRESENTATIVE DYSON stated it is his understanding that even with
the Governor's task force proposal and a constitutional amendment
the state would still be under federal court supervision for all of
its fish and game actions that relate to public lands. He asked
Mr. Bruce whether that is his understanding.
Number 0443
MR. BRUCE replied that is really a legal question.
Number 0458
REPRESENTATIVE BARNES asked Mr. Bruce how long has he worked for
the Department of Fish and Game.
MR. BRUCE replied a little over six years.
REPRESENTATIVE BARNES asked Mr. Bruce whether he was around for
part of the Hickel Administration.
MR. BRUCE replied, "Yes."
REPRESENTATIVE BARNES asked Mr. Bruce whether he was aware of the
bill introduced at that time relating to regional areas and the
"eat-it-where-you-kill-it" sort of thing (SB 443 and HB 552).
MR. BRUCE replied yes he was familiar with them. He has not looked
at them recently, however.
REPRESENTATIVE BARNES asked Mr. Bruce if the Department of Law
writes a legal opinion is it the opinion of the Department of Fish
and Game, until it is rebutted with a separate opinion.
MR. BRUCE replied, "Yes."
REPRESENTATIVE BARNES asked Mr. Bruce to get a copy of the legal
opinion written to Representative Georgianna Lincoln and Senator
Lyman Hoffman on SB 443 and HB 552 and read it in the context of
the bill before the House Resources committee. She also told Mr.
Bruce to be prepared to tell her whether there is anything to rebut
that opinion in the department, and, if so, how it is different.
Number 0578
REPRESENTATIVE JAMES stated Mr. Bruce has testified that the bill
would not meet ANILCA and avoid a federal takeover. She asked Mr.
Bruce whether that is his position because the state has been told
it has to have a rural priority in its constitution.
Number 0597
MR. BRUCE replied he is not sure what she means by the state has
been told.
REPRESENTATIVE JAMES stated it has been touted that the only way to
avoid the federal takeover is to have a rural priority amendment to
the constitution. She asked Mr. Bruce whether that influences his
decision on the bill.
MR. BRUCE replied it influences him to the extent that is what the
Department of Law, federal officials, and Senator Stevens have
said.
REPRESENTATIVE JAMES read a letter from Frank Murkowski regarding
whether the state could adopt a statute to implement a rural
priority required by federal law. "Some Alaskans can be granted a
priority over other Alaskans to use fish and game for subsistence
purposes without a constitutional amendment if the priority is
granted using criteria rationally related to the legitimate policy
objective of protecting the subsistence lifestyle." she asked Mr.
Bruce whether HB 406 grants a priority based on criteria rationally
related to the legitimate policy objective of protecting a
subsistence lifestyle.
MR. BRUCE replied, "Yes." It is the intent of the legislation, but
he is not sure whether it achieves its goal.
REPRESENTATIVE JAMES replied she is not totally convinced it does
either. She asked Mr. Bruce where the bill does not achieve its
goal and what needs to be fixed.
MR. BRUCE replied he just received the committee substitute this
morning. The department would like an opportunity to look at it
with more detail and to speak with people from other divisions. He
could provide information to her at a later time.
REPRESENTATIVE JAMES stated she looks forward to his evaluation.
Number 0738
CO-CHAIRMAN HUDSON stated the definition of the term "rural
community" in ANILCA is, "an area or community substantially
dependent on fish and wildlife for nutritional and other
subsistence uses." The only major definition in federal law.
Deborah Williams has said that Secretary Babbitt will not agree to
a needs-based plan that does not give a rural priority for
subsistence fishing and hunting. The bill defines rural without
saying "rural" by creating dependent use areas. He disagrees with
the rural plan put forth by the task force because it would include
everybody, but Juneau, Anchorage, Fairbanks and a few other
communities based on population.
Number 0899
CO-CHAIRMAN OGAN stated Deborah Williams has also said that there
will not be changes to ANILCA unless there is a consensus. If the
people ratify the advisory vote, there is a consensus.
CO-CHAIRMAN OGAN called on George Utermohle from the Legislative
Affairs Agency.
Number 0955
REPRESENTATIVE MASEK refereed to the language that defines a
dependent use area and who qualifies as a dependent user. She
asked Mr. Utermohle whether the criteria on pages 4 and 5 would
apply to situations outlined on page 3 subsection (b); and, if so,
would only those people qualify to hunt in restricted areas like
the Nelchina caribou area.
Number 1025
MR. UTERMOHLE replied page 3, lines 3-9, provide for the highest
priority as consumptive use for personal and family use for
sustenance. There is no individual preference just a preference
for the use above other uses.
REPRESENTATIVE MASEK asked Mr. Utermohle whether the criteria
outlined on pages 4-5 would apply to situations outlined on page 3,
lines 3-9.
MR. UTERMOHLE replied no they would apply only to situations
described on page 4, lines 13-29.
REPRESENTATIVE MASEK asked Mr. Utermohle how would they affect the
people who qualify to hunt in restricted areas like the Nelchina
caribou herd area.
Number 1154
MR. UTERMOHLE replied assuming that the Nelchina caribou herd is
present in a fish and game dependent use area and there is a
shortage, the Board of Game has the option of establishing a
preference for persons who qualify as dependent on fish and game
for personal and family use for sustenance. The boards have the
ultimate word as to who qualifies under the criteria.
Number 1255
REPRESENTATIVE MASEK asked Mr. Utermohle, if there is a hunter from
Palmer who hunts in the Nelchina area, would he have to meet
certain criteria in order to go back up and hunt there. He can
hunt there now.
Number 1284
MR. UTERMOHLE replied in the event the hunter in Palmer does not
qualify under the criteria established and there are no additional
resources available to him he would not be eligible to participate
in the hunt in that area.
Number 1310
REPRESENTATIVE MASEK asked Mr. Utermohle whether a person from
Southeast would be able to qualify.
MR. UTERMOHLE replied regardless of where a person lives in the
state, if he does not satisfy the criteria and is not approved by
the boards, he would not be able to participate in a hunt for a
stock subject to a shortage.
Number 1352
REPRESENTATIVE DYSON asked Mr. Utermohle whether the Governor's
task force solution would leave the state under federal court
supervision.
Number 1378
MR. UTERMOHLE replied yes there still would be an opportunity for
federal judicial oversight of the implementation of subsistence by
the state.
Number 1388
REPRESENTATIVE DYSON stated the solution, if successful, would
eliminate the word "rural." He asked Mr. Utermohle whether the
state would have the same amount of federal court supervision.
