Legislature(1997 - 1998)
05/27/1998 10:20 AM 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
JOINT MEETING
HOUSE JUDICIARY STANDING COMMITTEE
HOUSE RESOURCES STANDING COMMITTEE
May 27, 1998
10:20 a.m.
HOUSE JUDICIARY MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Jeannette James
Representative Brian Porter
Representative Norman Rokeberg
Representative Ethan Berkowitz
Representative Eric Croft
HOUSE JUDICIARY MEMBERS ABSENT
All members present
HOUSE RESOURCES MEMBERS PRESENT
Representative Scott Ogan, Co-Chairman
Representative Bill Hudson, Co-Chairman
Representative Beverly Masek, Vice Chairman
Representative Ramona Barnes
Representative Fred Dyson
Representative Joe Green
Representative William K. ("Bill") Williams
Representative Irene Nicholia
Representative Reggie Joule
HOUSE RESOURCES MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative Gene Kubina
Representative Mark Hodgins
Representative Pete Kelly
Representative Joe Ryan
Representative Terry Martin
Representative Alan Austerman
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION NO. 101
Proposing an amendment to the Constitution of the State of Alaska
authorizing a priority for subsistence uses of renewable natural
resources that is based on place of residence; and providing for an
effective date.
- HEARD AND HELD
* HOUSE BILL NO. 1001
"An Act establishing a priority for subsistence uses of fish and
wildlife that is based on place of residence; relating to the
management and taking of fish and wildlife for subsistence uses;
relating to certain definitions for the fish and game code;
delaying the repeal of the current law regarding subsistence use of
fish and game; amending the effective date of secs. 3 and 5, ch. 1,
SSSLA 1992; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HJR 101
SHORT TITLE: CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
5/26/98 3966 (H) READ THE FIRST TIME - REFERRAL(S)
5/26/98 3966 (H) RESOURCES, JUD, FINANCE
5/26/98 3966 (H) FISCAL NOTE (GOV)
5/26/98 3966 (H) ZERO FISCAL NOTE (LAW)
5/26/98 3966 (H) GOVERNOR'S TRANSMITTAL LETTER
5/27/98 (H) JUD AT 10:00 AM HOUSE FINANCE 519
5/27/98 (H) RES AT 10:00 AM HOUSE FINANCE 519
WITNESS REGISTER
BRUCE BOTELHO, Attorney General
State of Alaska
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-2133
CHARLES E. COLE, Former Attorney General
Representative, Bipartisan 1997 Task Force
on Subsistence
406 Cushman Street
Fairbanks, Alaska 99701
Telephone: Not Provided
CARL ROSIER, Representative
Alaska Outdoor Council; and former Commissioner,
Alaska Department of Fish and Game
8298 Garnet Street
Juneau, Alaska 99801
Telephone: (907) 789-9117
LYNN LEVENGOOD, Attorney at Law
1008 16th Avenue, Suite 200
Fairbanks, Alaska 99701
Telephone: (907) 452-5196
FRANK RUE, Commissioner
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4100
WAYNE REGELIN, Director
Division of Wildlife Conservation
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4190
ROBERT BOSWORTH, Deputy Commissioner
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-6140
DICK BISHOP, Vice President
Alaska Outdoor Council
211 Fourth Street, Suite 302A
Juneau, Alaska 99801
Telephone: (907) 463-3830
DAVID KELLEYHOUSE, Secretary
Alaska Outdoor Council; and former director,
Division of Wildlife Conservation
Alaska Department of Fish and Game
Fairbanks, Alaska
Telephone: (907) 455-7882
WALT SHERIDAN, Natural Resource Consultant;
Board Member, Alaska Outdoor Council; and
retired Forest Service employee
2155 Cascade Street
Juneau, Alaska 99801
Telephone: (907) 789-4059
KEVIN JARDELL, Legislative Administrative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801-1182
Telephone: (907) 465-4990
RON SOMERVILLE, Technical Consultant
Senate/House Majority
Alaska State Legislature
4506 Robbie Road
Juneau, Alaska 99801
Telephone: (907) 780-4812
RALPH SEEKINS, Representative
Alaska Wildlife Conservation Association
Address Not Provided
Fairbanks, Alaska
Telephone: Not Provided
ACTION NARRATIVE
TAPE 98-91, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the joint meeting between the House
Judiciary Standing Committee and the House Resources Standing
Committee to order at 10:20 a.m. Present at the call to order from
the House Judiciary Committee were Representatives Green, Bunde,
James, Porter, Rokeberg, Berkowitz and Croft. A quorum was present
to conduct business. Chairman Green announced the meeting would be
teleconferenced for listen only.
Number 0042
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee to order. Present at the call to order from the House
Resources Standing Committee were Representatives Ogan, Joule,
Nicholia, Masek, Hudson, Williams and Green. Representatives Dyson
and Barnes arrived at 9:47 a.m. and 11:21 a.m., respectively. A
quorum was present to conduct business.
Number 0079
CHAIRMAN GREEN: I have been awarded the privilege of acting as the
moderator for the joint session today. I will recognize from time
to time - I'm looking now to see if there are any other
representatives or senators here - I don't see any. From time to
time we'll interrupt for the record to recognize those.
HJR101 - CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE
Number 0101
CHAIRMAN GREEN: I would like to mention that we are going to be
discussing House Joint Resolution 101 which as most of you know, is
the task force vehicle for a constitutional amendment. We will
only be discussing a portion of that today; that would be as that
affects the amendments to the Alaska National Interest Lands
Conservation Act (ANILCA). We have - and anyone who wants a copy
of them, they are available - a list of 15 issues with ANILCA, as
written and modified, that we feel are onerous and unacceptable to
the members of these committees as well as the people of the state
of Alaska. So, we will be discussing that and I would appreciate
trying to confine your testimony this morning and this afternoon,
if necessary, to those issues; that is, the changes to ANILCA
rather than the entire program of a bill or an amendment to the
constitution. I know there will be some times when you may drift,
but I will try and keep you focused on just those changes to
ANILCA.
Number 0215
CHAIRMAN GREEN: As I mentioned, we are on teleconference listen
only. We are not planning to take any public testimony and as you
have seen there is a document that has been prepared by Legislative
Research which shows that over 1,100 people from the public have
testified from time to time on the subsistence issue. We have had
over 100 different hearings - last year alone we held some 35
hearings throughout the state and in towns and since we began in
January, we have had both the Senate and House Judiciary and
Resources Committees holding hearings so there has been more than
ample time for the public to address this issue. If people do want
to send additional testimony - I'm sure it's going to be a repeat
of everything we've heard - we will take that, but we will not be
taking direct testimony.
Number 0279
CHAIRMAN GREEN: With that, I would like to establish that we are
confining our comments, as near as possible, to the amendments -
changes to ANILCA as written. I would like to advise the members
of both committees that the questions should be as questions and
not as debate issues. We will debate this again in our respective
committees, but that if there is an issue that is stated by one of
the testifiers and you want to expand that to determine for a
question or clarification only, we will take those, but we don't
want to get embroiled in any kind of debate. And I would
appreciate it since we are rather unwieldy with 15 members here
that you would address all questions through the Chair and the same
with the testifiers - if you would work through the Chair, that way
we will maintain as much order as possible. And with that then, we
have with us several members of invited guests to testify and we
will begin then with Attorney General Botelho - if you would please
come forward, Bruce, and identify yourself for the record and give
us your testimony. Now did you have some visual aids?
Number 0363
BRUCE BOTELHO, ATTORNEY GENERAL, STATE OF ALASKA, DEPARTMENT OF
LAW: Mr. Chairman, with your indulgence, I do have some visual
aids. Let me first, however, identify myself as Bruce Botelho,
Attorney General for the state. Mr. Chairman, with your
indulgence, would it be permissible to invite both former Attorney
General Charlie Cole and Julian Mason to join me at the table.
CHAIRMAN GREEN: Absolutely.
Number 0398
ATTORNEY GENERAL BOTELHO: What I think might be helpful in terms
of perspective, is to talk about the initial or original ANILCA,
how we got there, talk about the changes which Senator Stevens
sought and achieved in the last Congress before going through the
list. And with that -- with some help here, let me make a little
room for my colleagues and Mr. Chairman, would you allow me to take
my jacket off, as well?
CHAIRMAN GREEN: I think that's actually a very good idea. As long
as it's legal, we'll do that.
Number 0452
ATTORNEY GENERAL BOTELHO: Let me just start out in terms of how we
got to ANILCA in the first place. I gave a fairly long discussion
yesterday and I'll make this much briefer. I know that several of
you had a chance to watch it and in any case, many of you have
worked through this issue either because you were there at the
beginning or some middle stage. But I think the story goes back
into pre-statehood. First, with the passage of Public Law 280 in
1953 - Alaska was added to that list in 1958 on the assumption that
it was going to become a state. And that particular law we dealt
with primarily in the context of Indian country, but part of the
message there was that no state could adopt regulations dealing
with hunting and fishing that were -- hunting and fishing
regulations of aboriginal Native or American Indian hunting and
fishing that was inconsistent with federal law. That's maybe the
first precursor here.
Number 0518
ATTORNEY GENERAL BOTELHO: The next issue comes in the Statehood
Act itself, which required -- Section 6 of the Statehood Act
transferred to the state jurisdiction over fish and game management
to the extent the federal government exercised it in the state.
But there was a caveat and it was found in Section 4 of the
Statehood Act which required the state, as a precondition to
admission to statehood, to disclaim any right or interest in any
aboriginal title and in parentheses including fishing rights of
Alaska Natives. And Alaska actually did that and it's found in
Article XII, Section 12 of the constitution - that disclaimer.
There's been some discussion in prior committee hearings as to what
that term meant and the answer is really found in a Supreme Court
decision from the U.S. Supreme Court in Organized Village of Kake
v. Egan, the 1962 case decided by the U.S. Supreme Court. And the
court basically said the purpose of that language is not to
determine at that point that there were legitimate aboriginal
claims, but to reserve that issue for Congress - neither to
diminish aboriginal rights nor to firmly establish that those
rights, titles were somehow compensable. And so, the state was
admitted with that caveat. Congress ultimately did come back to
the issue and it came back to the issue in 1971 when it enacted the
Alaska Native Claims Settlement Act (ANCSA). Now for us, we
associate the Settlement Act primarily with transfer of lands, some
44 million acres in the state, to regional and village corporations
and also the financing of their initial operations. But there was
another major issue that came up during the course of ANCSA and
that had to do with aboriginal rights itself, and if one looks at
the Senate version of House Resolution 3100 which was the vehicle
for ANCSA, it specifically provided recognized Native subsistence
hunting and fishing rights, and also had a specific provision
saying, "Secretary of the Interior, you're called upon to withdraw
lands around Native villages in the state to protect their right to
fish and hunt a subsistence way of life to the exclusion of all
others."
Number 0715
ATTORNEY GENERAL BOTELHO: In the conference committee -
House/Senate on ANCSA - they decided to drop those provisions,
partly because they assumed the Secretary of Interior already had
that power. But when they forwarded the final bill to the floor,
the conference committee also had some very specific language,
which I think bears noting here. It said specifically, "The
conference committee expects both the Secretary and the state to
take any action necessary to protect the subsistence needs of the
Natives." So in 1971, you have congressional intent that between
the Secretary of the Interior and the state of Alaska, there would
be provision for protection of Native subsistence rights. Not much
happened after 1971. The state made some initial attempts to deal
with subsistence. A law passed in 1975 conferred authority on the
Board of Game to create subsistence hunting areas and that was
amended in 1976, but the boards never did it. In 1978, we have our
first state statute which for the first time identifies subsistence
as the highest beneficial use of the state's fish and game, but it
doesn't answer the question who gets to use it. Now all of this
was happening in the context of debates in Congress which had
started almost immediately after ANCSA was passed in 1971 to deal
specifically with Native subsistence rights. And that led
ultimately in 1980 to the passage of the Alaska National Interest
Lands Act - ANILCA, a major provision of which they proposed
ultimately became Title VIII. And again, Alaska Natives were
pushing for a Native subsistence priority that had ample support in
terms of Supreme Court decisions which authorized, expressly
supported Congress' power to enact just such a preference. The
state of Alaska took a different position. It said, "From our
perspective this is bad public policy for our state, we urge you,
Congress, not to provide a Native preference, but to provide a
preference based on geography" and while we understand that that
might be in some respects over-inclusive; that is, there'd be some
people in rural Alaska that don't need subsistence, don't hunt
subsistence, or fish subsistence and on the other hand, there'd be
some people in urban Alaska who have relied on it, will be left
out, this roughly makes sense. And Congress bought that.
Number 0893
ATTORNEY GENERAL BOTELHO: And so we have Title VIII which in its
original form is actually several sections long. I want to
highlight just some specific features. We first of all have the
policy which Congress set forth, and I highlight for you that
consistent with the management of fish and wildlife in accordance
with recognized scientific principles. And again, I think that
we've learned to talk about sustained yield - the purpose of this
title is to provide the opportunity for rural residents who engage
in a subsistence way of life to be able to do so. That was the
policy. The next, I think, feature to highlight of the Act is
definitions - what is subsistence or subsistence uses and here
again, customary and traditional uses of wild renewable resources
for direct personal or family consumption. And again, probably
reflecting that choice that Congress made, not Native preference or
Native priority, but here uses by rural residents. And finally, we
have in the Act in terms of the guts of it, the actual preference
that is established by Congress which is that "Except as, the
taking of public lands - [public lands meaning federal lands] - of
fish and wildlife for subsistence uses shall be accorded a priority
over the taking for other purposes." And again, the subsistence
uses ties back to the definition.
ATTORNEY GENERAL BOTELHO: Now obviously there's been a lot of
debate historically about whether it should have been a Native
preference as opposed to a rural preference; that debate continues
today and there are many who would argue if Congress were to make
any change it should go for a Native preference rather than a rural
one. I think I would just like to show you two graphs that I think
support the rational basis of Congress and for the state's position
in supporting a rural subsistence preference. The first one - and
I realize this is fairly difficult to see - outlines a study that
was done by the Department of Fish and Game back in 1987. What it
did was to survey 98 communities in Alaska ranging from the very
largest in the state - Anchorage, Fairbanks and Juneau to the very
smallest - to determine what was the per capita consumption of wild
fish and game in the state. And what this chart shows is that in
the urban areas - here in Anchorage, Juneau, Fairbanks, Mat-Su -
the annual per capita consumption was 30 pounds. It ranges to
Northwest Arctic with an average of over 1,000 pounds a year -
again, of wild fish or game for personal consumption. We have that
displayed in a slightly different chart which I think makes it ....
CHAIRMAN GREEN: Excuse me, Bruce.
Number 1094
CO-CHAIRMAN OGAN: Mr. Attorney General, on that last point - you
said, the chart said -- thank you, Mr. Chairman -- the chart said
subsistence foods ...
ATTORNEY GENERAL BOTELHO: Yes.
CO-CHAIRMAN OGAN: ... but you said wild fish and game.
ATTORNEY GENERAL BOTELHO: Yes.
CO-CHAIRMAN OGAN: So, we're saying that if I get my moose ....
ATTORNEY GENERAL BOTELHO: Yours would be counted. If you ....
CO-CHAIRMAN OGAN: Even though I got it on a sport license.
ATTORNEY GENERAL BOTELHO: That's right. So it has tried to take
that into account.
CHAIRMAN GREEN: For the record, that was Representative Ogan and
I would like to recognize that Representative Martin was here
earlier and had to leave. We also have Representative Austerman
with us. Excuse me.
ATTORNEY GENERAL BOTELHO: Again, I think in a more dramatic sense,
you have a picture of the relative dependence and use of wild fish
and game resources on this chart. Again, we're talking about per
capita consumption. You'll find Fairbanks at the low end,
Anchorage following, and again, ranging to the Northwest Arctic.
CHAIRMAN GREEN: Representative James, you had a question?
REPRESENTATIVE JEANNETTE JAMES: Thank you, Mr. Chairman. Mr.
Botelho, my question is in getting these numbers together, was
there any consideration, say in Anchorage or Fairbanks, that's the
pound per person of everybody in Anchorage and Fairbanks, was there
any delineation of the pounds per person that was done by those
people who do hunt and fish in Anchorage?
ATTORNEY GENERAL BOTELHO: I think the answer is yes, Mr. Chairman.
This is a very good point that I intended to make in terms of
trying to interpret this - we have to recognize that there are
several factors that would account for the low per capita; one of
which is the large numbers of people who do not hunt or fish at all
would certainly lower the average. You also have, even among those
who do, the fact that you have a cash economy - people are working,
so there's less time to hunt and fish and you have the availability
of alternative resources so your need, your dependence on wild fish
and game generally would be less than you would find in less urban
areas.
CHAIRMAN GREEN: Follow-up?
REPRESENTATIVE JAMES: Yeah, one follow-up. Also, when you're
talking about wild food harvests, where have the migratory birds
and the marine mammals - are they included in that because ....
ATTORNEY GENERAL BOTELHO: Yes, they are.
REPRESENTATIVE JAMES: .... they're only allowed for Native people
so, I wondered if you have a chart that says how much of that is
those folks.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I can tell you that those
were counted in here, in actual surveys of the communities, all
wild fish and game, including those that would be marine mammals
are reflected here. The actual breakdown - I'll have to ask Fish
and Game whether they can provide it.
Number 1257
ATTORNEY GENERAL BOTELHO: I think the important thing that you
want to note here again about the rational basis for the rural
preference is graphically illustrated here in terms of the
dependence. One could say there are three observations. First,
that the farther away you get from the urban centers, the greater
the dependence. You will also find that in this mid-range area,
that the communities that are tied either by road or by rail or by
ferry tend to, while they have a heightened dependence on fish and
game resources compared to Anchorage, still are dramatically lower
than those in the areas that are what are truly, truly Bush. And
again finally, I would just note again, that there are a lot of
different reasons that would account for the very low numbers in
Anchorage, Fairbanks and other urban areas and again, I would
attribute those primarily to the fact that we have high numbers of
people who do not engage in fish and game hunting or harvesting at
all, the fact that they are a cash economy and they have
alternative food sources, and the fact that people engaged in
employment do not devote the same amount of time in harvesting the
resource.
CHAIRMAN GREEN: Excuse me, Bruce. Is there a possibility you
could make a copy of that available to the members of the
committee?
UNIDENTIFIED SPEAKER: I think we've got it.
CHAIRMAN GREEN: We do have it? Oh, I'm sorry.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, if we have not done so,
I'll make sure that they have it.
CHAIRMAN GREEN: Okay, we have some handouts I haven't gone
through. Representative Bunde.
Number 1330
REPRESENTATIVE CON BUNDE: Thank you. Mr. Attorney General, this
was a study done in 1967?
ATTORNEY GENERAL BOTELHO: 1987.
REPRESENTATIVE BUNDE: Excuse me, '87 yes, thank you. So, it's
some 12 years - 11 years old now. Can you point on that chart for
me where Bethel is located?
ATTORNEY GENERAL BOTELHO: Sure. Maybe it's only (indisc.-
coughing).
REPRESENTATIVE JAMES: It's not there.
CHAIRMAN GREEN: Do you see the copy?
REPRESENTATIVE JAMES: It isn't there.
CO-CHAIRMAN OGAN: No, I haven't looked for it.
ATTORNEY GENERAL BOTELHO: The answer is, it isn't there.
Number 1368
REPRESENTATIVE BUNDE: Okay. The thrust of my question, if I might
Mr. Chairman, is that I just used Bethel as an example of a very
dynamic city or community that has grown very rapidly in the last
ten years and so I would submit that some of this data is probably
out of date and certainly from my point of view, Bethel is based on
a cash economy and if you're not including cities like Bethel in
there, then my point is moot. But I think it would be important,
however, -- and I don't want the department to use useless studies
or spend more money, but Alaska's a dynamic state and it's changed
a lot in ten years and it would be nice to know what the current
information is.
Number 1407
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think there are a couple
things that are important to state and I certainly agree with
Representative Bunde - it is a changing state, it is dynamic and we
have areas of growth (indisc.-coughing) the purpose of this
presentation, I think what it is intended to do primarily is
emphasize the fact there was a rational basis for Congress to have
chosen rural as opposed to a Native preference, that it has
continuing vitality today and that it was a policy decision
recommended to Congress by the state of Alaska. To urge from this
chart which communities should be in and out is not my intent
today, except to illustrate what I think are still valid patterns
today, without talking about an individual community.
CHAIRMAN GREEN: Representative Nicholia.
Number 1449
REPRESENTATIVE IRENE NICHOLIA: Thank you, Mr. Chair. I'd just
like to state for the record that Bethel may be a large community,
but they've had a lifestyle that they've practiced for years and
that lifestyle is harvesting different foods from season to season.
That doesn't change. You know, I grew up in Tanana and we went
through a lot of changes from having no TV to having TV and all
this stuff, but our eating patterns - our harvest patterns never
changed. We still have the same harvest patterns that we had when
I was little and I'm like 41 years old now. So, Bethel doesn't
change - the people there don't change - their harvest lifestyle
don't change.
CHAIRMAN GREEN: That I think is straying a little anyway because
what we're after is information and I think your point is being
made - whether Bethel is in or out. So, please continue.
ATTORNEY GENERAL BOTELHO: Yes. Let me just include, in terms of
historic perspective on ANILCA Title VIII. I think the final ....
CO-CHAIRMAN BILL HUDSON: Mr. Chairman, can I ask him one question?
CHAIRMAN GREEN: Sure. While we're changing charts, Representative
Hudson ....
Number 1504
CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. Bruce, one thing I
would like to try to have some better understanding of is, we use
this term "rural" and it goes way back, as you've indicated here.
Has it ever been described or defined in federal law. I mean the
federal law is talking about rural and all of us probably have a
little different idea of what rural is. I feel like I live in the
rural part of Juneau - I live out in the Valley.
ATTORNEY GENERAL BOTELHO: Mr. Chairman. Again, I think that's a
very good question - it was one of the problems which the task
force believed was inherent in the federal law; there was no
definition of rural and you'll find that one of the changes made
was to provide that kind of guidance in the federal law in the
amendments that Senator Stevens sought and achieved last year and
I'll start reviewing that, because I think that's a very important
....
CHAIRMAN GREEN: Questions beget questions, but on that chart that
you showed of the escalated usage, were there, to the best of your
knowledge, sprinkled indiscriminately, areas that had been called
rural and urban other than of course, you've got the low end there
- the railbelt, but as you got out into the middle and the upper
end of that were there all "rural" areas or were there some of
those areas also considered urban?
ATTORNEY GENERAL BOTELHO: I'm not sure that people, in looking at
the chart, tried to classify the communities as one or the other.
We certainly do when we talk about Anchorage, Fairbanks, Juneau and
the Mat-Su, in terms of urban. Beyond that, I don't think we
focused on it that way, but we certainly are looking at Petersburg,
Wrangell, Ketchikan, Sitka, which I think by Alaska standards are
generally considered a certainly more urban area, but we don't
describe them as that.
Number 1495
CHAIRMAN GREEN: The only reason I was asking is that there were
some questions about the designations like Saxman, Ketchikan and
things like that that were somewhat inconsistent and I just
wondered if without regard to that, if you recall on the chart
whether some of those were working their way up; whether they
happened to be designated by that list that came out some time back
....
ATTORNEY GENERAL BOTELHO: Right. Mr. Chairman, what I'd have to
do is go back and look at the list ....
CHAIRMAN GREEN: Okay, it's not worth the effort.
ATTORNEY GENERAL BOTELHO: I'd be glad to do it on a break and then
we can get back together.
CHAIRMAN GREEN: Okay.
ATTORNEY GENERAL BOTELHO: I think the final thing just to talk
about ANILCA Title VIII in its original enactment is simply what is
called the local-regional participation is the heading, but the
ability of the state to manage. Now again we're talking about
federal land and federal management for subsistence uses. They
didn't have to give the state any role to play at all, but Congress
recognized that it makes sense to have a dual management system;
that is one that's a federally run system and one for the state or
maybe one management system, but two different regimes. And so, it
provided in Section 805(d), the ability of the state of Alaska to
manage for subsistence uses on federal lands in the state if the
state were to enact and implement laws of general applicability
which are consistent with - and that's kind of a key phrase - and
which provide for three things: the definitions that are found in
ANILCA; the preference, which we talk about in Section 804; and the
participation specified in the Act. And without going into the
long history, the state, of course, was not able initially to come
into compliance. The requirement was really a holding off of the
Secretary for action, unless within one year the state had enacted
such laws. What ended up happening in 1982 - or 1981 when the
legislature had been unable to reach agreement on the law, the
Boards of Fish and Game went ahead and adopted regulations to
accomplish that end. Those regulations were ultimately struck down
in 1985 in what is known as the Madison case, saying "Boards, you
don't have sufficient statutory authority to adopt regulations
inferring the rural priority and that led to the 1986 statute which
provided for that priority expressly. We had the McDowell decision
in December of 1989 which struck it down and really the struggle
we've had in the last 8 1/2 years to resolve it.
Number 1734
ATTORNEY GENERAL BOTELHO: Let me now kind of just move ahead and
suggest that what might be worthwhile is to look at that portion of
the package which the task force proposed last year dealing with
changes to ANILCA itself. As you'll recall, the task force which
met all last summer, beginning on June 1, proposed that the
solution really lay in three distinct areas: One is a
constitutional amendment which would authorize the legislature to
act and actually, Charlie, if you ...
CHAIRMAN GREEN: While, you're getting that, Representative Ogan
had a question and I would like the recognition that Representative
Dyson has joined us.
Number 1761
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. Welcome,
Representative Dyson. Mr. Botelho, were you in Washington, D.C.
when the agreement was struck to replace Native with rural?
ATTORNEY GENERAL BOTELHO: I was not.
CO-CHAIRMAN OGAN: You're implying that the state agreed to the
term rural being used. It's my understanding that the state never
opposed the use of rural.
ATTORNEY GENERAL BOTELHO: I'm sorry - never opposed?
CO-CHAIRMAN OGAN: Never opposed the use of rural in the
deliberations in Congress when that was going on.
ATTORNEY GENERAL BOTELHO: Every record that I've seen has
suggested that the state of Alaska actually strongly supported
rural and opposed the Native preference - that was a suggestion
that came from the Hammond Administration.
CO-CHAIRMAN OGAN: Mr. Chairman, if I might follow-up.
CHAIRMAN GREEN: Yes, follow-up?
CO-CHAIRMAN OGAN: Mr. Dick Bishop yesterday testified in Senate
Resources that he was there and indicated that the state was forced
to accept this terminology. Seems to me we have a first hand
person - at least that's his perception of it. Do you care to
comment on that or ....
ATTORNEY GENERAL BOTELHO: I can't, I didn't ....
CHAIRMAN GREEN: Dick is signed up to testify, maybe you could ask
him.
CO-CHAIRMAN OGAN: Okay, we'll ask him that question today. One
other question, along the lines of what he's been discussing.
CHAIRMAN GREEN: Representative Ogan.
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. You said that ANILCA
- they originally were given instructions in the original version
to withdraw lands around villages to the exclusion of all others
and they dropped those provisions. But, in fact, the 44 million
acres were deeded fee simple, including the subsurface rights, to
the Native corporations that -- because of private property owners,
they can exclude people from trespassing on their property and
thus, have an exclusive right -- if they wanted to, have an
exclusive right to hunt and fish on those lands even though they're
managed by the state -- hunting seasons and those types of things.
And was not the intent of the 44 million acres, at least partially,
to provide for subsistence?
ATTORNEY GENERAL BOTELHO: I won't dispute the fact that that was
a possibility. It's not reflected in the record that the purpose
there was to do anything other than settle aboriginal claims to
title and the focus in terms of the withdrawal power was a
recognition that the Secretary already had that power in other
statutes if he chose to exercise it. That's what the congressional
record and the conference committee report reflect. And, of
course, probably what I haven't stated is that was an exchange in
part for the deletion of - or the extinguishment of aboriginal
hunting and fishing rights.
CO-CHAIRMAN OGAN: Mr. Chairman, a couple of quick follow-ups.
Would you be kind enough to put up the Section 804 of the
subsistence priority placard that you had. That'd be helpful ....
ATTORNEY GENERAL BOTELHO: Sure, (indisc.).
CO-CHAIRMAN OGAN: Section 804 talks about granting a subsistence
priority and do we not already have the authority under our
constitution in Article VIII, Section 4 that sustained yield
principle that I quote from memory says, "Fish, forest, wildlands,
grasslands, and other replenishable resources shall be managed on
a sustained yield principle subject to preference on beneficial
uses." Beneficial use of that fish and game can be subsistence and
that we can give a preference for subsistence use of fish and game
as a priority over all other uses.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, everything that
Representative Ogan said is absolutely correct. We have the power
to identify the beneficial use and in fact, this legislature in
1978 did identify the subsistence use as the highest beneficial
use. The issue that we have before us is not the use, but the user
and what 804 provides as one ties into the definition under federal
law, the nonwasteful subsistence uses being described here ties to
the definition which makes it clear that the use is by rural
residents which is the feature that we don't have in state law, the
feature which is not permitted right now by the constitution of the
state because of the determination by the state Supreme Court in
the McDowell case. And that is really kind of the nub of the
issue. If the state of Alaska wishes to manage for subsistence
uses, fish and game on federal lands, it must according to Section
805(d) enact laws which, again, are consistent and again, I should
also emphasize the general applicability, but must enact laws that
are consistent with and provide for the definition, the preference
and the participation. And so the issue is not making subsistence
the priority use, but making a decision about who the priority user
may be. And in federal law, that by definition, is a rural
resident. So for the state to come to the position that it can
manage on federal lands, it must similarly provide for the same
preference for rural residents. That's really in large part, the
debate of the last nine years - should the state do it? Can it do
it? With that, I think it would probably be helpful to look at the
changes made ...
Number 2007
CHAIRMAN GREEN: Just one moment, we have possibly a follow up here
and two other questions.
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I believe that the
congressional record shows that Senator Ted Kennedy moved the
amendment which increased from 22 million acres to 44 million acres
based on the need for subsistence.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I can't answer the
question. I don't have the text here, but I do have it in my
office.
CO-CHAIRMAN OGAN: Thank you.
CHAIRMAN GREEN: Representative Williams.
Number 2032
REPRESENTATIVE BILL WILLIAMS: Thank you, Mr. Chairman. I'm glad
the co-chair of resources has been looking up in the -- doing some
research on this. I appreciate it. I've been doing some research
on this since I got here to Juneau. When I started the subsistence
issue, I didn't quite understand how subsistence got there because
people were telling me, "We can't discriminate; we can't make other
citizens better than the others." The Alaska Native Claims
Settlement Act was a negotiated settlement, as I believe. Would
you say that?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, there are some who would
say that it was actually - that there were terms that were imposed
over objection of some Alaska Natives, but in essence, I think it's
true to say that it was a combination of the administration in
place - the Nixon Administration, Alaska Natives represented
through the Alaska Federation of Natives and Congress obviously
working with our delegations.
REPRESENTATIVE WILLIAMS: There was a lot of give and take during
that period of Alaska Native Claims Settlement Act and the big push
at that time was the oil pipeline that we were trying to put in
here and during that time, this equal protection provision that
we're trying to protect today was part of this negotiated
settlement. When they came in and said that Alaska Natives, at
that time, had a land freeze going in order to get the pipeline
going, but one of the things that the Alaska Natives had said all
along was that the three things that they wanted to be part of this
negotiated settlement - let's say that it was a negotiated
settlement for this discussion - was land, compensation and
subsistence and I don't know what order it was at that time. But
those three things were always there. Can the state, under this
negotiated settlement, negotiate away the equal rights provisions
in Article I? Can they do that and give the Alaska Natives the
subsistence rights and the Alaska Native gives the right to get the
pipeline through. Can the state do that?
Number 2142
ATTORNEY GENERAL BOTELHO: Let me see if I understand the question
because it's a fairly complex one - could the state right now
decide to modify its equal protection provision in recognition of
what was conceded earlier?
REPRESENTATIVE WILLIAMS: Well, let's say that we're here - prior
to the Alaska Native Claims Settlement Act we were talking about
this and the Governor came back and said these are one of the
things that the Alaska Natives want - they want subsistence
lifestyle and we want the pipeline, what are we going to do. Can
the state say that we're going to give up our equal rights
protection provision under that portion?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, if I understand ...
REPRESENTATIVE WILLIAMS: What I'm trying to get to ...
ATTORNEY GENERAL BOTELHO: ... can we negotiate away our
constitutional protections in exchange for something. Could the
Governor unilaterally do that? I think the answer is no. I think
our structure of government in this state is based on this
fundamental document called the constitution and it sets the
fundamental policies. The only way to negotiate it as it were, is
to change it and there's only one mechanism for doing so and that's
the two-thirds vote by resolution and passage by the electorate.
REPRESENTATIVE WILLIAMS: So how did we get into this provision?
How did the subsistence become a preference during that negotiated
settlement?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I realize that
Representative Williams may have come in a little late and if you
don't mind me just running through again - I see it as largely
results of the reserving at statehood the issue of Native claims
hunting and fishing rights which took another 12 years for Congress
to finally deal with, which it did in ANCSA, it extinguished
expressly aboriginal hunting and fishing rights, but also made
clear that it expected the Secretary of Interior and the state to
specifically protect Native hunting and fishing rights. Some would
say nothing happened, there were activities that took place between
then and enactment of ANILCA in 1980, but certainly enough pressure
created on Congress to say, "we need express protection in federal
law for subsistence hunting and fishing" and the ultimate product
of that is Title VIII.
CHAIRMAN GREEN: We will be taking a one-hour break at noon and I
don't know how many of the members of the joint committee have had
a chance to review Mr. Heimer's report that was passed out by
Representative James. There is a very good chronology in there
that I would suggest those of you who haven't read it, to review
that and if there are still some questions, then maybe we could ask
Attorney General Botelho.
REPRESENTATIVE WILLIAMS: If I could move on to another question,
Mr. Chairman.
CHAIRMAN GREEN: Representative Williams.
REPRESENTATIVE WILLIAMS: Under the amendments to ANILCA that was
provided to us by Senator Stevens, in there -- during one of our
meetings with Senator Stevens, he told us that under these
amendments, ANILCA amendments, that we were concerned about the
federal court oversight - okay, that was a big issue there - under
these amendments, Senator Stevens, I believe, said at one of our
meetings that with these amendments to ANILCA, that in order for a
Katy John or a (indisc.) or whoever was going to sue because of
subsistence, wouldn't have to go through -- wouldn't go right
straight to federal court - they'd have to exhaust the court
process within the state. Is that true or is that ....
ATTORNEY GENERAL BOTELHO: Well, it requires the administrative
process and this is really a good time to talk about those changes
and let me urge you to - if you have your subsistence notebook -
the changes to ANILCA that took place start out on page 105 in the
notebook and with regard to your specific question, I'd like
perhaps General Cole here to talk about it because it's an area
that he focused great attention on, I think articulated the
concerns about the role of federal oversight and what we think we
gained out of it.
CHAIRMAN GREEN: Before we start, General Cole, we have a couple of
other questions that may have been on prior testimony, if you will
please. Representative Berkowitz?
REPRESENTATIVE ETHAN BERKOWITZ: I think they're going to get to
what I want to hear.
CHAIRMAN GREEN: Okay. Then Representative Hudson.
CO-CHAIRMAN HUDSON: I'll pass.
CHAIRMAN GREEN: Go ahead, General Cole, please.
TAPE 98-91, SIDE B
Number 0001
CHARLES E. COLE, FORMER ATTORNEY GENERAL; AND REPRESENTATIVE OF THE
BIPARTISAN 1997 TASK FORCE ON SUBSISTENCE: .... the Stevens
amendments. Those were amendments by the way, which the task force
recommended to Senator Stevens. Before any amendments to ANILCA,
Section 807 with respect to the right to go to federal court, reads
(indisc.), "Local residents and other persons and organizations
aggrieved by a failure of the state or the federal government to
provide for the priority for subsistence uses set forth in section
804 (or with respect to the state as set forth in a state law of
general applicability if the state has fulfilled the requirements
of section 805(d)) may, upon exhaustion of any state or federal,
(as appropriate) administrative remedies which may be available,
file a civil action in the United States District Court for the
District of Alaska to require such actions to be taken as are
necessary to provide for the priority." So what that section says,
that before any person claiming to be aggrieved by their failure to
get subsistence rights, either under ANILCA or under state law if
the state has assumed subsistence management, must first exhaust
administrative remedies. And by that the statute means that they
must first go ultimately before the state Boards of Fish and Game
and say, "Look, I haven't gotten my rights, I want you to correct
it" and that furnishes an opportunity for the state Boards of Fish
and Game or the federal administrative agencies to correct the
error if they believe that the claim is valid. And then when their
relief sought by the claim has been denied, they may then file an
action in the United States District Court just to gain their
rights under ANILCA, but not to declare "the state out of
compliance if it has assumed management." But let me add and
comment now upon the following sentence, which I think also is
important: "In a civil action filed against the state, the
Secretary may be joined as a party to such action. The court may
grant preliminary injunctive relief in any civil action if the
granting of such relief is appropriate under the facts upon which
the action is based. No order granting preliminary relief shall be
issued until after an opportunity for a hearing." So that affords
the state of Alaska to come in and say, "Hey, the administrative
agency has done the right thing and the claimant is not entitled to
the relief sought." And then it goes on, and this is very
interesting, "No order granting preliminary relief shall be issued
until after an opportunity for hearing. In a civil action filed
against the state, the court shall provide relief, other than
preliminary relief, by directing the state to submit regulations
which satisfy the requirements of Section 804; when approved by the
court, such regulations shall be incorporated as part of the final
judicial order and such order shall be valid only for such period
of time as normally provided by state law for the regulations at
issue." So, that limits the period during which the federal relief
is effective and it provides, in my view, an opportunity for the
Boards of Fish and Game at the next regular meeting or the annual
meeting to say, "And we have to make a little change in the
regulation to be able to afford these rights under state and
federal law."
Number 0385
MR. COLE: Now with respect to the actions of the administrative
agency under which this relief is sought, the state in the Kenaitze
case, said and argued before the Court of Appeals, "Look the
determinations of the state administrative agencies should be
afforded the same deference as the federal court would give to
actions of the federal administrative agencies"; give them sort of
benefit of the doubt you might say, to put it in the vernacular,
and the Court of Appeals - the learned Court of Appeals for the
Ninth Circuit said, "No, this is not federal action and so we're
not going to give deference to the actions of the state
administrative agencies." So in the task force we said, "You know,
that doesn't sort of sound right." If the state is administering
the subsistence provisions of federal law and state law by which it
has assumed management, its decisions - decisions of the Boards of
Fish and Game - should be given deference by Judge Holland, if you
will, United States District Court, to the same extent that Judge
Holland would give deference to decisions of federal administrative
agencies." And I say - I can't emphasize and I think the effect of
that change to ANILCA and that amendment cannot be over-estimated
because it's a remarkable change and it's a shifting of the balance
of power. So if you will, now with respect to that amendment, it
really deprives the federal court of a lot of flexibility it had
before number one, and it sort of says, you know in that close
pitch when it's 3-2, the call goes to the state and not to the
claimant. That's where you come down and I say, and I implore this
body and the legislative body to bear that in mind when it's
deciding what to do because if the task force amendments enacted
into law with, by what I call the Stevens amendments, and the state
does not regain management, that vital provision floats away - it's
gone - and we're right back to where these close calls - actions
that give deference and I can guarantee you that when these federal
subsistence boards act, they're going to give the close call, the
hard call, to the subsistence users. Now that's the purpose of
their being - I mean, they're going to further -- because they
don't want to get sued, so they act very carefully and they will
extend subsistence rights to the outer limit and the federal courts
giving their actions deference, is going to say, "All well and
good." Do you know who is going to be at the bottom of the rung -
well, first the top of the rung is going to be the subsistence
user. I understand how the Natives feel - they're going to get
pretty much what they want.
Number 0640
MR. COLE: Second is going to come the commercial fishermen because
the federal government can't say we have an economic disaster down
in Southwestern Alaska - we can't open the state (indisc.) to
support them, so they're going to come next; the bottom - sports
fishermen, sports hunters - they're going to be at the bottom.
They're the ones that if we don't regain that management of
wildlife - they're the ones who are going to take it on the chin -
I guarantee it. Thanks.
Number 0675
CHAIRMAN GREEN: Thank you. We have two or three questions, here.
Representative Bunde.
Number 0708
REPRESENTATIVE BUNDE: Thank you, Mr. Chairman. General Cole, I
had the pleasure of your testimony in Judiciary earlier on HB 406
and if my memory serves -- I'd appreciate a little latitude here,
Mr. Chairman, because this has been really core to this whole issue
for me - the difference between federal oversight and federal
management -- and I think you said in a moment of candor that
knowing the federal government, they'd be here as much or as little
as they wanted to be, no matter what we did. And it's important
that I understand the difference between oversight and management
and I think you've explained it to me, but is Representative
Williams correct in that under federal management, any redress is
sought immediately through federal court, where under federal
oversight, the redress is through the state courts and then on to
federal court. Or am I over-simplifying?
MR. COLE: Well, you're confusing me - that I will acknowledge.
REPRESENTATIVE BUNDE: Let me take another run at it. One of my
concerns has always been - and I realize some of my colleagues
disagree with me - we're damned if we do and we're damned if we
don't. We pass a constitutional amendment, and using what I think
I heard you say before, is we'll have as little or as much federal
management as the federal government wants to have. What's the
long-term gain? We pass the constitutional amendment and we still
are in danger of a considerable federal oversight. We don't pass
a constitutional amendment and we have federal management. Please
help me understand the difference.
Number 0786
MR. COLE: Well, I'm not sure there is a major difference. In the
first place, when the state sort of "fell out of compliance," it
fell out of compliance because of a decision of the Alaska Supreme
Court and we no longer had the state statute which enabled us to
manage subsistence on federal land - state land. That's number
one. Basically, the power of the federal courts under the statute
which I read to you, is to guarantee the individual subsistence
user his or her subsistence rights and if, after the claimant has
exhausted his or her administrative right, then it may go to
federal court, but not before. I think that's the fundamental
issue that I try to get across. And on this same vein, if the
Chairman would permit me, you see as I've said before, Blackstone
sort of had it right - possession is nine points of the law and
when the state gets management - if this legislature sees fit to
take action to regain management - then the state makes the call.
It decides what provisions shall be adopted to afford subsistence
users their subsistence rights. It makes those decisions and then,
you see, the burden -- when we talk about possession -- then the
burden shifts to someone else to set aside that action of the state
administrative agency. And that requires proceedings before the
Boards of Fish and Game to seek relief, it requires the filing of
an action in the United States District Court and the burden of
going forward falls on someone else. See, the state is then in the
power position. Now if we do nothing and the federal government is
managing subsistence, we're sort of left out in the cold. I mean,
what do we really do to resist the actions of the federal
government? Our powers are limited and in the meanwhile, the
federal government is continuing, expanding its power, making more
regulations, further burdens on the nonrural resident and so, in my
view, I think that the so-called fear of federal oversight is
grossly overstated. The state is in control on management; it
decides what the bag limits are to protect subsistence users, it
decides what streams shall be closed and when to afford to
subsistence rights. I mean, it makes all those decisions and it's
up to someone else to say those actions are wrong. It's up to
someone else to say that the actions of the administrative agency
are not valid - basic - and so the state really becomes in the
better position and (indisc.) of the view that until this whole
thing is thrashed out, the powers of the federal government to
enact ANILCA, until the extra-territoriality powers or those issues
are resolved and litigated, then the state should be in the power
position. And then if the lawsuit is satisfactory, if the state
wins the lawsuit, if the state's successful in making changes to
ANILCA or others are successful in making changes to ANILCA, then
the legislature has the freedom and then the ability to make
appropriate changes. That's why I say the state should place
itself - you know, rather than do nothing, rather than default if
you will, to federal subsistence management with its creeping
extensions of power, that the state should reserve as much of its
power as it can and then continue with what actions that its
citizens wish to take with respect to final resolution of these
issues.
CHAIRMAN GREEN: Follow-up?
Number 1084
REPRESENTATIVE BUNDE: Just to help my understanding - the best
case scenario, the state then can fight - at least a delaying
action, may prevail and if nothing else, at least they can be an
obstacle to someone getting federal relief. But after having gone
through all that system, they still will end up with - if the state
doesn't prevail, we end up with the federal management.
MR. COLE: Not federal management. Not federal management - just
the decision to - not federal management. Just in this particular
case before the court, if the United States District Court finds
that the actions of the state administrative agency were arbitrary
or capricious or an abuse of discretion, it can grant relief.
That's a tough burden for one claiming to be aggrieved to overcome
- to shoulder. I mean, it's time consuming, it's expensive and
it's legally, very, very difficult. But it is not, if one person
says, "I didn't get my subsistence right," that doesn't throw the
whole system out. This is just dealing with say, one river - one
creek, if you will - one stream. That's all that federal issue -
federal court case is going to direct itself toward. But not the
management and the other - well, let's see 103, you know, 350
million acres. Just very limited.
REPRESENTATIVE BUNDE: I understand - maybe that's my semantic
problem. When I say management, I think if they grant injunctive
relief to a single person they are managing that person's activity.
But you consider management for more of a statewide basis and I
understand the difference.
MR. COLE: Yes, thank you.
Number 1194
CHAIRMAN GREEN: Although I don't like this idea of -- on that
point -- that's been kind of an in-house problem, but on that
point, you mentioned something about that particular creek. If it
were made available that there would be a priority to those
affected as opposed to all subsistence users, would that pass
muster, in your opinion - wherever that may be and it probably
would be a moving target.
MR. COLE: I think the court, you know following traditional
judicial practice or rules is going to say, "We grant relief only
in the case before us. You know, if we're down in Saxman, we're
not granting relief to someone up in Noatak, unless for some ways
they're parties to the lawsuit or it's a class action. The relief
is very specific.
CHAIRMAN GREEN: Good. Thank you. We have Representative Porter.
Number 1245
REPRESENTATIVE PORTER: General Cole, you began with what I thought
was something that I totally agreed with (indisc.) with the
statement that was incongruous to what you said all the way
through. So let me make sure that I understand it. From what you
have just said, to me there is a distinct difference between
federal management and state management.
MR. COLE: Indeed.
REPRESENTATIVE PORTER: Okay. I thought I understood you to say
that there's an insignificant difference between those two things
at the beginning. Alright, very good. If we had federal
management, which we would get December 3, save being able to
satisfy Congress, and someone had a grievance on subsistence, would
they not go to a - on public land - would they not go to a federal
regulatory consideration and then to a federal court?
MR. COLE: Yes, if a federal administrative agency is managing
subsistence, they must go to the federal agency, exhaust their
administrative remedies, (indisc.) says, and then go to the federal
court.
REPRESENTATIVE PORTER: If though, we were to satisfy ANILCA in its
current form or were able to reach some accommodation with ANILCA
and in conformance with ANILCA and kept the provisions of the
"Stevens amendment" would not that grievance first go to a state
regulatory agency for their determination and then if it was
appealed to the federal system from there, the federal system could
only look at that appeal in relation to is it an arbitrary or
capricious discretion ...
MR. COLE: ... or otherwise contrary to law.
REPRESENTATIVE PORTER: ... or contrary to law. That's ...
MR. COLE: The answer to that is correct.
REPRESENTATIVE PORTER: In your experience, is there any better
position that this state could be in in relation to federal
oversight which will never go away because they own two-thirds of
the state.
MR. COLE: Well, I think that is the best position the state can be
in, number one. Number two, let me say this - we talk about going
to the federal courts - bear in mind that this is a federal
statute. Article III, Section 2 of the Constitution of the United
States says the judicial power of the United States shall extend
the cases and controversies arising under the Constitution of the
United States and statutes of the United States. So, you know,
Congress - I don't know - probably 1789 - from day one - said the
United States District Court - one of the inferior courts
established by Congress under the Constitution - shall have the
right to hear and decide cases rising under federal statutes.
There is no way that the Congress of the United States is ever
going to deprive the United States District Court of the right to
hear cases arising under a federal statute; i.e., ANILCA. So the
best position, as you say, is for the state to get in essentially
the most position of power that it can get in and then continue to
see what it wishes to do - and continue to prosecute the lawsuit.
I favor the continued prosecution of that lawsuit. It needs to be
resolved, but then if the plaintiffs are successful in that
lawsuit, then it can just repeal the statute - be done with it.
CHAIRMAN GREEN: Follow-up, Representative Porter?