Number 1425
MR. UTERMOHLE replied assuming the judicial oversight provisions in
ANILCA are not changed, probably the same level of oversight would
occur as if the state complied under the Governor's plan.
Number 1444
CO-CHAIRMAN HUDSON stated, if Congress was to accept the changes to
exclude state lands, private lands, and navigable waters to ANILCA;
and, even if the state could not preclude federal oversight on
federal lands, that would be the only area of federal court
oversight. He wondered whether the federal courts would have any
primacy over state, private and navigable waters, if ANILCA was
changed.
Number 1508
MR. UTERMOHLE replied federal jurisdiction would not attach to
land. It would attach to that which arises under the federal Act.
It could go anywhere in the state, where it operates in compliance
with ANILCA, and act as an oversight.
Number 1555
CO-CHAIRMAN HUDSON stated as long as the state accedes to a
statement of compliance the federal court has oversight.
MR. UTERMOHLE replied, "Yes."
Number 1571
REPRESENTATIVE BARNES asked Mr. Utermohle whether the 97 amendment
language would go away.
MR. UTERMOHLE replied the language of Senator Stevens' amendment
would go away, yes.
REPRESENTATIVE BARNES responded then the state is back to the
status quo. The status quo would not have Secretarial or court
oversight written into law. The state would be back to the point
it is today, minus the amendments, if it does not comply. "We
could go forward to Congress and ask that they change the wording
in Title VIII to make our bill conform, and then we would be out
from under Secretarial oversight and court oversight, as long as it
was taken care of in those amendments."
MR. UTERMOHLE replied, if Congress amends ANILCA to that effect,
that is what will happen.
Number 1670
REPRESENTATIVE JAMES referred to a letter written from Frank
Murkowski answering the question of federal oversight. She read,
"Some Alaskans can be granted a priority over other Alaskans for
the use of fish and game for subsistence purposes without a
constitutional amendment if the priority is granted using criteria
rationally related to the legitimate policy objective of protecting
the subsidence lifestyle." She asked Mr. Utermohle whether HB 406,
as drafted, uses criteria rationally related to the legitimate
policy objectives of protecting a subsistence lifestyle.
Number 1729
MR. UTERMOHLE replied the bill does not speak to subsistence. It
speaks to sustenance. It provides a basis for protecting personal
and family use of fish and game for sustenance. It does not
provide a preference except in a time of shortage. "To the extent
that's consistent with our common use clause and our equal access
provisions of our constitution, we can do that without a
constitutional amendment."
Number 1770
REPRESENTATIVE JAMES asked Mr. Utermohle what the rural priority
was designed to do in ANILCA.
Number 1786
MR. UTERMOHLE replied, according to his understanding, it was
intended to give a preference for subsistence uses to certain
classes of people within the state of Alaska.
Number 1845
CO-CHAIRMAN OGAN announced all members are present, except for
Representative Nicholia. Representative James has been here for
the duration of the meeting.
Number 1888
REPRESENTATIVE MASEK referred to page 5, lines 12-27, and stated
the provisions will probably be very costly and cause an
administrative problem. She wondered how the state will pay for
the new regional board concept and the new administrative duties
that will be attached to it. She wondered whether there will be a
fiscal note attached to the bill.
Number 1970
CO-CHAIRMAN OGAN stated right now there are 82 advisory committees
in the state. The bill calls for 5 regional boards with 9 advisory
committees, a total of 45 advisory committees. The Finance
committee is the appropriate place to determine the fiscal impact,
but he hopes it will be a wash. The task force recommendation
calls for more than five regional boards throughout the state with
ten members on each board. The governor shall appoint the
membership of the boards based on a certain makeup which is a
violation of the state's rights. "The federal government shouldn't
tell the governor of our state who to appoint where." Hopefully,
the main boards will be able to delegate some authority and chores
to the regional boards that will save time and money. "If it gains
acceptance, and I think our state can move forward, there's been
some testimony from rural people that they like the regional
approach that if it makes us move forward with a solution, I think,
whatever the costs are worth it. Cause the costs of not doing
something are greater."
Number 2114
REPRESENTATIVE MASEK referred to page 8, line 9, "(3) the
recommendation involves issues of statewide significance; or", and
asked Mr. Utermohle to explain the provision.
Number 2145
MR. UTERMOHLE replied a statewide significance would be determined
by the Boards of Fisheries and Game.
Number 2165
CO-CHAIRMAN OGAN stated the regional boards would need to have some
sideboards because there will be regional conflicts. The Yukon-
Kuskokwin and False Pass areas are good examples. The language in
the bill says the boards "shall" defer to the regional boards,
unless (1) there is a contrary recommendation from another regional
board; (2) the recommendation is not consistent with the
conservation of the fish or game resources or with the sustained
yield principle; (3) the recommendation involves issues of
statewide significance; or (4) the recommendation involves
conflicts between regional boards.
Number 2254
REPRESENTATIVE BARNES stated the representative from Tanana said
the advisory committees are only allowed to take one trip per year
which seemed less than it should have been, but the advisory
committees should not have to travel at all to deal with a regional
boards. They should be able to convey their message to the
regional boards via the telecommunication system in the state.
Furthermore, the regional boards should not have to travel a lot
either because they are dealing with a region, not the state as a
whole. She would like to see the travel cut down, unless the
members are willing to pay for their own travel for whatever
purpose. It should not be looked upon as somebody obtaining
membership on a board for the sake of traveling.
Number 2387
REPRESENTATIVE JOULE stated the opportunity for the local advisory
committee members to speak informally with the people at the
meetings goes a long way. It speaks to the continued involvement
at all levels. It is similar to the legislature. The people have
the ability to talk directly to legislators outside of the
committee process.
Number 2465
REPRESENTATIVE BARNES replied the people who come down to Juneau
and talk with the legislators are doing it at their own expense.
TAPE 98-29, SIDE A
Number 0016
CO-CHAIRMAN OGAN stated, for the record, the federal government
promised the state up to $5 million per year when ANILCA was
passed. It has never given the state over $2 million. If it would
hold up its end of the bargain, maybe the state could get some more
money out of it.
Number 0053
REPRESENTATIVE BARNES pointed out that the state could just let the
federal government have it, and then it could pay $30 million a
year.
CO-CHAIRMAN OGAN called on Stephen White from the Department of
Law.
Number 0105
REPRESENTATIVE BARNES thanked Mr. White for providing the opinions
she requested earlier. She asked Mr. White whether the opinion
dated March 2, 1992 is the prevailing opinion in the department.