Number 1444
REPRESENTATIVE PORTER: Mr. Chairman, getting to the meat of this
hearing then, I totally agree with the position that 807(a) - the
Stevens amendment to that regarding the federal court's requirement
to look at it only if it's arbitrary and capricious or abuse of
discretion, is an extremely good position to be in. What seems to
me to be confusing - at least it confuses me - is 801 which
adds(b)(4) "In accordance with Title VIII of this Act, the
Secretary of Interior is required to manage fish and wildlife for
subsistence on all public lands in Alaska because of the failure of
the state law to provide a rural preference." I would like to
think that that provision goes away as soon as we meet the
otherwise requirements of ANILCA, but here it is and it doesn't
look like it's coming out, so.
MR. COLE: I think that only means that's the existing finding of
Congress on the day that it enacted this. I don't think there's
any problem there.
REPRESENTATIVE PORTER: Certainly, you would then think, if I may
Mr. Chairman to follow up, that as we hope we come into conformity
with ANILCA, federal management goes away.
MR. COLE: Well then there's also this provision in there at some
section later on, that the Secretary no longer has the power to
issue regulations .... That's ...
ATTORNEY GENERAL BOTELHO: 814.
MR. COLE: That's 814. I see someone questioning that.
REPRESENTATIVE PORTER: 814?
ATTORNEY GENERAL BOTELHO: Yes, it's on page 117, at the bottom -
if you have your notebook with you.
REPRESENTATIVE PORTER: ... during any time that the state has
complied with Section 805(d) the Secretary shall not make or
enforce regulations concerning 805(a),(b) or (c).
Number 1554
REPRESENTATIVE RAMONA BARNES: Mr. Chairman, on the point that
Representative Porter just raised.
CHAIRMAN GREEN: Representative Barnes.
REPRESENTATIVE BARNES: Would you also address that in the context
of the amendments that was put into the appropriation bill last
year?
MR. COLE: Which particular ones, may I ask. I'd be pleased to do
that.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, just to clarify. That
particular amendment was one that was part of the so-called Stevens
amendment package - the 814 addition which says that during any
time the state is managing, the Secretary is deprived the power to
adopt or enforce regulations under Title VIII.
MR. COLE: ... the task force, we wanted to be certain we put that
in to be certain that the Secretary of the Interior did not have
any power in any respect to act in furtherance of the subsistence
priority under federal lands or state lands during the period of
time that the state is in compliance. Some of us thought that it
was clear otherwise, but to remove any doubt, we put that in after
lengthy discussion.
Number 1616
REPRESENTATIVE PORTER: Mr. Chairman, if I may by point of
clarification ...
CHAIRMAN GREEN: Representative Porter.
REPRESENTATIVE PORTER: If I read this, it only curtails the
Secretary's ability to make or enforce regulations concerning 805
(a), (b) and (c) and as I read that, those are just the regional
council and advisory council sections, not ...
ATTORNEY GENERAL BOTELHO: Mr. Chairman, it is under those sections
that the subsistence priority is on the ground exercised; that is
the establishment of regulations arising out of the Federal
Subsistence Council - Federal Subsistence Board to set up the fish
and game management regimes, federal protection of subsistence
harvests. So, it is the guts of the ....
CHAIRMAN GREEN: We might come back to that then. We have several
other questions. Representative Masek.
Number 1666
REPRESENTATIVE BEVERLY MASEK: Mr. Chairman, thank you. Mr. Cole,
in your time of serving as attorney general and being involved in
the government of the state of Alaska, do you know if there is any
case that have ever been won - a state case in a federal court
dealing with subsistence?
MR. COLE: I don't know of any.
REPRESENTATIVE MASEK: So, is that a no or a yes? Give me a clear
answer.
MR. COLE: I answered your question - do I know of any cases - and
I said I don't know of any cases.
REPRESENTATIVE MASEK: So that means no, then.
MR. COLE: It means I don't know of any cases.
REPRESENTATIVE MASEK: It probably means no, if I'm listening to
you correctly. Just to follow-up on that, Mr. Chairman, too. In
regards of what Representative Porter was discussing about the
changes that Senator Stevens did in ANILCA, I believe that by
looking at it in a comparison with ANILCA as it was prior to the
amendments that were made by Senator Stevens, it seems apparent to
me that the changes have only strengthened the federal government
over the state as far as any judicial issues that may come up in
the courts. And some of the sections that I believe that
Representative Porter talked about, there's one concern that I have
- well there's several - in all the changes dealing with the local
and regional participation - that's Section 805 and that's under
Section 805(d) says "unless a court of competent jurisdiction
determines that the state is out of compliance, the Secretary may
bring a judicial action to enforce this subsection" and it says
that throughout this whole issue of where [Senator] Stevens made
those amendments and it really bothers me because of the issue
itself on saying we have to change our state constitution in order
to get true state management back. But to me it's really a slap in
the face because of the tightening up of this Public Law 105-83
that has been done. I don't think it will bring it back because of
these onerous changes that have been made and discussing that issue
as well - as far as that findings section in 801(b), which
Representative Porter just read. But if we don't provide that
rural preference, then the Secretary is required to manage on all
public lands because the state failed. That's pretty downright to
the table - required - it does not say shall, does not say may,
it's required and I think that really, clearly runs over our state
constitution as far as the state managing it when you have that
requirement there. And also under the savings clause, Section
316(c), "does not affect Native government authority over lands or
fish and wildlife assertions of Indian country in Alaska,
assertions that ANILCA is Indian law, or the authority of the
Secretary of Interior under Section 314(c) of ANILCA." And that
goes on as far as the effective. It says, "Secretary must certify
that the state is in compliance before amendments become
effective." Mr. Chairman, I just brought those up because I
believe it should be brought up; it's really important on any
things that we do come up with today and I'd like to hear more on
their testimony, but to talk about the issues that are really
within what we're talking about, I don't think we're getting to the
point and that's why I'm bringing them up.
Number 1843
CHAIRMAN GREEN: Well, I appreciate that, Representative Masek.
Again, I want to emphasize that what we're after here are
clarifications, questions of where we are - I think that was good -
we don't want to get into a debate on whether that's good or bad
yet. We want to find out what it means.
REPRESENTATIVE MASEK: Thank you, Mr. Chairman.
MR. COLE: Mr. Chairman - Representative Masek. You know the state
has not done well in the federal courts on these subsistence
issues. I acknowledge that. And one of the purposes of the
proposed amendments made by the task force was to limit the powers,
particularly the learned Court of Appeals for the Ninth Circuit -
in my view, one of the premier legislative bodies in the United
States - and we wanted to put some definitions in there to pin down
what rural meant, to pin down what customary and traditional meant,
so that these courts couldn't run wild and read into the statute
anything they wanted to say, which they've been doing. So, the
purpose of those amendments was to curtail the power so we would
have greater confines on the powers of these federal courts and
that's why we did that. It wasn't to weaken that Act with respect
to the position of the state of Alaska and of course, if we don't
come into compliance, the Secretary is going to have to take over
management of fish. Not only under, in my view, not under the
reserve water rights doctrine concocted, if you will, by the Court
of Appeals for the Ninth Circuit, but under the extra-territorial
powers of cases like Block v. Minnesota - like Minnesota v. Brown
- and so that's what the federal government's going to do if we
don't get back into compliance. And soon, before you know it,
they're going to be managing all fish and wildlife in the state of
Alaska - in all waters; not only navigable waters, but in all
waters of this state and out beyond the territorial borders of the
state. I mean it's a very, very serious matter which I think that
this legislature should take steps to preclude.
CHAIRMAN GREEN: Representative Ogan.
Number 1960
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I would point out that
the legislature has taken steps to, especially the navigable waters
issue, to work with our litigation that unfortunately this
Administration chose to drop, but had they not, we might not be
here today, we would know where we stand legally.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, if I might.
CHAIRMAN GREEN: Mr. Botelho.
ATTORNEY GENERAL BOTELHO: I think there may be some confusion.
The state of Alaska fought the navigable waters issue all the way
to the Supreme Court and if there's some misunderstanding about
that, let me clear the record. The Katie John case was one the
state fought first in the district court, allied with the U.S. at
a point when the United States government took the position that it
didn't have authority to include navigable waters, the district
court ruled that under a doctrine called "navigational servitude"
it had a requirement to adopt regulations on navigable waters, we
appealed that to the Ninth Circuit - we argued that case to the
Ninth Circuit. We lost there. The Ninth Circuit rejected the idea
of the navigational servitude as the basis; came up with another
doctrine called, "reserved water rights." We petitioned the
Supreme Court for review and the Supreme Court denied the petition.
So, any suggestion that this or any administration dropped the ball
in trying to take that case all the way, is erroneous.
CO-CHAIRMAN OGAN: Well, I don't want to get into a debate on it,
so I won't. But I do have some questions.
REPRESENTATIVE BARNES: Mr. Chairman, on the point of navigable
waters, if I might ask for clarification.
CHAIRMAN GREEN: Representative Barnes.
Number 2030
REPRESENTATIVE BARNES: Mr. Attorney General, is it not true that
in the Dinkum Sands case, Sandra Day O'Connor felt clearly that the
state of Alaska has the right to manage navigable waters. Is that
not true?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, the majority opinion
authored by Justice O'Connor makes reference to management over
navigable waters and the fishes therein. It's important again to
note that that was not at issue in the case - it'd be called in
legal terms "dicta" - that is not the direct holding of the case.
I don't think it's inconsistent with the position that the federal
government has asserted over its power. We believe we have that
authority - the Alaska Supreme Court has said so in its decision in
Totemoff that in its view the federal government does not have
authority to manage. But you have a Ninth Circuit decision whose
decision is on a par with that of the state Supreme Court. So you
have federal managers following the directives of the Ninth Circuit
and you have state managers that will follow the law as found by
the Alaska Supreme Court and you have a conflict and there's a way
to avoid that conflict on the grounds affecting individuals; that
is, that if this state enacts laws of general applicability which
are consistent with the ANILCA provisions, the state manages
everywhere in navigable waters and the conflict between the federal
government and the state government go away because it's only the
state that's managing.
Number 2104
CHAIRMAN GREEN: On that point again - I keep doing this, but one
of the issues that will be discussed by this combined committee has
a negotiation point in it to override that navigable servitude
decision. In your opinion, can that be negotiated since it's been
through the court?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, should we be looking at
the specific provisions that ...
CHAIRMAN GREEN: We will get to it. It was just a question, while
we were on it.
MR. COLE: That requires, Mr. Chairman, if I will - I believe, an
amendment of ANILCA.
CHAIRMAN GREEN: That's right.
MR. COLE: It requires an amendment of ANILCA and ....
CHAIRMAN GREEN: My question though - that's among the litany of
things that we would like to change in ANILCA because we feel that
that's onerous and unfair and all of those nasty things you can
come up with - can we legally in your collective opinions,
negotiate that change of ANILCA even though the court has rendered
a verdict.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, let me respond in this
way. Congress and in deed this body, frequently changes laws in
response to decisions rendered by courts, oftentimes as a result of
the view that interpretations of law have been improper or that
despite the propriety of the decision, they believe that it's
better public policy to go a different direction. So, I think
conceptually, the power of Congress to change the results of courts
on issues that are not constitutionally based but are statutorily
based, is present and that would extend to this body as well under
our state constitutional framework with regard to state laws. The
bodies are not free to change constitutional rights, but certainly
rights that are conferred by statute.
REPRESENTATIVE BARNES: Mr. Chairman, would you put me on the list,
please.
CHAIRMAN GREEN: Yes, we have you there.
CO-CHAIRMAN OGAN: Thank you, I have about five different questions
on the issues that we've discussed and previous things that have
been brought up. First of all, since the navigable waters is an
issue that we will be addressing in requesting ANILCA changes, is
it not true that in 1953 the Submerged Land Act deeded fee-simple
title to all submerged lands to the states and that in the
Statehood Act, it was specifically referenced that we also got
title to submerged lands and with that there are case law in the
U.S. Supreme Court that repeatedly expresses that with that comes
the right to manage not only the waters with the natural resources
within and that's....
ATTORNEY GENERAL BOTELHO: Mr. Chairman, those were exactly one
part of the holding of the Alaska Supreme Court in the Totemoff
case, which was rendered some six months after the Katie John
decision by the Ninth Circuit which looked to the Submerged Lands
Act of 1953 as one of the bases for concluding that the state
rather than the federal government had management authority over
navigable waters and tied to that, management over any species in
it. So, yes that again is one of the underpinnings of the State
Supreme Court decision which is in direct conflict with the Ninth
Circuit.
Number 2241
CO-CHAIRMAN OGAN: Follow-up on that point. And just for the
record, navigable waters include all your inland waterways like Icy
Straight and all the inland waterways - saltwater - Prince William
Sound, the rivers that you can navigate a boat upon and three miles
out from the outer coastal regions. Is that correct?
ATTORNEY GENERAL BOTELHO: Also, it includes inland lakes, I think
it's larger than 100 water acres - I can't recall the exact - I
think it's 100. Let me turn around to see if there's anyone who
will answer that if you'd like a complete ....
CHAIRMAN GREEN: (Indisc.) of the arcs - straight lines between
the arcs.
CO-CHAIRMAN OGAN: Right. It's pretty extensive, but in the Ninth
Circuit ruling on the Katie John case I believe it was, it said --
the majority ruling said "unfortunately ANILCA's language and
legislative history did not give us clear direction necessary to
find that Congress spoke with precise question of which navigable
waters are public land." And they said - and I'll paraphrase it -
it begs for a legislative solution. So, do you think it'd be
reasonable as one of the ANILCA changes to ask Congress to clarify
that indeed navigable waters should be state managed as they are in
every other state of the union, if I'm not mistaken?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, we believe we're managing
them in this state as well, so that there not be any doubt about
that. The issue that arises is the extent to which the federal
government in protecting (indisc.) of cases which General Cole was
very eloquent about, talk about the power that the federal
government in protecting lands over which there's no dispute about
the ownership, can exercise authority on adjacent lands or waters
and that that is the basis, it's not a question of title, not a
dispute with the state over whether the state also has management
authority, there is a question of who trumps and that brings us to
questions of the supremacy clause that plays a role here and I just
lost my thought here in trying to respond here to another part of
your question.
Number 2344
CO-CHAIRMAN OGAN: That's okay. I think it established that there
is some ambiguity in the court ruling and the Ninth Circuit and ...
ATTORNEY GENERAL BOTELHO: As I remembered, again the battle over
the extent of federal authority in terms of what its territorial
reach is, is one we don't have to deal with if the state enacts
laws of general applicability. Because once that's happened, under
ANILCA itself, the state is managing in every reach of the state
and during that time, the Federal Secretary is precluded from
trying to enact, set up, any competing management regime and that
was in our view the most rational and direct way ....
TAPE 98-92, SIDE A
Number 0001
ATTORNEY GENERAL BOTELHO: ....to dealing with the Katie John issue
and, in a more general sense, the overwhelming case law about the
power in federal courts about the extra-territorial reach of the
federal government.
Number 0032
MR. COLE: May I add one thing, sir?
CHAIRMAN GREEN: General Cole.
MR. COLE: One thing that I think it's important to clarify is in
what I call the Babbitt case, others have called it the Katie John
case - the Court of Appeals said look, it's true that the state has
title to the lands beneath the navigable waters and it has the
right to control the fishing in those navigable waters. But what
the Court of Appeals said in the Katie John case is say, when the
state got that power, it did not get complete and full power. It
said when the Submerged Lands Act was passed, in essence, the
federal government reserved water rights out of those navigable
waters. And here's just what the Court of Appeals said in that
regards. It said, "The United States has reserved vast parcels of
land for federal purposes through a myriad of statutes. In so
doing, it has implicitly reserved appurtenant waters including --
I mean, appurtenant - next to - including appurtenant navigable
waters to the extent needed to accomplish the purposes of the
reservation. By virtue of its reserved water rights, the United
States has interest in some navigable waters. Consequently, public
lands subject to subsistence management under ANILCA includes
certain navigable waters." So, and like I say, what the Court of
Appeals was there saying is, "Look, the state's rights in those
navigable waters are not unlimited. The federal government has
reserved some rights in those navigable waters." And we're saying
that reservation includes reservation of such powers to the United
States in those navigable waters necessary to effectuate the
purposes of ANILCA. That's what they say. Now it's a big stretch.
I mean I agree with that. I don't like that decision. It's highly
disturbing to me personally and as a lawyer, but nevertheless
that's what the Court of Appeals did. And the way the Court of
Appeals or, you know, the United States effectuates that power and
that decision - it says no, you know, to the extent the Subsistence
Board acts, it says if those waters are closed by the Federal
Subsistence Board, I mean there won't be any fishing there. And
those who fish there will have a tap on the shoulder by a federal
agent and say, "Come with me." And you know he'll have a gun and
furthermore, he'll say, "I want your boat - you're going to forfeit
it." I mean that's what we're faced with and how do you deal with
that when that fellow, the fisherman is out there fishing in an
area where the subsistence board says, "No fishing, the season's
closed because we have to let the upstream subsistence fishermen
get their subsistence rights" and he takes their boat. And what
does the state do in that circumstance? It's powerless.
Number 0330
CHAIRMAN GREEN: And all of that, if I may is unique to ANILCA
which makes it unique to Alaska, which says that now we have been
sidestepped on equal footing with other states.
MR. COLE: Congress, virtually daily, passes laws dealing with the
"okie/fanokie" - whatever they are - swamps in Florida. It passes
special statutes dealing with the border waters, canoe area,
wilderness area. It passes statutes dealing with wild and free
roaming horses and burrows in New Mexico. It passes statutes
dealing with the Grand Canyon. They don't apply any place else
different - different statutes of the Congress of the United States
apply different doctrines in different national parks. There is no
necessity for Congress to act uniformly in every national park in
the United States - that just defies common sense.
Number 0409
CHAIRMAN GREEN: But if that were confined to a national park, it
would be similar. We're saying statewide here. None of those
others that you've cited are statewide.
MR. COLE: Well we start, remember, with just federal lands.
That's ANILCA - federal lands - and it's important not to confuse
the fact that if we want to manage on federal lands, here's the
terms of the deal: you can manage all you want on federal lands -
the state can if it comes into compliance, except there's one
string attached and that one string attached says, "you must give
the subsistence user priority." But we have vast management rights
under federal lands other than -- and these waters under the
reserved water rights doctrine other than just the subsistence and
we should keep all those powers we can.
Number 0493
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I know you said you
were going to break at noon, it's ....
CHAIRMAN GREEN: We have four other people, so ....
CO-CHAIRMAN OGAN: The subsistence council - there was some
discussion about that earlier. The make up of the board is that
four members - and these are the changes that Senator Stevens got
through - four members that are appointed from tribal councils,
three subsistence users and three sport, commercial fish users.
Now, earlier you stated that - you said you're not sure there's a
major difference between federal oversight and federal management
and is it not true that we have to adopt the federal system of
management called ANILCA which includes, I think, an unprecedented
act of federal government telling that the governor shall -- in
federal statute saying, the governor shall appoint this many people
to the board with this kind of a make up and we adopt the federal
system of management into our statutes and constitution and we get
to call it state management and run around with this state flag
saying, "Hey, we're managing now." But, in fact, the changes that
Senator Stevens made to ANILCA last year in Section 102, "In
accordance with Title VIII of ANILCA 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." So, for the first time ever,
the Secretary of Interior has the authority to manage, if he feels
we're out of compliance. Before that he had to go through the
courts. But, you know, maybe the Secretary's having a bad day or
maybe he's had a fight with his wife .... What I'm worried about
is, we got the Secretary of Interior's authority to manage and it's
never been there before and to me that is an egregious act that the
Secretary's authority has been expanded and first time defined in
a state statute and we don't really get state management; we get
federal management with a state name on it.
Number 0660
MR. COLE: Mr. Chairman, the Secretary of the Interior has had
authority to manage from day one except there was this one year
interregnum, as I call it, which allowed the state to what they
call, opt in and come into compliance, but when the state is no
longer in compliance, you can't expect there to be a vacuum and no
one has the power to enforce this federal statute. Surely, the
Secretary of the Interior had the power to implement ANILCA when
the state didn't have the power to do that. But let me say another
thing about this management sort of a thing ....
CO-CHAIRMAN OGAN: If I might on that point, only after judicial
authority - judicial intervention.
Number 0699
MR. COLE: Well, I mean, we wouldn't want the Secretary to be able
to unilaterally come in and just seize power. You know, we would
want some federal brakes on him, hopefully. But I want to talk
about this council business. You know, when I was on the task
force, I gagged a little bit on those provisions, but I swallowed
them, like you legislators do I'm sure, often there are provisions
I'm sure ...
REPRESENTATIVE BARNES: .... speak for himself. I don't gag and
swallow anything - I vote "no."
MR. COLE: Well, that's alright. I'm sorry, I didn't mean to be
personal, but this is a give and take process, and in there I had
reservations about it, but I accepted them because I thought it was
vital that we accomplish the purposes for which we were convened.
That's one I had a little trouble with - I didn't have trouble with
anything else.
Number 0765
ATTORNEY GENERAL BOTELHO: Mr. Chairman, might I offer a
perspective, as well. What I wish to remark is severalfold. First
of all, to support the statement that the federal Secretary of
Interior has always, under the Act, had authority to manage on the
public lands on subsistence. That is a fundamental issue there; it
isn't a power that derives through the federal court. The federal
court remedy is one that is to be a check on the federal power or
when the state is managing, a check on the state power and under
the circumstances now with the changes, it's important to
underscore first the deference - Representative Masek made
reference to the win/loss record and certainly as Mr. Cole
indicated, there's a fundamental shifting of power that's a result
of the Stevens amendment which now requires the federal court to
give the same degree of deference it has traditionally extended to
federal agencies to the agencies of the state of Alaska and also,
limits, again, the basis upon which the courts may overturn the
management decisions. But fundamentally, the Act itself, Title
VIII of 1980, conferred the power on the Secretary - not the
Secretary through the courts - the courts serve as an auditing
function, if you will, not a management function and that pattern
continues. In terms of the language found in [Section] 801, I
think it's important again to underscore, these are not, just as
would be the case in findings that the legislature has made in
numerous acts, not themselves substantive law; they are expressions
of course of views, policy or rationale for substantive law, but
they themselves have no force and effect. So, to the extent that
you disagree with those terms, obviously very free to do so, I
think it's important to underscore however, that they, themselves
have no force and effect. If it would be helpful, we can go
through more of the changes in detail or it may be, Mr. Chairman,
you would prefer to break at this point or finish ....
Number 0988
CHAIRMAN GREEN: What I'd like to do is - we have four other
questioners - I'd like to go through those before we break.
Number 0994
CO-CHAIRMAN OGAN: I have another question. Isn't it true in the
savings clause of the original version of ANILCA it says, nothing
shall be construed that Alaska shall have to amend its constitution
to conform with ANILCA?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I don't recall any
prefatory language that makes any reference to the state
constitution; it only makes reference to the need that the state
have enacted laws of general applicability and that's in the
original language and also in the amendatory language of last year.
Number 1029
CO-CHAIRMAN OGAN: I'd be happy to show it to you. I'll bring it
after the break.
ATTORNEY GENERAL BOTELHO: In the findings of Congress?
CO-CHAIRMAN OGAN: In the findings section in the savings clause.
It specifically says that nothing shall be construed that we should
have to amend our constitution to conform with ANILCA.
CHAIRMAN GREEN: Representative Berkowitz, on that point.
Number 1047
REPRESENTATIVE ETHAN BERKOWITZ: It's my understanding that the
cause for amending our constitution doesn't flow from ANILCA, it
flows from our own Supreme Court opinion. Is that an accurate
statement?
ATTORNEY GENERAL BOTELHO: The need to amend - yes, that's correct.
It's the McDowell decision which is what has triggered the need to
amend to the extent the state wishes to manage on federal lands.
REPRESENTATIVE BERKOWITZ: Sorry, I just want to be clear on this
point. We are not amending our constitution as a result of any
federal mandate; we're amending our constitution, or hope to amend
it, based on our own Supreme Court opinion?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, the answer is yes; based
on that and based on obviously a desire to manage on federal lands.
The state isn't required to do it at all, if the state doesn't want
to, we can all go home.
Number 1093
CO-CHAIRMAN OGAN: Mr. Chairman, it would seem to me that if
there's - certainly the congressional intent if they put it in
there was that the state should not be required to amend its
constitution and so that I believe the federal government and
Congress can change ANILCA to conform with our state law because I
think that was the intent when they wrote the law - it's right
there and I'll show it to you.
CHAIRMAN GREEN: Any follow-up?
CO-CHAIRMAN OGAN: No, I'm done, thank you.
CHAIRMAN GREEN: Representative Croft.
Number 1122
REPRESENTATIVE ERIC CROFT: Thank you, Mr. Chairman. In serving on
the Judiciary Committee with you, I've occasionally been
argumentative or occasionally mixed discussion or debate into my
questions, but I don't think I've done this level yet. I've been
waiting an hour and a half just to talk about what I thought we
were here to talk about - the proposed additional changes to ANILCA
and to ask these people who I think have something to contribute on
that, questions about them. So, I apologize for going through our
lunch hour, but that's what I'd like to do - is go through these -
it was 12, now 14 or 15 - and you twice characterized these as
onerous portions of ANILCA and even characterized them on behalf of
the committee - respectfully disagree. I don't believe some of
these, possibly not all of them, are onerous and that's what I'd
like to get to is why, particularly if we're about to, as
Representative Porter said, come into compliance with ANILCA or put
together some other management scheme if it's our intent to
reassert under ANILCA, our right to manage on federal land, why
these would be objectionable. Do you have a copy, either of the
sheet titled "Proposing Changes to ANILCA" or the un-numbered joint
resolution relating to changes in Title VIII to ANILCA?
ATTORNEY GENERAL BOTELHO: I don't at hand, but I know my staff
does here, so ...
CHAIRMAN GREEN: Representative Croft, do you want to ask them a
question about -- should we get them a copy now or -- I was going
to address those after we resume if that's ...
REPRESENTATIVE CROFT: We could do it that way if you'd like and we
could go through them then ...
CHAIRMAN GREEN: We'll certainly get you one so that you can review
them over lunch hour.
ATTORNEY GENERAL BOTELHO: That'd be great.
CHAIRMAN GREEN: And you're right, Representative Croft - this was
probably - we took liberties and the reason I did that was because
of the historical sequence that was given by both Generals - to
allow a little broader discussion so that everybody was working the
same page - but you are right.
REPRESENTATIVE CROFT: And for the record, I don't think the
minority has yet taken those liberties - we may try to, but we
haven't yet.
CHAIRMAN GREEN: I appreciate that. Representative James.
REPRESENTATIVE CROFT: Do you want to break and then let them do
that?
CHAIRMAN GREEN: Beg your pardon?
REPRESENTATIVE CROFT: Do you want to break and then after I can
resume those questions ...
CHAIRMAN GREEN: Yes, we'll resume after lunch and then you can
take those up. Representative James.
Number 1255
REPRESENTATIVE JAMES: Thank you, Mr. Chairman. First of all, I
would like to respond to Representative Croft because I have only
had questions to ask about the people with comments that they made
and I want to be sure that I have not been out of line because I
haven't been discussing these things. I think it's appropriate to
ask questions when the questions come up and that's what I have
here.
CHAIRMAN GREEN: And in his defense, Representative James, I don't
think he was referring to you - I think he was referring to some of
the others of us.
REPRESENTATIVE JAMES: Alright. Anyway, some of the questions that
I had because I've been on the list a long time, have been
responded to from other questions and so, I have to skip down
through some of the things that I have here. But the one thing
that somebody said is, "Who trumps?" They asked the question, yes,
we have the right, but who trumps? And so, my concern -- and one
other question that I have -- wouldn't you say that because there
are so many conflicting court decisions and other things that this
whole issue begs for some court responses and some court decisions
on this issue. Wouldn't you believe that this issue is that
complicated?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, it's interesting that the
Judiciary used almost the exact same words in the Katie John Ninth
Circuit - that this begs for a legislative, not a judicial
solution. Recognizing that the courts deal with specific
controversies in front of them and that despite our general
discussions about judicial activism - and there's clearly lots of
evidence of that - the courts generally don't try to solve the big
problems; they deal with the controversies in front of them, they
render the decisions that may or may not make sense in a larger
rational scheme if you were trying to solve them all - it's
incremental. That's one answer. I think a second that I would
give is that courts are very loath, even when presented with the
big problems, to try and answer them. Their doctrine of judicial
restraint suggests that they will decide the narrowest question
possible; that if there are reasons not to get to the merits of the
case - that is, questions about standing or the ability for the
opposing views to be represented or to make sure they're not
rendering simply advisory opinions - that there be an actual case
in controversy, but that there's a whole sifting process so that we
have a bias in our judicial system overall and the courts not
decide big issues as opposed to deciding them. And, of course,
what's notable in our judicial history are some of the big cases
that did make major decisions, but that's compared to the hundreds
of thousands of decisions that are narrow, have no impact, and I
think, underscore using the Judicial Branch as the place to solve
problems of more policy nature is just the (indisc.) place to do
it.
Number 1418
REPRESENTATIVE JAMES: Well, thank you. Mr. Chairman, to follow-up
on that issue then, if this begs a legislative fix which is what
we're here presumably to find, doesn't it appear to you that the
problem we need a legislative fix for is because we have a federal
law that's conflictory with our constitution. Isn't that the
problem?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, there are a lot of ways of
defining it and that is certainly one way. Again, the federal
response would be, "they're federal lands, we as the federal
government, have the right to manage our lands in any way that we
choose - we have plenary power" and certainly the courts have said
so - that has been the fundamental premise of Congress in action,
and certainly the Executive and in enacting this particular piece
of legislation, it is exercising those powers to manage; however
our sufferance, we're going to defer (indisc.) law of the state to
undertake management of subsistence activities on federal lands if
the state of Alaska will do this. It's not a requirement, in fact,
I think the U.S. Supreme Court in another case described this as
cooperative federalism - ANILCA itself in this particular
arrangement. The state of Alaska is not required to (indisc. -
tape garbled). If it chooses to, these are the conditions.
REPRESENTATIVE JAMES: (Indisc.) legal or okay for us to pass a
piece of state legislation - a statute - that would allow and
provide for a rural priority for subsistence only on federal lands
- make a state law that would only allow rural priority subsistence
on federal lands.
ATTORNEY GENERAL BOTELHO: To do it only by statute would not be
sufficient ...
REPRESENTATIVE JAMES: Providing that we had a constitutional
amendment for rural priority, but that the statute only allowed it
on federal lands, not on state lands.
ATTORNEY GENERAL BOTELHO: The answer, I think, is fairly
difficult. I don't think there's a clear answer. I would put it
this way that it would certainly - probably satisfy ANILCA
requirements, but then there's a separate question about whether it
would satisfy other state constitutional requirements. Is there a
basis for distinguishing simply federal versus nonfederal lands?
Would the court simply say is there a rational basis or would it
require some other analysis?
REPRESENTATIVE JAMES: If I might follow-up on that then.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think it might be
helpful to see it -- again, I'm just one person here sharing my
views and it may well be that Mr. Cole has a different one.
Number 1571
MR. COLE: Could I just supplement that? The problem which would
arise in that situation, at least under my analysis, is the Babbitt
decision, the Katie John decision, giving the federal government
the reserve water rights in navigable waters. I don't see how we
can just do it on federal lands - maybe we could. The problem is
(indisc.) not state lands - I thought about that, it seemed like a
compromise so to speak - the problem is, is how do you deal with
the reserved water rights doctrine in the navigable waters? See I
don't think we can get over that in that fashion.
REPRESENTATIVE JAMES: Well, if I might then, continue on this
thought. It appears to me that what we currently have is a federal
regulation on federal lands that said we will do a rural priority
there and that if we do a constitutional amendment, then we can
apply to that, but we extend the rural priority to all state lands.
At the same time, if we have statutory authority to do that
(indisc. - tape garbled.)
Number 1630
MR. COLE: That's exactly what ANILCA provides and the question is
to this legislative body, "do we want to accept that as the price
for regaining management over wildlife and precluding the federal
takeover of fishing in navigable waters? That is the issue, I
think, before this body - right smack dead on. In my view, it's
worth the price.
Number 1654
REPRESENTATIVE JAMES: Now, if I might continue on this vein then,
it appears to me -- and I'm thinking of the Bolt decision in
Washington where the salmon were reserved for the reservation
upstream which is about the same issue. But that's because that is
an Indian reservation and that the federal government has the right
to manage for Indian rights, which I agree with that and I'm not
contesting that. In this particular case, we have a federal law
that gives it not only to Natives, but to non-Natives. That's not
the same thing in the fact that this is not a reservation upstream
and if it was only to be serving the Natives, I think they'd have
a good argument. Could you respond to that issue.
MR. COLE: Well, I think (a) ANILCA is fully supported by the
property clause of the United States Constitution which gives the
Congress the right to make all needful rules and regulations
respecting federal properties. And the United States Supreme Court
said in the Kleppe case that the power of Congress dealing with
federal lands, has been said by the Supreme Court, many times to be
without limitation. So in my view, ANILCA dealing with the
management of wildlife on federal lands is fully supported by the
property clause and it is fully supported by the case of New Mexico
v. Kleppe decided in 1976 by the U.S. Supreme Court. That's point
number one.
Number 1735
MR. COLE: Point number two is that with respect to the power of
Congress to regulate fishing in navigable waters, as we've said the
Court of Appeals dealt with that issue in the Babbitt case. Now
the next level of management in congressional power is the power of
Congress and the Secretary to make needful regulations off federal
lands, outside of federal waters even where there exists a reserved
water rights, and to effectuate policies on state and private lands
necessary to fulfill the policies underlying ANILCA. And the
Courts of Appeals have since 1977, since the Kleppe case, almost
routinely said, "Where there is a rational connection between the
policies sought to be effectuated by Congress on federal lands
necessary to effectuate those policies, it's possible for Congress
to exercise its powers under nonfederal lands." That law in my
view is well settled. And so, here's how that comes into play and
how I believe that the courts will decide this case. The Secretary
of the Interior will soon say, if he hasn't already said, "Look in
order to effectuate the subsistence priority for caribou on federal
lands, it's necessary for us to exercise power over the bag limits
of caribou on state lands because otherwise there's a risk that the
state will allow all the caribou to be harvested on state lands and
there won't be any caribou to be harvested on federal lands and we
know these caribou go across state and federal land." So that's
what exercising the powers in cases Block v. Minnesota, United
States v. Little Duck Hunter in the Voyager's National Park, U.S.
v. Brown and even a case in the Ninth Circuit - I can tell you it's
525 fed 2d and 5, United States v. Lindsey; it said they have this
extra-territorial power and here's where, in my view, the cheese
really begins to bind when the Secretary says -- they threaten to
do. Look up here in the Porcupine, you have (indisc.) subsistence
fishing, we have reserved water rights there, but we can't allow
the downstream taking of enough salmon so as to preclude effective
subsistence rights up in Porcupine. So, it's an easy call. To me,
there's clearly a rational connection as the Secretary is proposed
to do in his regulation, he's gonna say, "I'm gonna regulate the
harvest of king salmon at the mouth of the Yukon and make sure that
there is enough upstream migration to afford subsistence users in
the Porcupine their subsistence rights." And in my view, it's an
easy call. The courts are going to sustain that exercise of power
and so what I'm saying is that if we don't put the brakes on this
expansion of federal power immediately, it won't be long before the
federal government is going to be managing the fish and game
throughout the state of Alaska. That's my thesis.
CHAIRMAN GREEN: On that point, Representative Croft.
REPRESENTATIVE CROFT: Thank you, very quickly Mr. Chairman.
Representative James raised two issues and you brought up another.
When we were talking about just doing this on federal land, ANILCA
said a law of general applicability - is that part of the question
whether it would be a law of general applicability if it only
applied to federal land?
MR. COLE: Yes.
REPRESENTATIVE CROFT: Easy answer and succinct. Secondly, she
talked about the Bolt decision down in Oregon or Washington ...
UNIDENTIFIED SPEAKER: Washington.
REPRESENTATIVE CROFT: If Congress wanted to, could it - and as I
understand it, the reservation upstream gets 50 percent of the
salmon run - we're not talking the 5 or 10 (indisc. - tape garbled)
3 or 4 I've heard, but 50 percent of that salmon run - if Congress
were at the end of its patience, could it say Alaska now has tribes
with full tribal power, Indian country where they didn't have it
before - reservations - and go ahead and enforce them fully on
those powers. Could Congress do that?
MR. COLE: It's too horrible to think about it.
CHAIRMAN GREEN: Yeah.
REPRESENTATIVE CROFT: Is it possible?
MR. COLE: I'll defer to Attorney General Botelho.
Number 1970
ATTORNEY GENERAL BOTELHO: Mr. Chairman, does Congress have the
power to do so - the answer is yes, it does. That's an entirely
different issue about whether it's good or how politically feasible
it is, but in terms of the power of the Congress to make something
that wasn't, Indian country today, it has the power to do that. I
think it's important though - the Bolt decision isn't a result of
there being any particular reservation, it really derives from two
treaties in the last century guaranteeing aboriginal hunting and
fishing rights. But it's not tied to location. It's managed
because of where people live in the Prince William Sound or up
river, but it's not strictly speaking, based on a reservation.
It's based on two treaties in the late 1860s, but it may be a
little later than that.
REPRESENTATIVE CROFT: Mr. Chairman, if Congress did establish
tribes with full tribal authority (indisc.-tape garbled) with
whatever sort of guarantees of access to fish and game resources
and we wouldn't be a party to that negotiation or that treaty.
ATTORNEY GENERAL BOTELHO: Again, Mr. Chairman, the power
theoretically is there, but Congress has had a policy since the
late 1870s not to enter into treaties with the Indian tribes of the
Nation, so for that to happen, it would be turning over 120 years
of practice.
REPRESENTATIVE CROFT: Fair enough and a final one for General
Cole. You said that that would mean that the cheese would really
begin to bind. What in the heck does that mean?
[LAUGHTER]
MR. COLE: The problems get severe.
Number 2064
REPRESENTATIVE JAMES: I just have one more.
CHAIRMAN GREEN: One more follow-up because we have two more people
and then we do need to take a break.
REPRESENTATIVE JAMES: Okay. We keep referring to the Kleppe case
and little burrows down in New Mexico and the federal government's
ability and right to protect the animals, but I don't believe the
Kleppe case gave them any right of allocation of the use of those
animals. Could you respond to that.
MR. COLE: Well, yes Mr. Chairman. Certainly the facts are
different in Kleppe than the facts here, but Kleppe said (indisc. -
tape garbled) change in federal law. As a footnote in one of the
later cases and I think it's in the Block case, the Court of
Appeals for the Eighth Circuit said, "There were cases from which
one could make a strong argument before Kleppe that the United
States only had the rights of a landowner or of a proprietor over
its lands and not legislative or police power over those lands."
But the Kleppe case said the United States not only has the power
of the landowner, because the landowner doesn't have any right to
harvest as much game on his or her land as it wants, it's still
subject to state law - you can prevent people from coming on, but
you can't say how many animals one can harvest from one's privately
owned land - but in addition, then the court in Kleppe said
Congress has legislative or police powers over federal lands and
what that meant is, you know the power to establish rules and
regulations for the harvesting of wildlife on federal lands and
Kleppe said, "Look, the power of Congress over federal lands is
without limitation." Now what I say is, I just don't see any
federal judge saying, "Well, I know what the United States Supreme
Court said, congressional power over federal lands essentially is
without limitation, but I'm going to put some limitations on it" -
it's not going to happen, because that (indisc.) case said,
"Congress' power is plenary over federal lands" and those are
decisions - the decisions as to what to do with the federal lands
and federal waters are within virtually exclusive power of Congress
- we're not going to second guess the management of federal lands
by congressional action. That's what I think Kleppe stands for.
It's a very broad, strong case (indisc. - tape garbled).
Number 2180
REPRESENTATIVE BARNES: Mr. Attorney General, you are not going to
sit there and say that Congress has police powers over lands within
the boundaries of this state, are you?
MR. COLE: Yes, federal lands. Federal lands ...
REPRESENTATIVE BARNES: No sir, I disagree with you. They do not
have police powers over federal lands - federal lands as a part of
this state. The state of Alaska has the police powers to control
and go on those federal lands.
Number 2202
CHAIRMAN GREEN: Under certain circumstances ...
MR. COLE: May I respond to that ...
CHAIRMAN GREEN: ... such as oil and gas.
MR. COLE: Representative Barnes, I agree that the state of Alaska
also has police powers over federal lands located in the state of
Alaska; civil and criminal powers of the state enacted by the
legislature are applicable as well to federal lands except when
they collide - a term I use - with federal actions.
CHAIRMAN GREEN: And I have a different view on Kleppe, too. I
thought Kleppe had to do with those migrating off federal land and
their jurisdiction there, but I don't want to debate that issue.
We do have two other people. Representative Dyson, if you can
remember what it was that you were going to talk about.
Number 2232
REPRESENTATIVE FRED DYSON: I can, but it may be inappropriate at
this time. I'll ask the Chair and if it is, you can (indisc.). My
question was on the constitutional amendment that we had sitting up
here - is that inappropriate at this time?
CHAIRMAN GREEN: The constitutional amendment that the AGs referred
to?
REPRESENTATIVE DYSON: Yeah, the proposed one.
CHAIRMAN GREEN: Go ahead.
REPRESENTATIVE DYSON: As I remember, Warren Olson has been party
to some of these actions and somewhat knowledgeable, has said not
threatening but, that two or three milliseconds after we put an
amendment on the ballot, he and others will be in court seeking an
injunction to stop it from going on the ballot based on his
conviction that we have no authority to give away (indisc. - tape
garbled) equal protection sorts of rights for people in the state
and to subject those to ballot propositions. At least that's what
I understood that he said. In your opinion, what would be the
probable success of a court action like that - either of you or
both.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I will take (indisc. -
tape garbled) provisions of the constitution are exactly that -
part of the constitution. There are provisions to change the
constitution - to modify it - it's the process we're talking about
now. No one part of the constitution trumps another, nor is there
a basis for challenging the merits of a constitutional change in
the courts. One can challenge whether, for example, two-thirds
majority was obtained in each house. Obviously, there might be
questions about the phrasing of the ballot summary, but in terms of
the fundamental ability of the people of the Alaska to change its
governing documents, to the extent that those are (indisc.)
conformed to, there's not an authority in the courts themselves, to
declare a proposed constitutional amendment unconstitutional -
beyond the purview of the state courts.
CHAIRMAN GREEN: Representative Berkowitz.
REPRESENTATIVE BERKOWITZ: On that point, there was a
constitutional amendment regarding limited entry which impacted the
equal access clause, were there any challenges (indisc. - tape
garbled) success did they have.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, there was a constitutional
challenge and the Alaska Supreme Court found, in fact, that
provision in fact placed restrictions on provisions otherwise in
the constitution, expressly found that it had equal validity to all
other provisions or dignity equal to all the provisions in the
constitution and to the extent that it limited in some respects
other provisions, but it governed in the specific area of limited
entry.
TAPE 98-92, SIDE B
Number 0001
REPRESENTATIVE DYSON: .... for a constitutional amendment and it
was clearly contradictory to an existing provision. What's the
process that we go through to reconcile those things?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, the task in interpreting
the constitution ultimately falls to the courts of the state and
the final arbiter of that is the Alaska Supreme Court. I think the
Ostrosky case which is really what we're talking about in terms of
limited entry, probably provides that guidance. It would be
worthwhile actually perhaps circulating that and we could have it
available to you after the break, which I think tries to explain
exactly how the court will deal with that.
REPRESENTATIVE DYSON: So, somebody challenges it and it goes
through the court process (indisc. - tape garbled) now
constitutional provision prevails for what the limitations are?
ATTORNEY GENERAL BOTELHO: And the primary focus, Mr. Chairman, is
to try and harmonize with the understanding that the document has
to be read as a whole and that the provisions should not be seen as
standing in conflict with each other, but to be harmonized with
each other. And that requires obviously some adjustment - you have
an amendment that may otherwise affect rights that existed before.
REPRESENTATIVE DYSON: Thank you. That's all.
Number 0128
REPRESENTATIVE BARNES: Mr. Attorney General. The Ninth Circuit -
and most of what I've heard you say here today has been based upon
a Ninth Circuit Court opinion - do you agree with me that out of 29
times that the Ninth Circuit has been to the United States Supreme
Court, they've been overturned every time except 1. Is that not
correct?
ATTORNEY GENERAL BOTELHO: ... this year and its batting average
has not been much better in the last couple years.
REPRESENTATIVE BARNES: Back to the case of Katie John and
navigable waters before the Ninth Circuit. The question of
navigable waters outside the Ninth Circuit does not apply - is that
not true - because their opinion is only based upon that which is
within the confines of the Ninth Circuit.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, that is correct.
Number 0199
REPRESENTATIVE BARNES: So, when the United States Supreme Court
Justice Sandra Day O'Connor, writing for the majority opinion,
wrote that the state owned all the navigable waters - and it was
real clear and this was after the Katie John case, we all know that
- since the language of that ruling was written by Sandra Day
O'Connor was quite clear as it related to navigable waters, would
you tell me which opinion holds - that of the Supreme Court or the
Ninth Circuit?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think the
misunderstanding is that the U.S. Supreme Court has never dealt
with the factual situation in Katie John and that the issue
obviously raised in Dinkum Sands was who owns, among other things,
the offshore islands.
REPRESENTATIVE BARNES: Mr. Chairman, I'm very familiar with what
it was about, having been here ever since the Dinkum Sands case
originated and all the money that we pumped in to fight that
through the years. What I'm saying is that the language that was
in the Dinkum Sands case spoke - I'm not talking about any of the
offshore oil leases or whatever - but the language that related
strictly to navigable waters and what it said - because I'm going
to ask that a copy of that opinion be made available to the
committee members.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, as I explained earlier, I
think the language is clearly there. I think it's important to
point out (indisc.-tape garbled) first of all Katie John was
petitioned to the Supreme Court - it chose to let the Ninth Circuit
decision stand. It's not an expression itself on the merits of the
case, but that was the final opportunity for us in terms of
exhausting our judicial remedies on the power of the federal
government in navigable waters. It is true that there's language
in the Dinkum Sands case that talks about the powers of the state
in navigable waters and I think it's - again, I would say it's not
inconsistent with the Katie John ruling. The state continues to
exercise powers in the navigable waters of the state and as I also
emphasized, we have an Alaska Supreme Court decision which is
directly at odds with the Ninth Circuit decision in the case, in
which rejects fully the view expressed in Katie John that the
federal authority extends to the navigable waters of the state.
CHAIRMAN GREEN: Follow-up?
Number 0411
REPRESENTATIVE BARNES: Mr. Chairman, sir, excuse me - my allergies
are bad today. In the question of the Katie John case and the
Supreme Court not hearing it, that does not in any way preclude
raising that same issue before the court again, does it? The
question of navigable waters in some other form.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think the place where
that challenge would be, would not be on the fundamental premise,
but whether the selection made by the federal managers was a
correct one ...
REPRESENTATIVE BARNES: ... or that Title VIII of ANILCA is
constitutional.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, under doctrines of
collateral estoppel, the state would not be in a position itself to
relitigate the same issue once it's been decided and taken to its
highest level of appeal. Other parties who do not stand in the
identical position of the state have that freedom.
REPRESENTATIVE BARNES: Mr. Chairman. The facts are ...
CHAIRMAN GREEN: Representative Barnes. Remember now, we're not
trying to debate an issue here, we're trying to find ...
REPRESENTATIVE BARNES: I understand, but I don't want the record
to get all befuddled here without there being some clarification of
it because I know these two gentlemen to be quite intelligent and
they're quite good at muddying the record, so I'd just like to have
some clarification on the record of what goes on here. Because I
know that simply because the Supreme Court chose not to hear this
case at this time, does not preclude the state or some other body
from on a separate issue of going to court on the navigable waters
issue.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, and that is a correct
statement.
REPRESENTATIVE BARNES: Okay now, earlier one of you, Mr. Attorney
General, said that - you talked about state management versus the
federal management - and I believe also that one of the provisions
in ANILCA was quite clear upon the amount of money that the federal
government was supposed to pay to the state every year for state
management ...
UNIDENTIFIED SPEAKER: Five million.
REPRESENTATIVE BARNES: Five million dollars a year and they didn't
do that. In fact, we've paid the bill. They've paid maybe a total
of $5 million. I want to know if either one of you, in the
exercise of your authority as the chief law enforcement agent of
this state, have filed suit against the federal government to
collect the money they've owed us?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, ...
CHAIRMAN GREEN: I think that's probably not germane to the issue
that we have before us. I think that might be a ...