Number 0197
MR. WHITE replied the opinion was written relative to a regional
preference provision. At the time, Lance Nelson, author of the
opinion, thought it could be defended constitutionally. When the
department gets a court decision, it does not contact everybody the
department has given an opinion to. It only updates its advise
when the issues comes back before it. Therefore, it has not
retracted the advise, but in light of the Kenaitze decision, the
department would have a different opinion.
Number 0253
REPRESENTATIVE BARNES asked Mr. White how the opinion would differ.
MR. WHITE replied the department could not conclude that a regional
area preference would be constitutional. In particular, because of
the language stressed in McDowell that people who reside near a
fish or game population do not have a higher claim to it than state
residents who live further from it. The law is evolving and as the
state supreme court gives the department an opinion on the common
use clause it learns more about it. The court has pretty much
closed the door on preferences based upon where a person lives in
Kenaitze, however.
Number 0313
REPRESENTATIVE BARNES stated the bill would not prohibit access,
even though it sets up regions, for people moving from one region
to another.
Number 0335
MR. WHITE stated it would not prohibit people from coming into an
area to subsistence hunt and fish. All it does is prohibit the
taking of the resource outside of the area to use it.
Number 0347
REPRESENTATIVE BARNES asked Mr. White whether he feels there would
be a problem with prohibiting the taking of the resource as long as
they otherwise generally qualify outside of the region.
MR. WHITE replied yes he believes it would be viewed as practically
prohibiting them from using the resource.
Number 0386
REPRESENTATIVE BARNES asked Mr. White whether that would be the
only problem he would have with a regional preference - the "kill-
it-and-eat-it" in the same place provision.
MR. WHITE replied, "Correct."
Number 0407
CO-CHAIRMAN OGAN asked Mr. White whether a $5 license would
prohibit a person from participating in an area where there is a
shortage. He is not absolutely clear whether the bill prohibits a
person from removing fish and game from an area. The bill says
that the boards "may". If the boards write a regulation that says
anybody statewide can participate in a hunt and take the meat out
who qualifies. He asked Mr. White whether that would make it
constitutional in his opinion.
Number 0502
MR. WHITE replied as long as the criteria that allows people to
come in and participate is uniformly applied, whether they live
inside or outside of a region.
Number 0515
CO-CHAIRMAN OGAN asked Mr. White whether it would basically depend
on how the boards write the regulations.
MR. WHITE replied, "Correct."
CO-CHAIRMAN OGAN stated as long as the Department of Law is
advising the boards on how to write the regulations and they do not
exclude those that live outside of the area then it would be
constitutional.
Number 0545
MR. WHITE replied as long as the regulations say that everybody can
come to an area. But, if the regulations say that they can only
use the resource inside of an area, it would be a preference based
on where somebody lives.
Number 0562
CO-CHAIRMAN OGAN asked Mr. White, if the law is written to give
permission to allow those that qualify under subsection (c), pages
4-5, it would be okay, as long as the boards interpret it
correctly.
MR. WHITE replied there would be no constitutional problem with the
criteria under subsection (c), pages 4-5.
CO-CHAIRMAN OGAN asked Mr. White whether the "use-it-where-you-
shoot-it" criteria would be constitutional, as long as the boards
don't misinterpret it.
MR. WHITE replied, as long as the boards don't apply it in a way
that would give a preference to people inside versus outside of an
area. If they implement what is suggested in the bill, there would
be a constitutional problem. If they don't implement it, there
won't be a problem.
CO-CHAIRMAN OGAN asked Mr. White whether he would do his best to
make sure that the boards implement it correctly.
MR. WHITE replied, "Yes." He would advise them not to implement it
because it would be difficult, if not impossible, to defend.
Number 0685
CO-CHAIRMAN OGAN asked Mr. White whether he is the guy that the
boards would give their regulations to for scrutiny.
MR. WHITE replied they would send them someone in the department,
not him personally.
CO-CHAIRMAN OGAN stated, if the bill passes and goes into law, he
will do his job to make sure that the boards will be
constitutional.
Number 0735
CO-CHAIRMAN HUDSON referred to page 4, subsection (b), and wondered
whether the language "by requiring that the flesh or meat of fish
and game be used within the region or area where the fish or game
was taken" is needed. He suggested ending the subsection after the
word "area" on line 27. He asked Mr. White whether that would be
constitutional. That is what Co-Chairman Ogan wants the
regulations to read.
MR. WHITE replied yes, if the language stops after the word "area"
on line 27, the constitutional problem would be avoided.
CO-CHAIRMAN HUDSON asked if the language "substantially dependent
upon fish or game for personal and family use for sustenance" or
the language in ANILCA "substantially dependent on fish and
wildlife for nutritionally and other subsistence uses" was inserted
on line 24 would it come close to defining rural in ANILCA.
Number 0873
MR. WHITE replied yes it would come closer.
CO-CHAIRMAN HUDSON asked Mr. White again whether it comes pretty
close to satisfying the federal rural preference in ANILCA.
MR. WHITE replied yes, but the biggest impediment is the means
test. The Alaska National Interest Lands Conservation Act does not
have a means test right now.
Number 0906
CO-CHAIRMAN HUDSON asked Mr. White whether eliminating the indigent
test on page 5 would come close to ANILCA.
MR. WHITE replied it would get closer. The problem of trying to
hit around rural is that with a rural priority everybody in an
urban area is disqualified. And, if there are criteria that would
otherwise qualify urban people, the rural people would say the
competition for the resources has been increased and, therefore,
have incentive to challenge its compliance with federal law. It is
very hard to come up with something that is the same as rural
without saying "rural," without giving those that would otherwise
qualify an opportunity to sue.
Number 1008
REPRESENTATIVE JAMES stated a rural priority is not fair. It is
not fair for the people who live in the rural areas who depend on
subsistence, and it is not fair for the people who live in the
other areas who should be entitled to subsistence. She asked Mr.
White whether the purpose of a rural priority in ANILCA is to
provide for a subsistence lifestyle for the Natives.
Number 1054
MR. WHITE replied he can't answer the question. He is not sure
what the purpose of a rural priority in ANILCA is. He can only
read the language.
REPRESENTATIVE JAMES asked Mr. White whether he has read the
language.
MR. WHITE replied, "Yes."
REPRESENTATIVE JAMES said the language does not do what it is
intended to do because it includes a lot of other people. She
referred to page 5, line 8, "(i) the absence of a cash-based
economy in the area where a person lives;", and asked Mr. White
whether there is an area in the state that does not have a cash-
based economy.
MR. WHITE replied he is not personally familiar with any, but he
has not traveled to a lot of rural areas in the state.