REPRESENTATIVE BARNES: They raised the issue, I didn't.
CHAIRMAN GREEN: No, I mean as far as whether or not we have filed
suit to get the $5 million per year, I don't know that that has to
do with our amendments.
REPRESENTATIVE BARNES: Maybe not, but they raised the issue so I
wanted to find out if they've done anything to collect the money.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I have not and to my
knowledge Congress has, for the most part, refrained from
appropriating the money which obviously is the condition precedent
to the expenditure. It is $5 million (indisc. - tape garbled) - $5
million.
REPRESENTATIVE BARNES: Mr. Chairman, I'm not quite done.
CHAIRMAN GREEN: Alright.
REPRESENTATIVE BARNES: The Eighth Circuit decision regarding Brown
and the boundary waters case do deal with extensions of authority
outside boundaries of withdrawals; they deal specifically with in-
holdings, is that not true?
Number 0652
MR. COLE: That is true, but they deal with (indisc. - tape
garbled) to enact provisions to exercise its power over state
navigable waters. That's the underlying fundamental issue in Block
and in Brown. In each case, the Eighth Circuit said Congress may
in effect exercise its powers over state navigable waters.
REPRESENTATIVE BARNES: The Eighth Circuit said what again now?
MR. COLE: That (indisc.-tape garbled) pursuant to regulations
issued by the Secretary of the Interior - maybe the other case was
the Secretary of Agriculture - can preclude certain actions; i.e.,
hunting in the Brown case and the use of snowmachines and motor
boats in the Block case on state navigable waters.
REPRESENTATIVE BARNES: But it does not deal with that issue
outside their boundaries, is that not correct?
MR. COLE: (Indic.-tape garbled) out of the boundaries of the
reserve - that is correct.
REPRESENTATIVE BARNES: I have another question to you, Mr.
Attorney General. You have indicated that the task force attempted
to tie the hands of the federal courts by inserting deference
(indisc. - tape garbled) Assistant Attorney General Greg Cook
wrote an opinion for the Territorial Sportsmen which said, "The
term deference is so imprecise that it does not tie the hands of
the judge." I understand that you may disagree, but the question
is, what if he is correct - we could experience unimpeded federal
court interaction with state management in exchange for changing
our constitution (indisc.).
Number 0782
REPRESENTATIVE CROFT: Point of order, Mr. Chairman.
CHAIRMAN GREEN: Your point.
REPRESENTATIVE CROFT: It's generally improper on the floor to read
statements or canned questions, does that apply to a committee
meeting?
CHAIRMAN GREEN: (Indisc. - tape garbled) that requirement.
REPRESENTATIVE BARNES: Mr. Attorney General, could you speak to
that, please. Yes, I did read a question and we're entitled to do
that.
REPRESENTATIVE CROFT: I asked - some people object to it on the
floor.
CHAIRMAN GREEN: That's different, though.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, first of all Mr. Cook is
not and never has been a member of the Attorney General's staff -
I think I may have misheard, but let me emphasize I think a more
fundamental issue - there is a large body of case law which deals
with the degree of deference that should be given. It's obviously
difficult to say in any given instance how that would be applied.
I think the point of it is that if one were to look generally at
how federal courts and indeed state courts when looking at state
administrative agency decisions, are required to give deference, I
don't think there's any doubt that it means that if there is a
basis for upholding actions of the agency, it is expected to do so
and that the fundamental presumption is in terms of regularity by
the agency and its decisions rather than working from an opposite
assumption. I mean deference is that to the extent that the
agencies have acted in accordance with the laws - that is, those
directives given it by the legislature, by the constitution and to
the extent it's conformed to its own regulations, that unless it is
arbitrary, capricious or an abuse of discretion, the courts must
uphold the decision rather than deciding - and it's recognizing
that a court may say, "If we were deciding this by ourselves, we
might have decided this a different way, but as long as there's a
rational basis for the decision, the agency's decision should be
upheld." And that generally is the language one will find in
decisions of the courts - both the state courts and the federal
courts. Mr. Cole may have ...
REPRESENTATIVE BARNES: Mr. Chairman, may I just ask ...
CHAIRMAN GREEN: Representative Barnes.
REPRESENTATIVE BARNES: May I just ask you - did not Mr. Greg Cook
- was he not the attorney for the Department of Fish and Game?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, Mr. Cook has never been
an employee of the department ...
REPRESENTATIVE BARNES: What did he do for the Department of Fish
and Game, because I do know that in the past he ...
CHAIRMAN GREEN: We have Mr. Rosier here that may be able to answer
that. Could you speak so that we pick it up on the microphone.
Number 0964
CARL ROSIER, REPRESENTATIVE, ALASKA OUTDOOR COUNCIL AND FORMER
COMMISSIONER, ALASKA DEPARTMENT OF FISH AND GAME: Thank you, Mr.
Chairman. He was Executive Director of the Boards of Fish and
Game.
REPRESENTATIVE BARNES: Thank you very much.
CHAIRMAN GREEN: Thank you, Carl.
REPRESENTATIVE BERKOWITZ: Point of order. I'm just curious how
many tangents we're going to hit before we get to eat lunch.
CHAIRMAN GREEN: We're rapidly coming to a position that we're
debating now I think more the amendment than the questions to the
changes to ANILCA. Do you have any questions about the ANILCA
changes?
REPRESENTATIVE BARNES: Mr. Chairman, I have lots of
recommendations for ANILCA changes, but I'm not going to go into
them with these gentlemen. But these gentlemen brought each of
these questions that I have asked up on the record and I believe as
a committee member, I have an absolute right to ask for
clarification of their testimony. And that is what I have been
attempting to do - to keep them from muddying the record and it
remaining unchallenged.
REPRESENTATIVE BERKOWITZ: Mr. Chair ...
CHAIRMAN GREEN: I would prefer not to use that word, but if it's
a clarification, I will allow it.
REPRESENTATIVE BERKOWITZ: Mr. Chair ...
CO-CHAIRMAN HUDSON: Could we break now and at least - or do you
want to finish ...
CHAIRMAN GREEN: Well, I would like to finish - unless there are
some -- do you have a long litany or just a short one?
REPRESENTATIVE BARNES: I'm done.
CHAIRMAN GREEN: Okay. Representative Ogan, the last question.
CO-CHAIRMAN OGAN: Very briefly, I'm ...
Number 1029
REPRESENTATIVE BILL WILLIAMS: They're a good resource - I hope
that once they leave here, they're not going to come back -- that
they will be back.
CHAIRMAN GREEN: I hope so.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, we're here for you, sir.
CHAIRMAN GREEN; Thank you.
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. Mr. Cole, I have a
very short question for you - who are you representing here today?
Number 1056
MR. COLE: I said yesterday when I appeared before the Senate that
I have no clients who have any interest in this issue. Other than
what is in the best interest of the state, I have no personal
interest in this issue. I am not a commercial fisherman - I'm not
a commercial guide - I shoot about a box of 12-gauge shotgun shells
looking for ducks, trying to hunt a duck over in Mineral Flats in
the fall - I don't hunt big game - I've not been paid for my
service on the task force, it's been entirely at my own expense and
I've spent hundreds of hours on that issue. I'm representing no
one here other than what I believe to be the public interest.
CO-CHAIRMAN OGAN: So, you would say you're representing yourself?
MR. COLE: No, I'm speaking for the public, as a public citizen.
I'm not representing anyone. I'm here as a member of the public.
CO-CHAIRMAN OGAN: One follow-up to that very briefly - are you
under contract in any way with the Governor's Office at this time?
MR. COLE: No. And let me say this - I've steered away from that
because I did not want people to say when Charlie Cole left as
attorney general, he left with a big fat bunch of contracts in his
hip pocket. They haven't been able to say that because I didn't.
Number 1143
CHAIRMAN GREEN: We're going to stand in recess until 2:00 p.m. and
for the information of the committee, the Senate has reconvened and
there may be some interesting things going on there.
[EDITORIAL NOTE: Chairman Green recessed the meeting at 12:53 p.m.
and called the meeting back to order at 2:43 p.m.].
CHAIRMAN GREEN: ... House and Joint Judiciary and Resources
Committees of the House. We left just before our break with a
review by Generals Botelho and Cole, and I hope - I believe we went
through all the questions that were asked about their presentation.
Are there any questions now or do you gentlemen have any further
testimony you'd like to give before we move on the calendar.
REPRESENTATIVE BUNDE: Mr. Chairman.
CHAIRMAN GREEN: Yes, Representative Bunde.
Number 1175
REPRESENTATIVE BUNDE: If I might - thank you, Mr. Chairman. A
question that - and it may be just legalistic, double speak, but
something that I've always had a hard time understanding and if
either of you two or three could help me through it is - the
statement of the abolition of aboriginal hunting and fishing rights
and then following shortly thereafter by federal verbiage that
said, "Well, we have to deal with Native hunting and fishing
rights" and could you help me understand how those two notions
mesh? ... bought and paid for, I guess on one level and then in a
relatively short time there was further legislation that said we
must then deal with .... Are aboriginal rights different than just
Native hunting and fishing rights?
Number 1225
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I guess I would describe
the issue as what was part of the deal - if we can call it that -
the settlement in 1971 and there was express language which
extinguished aboriginal hunting and fishing rights. But if one
takes the conference committee report as an expression of what the
expectations contemporaneous with the deal were, the expression was
that Congress expected between the Secretary and the state to take
measures to protect language of the committee report - Native
subsistence needs - and I think ANILCA comes in the context of what
was probably widely believed as a failure of both institutions -
perhaps particularly the Secretary - to take care of that intent.
And the push and concern, I think, aggravated by dramatic
population growth connected with the pipeline into the state that
Native subsistence hunting and fishing rights were being threatened
and also, of course, the legislature having itself identified in
1978 subsistence hunting and fishing as the highest priority. So,
I don't think there's a complete disconnect here at all. I think
if one sees as part and parcel of one package - ANCSA, the
conference committee (indisc.) expectations, and Title VIII being
a rough effort to -- when I say rough effort -- an approximation of
trying to satisfy that and not doing it on the basis of aboriginal
or Native rights, but to do it on the basis of geography instead.
Number 1336
CHAIRMAN GREEN: What I'm going to do - I'm going to take three
more questions and then we're going to move on because we got a big
full house and we've got an awful lot of people to testify. So,
follow-up briefly.
REPRESENTATIVE BUNDE: Yeah, to follow-up on the conference
committee - I'm sorry Representative Williams isn't here because he
has a lot of concerns about that - and having read the - was it Mr.
Heimer - that information that Representative James had distributed
- said that there's some questions based on his historical view
that the conference committee version was never adopted by the
House and so that brings into question the legitimacy of the whole
agreement or the validity I should say, more than the legitimacy
and would this be addressed in the pending lawsuit or just the
comments on Mr. Heimer's report?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I'm not sure. I haven't
seen the report that you're referring to so I can't directly
respond to what that says. Clearly, I think the conference
committee report acknowledged the rejection of the Senate proposals
on the House Resolution 3100 about setting aside the conference
committee, I think it's a product of the final compromise, not pre-
Senate action on the House bill.
MR. COLE: May I add a footnote, sir.
CHAIRMAN GREEN: Go ahead.
MR. COLE: Mr. Chairman, to a certain extent, if not to a total
extent, it's really irrelevant because Congress has done what
Congress has done and we are now in a position of responding to
what Congress did in ANILCA in 1980 and the reasons that motivated
its actions are largely irrelevant. We have to face what it did
and deal with it now.
REPRESENTATIVE BUNDE: Thank you.
CHAIRMAN GREEN: Okay, Representative Berkowitz.
Number 1442
REPRESENTATIVE BERKOWITZ: Thanks very much, Mr. Chair. This is
more a question for you actually. Given the list of proposed
ANILCA changes, I'm curious to know if anyone's had any contact
with our congressional delegation indicating that they might even
be willing to shoulder some of these burdens.
CHAIRMAN GREEN: What we have done -- they are aware of what the
list is essentially -- to my knowledge they're aware of 13 and
there is somewhat of a mixed bag. One of the delegates says that
we can't expect any significant change to ANILCA; the other says if
you have the concurrence of both bodies and the Governor, we will
take the changes proposed for hearing. So, that's a pretty wide
spectrum. Now that's not current, in all fairness. That is
several - at least a few weeks old.
REPRESENTATIVE BERKOWITZ: So, there's no clear indication that
either of our Senators or Congressman Young would be willing to
carry these ...
CHAIRMAN GREEN: Yes, I think there is. I think the one that said
that they would carry it, will support that.
REPRESENTATIVE BERKOWITZ: And in terms of the logistics of trying
to get something like this moved through Congress - has anyone done
any recent investigation as to the feasibility of rolling this
through in the remaining time.
CHAIRMAN GREEN: They're vague on it, but they do say that time is
of the essence because there is an absolute shutdown and they want
to actually have this prior to July in order to effectively do any
good.
REPRESENTATIVE BERKOWITZ: Just so I'm clear - who is it that says
that they can run this through?
CHAIRMAN GREEN: [Senator] Murkowski. Okay, Representative James.
REPRESENTATIVE JAMES: I'll pass.
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: Thank you, Mr. Chairman. Before the lunch
break, I'd wanted to talk about the unnamed House Resolution and
some of the proposed ANILCA changes because I took that to be our
...
CHAIRMAN GREEN: That is our charge.
REPRESENTATIVE CROFT: Good -- and you have a copy ...
ATTORNEY GENERAL BOTELHO: I do, Mr. Chairman.
REPRESENTATIVE CROFT: Starting on page 2 then, after the
"Whereases" which we just put in ...
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I have one that simply
reads "Proposing Changes to ANILCA". I don't have a resolution -
I just have a list of ...
CHAIRMAN GREEN: You should have a work draft A, House Resolution
No. blank.
REPRESENTATIVE CROFT: They're primarily the same, but there ...
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: ... are some changes, so let's - if we could
get the ones so we could work off the same numberings.
CHAIRMAN GREEN: We're getting a copy for him, but as .... There
we go.
CO-CHAIRMAN HUDSON: Mr. Chairman, are you going to go by this
draft?
CHAIRMAN GREEN: The draft resolution, yeah.
CO-CHAIRMAN HUDSON: Not the list, but the draft - the work draft.
REPRESENTATIVE CROFT: Mr. Chairman, at any rate on both of them --
while we're getting that together -- they start 1 through 4 with
the same 1 through 4 which are essentially four different takes on
the Katie John case. I guess - is that your understanding - either
of you - and if we can deal with the point of order so that I can
title them correctly, I'm going to refer to them as Generals
Botelho and Cole. I have a fax from the Conference of Western
Attorneys General saying that that is the correct - has always been
in the United States, the correct way - has no military connotation
- that is the way that in polite conversation, you refer to an
attorney general and I'd be glad to give any member a copy who
wanted that. So either General Botelho or General Cole, is it your
understanding that 1 through 4 would in different ways overrule the
Katie John case?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, that's correct. I believe
I would also add number 10 to that list; that those paragraphs 1
through 4 and 10 have that effect. Of course ...
REPRESENTATIVE CROFT: Let's get on the same one - because that'd
be 10 on the proposing changes to - but if we can work off the
House Joint Resolution ...
ATTORNEY GENERAL BOTELHO: Yes, and I don't ...
REPRESENTATIVE CROFT: ... it's 11, I think.
ATTORNEY GENERAL BOTELHO: I show it as number 10 on mine, as well.
REPRESENTATIVE CROFT: I see - quite right.
ATTORNEY GENERAL BOTELHO: At line 28 on page 2.
Number 1660
REPRESENTATIVE CROFT: If this is part of a package that brings us
so that we can have state management, why do we need to overrule
Katie John? Put another way, I guess - is Katie John
jurisdictional and if we've got our management back, what's the
point of doing it?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, Representative Croft -
you're absolutely correct. If the state has management, these
issues are irrelevant because the state will be the sole governing
body that will be managing on all the waters and lands of the
state.
REPRESENTATIVE CROFT: Okay, and that applies to 1 through 4.
[Number] 10 is a findings section, so it's not even particularly a
statute, but I take it -- I don't have it here -- but it's a
finding relating to the Katie John case.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, maybe we're working from
a different draft - mine shows that 10 would repeal Section
801(b)(5).
REPRESENTATIVE CROFT: Okay. And if I can skip around just a
little so I understand all that we're doing. From the resolution -
from the unnumber HJR, number 12 starting "amends Title VIII
ANILCA, as amended, as necessary to limit subsistence uses and the
preference for subsistence uses to fish and wildlife;". What
other, besides fish and wildlife would be covered under ANILCA with
(indisc. - tape garbled).
CHAIRMAN GREEN: Timber and things like that.
ATTORNEY GENERAL BOTELHO: The statute specifically talks about
other renewable natural resources. Timber as an example; that is
wood for fuel, for shelter; it would include berries for gathering;
it would include grasses that would be used for baskets, for
example - handicrafts - those types of resources.
Number 1774
REPRESENTATIVE CROFT: Has there been any significant problem with
people making too many baskets, harvesting too many berries or
taking wood too much for their houses or other purposes?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I'm unaware of absolutely
any circumstance where anyone has claimed that there has been an
abuse of that section with relation to timber, berries, grass ....
REPRESENTATIVE CROFT: I'll go on through them and I'll do them as
quickly as I can, Mr. Chairman, but in the back of my mind is that
characterization of these as onerous and I'd like to know if anyone
has examples of why not limiting it to fish and wildlife has made
an onerous impact on ANILCA. On 8 - again, I apologize for moving
around, but I had to organize them sort of into groups - 8 starts
"amends the subsistence preference of Title VIII reasonable
opportunity" - haven't we already done that in ANILCA?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, the amendments that
Senator Stevens pushed, expressly address that under the
Definitions Section and I would refer the committee to page 111 -
it's Section 804(d), "The priority granted by this section is for
a reasonable opportunity to take fish and wildlife. For the
purposes of this subsection, the term reasonable opportunity means
an opportunity consistent with customary and traditional uses as
defined in 803(3) to participate in a subsistence hunt or fishery
with a reasonable expectation of success and does not mean a
guarantee that fish and wildlife will be taken." So, again the
answer is that it is expressly addressed in the amendments that
have already been enacted by Congress.
Number 1841
REPRESENTATIVE CROFT: And 9 and 10 on our list, just below it of
course, amending or repealing, I guess, 801(b)(4) and (b)(5) - it
looks to me like that is part of the findings section - (b) starts
"Congress finds and declares further that ...." So, I guess I'm
not sure how this can be onerous at all - we all know about
findings sections not having the force of law. One relates to us
being out of compliance, which we clearly are - wouldn't be if we
changed things and Section 10, 801(b)(5) just talks about Babbitt
so, am I missing something? Are those just findings or do they
have the force of law?
ATTORNEY GENERAL BOTELHO: Mr. Chairman again, these relate to
findings. I think it's important again to reiterate that - and we
don't have to be concerned about Secretarial management in the
event that the state has laws that are consistent with ANILCA. I
think the difficulty in assuming, generally speaking, that the
Secretary doesn't have power, that it somehow devolves to the state
- in many respects that was the issue in the Babbitt portion of
Katie John where the federal court said, "Look, if it isn't the
Secretary who has the power, it's the federal law that's going to
be carried out and the default is to the federal courts, not to the
state of Alaska." It will be the federal courts that will be
responsible for overseeing, in essence, the practices of
subsistence hunting and fishing on federal lands.
CHAIRMAN GREEN: I think some of the thought processes were that
did Congress, in fact, delegate authority that it has to the
Secretary and that's part of the litigation as you're aware that
that wasn't done and therefore, what was done by the Secretary is
invalid.
Number 1934
REPRESENTATIVE CROFT: I'm almost done with this list - we've moved
through eight of them pretty quickly. And that brings me right to
court oversight and regulatory oversight - so that's 5 on the list
which purports to eliminate federal court jurisdiction over
management and 11 which purports to eliminate regulatory
jurisdiction. Maybe I'm missing something, but if the federal
courts can't enforce a federal law and the federal agencies can't
enforce a federal law, who does?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think that General Cole
gave a fairly detailed and, I think a very accurate description of
the power of the federal courts and that they derive their
authority from the Constitution, Article III, Section 2, to
interpret federal laws. In that respect, I think one has to ask
oneself whether it makes sense to be even asking this of Congress,
recognizing that this is not power which is going to be revoked in
terms of interpreting federal law. From the purview of the federal
courts, Congress is unlikely to consider it - I'd say even more
unlikely to pass it.
CHAIRMAN GREEN: In my reading of that, what I'm seeing is that
what this says is any specification in ANILCA under Title VIII that
says the federal court will have jurisdiction over private lands,
waters and state land rather than federal land - we're saying no.
That portion of ANILCA would drop out and if it inures back to the
fact that there is ultimate supremacy - example, Supreme Court of
the nation - that's alright. But what we're just saying here is
that that which is brought out in ANILCA as a right of federal
courts, we want taken out.
ATTORNEY GENERAL BOTELHO: And would the assumption be, Mr.
Chairman - because I have not had a chance to talk with anyone
about this - that the judicial remedy would be having the state
courts make the determinations?
CHAIRMAN GREEN: That's what, I think, the purpose behind that.
Any other - yes.
REPRESENTATIVE CROFT: Just continuing if ...
CHAIRMAN GREEN: Yes.
REPRESENTATIVE CROFT: ... I could. Almost done with them. But 11
removes regulatory authority completely and 5 removes court
jurisdiction partially.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, again as we indicated
earlier, paragraph 11 is really not necessary in the sense that
when the state is managing under Title VIII, the Secretary was
expressly barred from doing so.
CO-CHAIRMAN HUDSON: Under what, specifically?
ATTORNEY GENERAL BOTELHO: Barred from doing so and again, I think
that's Section 814 which requires among other things, during any
time that the state has complied with Section 805(d), the Secretary
shall not make or enforce regulations under Section 805, which is
the core function that the Secretary does - the Secretary does
everything in terms of management through his regulation authority.
This section makes clear that when the state is doing so, he may
not do so. So, again and to the extent that our goal here is to
have a unitary management system in the state managed by the state
of Alaska, this section makes clear that the Secretary may not
during those times create that dual management system.
CHAIRMAN GREEN: And it may well be that this will need to be
purged for the reasons that you have given in response to
Representative Croft. I think the attitude was that to list the
litany of things that have caused grief - perhaps that's too harsh
a word - I'll defer to you again, Representative Croft, things that
are perceived or for some reason have caused some people to be
upset - list them maybe one will actually take care of another -
maybe with certain things some of them aren't needed - there may be
duplication - or there may be a way to combine - that's what the
charge is for this group today.
ATTORNEY GENERAL BOTELHO: I understand, Mr. Chairman.
REPRESENTATIVE CROFT: And that's what I'm trying to do is see if
we can't narrow it - see if we can't get back to what the original
charge was. The only ones that I see that make substantial
debatable policy choices are 6 and 13, talking about co-management
and the regional advisory councils and I'm not sure that these
testifiers are the appropriate ones on that, but all the others
that we've just gone through, seem to me to be either unnecessary
if we have state management, been no problem in the case of berries
...
CHAIRMAN GREEN: That sounds more of debate than question though
and we'll hold that until we get through with all the questions.
REPRESENTATIVE CROFT: ... sort of summing up, but okay. Thank
you, Mr. Chairman.
CHAIRMAN GREEN: Thank you.
Number 2158
CO-CHAIRMAN HUDSON: Mr. Chairman, before we get off of this
though, if I may. Bruce you were saying that 814 essentially takes
away the Secretary's enforcement of duties - regulatory and
enforcement duties, but it does specifically say "concerning
Section 805(a),(b) and (c)." Would there be any other provisions
in here that we would want to have the Secretary's regulatory
authority lifted?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, again I think there are a
couple of other areas where obviously the Secretary has power to do
something. For example, the co-management provision - he is
authorized to enter into agreements - not required to, but
authorized just as there's a provision that the state would do.
There's another provision which authorizes the Secretary to go into
a federal court to have a determination made that the state is out
of compliance. It is a power. That formulation is, I think, a
substantial change in terms of the amendments - before the
Secretary could simply make a finding that the state was out of
compliance and now we've limited his ability to do that and then
they leave it to the courts and courts alone to make that
determination, but leave him the opportunity to go into court to do
so. Those are the powers that come to mind. It strikes me that
when we're talking about management regime and the adoption of
regulations dealing with how, where and when subsistence activities
may happen on federal land, those are found in 805 and the purpose
of this is to say, "Mr. Secretary, when the state is actively
managing - has satisfied requirements - you may not do so - you
can't adopt regulations, you can't enforce them." And to me that
is the heart - the core power in ANILCA Title VIII for the
Secretary.
CHAIRMAN GREEN: Representative James.
Number 2243
REPRESENTATIVE JAMES: Well, thank you. I just have to get this
one thing clear because I keep hearing this over and over again
that if we get state management back, then there is no problem with
the federal government coming back again. And I just want to give
an analogy here because my experience is on other issues besides
this issue, is that our laws are a living and breathing document
and they get changed all of the time - 29 times ANILCA's been
amended or so, something like that -- what is the guarantee they're
not going to change it again? And then to go on from that is that
in the management of fish and game and the decisions made by the
Board of Fish and the Board of Game, they must be flexible to make
rules and regulations to effect what they're trying to effect on
the ground and if the regulations that are currently in place don't
go away, they're still there - if the statute stays there, it's
still there - where do we get our permission to react to needed
changes along the way without having federal management come back
in and take over because we are veering away from the federal law.
What I see the problem here is - and you keep saying that we're not
going to have any problem with the federal law then, once we
capitulate and go ahead and accept federal law into our laws, then
we're home free. And I feel very vulnerable on that issue. So,
where in the world do we have that kind of protection if we don't
make the changes in ANILCA that makes those guarantees for us.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I don't think that either
of us have indicated there are iron-clad guarantees or there's the
possibility the federal government might at some future date find -
federal court find that the state is out of compliance and that
there might be a federal presence again. I don't think we can give
that guarantee. I think that Representative James is correct; this
is a constantly changing process. There have been changes before
and there could be changes again, there can be dramatic changes in
Alaska itself, that might bring that about. The mechanism that
we've tried to establish here is one that we think furthers good
management by the state, that there have been changes to federal
law which bring the federal law closer to where the state has
historically practiced; that is in terms of getting definitions,
clarifications that didn't exist before - largely relying on
definitions in state law, that we have curbed fairly broad
authority of the federal courts in terms of examining individual
decisions of the Boards of Fish and Game and their management.
That we've also created a mechanism in terms of the ability, I
guess, to make ....
TAPE 98-93, SIDE A
Number 0001
ATTORNEY GENERAL BOTELHO: .... that you have proposed which is
item 14 which would (indisc.). This is really something that the
task force had looked at - one that I don't think is appropriate at
this time for the constitutional amendment because it really would
be at the point that you have the statutory regime in place, but
our goal had been that once we had all the pieces together, you
would have Congress saying essentially what is here - that what we
have put in place satisfies the requirements of ANILCA. Now under
the old law, it is the Secretary of Interior making that decision
and being left to the Secretary's judgment about whether we were in
compliance or not. This approach was intended to have Congress
say, without having the state submit anything to the Secretary of
Interior, to say, "State of Alaska, the laws that you've put in
place, as they are, satisfy the requirements of ANILCA" and that is
instructive not only to us, but is instructive to the Secretary and
most importantly, to the federal courts that to the extent that we
operate under that framework Congress has said, we have satisfied
the requirements of Title VIII. Again, I say that I think it's
premature here because affirming that the laws in the state are
consistent, we presume that we already have the management scheme
that comes with whatever statutory framework we put together. But
I think this approach is one that is really intended, in part, to
be another safeguard to address the very concern about changes and
changing approaches by the federal government.
CHAIRMAN GREEN: Representative James.
REPRESENTATIVE JAMES: Well, Mr. Chairman, if I might just briefly
follow up on that because if we also have to do a constitutional
amendment to allow us to manage the way ANILCA is scheduled to be
managed now - we have to have that in order to make that
constitutional - then we have to immediately accept all of, I
believe, the rules and regulations that the federal government's
using in order to be in compliance and so therefore, we are
managing by the state under federal rules.
Number 0198
CHAIRMAN GREEN: I'm going to ask both the questions and the
answers to be extremely brief, otherwise I'm going to shut down
further discussion. We are way behind schedule and we have a long
way to go. So, very, very briefly on the questions and very
briefly on the answers. Thank you.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, the state of Alaska would
not be required to adopt any of the regulations that the federal
government had used. I think you're going to hear from our
Department of Fish and Game managers and I think it's an
appropriate question to ask them and I do respectfully suggest this
is an important question and it would be beneficial to hear their
views about that.
CHAIRMAN GREEN: Yeah, they are going to discuss several issues.
Representative Ogan.
Number 0257
CO-CHAIRMAN OGAN: Mr. Attorney General, earlier in the discussion
we talked about the section of ANILCA that ....
ATTORNEY GENERAL BOTELHO: Yes.
CO-CHAIRMAN OGAN: .... and I gave you a handout and what it is, it
says "16 U.S.C. 3202, Sec. 1314(a) says, "Nothing in this Act is
intended to enlarge or diminish the responsibility and authority of
the state of Alaska for management of fish and wildlife on public
lands except as may be provided in Title VIII of this Act or to
amend the Alaska Constitution." Now, I would suggest that the
Secretary of Interior is violating federal law demanding that we
amend our constitution or in holding a gun to our heads threatening
us with federal takeover if we don't amend our constitution, when
it's very clear on its face in the federal law, that nothing in
this Act is intended to amend the Alaska Constitution.
ATTORNEY GENERAL BOTELHO: Mr. Chairman and Representative Ogan,
thank you for the courtesy of giving this to me in advance to read.
I think this language is to make clear exactly what we've said
before which is the federal government wasn't mandating any change
in Alaska law or the Alaska Constitution. The state wasn't
required to make any changes; it didn't make the decision though of
whether it wanted to manage or not. If it chose not to, it did not
have to enact any laws that were consistent with ANILCA. I don't
think this section can be read to say that somehow the Secretary is
violating his duty and that we're being required by the federal
government to change our constitution. The fact of the matter is,
the federal government hasn't taken the position that we must
change it - certainly the Secretary has encouraged the state to do
so because in his view it makes more sense to have a unitary system
which is under state management. That's my view of what that
means.
CO-CHAIRMAN OGAN: I respectfully disagree and it seems to me that
if we're being told we don't have any choice, but ANILCA says that
nothing is to be construed that we amend our constitution. Anyway,
I guess, people see things differently.
Number 0499
ATTORNEY GENERAL BOTELHO: Mr. Chairman, just again to make clear -
that the constitutional need didn't arise from anything Congress
did or the federal Executive did - that really is a result of a
Supreme Court decision under Alaska law that our constitution would
not permit the legislature to enact laws that conclusively provided
for a rural priority. It's not triggered by what the federal
government did - it's triggered by an interpretation by our court -
the highest court in the state - of what our state constitution
provided as the limitations on the state's power; not a federal
imposition of limitations on the state's power.
CHAIRMAN GREEN: Representative Croft, on that point.
Number 0547
REPRESENTATIVE CROFT: Real quickly - was there any court case,
state or federal, on December 2, 1980, that said anything in ANILCA
was contrary to, or anything in the state management under ANILCA,
was contrary to the Alaska Constitution? Any court case that said
that then?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, the first time that the
constitutionality of a rural preference in state law arose was in
the course of the McDowell case itself which was decided in
December of 1989.
CHAIRMAN GREEN: Representative Joule.
CO-CHAIRMAN OGAN: Mr. Chairman, I wasn't quite done.
CHAIRMAN GREEN: Oh, one more question and then we're gonna move
on.
CO-CHAIRMAN OGAN: Alright. What I'd like to do is take the
opportunity to clarify some things that were said on the record by
you folks earlier about the Kleppe case and the property clause -
and the Kleppe case was about the property clause. You stated, I
think, I believe Attorney General Cole said last night that well,
we all can agree that the Kleppe case proved though they have broad
authority to do anything they want and in fact, in the current
Attorney General's collocation, I think I saw some quotes from the
Kleppe case, but I'd like to put on the record some quotes from the
Kleppe case and you can respond if you like. They claim the
property clause gave the federal government unlimited power on
federal lands and totally exempted federal lands within the state
borders of all state or local power sovereign, including police
powers as was discussed here earlier, but the court disagreed when
it held that such total exemption was, "total unfounded." Justice
Marshall, writing for the court said, "The Secretary of Interior's
position that the property clause totally exempts federal lands
within state borders from state legislative powers, state police
powers, and all rights and powers of local sovereignty and
jurisdiction of the states is totally unfounded." The same Kleppe
court recognized the state's broad powers over wild animals on
federal property and removed any possibility that the property
clause could be used to dictate ANILCA-type allocation system,
which is my own editorial. The court said unquestionably the
states have broad trustee and police powers over wild animals
within their jurisdictions, no doubt is true as between the state
and its inhabitants - the state may regulate the killing of
wildlife. Now Kleppe was about managing live animals, wild burrows
and horses and Congress gave them express authority to do that.
However, I don't think it's an apples to apples comparison because
what we're talking about is the killing and taking of wildlife
rather than simply managing live animals and you dispute the
Supreme Court's writing, sir?
Number 0731
ATTORNEY GENERAL BOTELHO: I don't think that anything, Mr.
Chairman, that General Cole said earlier is contradictory. I think
he made it quite clear that the states had concurrent police powers
on federal lands. The question that's confronted though - I'm not
just talking about Kleppe and in fact, bringing it closer to home
and if we look at the Alaska Supreme Court in the Totemoff case -
the Alaska Supreme Court doesn't dispute the authority of Congress
to preempt state law in the management of subsistence hunting and
fishing on federal lands. The question the court tried to grapple
with initially was whether it could discern a federal congressional
intent to actually preempt the exercise of police powers, but
there's no state police powers. There's no question that under,
not only the line of cases coming from Kleppe, but also our own
Supreme Court, acknowledging the obvious which is the supremacy
clause of the laws in the Constitution of the U.S. and the power of
Congress to decide the extent to which it's going to permit the
state governments to exercise power. With that ...
CHAIRMAN GREEN: On federal land - on federal land.
ATTORNEY GENERAL BOTELHO: Yes.
Number 0810
MR. COLE: Maybe if you will, Mr. Chairman, read on in Kleppe,
here's what the court went on to say, "The federal government does
not assert exclusive jurisdiction over the public lands in New
Mexico and the state is free to enforce its criminal and civil laws
on those lands. But where those state laws conflict with the Wild,
Free Roaming Horses and Burrows Act or with other legislation
passed pursuant to the property clause, the law is clear - the
state laws must recede." And then it goes on in talking about the
wild animals, "Appellee's Contention that the Act violates
traditional state power over wild animals stands on no different
footing. Unquestionably, the states have broad trustee and police
powers over wild animals within their jurisdiction. But as Greer
v. Connecticut, cautions those powers exist 'only insofar as their
exercise may not be incompatible with or restrained by the rights
conveyed to the federal government by the constitution.' No doubt
it is true that as between the state and its habitants, the state
may regulate the killing and sale of wildlife, but it does not
follow that its authority [that is, the state's] is exclusive of
paramount powers." And then it talks about some exceptions. "And
the property clause give Congress the power to thin over-populated
herds of deer on federal lands contrary to state law. We hold
today that the property clause also gives Congress the power to
protect wildlife on the public lands, state law notwithstanding."
That's about as strong a statement as one can get saying that when
the federal Congress has acted with respect to the administration
of federal lands, any action which the state takes which is
inconsistent with that action must fall by virtue of the supremacy
clause. Now you can say, well this is not killing animals, this is
protecting animals, this is allocating. Those are distinctions
without a difference. I mean as the court said - and let me say
because it's so important - "and while the furtherest reaches of
the power granted by the property clause have not yet been
definitively resolved, we have repeatedly observed that the power
over public land thus entrusted to Congress is without limitation"
- without limitation. Now I don't know what could be plainer than
that.
CO-CHAIRMAN OGAN: On that point, Mr. Chairman, and I will close
with that.
CHAIRMAN GREEN: Thank you.
CO-CHAIRMAN OGAN: I would just like to close the discussion with
it. And that's certainly the case in the case of national parks,
national monuments and expressed reservations, but not, I don't
believe, that it doesn't apply to federal lands as a whole unless
there's an express reservation made as in a national monument,
national park and those kind of things. We're experiencing that in
Glacier Bay and I know we ...
MR. COLE: I really ...
CHAIRMAN GREEN: We're in a debate now and I'm going to rule that
that's not - you don't need to answer that question. The next one,
Representative Joule.
Number 1017
REPRESENTATIVE REGGIE JOULE: The first question that I have is on
item number 13 with regards to co-management of agreements and I
just wanted to ask the attorney general if there are examples
currently in the state where there are co-management agreements and
how many are working out with regards to how this is being referred
to.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I might - in fact, the
Department of Fish and Game does rely on a variety of organizations
in parts of the state to assist them in management of resources.
I think probably it would be best to allow the department when it
testifies to focus on it. But certainly the task force, in looking
at co-management thought it made sense and incorporated that
concept in its proposed statutory changes to allow for the state to
make use of local knowledge and resources in the management because
of the view that those are the folks who are going to know best and
rely most on the resource and hence would be most concerned about
satisfying sustained yield and making sure that the resource was
there for generations to come.
Number 1096
REPRESENTATIVE JOULE: Follow-up to that. Outside of resource
management issues, are there other examples of co-management with
the state with regards to other types of ...
ATTORNEY GENERAL BOTELHO: Mr. Chairman, the state does it in a
variety of contexts. For example, in a way one might describe our
VPSO [Village Public Safety Officer] program as a way of co-
management - the state troopers working with regional organizations
to provide a first responder in many of the communities of the
state. We turn to many of the regional nonprofits to assist in
social work areas, the relationship we have in terms of the Indian
Child Welfare Act would be another instance where we have relations
that might not as strictly be co-management, but are attempts again
to look to cooperative agreements in trying to deliver governmental
services.
CHAIRMAN GREEN: One follow-up.
REPRESENTATIVE JOULE: Well, on another number unless anybody else
has a question in that area. You mentioned about utilizing local
knowledge and I was wondering whether or not we could address the
thinking of the task force on the issue of the regional councils
and what the thinking of the task force was there.
ATTORNEY GENERAL BOTELHO: Thank you, Mr. Chairman. I think to
begin with, one has to realize that the regional council concept is
in the original law; it's not something that's new to the
amendments. What happened with the amendments was to, I think, in
more detail explained the role in the composition and again, Mr.
Cole may wish as a member of the task force to speak to this in
somewhat more detail, but the recognition was that as the federal
government has used its advisory bodies, there's been real
satisfaction in large areas of the state about the degree to which
local residents feel that they can have input in the final
decisions that are being made and that they're listened to and that
there's been a structure that provides for that concern - their
concern about protecting their subsistence interest - and the task
force recognized that if the state was going to regain management,
it also had to do some things to give a level of confidence that
whatever state system was in place would provide at least the same
degree of opportunity for input into the decisions of the
Department of Fish and Game, to the Boards of Fish and Game, and
looked at what the best features were of that federal system and
decided there were some other things that could be done as well.
One of the features of it was to, unlike the federal system,
provide room for nonsubsistence users to have input as well,
recognizing that we have a broader concern and that it is important
to foster and (indisc.) dialogue between commercial, sport, as well
as subsistence users even in making subsistence decisions. So,
that feature is incorporated into the federal act, but really
narrows a recommendation that was made by the task force in what
the state structure should look like. And also attempt to define,
again, what that relationship should be between the regional
subsistence councils and the Boards of Fish and Game, recognizing
that, again, they are advisory, but they should again be given
deference unless they conflict with certain specific policies. The
final decisions for management still rest with the Boards of Fish
and Game.
Number 1308
MR. COLE: I think, Mr. Chairman, that Attorney General Botelho has
well expressed the views of the task force on that subject.
Myself, I gave deference to the views of the majority of the task
force on that issue.
CHAIRMAN GREEN: Were there representatives of the nonurban
community that expressed a different view that they would want more
than just a may or advisory, that they would want actual authority
delegated to them?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think in the course of
the public testimony that the task force had, there were those who
advocated that there should be strong co-management in the sense of
both developing a regulatory regime as well as simply helping in
the execution of the regime. If I can make that distinction, one
is the creation of the ground rules and the other is the carrying
it out. So, there have been those who voiced the view that it
should be stronger.
Number 1375
REPRESENTATIVE JOULE: There's been some discussion and
Representative Croft brought it up, about the federal oversight
issue as it relates to this and I'd just like to get an idea, I
guess, of some other areas (indisc.) issue where the relationship
between the state and federal government, where the government
(indisc.) has that oversight relationship (indisc.). The thing
that came to mind is like water, maybe even air or something along
those lines.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think the area of
environmental law is one example, but I think most places where you
see federal monies being involved, whether you're talking about
transportation, whether you're talking about social services,
whether in your example talking about air and water, you may have
the federal government exercising control that's saying to the
state that, "You, state of Alaska or state of California, may carry
out the program as long as your program meets these criteria and to
the extent that they're at least as strong as the laws that you
have as the federal program, you may carry it out" and frankly, we
do that in large segments of what our state government does today.
And I'm not sure that's a particular endorsement in some areas in
terms of looking at the volumes of federal laws and regulations
that one has to comply with, but it is pervasive in the
federal/state relationship.
CHAIRMAN GREEN: Representative Berkowitz.
Number 1462
REPRESENTATIVE BERKOWITZ: Thank you very much. I understand the
need to move as quickly as possible here and that's why I've got
this question. Mr. Chair, you indicated that Senator Murkowski
might be willing to carry the ball, but it's my understanding that
as recently as today, his position was that he would try and do
something with ANILCA if the Secretary of the Interior and the
Governor were on board. It's my understanding that the Secretary
of Interior says there will be no substantial changes to ANILCA, so
it seems to me that these provisions here would not meet with his
approval. It also seems to me that based on my understanding of
the Governor's position, he would not be in favor of any of these
positions. I want to know, that being the case, it seems
incredibly dubious whether Senator Murkowski will indeed do
anything, this exercise here seems to be somewhat futile and
perhaps our time could spent better doing something else.
CHAIRMAN GREEN: Such as?
CO-CHAIRMAN OGAN: Going fishing?
REPRESENTATIVE BERKOWITZ: Going fishing would be one.
CHAIRMAN GREEN: That's what we're doing, Representative Berkowitz,
is fishing. If we can actually craft something that we can have a
negotiation with the Governor - to stand pat and do nothing I think
is dereliction of our duties so that if we can come up with a list,
have something to discuss, then I think we've spent our time well.
REPRESENTATIVE BERKOWITZ: My concern, Mr. Chair, is that in an
effort to appease people who are not particularly anxious to move,
you might wind up losing the support of people who are already
supportive of these proposals.
CHAIRMAN GREEN: That's certainly the chance a person takes.
CO-CHAIRMAN OGAN: Mr. Chairman.
CHAIRMAN GREEN: On that point, we have another testifier and then
we have to go to other people.
CO-CHAIRMAN OGAN: Last time I checked, it's Congress' authority to
change the policy in the country, not the Secretary of Interior.
CHAIRMAN GREEN: We're in a debate issue now - we'll come up with
that later after the testimony. Representative Hudson.
CO-CHAIRMAN HUDSON: Mr. Attorney General, would you take these
items 1 through 14 and give us something in writing relating to
each one of them. We've talked about 1 through 4 and 10, for
example, and indicated this isn't necessary because of this reason.
For those of us who are not legally attended, it would really help
if we had something like that. We have to deal with this list and
anything else that is good for the state of Alaska to consider as
an amendment to ANILCA or at least to put into some sort of an
indication on our part that we want these changes. But I've
listened carefully now to the dialogue that went on between our two
friends over there as well as on this side and yourself and I
haven't got it all. And rather than take the committee's time,
perhaps - you've got a wonderful big staff behind you there - you
could just take the 14 of them and put down "not needed" and here's
the reason why and just give us a quick reference. We'd appreciate
that - I would.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I'd be delighted to
(indisc.).
CHAIRMAN GREEN: I would ask to amend that just slightly. There is
another list, if you don't have, we'll get to you, which says in
effect that there are three caveats to a constitutional change that
if subsequently we were held we'd still be in violation of ANILCA,
or if the Secretary or Congress will change ANILCA substantially as
we've said - or there are three litanies there that would then
render this constitutional amendment moot. We'd like to have your
opinion on that, as well.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, we'd be delighted.
CHAIRMAN GREEN: Okay, thank you. With that we appreciate it and
very likely we'll have additional questions for you. But on
teleconference we have Mr. Levengood. We have a request from
someone here who has a very short fuse. Mr. Levengood, we would
like to hear from you - I understand you also have a time
constraint.
Number 1650
LYNN LEVENGOOD, ATTORNEY AT LAW: My time constraint has resolved.
CHAIRMAN GREEN: Good, thank you. With that then, we'll go to Mr.
Frank Rue. Frank, would you identify yourself. I know you've
expressed a concern about timing, but I think it's very important
to hear what we had talked about as far as with or without changes
how will fish and game be managed.
Number 1673
FRANK RUE, COMMISSIONER, ALASKA DEPARTMENT OF FISH AND GAME: Mr.
Chairman, thank you. For the record, I'm Frank Rue, Commissioner
of the Alaska Department of Fish and Game. I have with me Wayne
Regelin, the Director of the Wildlife Conservation Division and Rob
Bosworth, the Deputy Commissioner. I just wanted to make a very
quick point. I don't want to dwell on a lot of issues unless you
all have questions. The main point I wanted to make was to follow
up on what Attorney Generals Botelho and Cole talked about earlier
and that is the difference between federal management and state
management under a rural priority - ANILCA rural priority and
federal oversight. To me, there is a huge difference. Anyone who
believes otherwise hasn't been paying attention to what's been
going on with the Federal Subsistence Board and our ability as a
state to manage resources. If you look at the way the two
organizations - the two management structures are put together,
it's quite clear why that is. Under the state system, if we were
in compliance with ANILCA, you would have the state Boards of Fish
and Game as the final decision makers as opposed to the Federal
Subsistence Board which is made up of heads of federal agencies.
In addition to that, you would then have implementation by the
department - and let me back up just for one second. I've got a
good chart there that shows what federal management led to and
we've all referred to it before and this chart shows what happened
to our salmon resources under federal management and then what's
happened when state management took over and I think a lot of that
has to do with the use of good science and the use of in-season
management, both of which will be compromised with federal
management.
CO-CHAIRMAN OGAN: On that point.
CHAIRMAN GREEN: Representative Ogan.
CO-CHAIRMAN OGAN: Mr. Commissioner, you mean to tell me that the
federal government will ignore the state management system and the
policies that the state has put in. I've been told that what
they'll do is they'll mirror the state management system on
fisheries. So, I believe that -- I've heard that from the
Secretary's assistant.
COMMISSIONER RUE: Mr. Chairman, all you have to do look at the
regulations.
CO-CHAIRMAN OGAN: And I don't believe for a minute that we're
gonna go back down to the kind of crash and allow -- the feds are
gonna allow that to happen because what they will do - and what
I've been told that they will do - is that they will work very
closely, in fact I've heard Debra Williams say that if I'm not
mistaken - if I am, I apologize to Debra - but if I recall
correctly, I heard Debra Williams and I met with her myself, said
that they'll basically deal with the state system and work with the
state and mirror what they're doing with the exception that they
will manage for subsistence resources first. They'll allow the
subsistence take first. Other than that, it'll be pretty much the
same system.
CHAIRMAN GREEN: On that point, Representative Croft.
Number 1810
REPRESENTATIVE CROFT: I didn't hear the question. You know, that
was just saying what we believe and I can state my beliefs on that,
but maybe in the form of a question - what is it about federal
management that caused those sorts of declines in territorial days?
Was it over the general law or the political influence they were
under or the fact that they're too far away, or whatever? And what
is it that has led to better success under state management?
COMMISSIONER RUE: Mr. Chairman, a couple of answers on this. One,
regardless of what the Secretary's representative is telling you,
the proposed regulations are very intrusive on fishing. In fact,
we've got, I think it's around 40 pages of comments trying to back
them off in the aggressive way they're entering into our fisheries
for subsistence purposes, and I'm sure you can all either get
copies - we'll be happy to give you copies of what the words on the
page say in terms of federal regulations versus what they may be
saying about cooperation. In fact, there's very little cooperation
and very little dependence on the state system. Their budget
message was they're asking for 77 new people in the state of Alaska
to oversee fisheries. That's a huge staff. So, regardless of what
they say about cooperation, the regulations do not support that.