Number 1104
REPRESENTATIVE JAMES stated the reason she is asking the questions
is because there seems to be a problem in meeting more than just
the $5-criteria.
MR. WHITE stated he did not mean to imply that getting rid of the
$5-criteria would give the state functionally the equivalent of
rural. "I'm not sure whether we can get there by anything other
than rural, but it's conceivably possible."
REPRESENTATIVE JAMES asked Mr. White, if the intent is to meet the
subsistence lifestyle needs and rural does not do it because it is
unfair, doesn't it sound reasonable to define it some other way.
MR. WHITE replied it is a decision whether to accept the inequities
of a rural priority in order to gain state management or attempt
another definition.
Number 1194
REPRESENTATIVE BARNES stated the bill recognizes the preference for
sustenance as a fundamental right. The attorney general has stated
that it raises the level of scrutiny to a level that the courts
must use. She asked Mr. White whether that is correct.
MR. WHITE replied, "That's correct."
REPRESENTATIVE BARNES asked Mr. White whether the fundamental right
to sustain life in a region is a high enough public purpose to
overcome a challenge to those who would remove life-sustaining
protein from an area who need it.
MR. WHITE replied he does not have an opinion as to whether it
should be a fundamental or important right. A fundamental right is
in the classification of racial equality and voting rights, the
highest rights under the constitution. The courts are very
reluctant to allow classification or discrimination based on a
fundamental right. If it is less than a fundamental right, the
courts give a lot more discretion to the legislature in drawing
lines between people.
Number 1259
REPRESENTATIVE BARNES stated the right to maintain one's life
legitimately is the highest of all rights. The common use clause
of the state constitution says the resources belong to the people
in common.
MR. WHITE replied personally he thinks it is a very important use.
However, he has not been in a position to rely on subsistence
resources so he does not know whether it is a fundamental or
important use. Once it is declared a fundamental right, the courts
will look very closely at how it is defined and whether people are
in or out.
Number 1365
REPRESENTATIVE BARNES stated for the record why she feels so
strongly about the issue. She grew up in Tennessee. She spent the
first nine years of her life in a rural area of Tennessee. By the
time she was two years old she could ride a horse as good if not
better than most men. She used to ride with her father into the
back country to salt the goats. As a young girl, she was taught to
shoot a gun. Having said that, however, she does not subsist off
of the land now, but her kids were brought up fishing and hunting.
"I do not believe that anyone has a constitutional higher right
than me or my children or their friends or my family or the people
that I have been elected to represent. I do believe that in a time
of shortage of the resource that those who need it the most--that
there has to be an accommodation made for them. And so I have
worked toward that in a non-discriminatory manner." In reference
to Representative Joule's speech about bird hunting with his son
and offering it to the spirits, her father was considered the best
turkey caller in all of Tennessee and when he died in 1976 the
casket was carried to his grave and out of nowhere two big wild
turkey gobblers came with their tails spread and stood over his
grave. "Your spirit to the heaven is no more than mine and I think
we as a people have to work to accommodate all of our people
knowing that one spirit is no different than the other."
Number 1575
CO-CHAIRMAN OGAN called for a brief at east at 7:21 p.m.
CO-CHAIRMAN OGAN called the meeting back to order at 7:30 p.m.
CO-CHAIRMAN OGAN called on Ron Somerville to clarify the record in
regards to the Nelchina caribou herd question asked earlier by
Representative Masek.
Number 1632
CO-CHAIRMAN OGAN asked Mr. Somerville what would happen to the
Nelchina caribou herd under the bill.
Number 1698
RON SOMERVILLE, Contractor to House and Senate Majority, replied if
the boards determine that there are not enough caribou, they could
establish a ranking and give a preference of consumptive use for
personal and family use that would apply to everybody who uses the
herd. It would not necessarily be for a dependent use at all.
But, if the boards describe a dependent use area such as Units 11
and 12, and the characteristics of their economies were extremely
dependent upon fish and wildlife, they could take a portion of the
Nelchina herd in Unit 13 and describe it in such a way that it
would give a preference. It would not necessarily exclude those
from the metropolitan areas. The boards could describe the entire
Nelchina as a dependent use area and those people in the
metropolitan areas would not qualify because there probably would
not be enough of the resource to meet all of the needs.
Number 1806
CO-CHAIRMAN OGAN stated the board does that now. The people who
live around Copper Center, Glennallen, and Nelchina are under tier
I, the dependent use area in the bill. And, the preferred-use
group could be essentially what is now under tier II.
REPRESENTATIVE BARNES asked whether the tier II-group is a permit
system.
MR. SOMERVILLE replied the whole Nelchina is under a permit system.
CO-CHAIRMAN OGAN stated a person gets tier I if he lives in the
area. A person gets tier II based on a ranking of how long he has
lived there, how much meat is used, and other criteria. He asked
Mr. Somerville whether that is correct.
MR. SOMERVILLE replied, "That's correct."
CO-CHAIRMAN OGAN stated it could remain exactly the same.
Number 1860
MR. SOMERVILLE stated the structure of the bill requires more of a
dependence on fish and wildlife for personal and family consumption
- a different description.
Number 1898
REPRESENTATIVE MASEK asked Mr. Somerville how the regional concept
and preferred status would work under the bill.
Number 1920
MR. SOMERVILLE replied his understanding of the word "deference"
means a court gives the benefit of the doubt in interpreting its
meaning, unless there is clear reason to override it. In this
case, the regional boards would consider all of the regulations
from the advisory committees and make their recommendations to the
statewide board, either the Board of Fisheries or Board of Game.
They would have to "defer" to the recommendations unless they met
the criteria called for in the bill. It is a quasi-regulatory type
of authority. It gives them a considerable amount of weight in the
regulatory process.
Number 1999
CO-CHAIRMAN HUDSON made a motion to delete the language, "by
requiring that the flesh or meat of fish and game be used within
the region or area where the fish or game was taken.", on page 4,
lines 27-29.
Number 2043
CO-CHAIRMAN OGAN objected. It has been established clearly tonight
that it is permissive language. The board "may" adopt a
preference, as long as the board allows people from other regions
to hunt and remove the meat, it is constitutional. And, as long as
the attorney general's office scrutinizes the regulations from the
boards. He asked Co-Chairman Hudson whether he made the motion
because he thinks it is unconstitutional or because it is a bad
policy call.
CO-CHAIRMAN HUDSON replied he thinks it is unconstitutional the way
it is written.
Number 2115
REPRESENTATIVE BARNES stated, according to Mr. White, if the
section is deleted the bill would be constitutional. She believes
that it should come out of the bill. If somebody from Anchorage
qualifies in every other way and goes into a region to hunt, what
is he going to do when he is hungry.
Number 2152
CO-CHAIRMAN OGAN stated unfortunately she was out of the room when
he discussed the issue with Mr. White.
REPRESENTATIVE BARNES stated it does not matter.
Number 2178
REPRESENTATIVE GREEN stated, if somebody challenged the provision
to find out the reason for it, and if the answer was to discourage
people to come from others areas, there will be a constitutional
problem.
CO-CHAIRMAN OGAN stated discouraging someone from coming into an
area helps the species. There are a lot of examples in regulations
and laws of discouraging people. "We discourage people from
hunting caribou in certain areas by not allowing them to go in on
a motorized vehicle or any number of methods and means, and he felt
that was constitutional."
Number 2241
REPRESENTATIVE GREEN stated it is one of those areas where there
are attorneys on both sides of the issue which makes him nervous.
Number 2269
CO-CHAIRMAN OGAN stated if he let opinions from attorneys influence
him he would not do anything. "Attorneys are like bellybuttons-
everybody's got one." A policy is needed that works and helps the
people in the areas where there is a shortage.
Number 2294
REPRESENTATIVE DYSON wondered what the amendment would do to the
bill's intent and purpose. He keeps hearing that it is offensive
to folks in rural areas for others with a lot more money,
resources, and equipment to take fish and game out of their area.
Number 2354
CO-CHAIRMAN OGAN replied, if regional preference language is
constitutional, we can asked the congressional delegation to amend
ANILCA to reflect a regional preference for the use of fish and
game rather than a rural priority for the user. "Our Senator in
Congress did not give the nod to it, but he is willing--he has
indicated--we're talking about Senator Murkowski--his willingness
to look at making amendments to ANILCA. I think that's--even if
it's a little bit risky it's a worthy goal because I think most--
there's not a tremendous amount of difference between a regional
preference and a rural priority, and I would suggest with all due
respect to the attorney general's office, if they were a little bit
more aggressive about it and they weren't pushing the Governor's
agenda on this thing, they might see things our way as our attorney
that works for the legislature." They won't support it because of
the politics, however.
Number 2417
REPRESENTATIVE DYSON stated from Co-Chairman Ogan's perspective a
principle reason for doing this is to present the best face in
order to equip the congressional delegation to modify ANILCA.
CO-CHAIRMAN OGAN stated that is correct. That is one of the
reasons.
Number 2437
REPRESENTATIVE BARNES stated she respects what Co-Chairman Ogan has
said, but there are criteria in order that only a certain group of
people can qualify for a sustenance preference based on a $5
license tag with an income level of $8,200 or less a year.
TAPE 98-29, SIDE B
Number 0000
REPRESENTATIVE BARNES continued. If there is a person who
qualifies and makes less than $8,200 a year, he would not have a
lot of money to get on an airplane and fly to Kotzebue, for
example. Therefore, it is not necessary to say "eat-it-where-you-
killed-it" in the bill, otherwise there is the risk of it being
found unconstitutional because it limit people from traveling all
over the state. If a person qualifies under the provisions, "you
don't have this whole bunch of money to go antler hunting as which
I think you talked about earlier. People could go out--they could
go out and leave the meat in the village. Well, if they can
qualify under your bill, they're not going to leave the meat in the
village. And, if they qualify under this bill, Mr. Chairman, they
need the meat for their 'sustenance' - the word you gave us. Not
its horns or not its antlers, but the food. And to say that they
can't take it out of the area they shot it in and again somebody
only makes $8,200 or qualifies under these other provisions, are
going to have a lot of money for airplanes trips and stuff to get
out into the rural areas, they're not going to do it."
Number 0090
CO-CHAIRMAN OGAN stated the attorney general agreed that as long as
the board does not limit the people who qualify under the criteria
from going into an area where there is a shortage and a restriction
on removing the meat it is constitutional. The statute itself is
not unconstitutional because it says "may" and as long as the
boards write the regulations so that they do not discriminate and
the Department of Law scrutinizes them, they would be
constitutional. He asked Mr. Utermohle whether that was what Mr.
White said.
Number 0140
MR. UTERMOHLE replied he cannot speak for the Department of Law.
According to his understanding of what Mr. White said, as long as
the board does not exercise its authority to impose a requirement
that the fish and game be consumed in the area where it was taken,
it would not violate the equal access provisions of the
constitution.
Number 0182
CO-CHAIRMAN OGAN stated the conversation was about restricting
someone else who qualified in another region under the $5-criteria.
MR. UTERMOHLE stated as long as the preference does not have the
effect of excluding anybody based on where he lives or gives him an
undue preference based on where he lives, it would be
constitutional.
CO-CHAIRMAN OGAN stated in a time of shortage the only people who
would qualify are the ones who meet the $5-criteria no matter where
they are in the state. He asked Mr. Utermohle whether that is
correct.
MR. UTERMOHLE replied, "Yes."
CO-CHAIRMAN OGAN stated, as long as the people who qualify under
the $5-criteria are not restricted and are allowed to go into an
area where there is a shortage and remove fish and game, it is not
unconstitutional. He asked Mr. Utermohle whether that is correct.
MR. UTERMOHLE replied, "That's my understanding of what Mr. White
said."
REPRESENTATIVE BARNES said stop them from removing it.
Number 0245
CO-CHAIRMAN OGAN stated someone from another region who qualifies
under the $5-criteria can go into another region where there is a
shortage, hunt and remove the flesh of the animal, then....
Number 0259
CO-CHAIRMAN HUDSON stated the right to set up a constitutional bar
should not be put into law. The boards should not have a
preference to violate the constitution.
Number 0290
REPRESENTATIVE BARNES stated under Co-Chairman Ogan's scenario
different regions would be established in the state and how people
qualify in a time of shortage. Once they qualify in one region,
they qualify in another region, but if they go to another region
and get a moose, they have to eat it there.
Number 0343
CO-CHAIRMAN OGAN stated not necessarily.
REPRESENTATIVE BARNES said the language says, "by requiring that
the flesh or meat of fish and game be used within the region or
area where the fish or game was taken." It means that if a person
leaves one region and goes to another region and shoots a moose, he
has to eat it in the region it was shot.
CO-CHAIRMAN OGAN stated his intention is to allow anybody who
qualifies in another region under the $5-criteria to go into
another region and remove the meat. "What we don't want is the
people that don't qualify under that $5-criteria to come into that
region and remove the meat."