My view of this is that the thing that allowed the state to manage
well and the feds not manage well - and I think others may be able
to speak to this better than me - is the federal system was very
inflexible; it was not managed by area managers in-season; people
living in the area managing the fisheries, having the authority to
implement closures on an as-needed basis, on a very quick real time
basis; it was not based on the kind of science we have today and
basing our management on escapement information, where conservation
of the resource was first. So I think that general system has
stood the state in very good stead over time and is really what has
led us to that. I think what you'll see with federal management -
and crab and scallops have shown us a good example of that - is a
very slow ponderous system that cannot respond to in-season
changes. In fact with crab, we tried to have two managers - we had
a federal and a state manager - it didn't work. We were trying to
do the same thing in that case; we were trying to both manage for
commercial harvest. Two systems just will not work well together.
In the case of crab, the federal government authorizes the state to
manage under general guidelines of the North Pacific Fisheries
Management Council. The two just do not work well together, much
less where we're going in different - have different charges.
Number 1928
COMMISSIONER RUE: The difference between - so let me get back to
why I think it's very different with federal management, if the
federal managers are here, you'll have a federal board made up of
federal bureaucrats with one mission - subsistence. The state
Board of Fisheries is not federal bureaucrats; it's made up of
citizens of the state, which you all confirm and the Governor
nominates, they listen to not only subsistence concerns, but also
sport, commercial, personal use and have to balance all of those
within that priority. Very, very different system. I think the
other thing that's very different is the on-the-ground management
and we're starting to see it already in wildlife. A very reluctant
federal bureaucracy - they were reluctant to step in to tell you
the truth - they Xeroxed our wildlife regulations their first go
around. They have slowly begun to change the federal regulations
and get out of sync with state regulations. They are more and more
stepping into the day-to-day management, the second guessing on the
biology, and Wayne Regelin can point out any number of examples of
that. You will see a constraining of the state's on-the-ground
management.
Number 1988
CO-CHAIRMAN OGAN: Very briefly.
CHAIRMAN GREEN: Representative Ogan.
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. That's because the
Federal Subsistence Boards are making pretty much those
determinations - those are the federal regulators you're talking
about - the Federal Subsistence Board - they've made some
determinations that I've seen your signature on saying that they're
making determinations to manage below sustained yield on certain
stocks of wildlife and that kind of thing - is that correct?
COMMISSIONER RUE: That's correct. That's correct.
CO-CHAIRMAN OGAN: And a quick follow-up. Do you believe that
that's because those Federal Subsistence Boards are managing for
subsistence and is there a bias towards subsistence over sound
management, or why do you think they're doing that?
Number 2009
COMMISSIONER RUE: I think two things are going on. One is they
will expect the state to take the burden and the other users to
take the burden of conservation. The attorney general talked
earlier about the extra-territorial authority of the federal
government to effect state actions. The other way the federal
government can effect state management, is they can appropriate the
resource for federal subsistence users and leave the conservation
issues to the state managed sport, commercial, personal use,
subsistence fisheries, for example, down river - they just won't
care. They'll say, "We're going to have our folks harvest and you
all take the responsibility for sustaining the resource and shut
down your fisheries." We've seen that with musk oxen on the Seward
Peninsula as a prime example where the state had to shut down a
state hunt to make sure the resource was managed under a sustained
yield. I think it's a combination of things. And Wayne, I don't
know if you want to add to that, but ... The other thing I wanted
to point out that's come out is sustained yield in the task force
proposal is always the highest priority - it would be in the
constitution and it would continue to be in our statutes. Any
customary and traditional uses would be still within the
constraints of sustained yield. That to me is fundamental and is
the only way we'll successfully manage and I think it's in all the
proposals before you. I've already mentioned the way the federal
government can reach out and effect our management through
appropriation as well as extra-territorial. I guess my sense of
the results will be a disaster if federal management comes in. I
think if we manage under a rural priority under ANILCA, we will be
in the driver's seat; we'll be able to make it work. We had a
rural priority before. I think the amendments to ANILCA that have
already been put in place will make it easier for the state to
manage. The definitions help keep the courts from interpreting key
terms. We, the managers and the boards will be able to interpret
those things. I think the constraints on the federal court
oversight will help us continue to be able to manage and we will be
in the driver's seat. The burden of proof will be on others to try
and say that we're not doing a good job. I think that's a very
fundamental point and I feel confident that we could make it work
and provide opportunities not only for subsistence on state and
federal lands, but also for sport, commercial, personal use and
maximize those other opportunities.
CHAIRMAN GREEN: History certain supports your position.
COMMISSIONER RUE: I think it does. If you'd like, Rob Bosworth
could mention quickly how oversight worked during the '80s when we
had federal - rural priority.
CHAIRMAN GREEN: I think that would be in order. Do you want to
hear that before your question - I know you had a question ....
Number 2123
REPRESENTATIVE BUNDE: .... for Commissioner Rue and, you know, I
understand the concern about the impact on commercial fishing - I
have a number of commercial fishermen in my district who are
vitally concerned and frightened of federal management and I
understand that. My question is, five years ago apparently the
federal government took over management of game and maybe it's my
fault - I never heard about that - there wasn't the hue and cry
that we hear now and could you give me an idea why there wasn't the
concern, at least in the public, about federal management in the
game area as now in the fish. I know there are - if you look at
the number of licenses - there are a lot more people who fish than
hunt, but there are far fewer people who commercial fish than do
either and I'm just wondering how this came to be that suddenly now
we're coming to a crisis point.
COMMISSIONER RUE: Mr. Chairman, Representative Bunde, I believe
there was a hue and cry - we had a number of lawsuits against the
federal government, Governor Hickel convened a task force to try
and deal with this issue - I think there was a great deal of
concern we didn't get there. Senator Stevens put a moratorium on
fish - implementing the regulations for fish - so, I think there
was a hue and cry. I think fish is more difficult than game
because they pass through so many more jurisdictions and users -
game very often are fairly localized - there is movement, but I
think the hue and cry is partly - it was there. Second, I think
fish - there are a lot more people who use fish and too, it's much
more complex and much more likely to impact a lot more people than
wildlife. We've spent an awful lot of time trying to keep the
federal system from impacting Alaska. It's a tremendous amount of
work and we have not been very successful. Does that answer your
question?
Number 2003
REPRESENTATIVE BUNDE: Very quickly, on another topic. We had a
chart earlier showing the use per capita per year of wild game and
wild fish and I think it would be really useful if the department
could give us also a chart showing the number of hunting and
fishing and trapping licenses that are bought throughout Alaska.
COMMISSIONER RUE: Mr. Chairman, I'm sure we could get that kind of
information for you.
REPRESENTATIVE BUNDE: Thank you.
CHAIRMAN GREEN: Representative James.
Number 2219
REPRESENTATIVE JAMES: Thank you, Mr. Chairman. I'm back to this
chart because that's when I got my name on the list and I wondered
when did we institute the FRED Division and when did we start the
hatcheries to do the comm [commercial] fish? And one more question
then is do we know how much of the fish is comm [commercial] fish
and how much is wild fish? Do we have any kind of calculation on
that?
COMMISSIONER RUE: Mr. Chairman, Representative James, Commissioner
Rosier who is in the audience could probably answer. I think the
FRED Division started in the early '70s in response to some of the
very poor runs you see there and our hatcheries were built up
through the '70s. I believe right now the commercial fish hatchery
take is about 20 percent of the commercial fish and I'd have to
double check that, but that's roughly the number of ....
CHAIRMAN GREEN: Does everyone understand what the FRED Division
is?
Number 2250
COMMISSIONER RUE: It's the - basically, the former FRED Division
- it no longer exists.
CHAIRMAN GREEN: Yes.
COMMISSIONER RUE: It's the Fisheries Rehabilitation Enhancement
Division.
Number 2258
REPRESENTATIVE JAMES: One more question - it's not related to
that, but something that Mr. Rue said and that was your comment
about managing for subsistence and having to shut down - that the
federal government will shut down everything else to protect
subsistence. I thought that's what we were supposed to do. I
thought that ANILCA is all about making subsistence be the first
issue and that you don't take away any subsistence rights until
after everything else is gone. I thought that's what it was all
about. Now I don't know why you're condemning the federal
government from doing that in saying we're not going to do that.
COMMISSIONER RUE: Mr. Chairman, Representative James, I think the
issue is the heavy handedness and the ability to work with multiple
users, if you will and the extra-territorial issue. First of all,
the state would require reasonable opportunity, is the first thing.
The other is that the state boards will work with the various user
groups through the process to make sure that you get enough
subsistence resource, but not unduly restrict other users. And I
think a perfect example is the Yukon River where all the users -
commercial, subsistence and sport users on the Yukon River are in
a joint group called the Yukon River Drainage Fishermens'
Association - they came up with a plan which actually did restrict
commercial and the escapement for commercial to make sure
subsistence happened. But it was a very surgical restriction and
it allowed other uses to occur to the maximum extent they could and
still have enough fish for subsistence. With a federal board over
here that will not have interaction with commercial, sport users,
I think you will see, and we've seen, a very heavy handed use of
the subsistence priority. And ....
Number 2322
REPRESENTATIVE JAMES: If I just might follow-up on that. I think
the Yukon River Fisheries is an excellent example of the people who
I have been in contact with, that federal management would do a
better job than what we have right now. But ....
Number 2332
REPRESENTATIVE NICHOLIA: Chairman Green, can I get into that one
because I already know about a proposal that the federal government
has submitted to the people in the state of Alaska and this would
have the impact on the Yukon River Drainage Fishermens' - and that
is that they said -- it's been published for public comment, by the
way -- and a limited entry permit holder could not also fish for
subsistence. That's going to have a dramatic effect on ....
TAPE 98-93, SIDE B
Number 0001
COMMISSIONER RUE: .... and there's been a moratorium, but Wayne,
you may want to give an example or two on game to give you a sense
of why we're concerned.
Number 0027
WAYNE REGELIN, DIRECTOR, DIVISION OF WILDLIFE CONSERVATION, ALASKA
DEPARTMENT OF FISH AND GAME: For the record, my name is Wayne
Regelin. I'm the director of the Wildlife Conservation Division.
I'd like to just make a few comments based on 29 years as a game
manager; 22 of them in Alaska and for the past 6 years, trying to
manage a dual system that isn't working very well. There's been a
lot of questions about what happens under state management versus
federal oversight versus federal management and we don't have to
speculate on the wildlife side about what's going to happen like we
do with the fish side - we've got a clear record and it's not good
and it's not good wildlife management, in my mind. We get
decisions made by a federal board of federal bureaucrats - you
know, some of them - the regional director of the park service - he
doesn't care about the hunters of Alaska, but he sits on that
federal board, making the final decisions. We've seen decisions
that are based on consideration of only one user group. They don't
care about the sport hunter, the guides, anybody else - they have
one requirement and they say that over and over - they don't have
to consider other users. We've seen decisions made by that board
that aren't biologically based; they're based on basically no
information. I think we've seen some terrible wildlife management
come out of that board in the past six years and if you'd like I
can give you some examples. But in general, we've seen decisions
that have resulted in the over-harvest of game in some areas,
harvesting in excess of sustained yield and they refuse to restrict
that harvest even though we've urged them to and keep going back
and telling them they're doing it the wrong way. We've seen them
waste wildlife resources where they have closed seasons to everyone
but the federal subsistence clients when it's not necessary and
that wastes the resource - it's (indisc.-coughing) harvest, we
should harvest it. And we've seen decisions that exclude all but
federal subsistence users when no shortage exists and to me this is
all poor wildlife management and I can give you specific examples
if you want me to of each one of those.
REPRESENTATIVE BUNDE: Mr. Chairman.
MR. REGELIN: I will do that in just a second.
CHAIRMAN GREEN: Representative Bunde.
REPRESENTATIVE BUNDE: Well, he can give them to me in writing, but
I'd like to see them.
CHAIRMAN GREEN: Yes, would you please - in writing.
MR. REGELIN: Okay. But I think under state management, we get a
subsistence priority based on reasonable opportunity; that means we
can have seasons and bag limits. The federal standard is not based
on reasonable opportunity unless the law is changed; it's based on
the least adverse impact to the subsistence user. Very, very
different. Over time I don't think we'll see seasons and bag
limits because of an adverse impact. That really worries me. If
we only have federal oversight, I think, but not federal
management, that means we're back in control. I know a lot of my
good friends are going to talk to you a little later, and they
disagree with me on this. But I think some things are very clear
that will happen if we have just federal oversight - the federal
Subsistence Board will go away - that will be disbanded; it won't
be there. The federal regional subsistence advisory councils will
go away; they're not going to be there. And I can't believe that
we can't sit down and work with our congressional delegation and
make sure that that federal bureaucracy is disbanded and they go
away and then we are back in charge - we can assist them and we can
do this and make it work and it will evolve over time. I think the
system that's set up is extremely complicated, but it will evolve;
but will evolve on the basis of what we want not some federal
board doing this because we have these -- I think it will evolve
and I've got some things that I would like to see it evolve to make
it more simple because I think what we have is very complicated.
But right now if we have federal oversight, they have to overturn
every specific regulation we have one at a time and it's a very
complex process. They have to do it and they defer back to us.
Everybody keeps worrying about federal oversight and I don't worry
about it that much - we have federal oversight in almost
everything, but that doesn't mean that they're in control. We're
back in control if we do this the right way. And everybody - all
my good friends keep saying, "We want state management, we got to
have it." The only way I see us having it and maintaining it is to
not - or is to pass a constitutional amendment and move forward.
Anyway, I've got examples of just bad wildlife management and it
will get worse, guys. I'm just convinced that it will.
CHAIRMAN GREEN: Representative Williams.
Number 0421
REPRESENTATIVE WILLIAMS: I guess - maybe you guys can tell me the
difference between the federal management that is happening on the
Tongass National Forest today versus what we can get into - and I
heard your answer - but is that another example that we can use as
far as the type of federal management that we can expect. We did
have a timber industry here in Southeast Alaska at one time and now
we're close to not having a timber industry.
COMMISSIONER RUE: Representative Williams, I think Wayne brought
up an important point. The state Board of Game, Board of Fish are
focused on using the resource for all users. I do not believe that
the federal government will continue to have or have that same
level of interest in the users of the resource, is my humble
opinion. And I think you will see more influence in the federal
arena for nonuse than you will in the state arena is my sense. I
think that was the point you were getting to.
UNIDENTIFIED SPEAKER: Mr. Chairman.
COMMISSIONER RUE: If it's useful, Rob Bosworth could quickly
describe federal oversight when we had a rural priority and state
regulation and statute before and whether that was onerous or not.
And that, I think, was under a worse federal statute - if the
Stevens amendments go through - I think that helps our case and
makes federal oversight less onerous even than it was during the
'80s. If it would be helpful to the committee, we could just ....
CHAIRMAN GREEN: Representative Hudson.
Number 0525
CO-CHAIRMAN HUDSON: Thank you. Mr. Chairman, I came to work for
Governor Hammond in 1974 and was rather immediately put on the
board to take a look at the development of the hatcheries - we
didn't have the hatchery program in those days - we had about 25 to
26 million salmon coming back at the state. We were on the verge
of collapse and we've seen, I think, by strong and effective state
management that coming up. So, I think - in response to my good
friend from Fairbanks - my observations and analysis of this is
that too many federal managers come to Alaska to get the high three
years so they can retire. I know I'm straying ....
CHAIRMAN GREEN: We've strayed considerably and we better get back
on ...
CO-CHAIRMAN HUDSON: ... but I do have one question, but that
(indisc.) bring up and I thought I'd put that on the record. What
would happen in Southeast Alaska and Cook Inlet to the mixed stock
fisheries with multiple management or federal management, for
example. What do you think?
Number 0596
COMMISSIONER RUE: Mr. Chairman, Representative Hudson, let's take
the Russian River as one possible example, where you have federal
land, you have a federal rural designation - none of it is
inconsistent with the state rural - Cooper Landing, Hope and
Ninilchik - any one of which could ask for a federal subsistence
fishery on the Russian. If they - depending on how much the
federal board granted them - you could then have two things
happening. One, if there are lots of red salmon, for instance if
that were the allocation to a federal subsistence fishery on the
Russian, if there are lots of salmon coming back to the Russian,
you'd have a gear conflict - some people would be able to go down
with a net, for instance if that was allowed for subsistence, and
others would only use hook and line. So you might have that level
of conflict. If there were a conservation concern as we have once
every four years or so on the Russian River, I think the federal
government and the federal subsistence fishery would cause us, the
state - because I don't think they would back off - to restrict the
sport fisheries and the commercial fisheries down stream. When
we're in control of management, we've been able to do that very
surgically. We've been able to just limit within the Russian and
then maybe just a little bit down from the Russian, because we've
had control of all the various users. It's also a nonrural area -
nonsubsistence area. We don't have the issue of subsistence on the
Russian. So, there's the kind of thing where it could move all the
way down the river either because we absorbed the entire burden of
conservation through the state fisheries that we're still managing
which would be sport, personal use and commercial, and depending on
how much they allocated to the subsistence fishery on the Russian
and how big our conservation concern is, we might have to go all
the way out into Cook Inlet to restrict the sockeye fishery to make
sure that federal subsistence was achieved at the Russian. That is
a possibility in my mind.
Number 0719
CHAIRMAN GREEN: Have you seen the proposal to tie in with a
possible constitutional amendment that we would want changes to
ANILCA - have you seen that litany of 14 potential changes ....
COMMISSIONER RUE: Mr. Chair ...
CHAIRMAN GREEN: ... we have copies, if you ...
COMMISSIONER RUE: ... I saw it and I listened as Attorneys General
Botelho and Cole went through it.
CHAIRMAN GREEN: How do those or any of those either help or hinder
your activities or the sustained yield, the ability to have a
multiple use fisheries? Do you see those as good, bad or
indifferent?
COMMISSIONER RUE: Mr. Chairman, I haven't had a chance to analyze
them in that light. I have looked though at the ones that have
already been done - the amendments, the definitions, that I think
are helpful - if you mean the definitions that are in the Stevens
amendments when you talk about customary and traditional, customary
trade, barter, the definition of rural, which was added to ANILCA
by Senator Stevens and that helped a lot too, because now we have
a common definition in state and federal statute. Those sorts of
things are helpful. The others I haven't had a chance to analyze.
One I would mention is co-management. To me I see that as
something that's a positive; it doesn't require that we do that.
It just allows for it. I think that any co-management agreement or
implementation would always be contingent on the state of Alaska
retaining ultimate authority to make management decisions. So, I
do not see the state giving up any management authority. I do see
us working with people in both the regulatory process - you know,
Yukon River Drainage Fishermens' Association - it's us working with
the users to come up with regulations that work for everybody. The
board has the final say whether to do it. Research - we do it a
lot now - we have weirs done by Kawarek, for instance, and we do
weirs and counting of fish is something we can do cooperatively.
Research in marine mammals - we work with local hunters. They
gather samples for us. To me those are all parts and examples of
what co-management could be. I don't see us ever giving up
authority to make management decisions, nor the board giving up.
But I think that's a useful thing, so I wouldn't want to see that
proscribed.
Number 0861
CHAIRMAN GREEN: If we were to regain authority over navigable
waters, and then with that, the jurisdiction authority for fish and
game within the state on all navigable and other inland waters,
does your department have the personnel to handle that additional
load?
COMMISSIONER RUE: Mr. Chairman, I believe that it will actually be
-- I think we do, yes is the simple answer and I think by adopting
a constitutional amendment and statutes that bring us in
compliance, I think given the amendments to ANILCA, we can
definitely do it. I think that it would be nice to have the
federal government help out with the costs of some of the data
gathering for subsistence. I think that would be a good addition -
it would help us. But it's perfectly -- I think we would do a much
better job - I think it will be a lot cheaper in the long run.
Dealing with two boards is hugely expensive, hugely complex. We
have people who not only go to the state Board of Fish and Game, we
have to pay attention to the federal board. We tried to keep it
from breaking down - we tried to keep the federal board from doing
a totally (indisc.) thing. That takes a lot of effort - it's a lot
of wasted effort. I think it will be cheaper if we have a unitary
system, both regulatory and then management.
CHAIRMAN GREEN: Well, there was some talk at one time if we
actually did control on federal land that there would be, I think
it was $5 million, that would be allocated by the federal
government. Could your department handle it for five or less?
COMMISSIONER RUE: Mr. Chairman, I think if $5 million of federal
money were added to our budget to help with the subsistence system;
i.e., data gathering and any regional council form that you might
create or advisory committee work, yes. That would be very
helpful. Far more than the whole subsistence division gets today.
CHAIRMAN GREEN: Yes, Representative Nicholia.
REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. And on that
point, when the federal government took over their boards and their
advisory committees, we did lose a lot of money from our budget.
I remember seeing those losses when I first came here six years ago
and it was a substantial amount and I know that our departments
surely could use them. Just being a member of the Yukon River
Drainage Fishermens' Association and talking about funding for the
commercial fisheries division .... I know they could use it and
that was a loss.
Number 1005
CHAIRMAN GREEN: Any other questions of the members of the ....
COMMISSIONER RUE: Mr. Chairman, would it be helpful to have Mr.
Bosworth give you a quick overview of what it was like when we had
a rural priority and federal oversight or ...
CHAIRMAN GREEN: If you could do it in just a few minutes, it would
be ....
Number 1017
ROBERT BOSWORTH, DEPUTY COMMISSIONER, ALASKA DEPARTMENT OF FISH AND
GAME: Very briefly. Mr. Chairman, thank you. I just wanted to
remind the committee that it's not entirely necessary to speculate
about the situation where the state manages fish and game on all
lands in the state in the context of federal monitoring and
oversight. This was the condition throughout the 1980s and I will
simply point out that that all came to a screeching halt not
because there was a hue and cry over onerous provisions of ANILCA
or there was a hue and cry over the untenable presence in the
pressive nature of federal oversight - it came to a halt because of
Sam McDowell and others who felt that they were disadvantaged by
not being able to hunt and fish in rural areas under subsistence
regulations. Up until that time - I don't want to make this
picture sound too rosy - there was a lot of work to figure out how
to implement ANILCA. There were few court cases, including the
Madison decision which required reconfiguration of the state's
subsistence law - we worked through that. There was a major effort
by the Boards of Fisheries and Game involving literally hundreds of
hours of deliberation to identify the rural areas, to identify the
customary and traditional uses, and to draft the regulations that
provided for those uses on federal and on state lands for fisheries
as well as wildlife. We did have the rural preference; we did have
the regional councils - the regional councils are still on the
books - they're still in state statute - we don't operate them
because we're not required to by ANILCA any longer, but those were
by and large successful bodies which one of the only regional
bodies that advised us on fish and game issues. We had the
regional council report that went to the Secretary and advised the
Secretary about how good a job the state was doing. We actually
learned quite a bit from those reports. When they would come out
we would read them to get the feedback from the regional councils
on how good a job we were doing from their perspective. Was there
a problem with the abalone fishery in Southeast that they didn't
think we were doing a good enough job in managing. We often found
that out best from the regional councils themselves. Customary and
traditional use was a major effort to identify those uses - well
informed by the regional councils. Those uses are still in place
and are still part of the regulations that we use to this day.
MR. BOSWORTH: We could manage for sustained yield. All the
management tools that we need to have to be effective managers
whether it's setting seasons and bag limits, opening and closing
seasons, size, sex, all the variables having to do with appropriate
management - we had those. The Secretary was there - there were
all of the provisions that seemed to be so worrisome to some and
I'm here to tell you that from our vantage point in this day and
age, those look like the golden years. We weren't dealing with
dual management; we weren't dealing with the controversy that bogs
us down at the present time. And I'll also make the point that
Commissioner Rue made that there have been necessary changes to
ANILCA. We did learn something during the '80s about the need for
better definitions. Some of the court cases that have been
discussed were brought specifically because of the fact that our
boards were either not following, in some cases, appropriate
procedures or were operating without adequate definitions in ANILCA
and there was a conflict that resulted and needed to be resolved by
the courts.
Number 1220
MS. BOSWORTH: The ANILCA amendments that were drafted and included
by Senator Stevens in ANILCA, we do have those definitions now in
place. We included those definitions in the '92 law, once again,
based on what we learned during the '80s, so we actually have an
improved situation now, potentially above and beyond what we were
operating with in the '80s. I'll leave it there, Mr. Chairman and
answer any questions. I just wanted to point out that from my
perspective, it's not necessary to be too speculative about what
oversight means - 1989 doesn't seem that long ago when we were
doing this. Thank you.