REPRESENTATIVE BARNES stated the way the bill is written only in a
time of shortage would the criteria kick in. Therefore, anybody
with a regular hunting and fishing license would not qualify. They
would hunt in the area only under seasons, bag limits, and etc. It
would not have anything to do with antlers. She asked Mr.
Utermohle whether she is wrong.
Number 0385
MR. UTERMOHLE replied, "The provision does allow for fish and game
dependent uses that are not subject to a preference. If the board
establishes that as a new user group, anyone who engages in fish
and game dependent uses of fish and game could go out and shoot a
moose and eat it. The criteria of the $5 licence only comes in the
event of a shortage and they establish a preference."
Number 0408
CO-CHAIRMAN OGAN asked Mr. Utermohle, when the boards establish a
preference, whether other people cannot hunt unless they have a $5
license in the region.
MR. UTERMOHLE replied, "Yes." It provides that a preference be
accorded only to those persons determined to be dependent upon fish
and game under the criteria.
Number 0424
CO-CHAIRMAN OGAN removed his objection.
CO-CHAIRMAN HUDSON reiterated his motion and asked unanimous
consent to delete the language, "by requiring that the flesh or
meat of fish and game be used within the region or area where the
fish or game was taken.", on page 4, lines 27-29. There being no
objection, it was so moved.
Number 0451
CO-CHAIRMAN HUDSON made a motion to add the word "substantially"
after the word "be" on page 4, line 24.
CO-CHAIRMAN HUDSON stated adding the word "substantially" would
come closer to the definition of the term "a rural community or
area" in ANILCA.
Number 0571
REPRESENTATIVE GREEN objected for discussion purposes. He asked
Co-Chairman Hudson whether the amendment would extend to the rest
of the section as well.
CO-CHAIRMAN HUDSON replied yes it would strengthen it.
Number 0598
CO-CHAIRMAN OGAN called on Ted Popely to answer any questions.
Number 0654
MR. UTERMOHLE stated in ANILCA the term "substantial dependence"
defines a community. In the bill it defines a group of users. It
does not necessarily define the same thing. In order to conform,
the amendment would require language to be changed throughout the
bill.
CO-CHAIRMAN OGAN asked Mr. Popely whether he concurs with that.
THEODORE POPELY, Legislative Assistant to House and Senate
Majority, Alaska State Legislature, replied, "I do."
Number 0702
REPRESENTATIVE JOULE stated ANILCA talks about an area of
substantial dependence and the bill talks about an individual.
There is a considerable amount of difference.
Number 0737
CO-CHAIRMAN HUDSON replied a use is only as good as the people who
use it.
Number 0786
REPRESENTATIVE GREEN stated it seems that the amendment would pull
the bill away from the definition in ANILCA. There would have to
be dependent people that qualify within a substantially dependent
area. There would be people that do not qualify, but the area will
still be substantially dependent.
Number 0817
CO-CHAIRMAN HUDSON replied the other criteria would kick in.
Number 0824
MR. POPELY stated if the amendment is to comply with ANILCA it
would fail because it defines a user and not a community. The
general scheme under Title VIII of ANILCA affords a priority to
residents of the area regardless of their personal characteristics,
and HB 406 does something in principle quite different. It does
not use dependent use areas to provide a preference for everyone
who lives in the area.
Number 0892
CO-CHAIRMAN HUDSON withdrew his motion for an amendment.
Number 0908
CO-CHAIRMAN HUDSON referred to page 5, line 10, and wondered
whether it is a good place to add the words "customary and
traditional use of or the decision to adopt a fish and game
dependent lifestyle." The bill does not try to draw a correlation
to customary and traditional uses. It might help to gain some
degree of support from rural Alaska and Natives who feel very
strongly about those two words.
Number 0998
REPRESENTATIVE BARNES noted that the language, a customary and
traditional lifestyle as a mainstay of one's livelihood, needs to
be close to the $5-license requirement.
Number 1044
CO-CHAIRMAN OGAN called for a brief at east at 8:18 p.m.
CO-CHAIRMAN OGAN called the meeting back to order at 8:26 p.m.
Number 1095
CO-CHAIRMAN HUDSON stated it sounds like his idea is far more
involved than what he intended. He withdrew his intention for a
motion.
Number 1140
REPRESENTATIVE GREEN referred to page 5, line 23, "defer", and
asked Co-Chairman Ogan how it would work.
Number 1179
CO-CHAIRMAN OGAN replied right now the main boards have to consider
each proposal submitted to them. In the bill, the proposals would
come through the advisory committees and forwarded to the regional
boards. The regional boards would not have to defer to the
advisory committees, just look at the recommendations. The
regional boards would look at the proposals and transmit the chaff
recommendations to the main boards. Authority is not being
delegated because the statewide boards would have to consider all
proposals and hopefully it would cut down on time of the main
boards. It also would empower people locally by giving them a
sense that their regional concerns are listened to.
Number 1291
REPRESENTATIVE GREEN stated he is concerned about the delegation of
authority. The local advisory committees would make
recommendations to the regional boards. The regional boards would
then make recommendations to the state boards. But, if the state
boards would essentially "rubber stamp" any recommendation, then
the language is bad. It says "shall" not "may" defer to the
recommendations of the regional boards which in effect says the
regional boards make the decisions.
Number 1327
REPRESENTATIVE BARNES stated her concern is the delegation of the
legislature's general authority. There have been occasions when
the main boards have gone beyond what the statutes say.
REPRESENTATIVE BARNES referred to page 8, line 3, "(2) the
recommendation is not consistent with the conservation of the fish
or game resource or with the sustained yield principle;", and
wondered whether both would have to be read in context. She cited
an example of a regional board citing a sustained yield at 450
moose and the main board citing a sustained yield at 600 moose. If
the regional board came to the main board to harvest ten of those
moose prior to the herd growing to its sustained yield of 600, the
main board would say no because it has not to grow to its sustained
yield size yet.
REPRESENTATIVE BARNES further stated, in reference to the question
of cost and how hard the boards work, now there are 80 something
advisory boards that take up every recommendation. The bill would
allow the main boards to look at proposals in a more rational
manner because they would have fewer proposals, maybe.
CO-CHAIRMAN OGAN stated that is the hope and intent.
Number 1548
REPRESENTATIVE GREEN stated, if it is left as a recommendation to
the board, they will look at it anyway thereby not relieving any
burden.
Number 1612
CO-CHAIRMAN OGAN stated this whole discussion is worth having
because the concept is a major departure from where it is now.
REPRESENTATIVE BARNES stated the current system is one that she has
always opposed.
CO-CHAIRMAN OGAN replied a lot of people have opposed the current
system and many have come to him advising to look at it.
Number 1648
REPRESENTATIVE GREEN asked Co-Chairman Ogan to explain how the
concept in the bill would differ from the current system. Would
the main board have to look at a recommendation? he asked.
Number 1692
CO-CHAIRMAN OGAN asked Mr. Utermohle what the term "defer" means.
It is not established in statute. It kind of came out of the
Governor's task force.
Number 1708
MR. UTERMOHLE replied the Governor's bill uses the term "deference"
in reference to deferring to the advisory and regional councils.
The bill provides for a delegation of the Boards of Fisheries and
Game's responsibilities to a lower entity. They would still be the
ultimate board to adopt fish and game regulations. They would
still have to make a determination whether a recommendation
conflicts with the sustained yield principle and the other
standards in the bill. If a recommendation does not violate any of
the standards the board doesn't have to proceed any further and the
recommendation is essentially adopted.
Number 1781
REPRESENTATIVE GREEN asked Mr. Utermohle whether that is the way it
works now. They still would make a recommendation to the main
boards and they would adopt it. In this case the main boards would
adopt it because the regional boards said yes. He is having
difficulties determining the difference.
Number 1831
MR. UTERMOHLE stated under the bill the statewide boards would
receive recommendations from the regional boards and they determine
(indisc. -- coughing). They do not have to go back to the basic
proposal and review the information submitted by the public and
fact finding that is normally part of their job.
Number 1868
REPRESENTATIVE GREEN asked Mr. Utermohle whether the statewide
boards would review the entire case including the ancillary things
or just the recommendation.
MR. UTERMOHLE replied they would just take the recommendation. If
the recommendation violates the sustained yield or conflicts with
different regions, then the deference goes away and they have to
make their determination based on the entire record.
Number 1920
REPRESENTATIVE GREEN stated they do that now. If there is
agreement they don't have to go to all the nuances, but if there is
an objection they have to go back and do it all over again.
Number 1936
REPRESENTATIVE BARNES asked Mr. Utermohle whether the boards have
to take up any recommendation that comes to them now.
MR. UTERMOHLE replied that is his understanding, yes.
REPRESENTATIVE BARNES asked Mr. Utermohle whether the boards have
to have a full-blown public hearing.
MR. UTERMOHLE replied they take written and oral testimony on all
of the proposals before them.
REPRESENTATIVE BARNES stated under the bill the boards would not
have to do this for every proposal that comes before them.
Number 1975
REPRESENTATIVE GREEN asked whether under current conditions the
full boards have to redo the whole thing.
REPRESENTATIVE BARNES stated yes.
REPRESENTATIVE GREEN replied that is a major difference.
Number 1994
CO-CHAIRMAN OGAN stated, as a safeguard, the main board can
consider any proposal or have a hearing on any proposal, but they
are not locked into "rubber stamping" a recommendation from the
regional boards.
REPRESENTATIVE BARNES stated they can override any recommendation
based on the criteria on page 8 subsection (b).
CO-CHAIRMAN OGAN asked Mr. Utermohle whether they can override a
recommendation based on that criteria.
MR. UTERMOHLE replied yes based only on those criteria.
CO-CHAIRMAN OGAN suggested expanding the criteria in order that the
boards retain their full authority on every proposal.
Number 2082
REPRESENTATIVE JOULE asked whether the regional boards are now
active. The local advisory committees have always been fairly
active.
CO-CHAIRMAN OGAN replied, "No."
REPRESENTATIVE BARNES replied there are federal boards under the
federal regime. She is pretty sure that is where the Governor's
task force came up with its regional ideas.
Number 2171
REPRESENTATIVE JOULE stated he understands that the federal
advisory boards are active. He asked whether the state regional
advisory boards are currently active.
CO-CHAIRMAN OGAN replied there have not been active state regional
boards for quite some time. He asked Mr. Utermohle whether that is
correct.
MR. UTERMOHLE replied he cannot say.
REPRESENTATIVE BARNES stated there have never been regional boards.
There have been regional advisory boards.
CO-CHAIRMAN OGAN called on Warren Fox (ph), an expert on boards.
Number 2243
WARREN FOX (PH) stated he has spent about 30 some years in the
Department of Fish and Game. There has never been a fish and game
state board. There was for a short period of time a fish and game
council where the chairs of each of the advisory committees sat on
it. It was dropped because it was simply too expensive.
Number 2300
REPRESENTATIVE BARNES stated what the state has had are advisory
committees.
MR. FOX stated there have been advisory committees from day one.
REPRESENTATIVE BARNES stated they are pretty active still.
MR. FOX stated they are very active.
REPRESENTATIVE BARNES stated they are very active throughout the
state. The regional concept came about under Title VIII of ANILCA
and the first implementation was when the federal government took
some control of hunting in federal areas.
MR. FOX stated that is correct.
Number 2359
CO-CHAIRMAN HUDSON stated the regional boards embodied in the bill
would also determine who receives a special permit which bothers
him.
TAPE 98-30, SIDE A
Number 0000
CO-CHAIRMAN HUDSON continued. The regulations and recommendations
won't be the problem. The problem will be who gets it and who
doesn't get it, and who shoots who.
CO-CHAIRMAN OGAN stated hopefully nobody will be shooting anybody
except for critters.
Number 0059
CO-CHAIRMAN OGAN suggested a conceptual amendment on page 8, line
10, to add a new provision "(5) the recommendation is deemed
inappropriate or unworkable." Something along those lines.
Number 0090
REPRESENTATIVE GREEN suggested "(5) the board determines any other
criteria that is appropriate."
Number 0127
MR. UTERMOHLE suggested changing the word "shall" to "may" on page
8, line 4, in order to maximize the discretion of the boards.
Number 0190
CO-CHAIRMAN OGAN made a motion to change the word "shall" to "may"
on page 8, line 4.
REPRESENTATIVE GREEN stated the language should also be changed
from "shall" to "may" on page 5, line 23.
MR. UTERMOHLE stated on page 8, line 5, the sentence would end
after "regional board."
CO-CHAIRMAN OGAN asked Mr. Utermohle whether to strike all the
language that follows in (1) - (4).
MR. UTERMOHLE replied, "Yes."
Number 0259
REPRESENTATIVE BARNES stated she understands why Mr. Utermohle is
striking the provisions, but there needs to be something kept that
says something about the sustained yield principle.
Number 0314
REPRESENTATIVE GREEN suggested on page 8, line 5, the language read
"recommendation of the regional board consistent with the sustained
yield principle."
Number 0329
CO-CHAIRMAN HUDSON suggested after the word "may" on page 8, line
4, add the language "subject to the sustained yield principle
defer".
Number 0358
MR. POPELY suggested changing to word "shall" to "may" on page 8,
line 4. Remove the word "unless" and insert the word "provided" on
page 8, line 5. Eliminate (1), (3) and (4) on page 8, starting on
line 6; leave (2) and delete the word "not" on page 8, line 7.
Number 0439
REPRESENTATIVE BARNES made a motion and asked unanimous consent to
change the word "shall" to "may" on page 8, line 4. Remove the
word "unless" and insert the word "provided" on page 8, line 5.
Eliminate (1), (3) and (4) on page 8, starting on line 6; leave (2)
and delete the word "not" on page 8, line 7. There being no
objection, it was so moved.
Number 0473
REPRESENTATIVE JOULE asked whether the motion included the language
on page 5, line 23.
REPRESENTATIVE BARNES stated the amendment was for just page 8.
Number 0502
REPRESENTATIVE GREEN made a motion to change the word "shall" to
"may" on page 5, line 23.
CO-CHAIRMAN OGAN stated he believes the language needs to be kept
in place. The disputes should be settled at the regional board
level, not at the main board level. The people in the area will
have their finger on who is a qualified user and who isn't, more so
than the oversight boards. The motion would insulate the main
boards from determining who qualifies.
Number 0655
REPRESENTATIVE BARNES agreed with Co-Chairman Ogan.
Number 0663
REPRESENTATIVE GREEN withdrew his motion.
Number 0710
CO-CHAIRMAN OGAN called for a brief at ease at 8:57 p.m.
CO-CHAIRMAN OGAN called the meeting back to order at 9:00 p.m.
Number 0714
CO-CHAIRMAN OGAN made a motion to delete the second "or" on page 8,
line 8, after "resource" and replace it with "and" in order to
correct the grammar. There being no objection, it was so moved.
Number 0749
CO-CHAIRMAN HUDSON made a motion and asked unanimous consent to
move CSHB 406(RES), version 0-LS1573\P, Utermohle, 3/5/98, as
amended, from the committee with individual recommendations and
attached fiscal note(s).
Number 0799
CO-CHAIRMAN OGAN stated, for the record, he happens to have some
fiscal notes. They happen to be zero. He wrote them himself. He
expects as the bill moves along that the affected departments will
come up with more appropriate fiscal notes as close to zero as
possible.
Number 0816
REPRESENTATIVE BARNES stated each bill that moves from a committee
must have fiscal notes attached. Since the departments have not
had an opportunity to provide a fiscal note for the most recent
version, it is appropriate for the Co-Chairman to prepare a zero
fiscal note and allow the departments at some later time to present
a fiscal note. She doesn't think it will cost more considering the
fact that there will be fewer advisory boards and there is already
a Subsistence Division, that will have to changed to "Sustenance
Division."
Number 0879
REPRESENTATIVE BARNES made a motion to amend the motion in order to
adopt the zero fiscal notes.
REPRESENTATIVE GREEN objected for discussion purposes only.
REPRESENTATIVE GREEN stated, according to testimony, there would be
a significant impact from changing the boundaries from six to five
and yet there is a zero fiscal note. "We're flying in the face of
that testimony."
REPRESENTATIVE GREEN withdrew is objection.
CO-CHAIRMAN HUDSON withdrew his motion to move the proposed
committee substitute out of the committee in order to open the
meeting up for further discussion.
Number 0960
CO-CHAIRMAN HUDSON stated, typically, a zero fiscal note can be
transmitted along with information to the next committee of
referral that there has been a request for fiscal notes from the
involved agencies as a friendly amendment.
Number 0996
REPRESENTATIVE BARNES stated she does not believe that anything has
to be said about the agencies. If there is a request and it is not
forthcoming a fiscal note is written. The law says each bill that
leaves from the first committee of referral must have a fiscal
note(s) attached. Therefore, by adopting the zero fiscal note from
the Resources committee, it has a fiscal note attached.
Number 1053
REPRESENTATIVE BARNES reiterated her motion and asked unanimous
consent to adopt the zero fiscal notes. There being no objection,
it was so moved.
Number 1069
CO-CHAIRMAN OGAN made a motion to add a section (F) on page 24.
REPRESENTATIVE GREEN asked whether section (E) is being stricken.
CO-CHAIRMAN OGAN replied, "No."
Number 1171
CO-CHAIRMAN OGAN called for a brief at east at 9:08 p.m.
CO-CHAIRMAN OGAN called the meeting back to order at 9:10 p.m.
Number 1182
CO-CHAIRMAN OGAN withdrew his motion. He thought there was a
technical mistake, but according to the bill drafter it is correct.
REPRESENTATIVE GREEN asked Co-Chairman Ogan what about proposed
(F).
CO-CHAIRMAN OGAN replied proposed (F) is already covered under
navigable waters under (C). He suggested adding "reserved water
rights" in the House Judiciary committee.
Number 1248
CO-CHAIRMAN HUDSON made a motion and asked unanimous consent to
move CSHB 406(RES), version 0-LS1573\P, Utermohle, 3/5/98, as
amended, from the committee with individual recommendation and the
attached zero fiscal notes.
Number 1264
REPRESENTATIVE JOULE objected for discussion purposes.
REPRESENTATIVE JOULE stated he appreciates the efforts of Co-
Chairman Ogan and other members of the committee. It has taken a
lot of hard work and time. The bill has further committees of
referral and hopes that the people will continue to follow it and
provide input. From the standpoint of an individualized needs-
based bill, it is an area that he personally has problems with as
well as a lot of his constituents. Subsistence is something that
is way more than individual, it is community, and the bill
"legislates out" some of the community values and standards that
have existed for a long time. "I think all of us want to see the
state manage our resources, and I recognize that each of us has a
different way that we would like to get there. And, I can
certainly respect each of our different ways as this bill moves
forward. And, you know on this issue we may have some
disagreements on how to get there. And--but--and I guess that's
why the referral committee is the way it is...so that it can get
worked along the way."
Number 1453
REPRESENTATIVE JOULE removed his objection and asked the public to
stay with the bill and follow it through all the committees.
Number 1496
CO-CHAIRMAN OGAN stated it is an honor to have Representative Joule
on the committee. He hopes that the bill is the genesis of an
Alaskan solution.
Number 1556
CO-CHAIRMAN OGAN asked whether there is any further objection.
There being no further objection, CSHB 406(RES) was so moved from
the House Resources Standing Committee.
ADJOURNMENT
Number 1569
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 9:19 p.m.
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