Number 1254
CHAIRMAN GREEN: Are there any questions from members of the
committee? Seeing none, I want to thank you gentlemen for giving
us a presentation.
REPRESENTATIVE NICHOLIA: I have one more question for Frank Rue.
CHAIRMAN GREEN: Representative Nicholia.
REPRESENTATIVE NICHOLIA: Can you -- do you have this list
proposing changes to ANILCA?
COMMISSIONER RUE: Yes, I do.
REPRESENTATIVE NICHOLIA: Can you comment on Section 12 where it
eliminates berry picking, logs for shelter and stuff like that.
COMMISSIONER RUE: Mr. Chairman - Representative Nicholia, I am not
sure that that's ever been invoked or dealt with through the Boards
of Fish. In fact, I don't believe it has. I'm not sure how that
has been an issue.
REPRESENTATIVE NICHOLIA: So, it hasn't been an issue ...
COMMISSIONER RUE: It hasn't really come up as a major point of
conflict before where any other uses had to be restricted because
of a subsistence use of other natural resources that I'm aware of.
It just hasn't been an issue.
REPRESENTATIVE NICHOLIA: Alright, thank you.
CHAIRMAN GREEN: Thank you very much, again. The set up that I
have now, as I understand it, Carl Rosier, Dave Kelleyhouse, Dick
Bishop and Walt Sheridan were going to act as kind of a group and
each of you take a few of the proposed concerns that we have here
and discuss those. Is that a correct understanding?
MR. ROSIER: That's the way we understand it.
CHAIRMAN GREEN: Great. Would you gentlemen please come forward
and we'd like to hear your comments about the concerns that have
been raised with ANILCA.
Number 1353
MR. ROSIER: Thank you very much, Mr. Chairman. It's been an
enlightening morning and afternoon here to say the least.
CHAIRMAN GREEN: That's the nicest (indisc.).
MR. ROSIER: For the record, I'm Carl Rosier and I'm here as a
retired ex-commissioner at the present time and I might add that
I'm glad that I'm not having to sit through this as the
commissioner at the present time. Anyway, in speaking to the
ANILCA amendments on this, this list is obviously quite inclusive
and I think this is a good effort to in fact explore the changes
because I think the criticism that's been out there of this whole
system has been, "You know we need to make the changes in ANILCA"
and we might be able to in fact get back to a reasonable management
system here on this. I would like - because there's a lot of
things that bear on ANILCA here on this thing - I think the
committee heard quite a little bit this morning about the Section
801(b)(5) and whether it was inadvertent or on purpose on this, it
seems to me that that particular section may have limited the
state's options a little bit in that it would appear, anyway to me,
that you're kind of looking at the possibility of the state -- the
endorsement of the decision on the Ninth Circuit -- that in fact
gives congressional approval for that particular decision and that
under that set of circumstances - without being a lawyer, I'm
strictly a layman - but it would appear that it would limit the
state's abilities to in fact challenge the navigability issues that
were involved in Katie John.
Number 1458
REPRESENTATIVE PORTER: Mr. Chairman, which section are we
addressing right now?
MR. ROSIER: This was 801(b)(5).
REPRESENTATIVE BERKOWITZ: On that point, Mr. Chairman.
CHAIRMAN GREEN: Representative Berkowitz.
REPRESENTATIVE BERKOWITZ: Mr. Rosier, you're indicating that
801(b)(5) which reads, "The Ninth Circuit determined that the
subsistence priority required on public lands applies to navigable
waters". That's just a finding - I don't see how ...
MR. ROSIER: Under normal circumstances -- excuse me, I'm sorry, I
apologize.
REPRESENTATIVE BERKOWITZ: No, that's my question. What is that -
anything more than just a simple finding.
MR. ROSIER: My feeling on this is that these are the kind of words
that come back to haunt you in future legal challenges and these
are the types of things that get used in terms of future legal
challenges.
REPRESENTATIVE BERKOWITZ: If I could follow-up. Is that an
imprecise summation of what that case stands for in part?
MR. ROSIER: I'm sure it is. As I say, I'm not a legal eagle here
on this, but that's my impression - I'm reading the amendments that
Senator Stevens was capable of getting under which we are now
taking a look-see at the whole picture of the proposed changes to
ANILCA.
CHAIRMAN GREEN: Representative Croft, now I want to caution you
that we're not in debate mode now; we're in questions concerning
clarity.
Number 1518
REPRESENTATIVE CROFT: Right and we're finally going directly to
this and they're talking about Section 10 here ...
CHAIRMAN GREEN: Exactly.
REPRESENTATIVE CROFT: Yeah, and they brought it up. No, I'm not
debating it, but the Ninth Circuit -- 801(b)(5) is very short.
"The Ninth Circuit Court of Appeals determined in 1995 in State of
Alaska v. Babbitt (73 F.3 698) that the subsistence priority
required on public lands under section 804 of this Act applies to
navigable waters in which the United States has reserved water
rights as identified by the Secretary of the Interior;". Now
that's just the truth - whether we like it or not, the Ninth
Circuit did determine that, isn't it?
MR. ROSIER: Mr. Chairman, I think we heard from the attorneys here
this morning that basically the feds can do anything they want to
and the federal courts can do anything they want to. That was, to
say the least, a little on the discouraging side to hear those
particular statements being made. But the fact still remains is
that this again, seems to be one of those areas that in fact, at
least in my mind, short stops future actions because Congress has
now spoken. The Supreme Court couldn't speak, but Congress has now
spoken in the findings, as I see it, as a result of Public Law ...
CHAIRMAN GREEN: 96-487.
MR. ROSIER: Right.
Number 1593
CO-CHAIRMAN HUDSON: Mr. Chairman, on that point.
CHAIRMAN GREEN: Representative Hudson.
CO-CHAIRMAN HUDSON: Carl then, if I hear you correct, you believe
that Section 10 should remain as a provision of -- we want that
change in ANILCA.
MR. ROSIER: Absolutely. You know, as far as I'm concerned, I
think that that's a necessary change. There was discussion here
earlier that this was probably not necessary - that this was -- I
think that it's, you know, -- I feel quite strongly the other
direction. My feeling overall on this is, is that basically the
state should in fact be looking to carve out as much as they
possibly can on state and private lands at the present time. And
I think that these amendments that you're proposing here do a very
good job of that particular thing. I'd like to read if I might,
very briefly, some provisions of the environmental assessment that
was done by the feds on the regulations that were to be
implemented.
CO-CHAIRMAN HUDSON: Are you drowning in paper ...
MR. ROSIER: Here it is - here it is - I got it, Dick. This is
from the environmental assessment and I think that this points out
some of the things that were mentioned to you earlier today about
how aggressively the feds are in fact looking at this fisheries
issue here in Alaska. This is directly from the federal
environmental assessment done to in fact support the regulations
that are being proposed for the takeover of the fisheries on this
thing: "First, the key aspect of the federal/state cooperation
will be the adoption of what are now the state fishery management
plans into the federal program. In general, this will involve the
regional councils and Federal Subsistence Board in the evaluation
of existing plans. Modification, if necessary, to adequately
address and accommodate subsistence uses and development of new
plans, where necessary." If they don't like the state plans,
they're going to do it themselves. In the assessment, they looked
at three alternatives: One, the no action alternative; two, a
limited federal jurisdiction; and three, the preferred alternative
which is much larger in scope than alternative two. And I'd to
read for you alternative three: "Jurisdiction in alternative three
is broader than in alternative two for lands managed by the
Department of Interior, but remains the same for lands managed by
the Department of Agriculture. In alternative three, all inland
navigable waters within and adjacent to exterior boundaries of DOI
[Department of Interior] conservation system units would be
included under federal jurisdiction. As in alternative two,
however, navigable waters on most BLM lands [Bureau of Land
Management] would not be included." Of the 196,234 miles of rivers
and streams - and I don't know how they ever came up with that - in
the state, 102,491 - 52 percent - would be under federal
subsistence jurisdiction and 93,743 or 48 percent, would remain
under state jurisdiction. But it appears to me right off the bat
that the feds are going to have jurisdiction over the majority of
our waterways. "Land ownership patterns are the same as discussed
in alternative two; however, the extent that jurisdiction differs
significantly, the difference is due to the inclusion of inland
waters within the outer perimeter of DOI's [Department of
Interior's] CSUs [conservation system units]. Inclusion of those
waters avoids the problems associated with checkerboard pattern of
land ownership in lands managed by the Department of the Interior."
It just seems to me that it pretty well outlines - at least in my
mind - how aggressive the federal agencies are going to be.
Someone made the statement here earlier today that the feds will
take whatever they want - it may be a little, it may be a lot. I
think with the resources that we've got up here in the federal
withdrawals, my personal feeling is, is that we're going to see a
very significant, hard nosed federal approach to these resources.
This idea that we're going to get state management - while it may
look good on paper - my feeling is that unless the state, in fact,
takes all the jurisdictions that it possibly can on this, and the
bottom line certainly has to be state and private lands, basically
we're going to lose the ball game. If we capitulate state lands
and private lands to the federal system on this, I'm not sure what
we've got left. We have then a single system under a federal law
observed by federal agencies and ultimately in cases of dispute,
you're in fact looking at the federal court system in fact
resolving those disputes.
MR. ROSIER: And I'm not sure what the leverage is of the state if
you in fact capitulate state and private lands under those
circumstances. Why would -- thank you -- where's the state's
leverage, what do you deal with under those circumstances on this?
It escapes me where you go once you in fact capitulate to the image
of the ANILCA management system here on this.
Number 1859
MR. ROSIER: I quite agree with Commissioner Rue and some of the
statements that he made here. The reason that those -- on that
chart that you saw up there -- the reason that those salmon runs
were going up following the major declines - and if you really look
closely at the resources here in the state - generally speaking
from the Aleutians south, those resources are in really fine shape.
There are some problems in the Yukon; there's some problems in the
Kuskokwim drainages; there's certainly some problems further north.
Those came about as a result of 1) late development of fisheries;
2) the lack of information in many cases to in fact manage
correctly in those areas in the early days. There wasn't money,
there wasn't staffing and this type of thing in many cases.
Subsistence was the priority in those areas kind of north of
Bristol Bay, for instance, and commercial fisheries didn't come
along until in the '70s in those particular areas. And those areas
do have some problems at the present time and they will be worked
out.
Number 1908
MR. ROSIER: It seemed to me that in one of the examples that was
given this morning in terms of how this system might end up in a
controversy with the Secretary and I'd have to agree with that -
the Yukon River, for instance, there's been a long established
allocation based on species of salmon in that particular river.
The king salmon were in fact basically allocated to the lower
river, there was some limited subsistence, the subsistence needs
were being met further up river on this, those communities grow and
all of a sudden you're looking at demands for king salmon. And I
use this only as an example. As you look at king salmon, there's
only one place to take them - it's going to come out of the lower
river - and it's going to come out of the commercial catch down
there because that's all there is. There is no recreational
fishery down there on that. And you will see, in my view, under
the proposed regulations under the ANILCA system, a situation in
which basically the state will in fact be forced to do that because
it doesn't go away - they just kind of step back and it's kind of
like getting the cream off of the cow without actually taking care
of the cow. The state is going to have to make those decisions.
They will have to make the tough decisions related to reallocation
of those resources. They can't escape that in my estimation and
it's a situation in which you may get by with it one year, there
will be a shortage of that king salmon in the upper river on this
thing - believe me, there will be pressure on the staffs and the
boards to in fact make the changes to reallocate resources back up
to that subsistence fishery because that's what it is. The feds
along with the priority for subsistence, that's right at the top of
the list and there's not going to be a way to in fact effectively
avoid that type of confrontation on a pretty regular basis, as I
see it.
Number 1992
MR. ROSIER: Initially, I would say that we'll see the feds come in
- it'll be a very soft shoe type thing, just as it was in the early
days - they relied heavily on us - in fact, trained their people so
to speak on this. We'll see the same approach in the case of
fisheries, but it'll be a war of attrition and believe me within
ten years we will see a major involvement in the fish and wildlife
resource management by the feds. You look at the demands that are
placed on the Secretary of Interior within the provisions of ANILCA
- they are significant. He is going to have to have staffing
that's going to have to be working closely with the Department of
Fish and Game here in the state and it just seems to me that you're
going to have additional pressures, additional considerations that
are going to be a regular part of that area management biologist
that has been the key, as Commissioner Rue said, to the success of
our programs up here. He's going to be faced with that, making
those kind of decisions to further allocate resources, to work with
the other user groups and convince them that the thing to do is to
have to give additional fish - to get them up the river. And when
we give up the idea of the emergency order or field order type
management that has been so successful in this state to a
cumbersome, federal system on this thing, I'll guarantee you we'll
in fact lose our resource because that, as somebody asked the
question earlier today, that was probably the major reason, along
with the political pressures on the management agency, in fact
caused the major declines.
Number 2067
CHAIRMAN GREEN: Briefly, there are two things that have been
kicked around I've heard repeatedly; one is that this is still
another bluff - that the federal government really doesn't want to
take over and that if this were to happen - we don't do anything -
they would either not come in or they would come in and in a matter
of a few years we could regain it. Do you have an opinion on
either of those?
MR. ROSIER: Mr. Chairman, my opinion would be that probably at the
upper levels of the agencies, my guess is that they were at least
sincere in the early days anyway, that they did not want to do
this, but I'll guarantee you at the mid-manager level and at the
field level, these people are anxious to do this and that's just
the way the system works.
Number 2095
CHAIRMAN GREEN: And maintain it once they get it.
MR. ROSIER: You bet.
CHAIRMAN GREEN: Representative Nicholia.
Number 2101
REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. Commissioner
Rosier, do you want the state of Alaska to regain full management
of our fish and game resources?
MR. ROSIER: Mr. Chairman, I would very much love to see Alaska
gain full control of this and the only way that that can in fact
happen is for ANILCA to go away.
REPRESENTATIVE NICHOLIA: Oh, a follow-up question to that one. Do
you really think that ANILCA will go away?
MR. ROSIER: Mr. Chairman, I wouldn't speculate on that. I would
say under political conditions at the present time, absolutely not,
but it will continue to be a sore spot for a long, long time to
come.
REPRESENTATIVE NICHOLIA: A follow-up question, Chairman Green.
Back to when the state had management of our resources, you were
with the department at that time?
MR. ROSIER: Yeah, 40 years worth.
REPRESENTATIVE NICHOLIA: And was the federal government a problem
during your time with the state Department of Fish and Game?
MR. ROSIER: Mr. Chairman, they definitely were. I mean I saw - if
you look at that chart and I was working with the state prior to
statehood and I saw what happened at public hearings and I saw what
happened in terms of the decision process. The feds - you can say
what you want to - they do not delegate authority. The authority
is in Washington, D.C. and that's where the decision gets made.
You might get recommendations from field people on any given issue,
but the decision despite all of the conversation and putting it out
to the regions of the authorities to make those decisions, it just
doesn't happen.
Number 2175
CHAIRMAN GREEN: So, the decision - what you were saying earlier -
would be that by the time the decision were here, the run is ....
MR. ROSIER: Sure.
CHAIRMAN GREEN: Representative Nicholia, follow-up?
REPRESENTATIVE NICHOLIA: This as a follow-up to that is then, that
we do have a December 1 deadline coming up and if we don't do
anything, then we will have the regime you're talking about - that
you fear, dread. What do you think about that?
MR. ROSIER: Mr. Chairman, my feeling on that is that at this time
you have the opportunity to in fact carve out within the confines
of the legal considerations that you heard here this morning, the
right to in fact carve out the state's role here on this. And like
I say, I think that it's crucial that we in fact carve out all of
the authorities that's associated with state and private lands in
the state. Ultimately, the other decision, I think, is going to
have to be made. I think the feds are going to be here - my
feeling is the feds will be here December 1 whether you do anything
or not - whether we have a constitutional amendment or not. My
feeling is they will be here. Perhaps in a little different role,
but they'll be here and they will continue to keep the pressure on
in terms of management of the resources. So, my feeling is the
legislature was on the right track with [HB] 406 in terms of an
interim step on this - we've got lawsuits out there, for instance,
at the present time that we don't know the answers to at this time;
we don't know what lawsuits may in fact be in the wings that will
give us clarification on this. But everybody says we don't want
the feds and we all know what the solution is to not let the feds
in, but we don't seem to be able to come together in terms of doing
the thing that's necessary to keep them from coming up. Because
we're going to get them one way or the other.
CHAIRMAN GREEN: One more follow-up.
Number 2254
REPRESENTATIVE NICHOLIA: Just briefly and just a comment on that.
If we don't do anything - if we don't pass the constitutional
amendment, we're going to have the feds. If we don't give this to
the voters, we're going to have the feds. That's all I have to
say, thank you.
CHAIRMAN GREEN: Representative Berkowitz.
Number 2267
REPRESENTATIVE BERKOWITZ: Thanks very much. Commissioner, do you
feel in order to forestall federal management there need to be
changes to ANILCA?
MR. ROSIER: I think that that might help and it would probably
better define the role of the feds if there were changes to ANILCA.
REPRESENTATIVE BERKOWITZ: I just want to understand this because
theoretically, we're here today discussing changes to ANILCA.
MR. ROSIER: Yeah.
REPRESENTATIVE BERKOWITZ: And you don't feel that any changes to
ANILCA would necessarily preclude the federal government from
coming in and managing fish and game?
MR. ROSIER: Mr. Chairman, the only thing that would keep the feds
would be dropping the rural priority - that would be the only thing
that would keep the feds out.
REPRESENTATIVE BERKOWITZ: Dropping it?
MR. ROSIER: Yes, that would be the only thing that would keep the
feds out.
REPRESENTATIVE BERKOWITZ: The federal government dropping that
requirement?
MR. ROSIER: Yes.
REPRESENTATIVE BERKOWITZ: Okay.
MR. ROSIER: You said changes to ANILCA.
REPRESENTATIVE BERKOWITZ: And how would you anticipate a change of
that magnitude occurring in ANILCA?
MR. ROSIER: Well, obviously Congress would have to take the issue
up. As I said earlier, I don't think the political will is there
to in fact, do that at the present time. Now I'm saying that
basically and what I'm asking the legislature to do is in fact
carve out the state role within the parameters of what we've got on
the table with the various lawsuits and various decisions that have
been made by the courts to date.
REPRESENTATIVE BERKOWITZ: I'm trying ...
MR. ROSIER: At that point, then you, in fact, take the next step,
then you have to go after additional changes in ANILCA.
REPRESENTATIVE BERKOWITZ: I'm just trying to get a sense of what
role you think we ought to take and what I'm hearing you say is
that changes to ANILCA are not part of what's necessary.
CHAIRMAN GREEN: That's not what he said.
REPRESENTATIVE BERKOWITZ: That is what he said. He said in order
to retain state management, the federal government had to do
something. What I'm asking him is what should the state
legislature do?
MR. ROSIER: The state legislature - to make it real short and
simple there on this thing - is adopt every one of these changes.
REPRESENTATIVE BERKOWITZ: Okay, that's where I wanted to go.
Because those are the changes that require the federal government
to do something, which means that you do want the federal ....
TAPE 98-94, SIDE A
Number 0001
REPRESENTATIVE BERKOWITZ: ... that point.
CHAIRMAN GREEN: No, my point is that the concept was that each of
them would handle a few and so what I would rather do is wait until
they each have spoken on their (indisc.) and then we can adjust it.
REPRESENTATIVE BERKOWITZ: Then if I could ask the general
questions here. Who, in Congress, is going to move these changes
through?
MR. ROSIER: The only commitment that I've seen and I have a copy
of a letter from Senator Murkowski and he has indicated that he
would prefer to have everybody on board, but he says that may not
be possible and under the circumstances that he would be willing to
hold hearings on this if the legislature, in fact, moved the
proposal.
CO-CHAIRMAN HUDSON: Could we get a copy of that letter? There's
so many of these letters going around, I believe it would be
helpful.
CHAIRMAN GREEN: Yeah, that would be helpful because we've been
told that we do need the Governor on board, as well.
UNIDENTIFIED SPEAKER: I'd like a copy of that, yeah if you could
get it to the ...
MR. ROSIER: I'll get it to the Chairman. Mr. Chairman, I don't
want to take the whole time here on this thing and I'd like to have
maybe Dick go ahead here on the ...
CHAIRMAN GREEN: I appreciate that, we do have four people who have
got questions apparently for you and we'll take those and then
we'll go on with your .... Representative Bunde.
Number 0112
REPRESENTATIVE BUNDE: Yeah, very briefly because I was on the same
point as Representative Berkowitz. I've talked to a lot of
commercial fishermen that share your fear of a very aggressive
federal, negative impact in their livelihood and I guess I view it
as the carrot and the stick and I look at these 14 items as maybe
the stick or the tradeoff or whatever that we could get in this
compromise that we're hoping to achieve and we don't need them now,
but if you folks could go over them maybe tonight and then
tomorrow, in writing, prioritize these 14 changes to ANILCA to see
what we can change in order to forestall, or at least ameliorate
the impact of the federal government.
Number 0186
REPRESENTATIVE ALAN AUSTERMAN: You've been saying a couple of
times now that these four gentlemen are here to break up these 14
items and talk about them. The commissioner has talked for however
long here and he hasn't really got into any one of them ...
CHAIRMAN GREEN: Well, I think he's got into two of them. He's
specifically talked about two of them.
REPRESENTATIVE AUSTERMAN: Okay. Number 10 and number 9 ...
CHAIRMAN GREEN: ... and 5 when he's talking about navigable
waters.
UNIDENTIFIED SPEAKER: And 5.
REPRESENTATIVE CROFT: Five on which list, Mr. Chairman? The HJR
list?
CHAIRMAN GREEN: Yes. Representative Joule.
REPRESENTATIVE JOULE: Thank you, Mr. Chairman. Commissioner
Rosier, (indisc.) but to a comment made with regards to -- you
made mention to the fact that with regards to House Bill 406 that
you felt that was a step in the right direction and I've heard it
said since we've come into special session that probably most
everybody can agree that subsistence is the highest and best use of
our resource and yet within House Bill 406 the people that are
adversely impacted are those who are subsistence users in terms of
the individualized needs based, specifically, the individualized
needs based kind of system that was within those proposed statutes.
And the other thing, it created this cumbersome bureaucracy. But
I just wanted to hear, I guess, from you if you felt that -- if you
do, in fact, feel that our current constitution is fine the way it
is. Does that mean then that you feel that House Bill 406 is an
act of good faith by the state to resolve the subsistence issue?
MR. ROSIER: Mr. Chairman, very simply - yes. And I saw 406 --
yeah, I would agree with Representative Joule that the bureaucracy
and so forth that was involved there was going to be significant.
We're talking about state management now - we're talking about real
state management - we're talking about management of a resource
that is subject to fluctuations and we just can't afford to in fact
gamble with that resource. I'm really saying you got to maintain
the state management of that resource and it's a fair system.
Yesterday in the other chamber I got into a discussion with one of
the representatives there about population growth and I think you
have to look at population growth as impacting rural areas - many
of these rural areas and at some point you're in fact going to have
to get down to a system of individually dividing. I think that's
inevitable. The Bush areas are growing just like the rest of the
state and you have to deal with that - you have to deal with it far
enough in advance that people can in fact expect to know what's
going to happen to them on this. And I think this whole
subsistence thing, in my view anyway, is something that has to be
worked out here. I mean with all due respect to our congressional
delegation and so forth, these people basically are reacting to
political scenarios on this and the schemes that they come up with
meet that scenario. You know, what's good today in terms of
federal law may not be good tomorrow.
Number 0488
CHAIRMAN GREEN: Okay, we've digressed again and I'm going to hold
us to the point that we're talking now about the three issues that
Commissioner Rosier has talked about.
REPRESENTATIVE JOULE: Okay.
CHAIRMAN GREEN: And we'll ask questions then of the others as they
come up. Representative James. Representative Croft.
Number 0510
REPRESENTATIVE CROFT: Mr. Rosier, you said the only way to avert
a federal takeover is to get rid of the rural preference in ANILCA
and that this is the way to do it. Can you just point for me to
the provision that eliminates the rural preference in ANILCA in our
resolution.
MR. ROSIER: It isn't there.
REPRESENTATIVE CROFT: That's all I wanted to know.
Number 0532
REPRESENTATIVE WILLIAMS: Mr. Chairman.
CHAIRMAN GREEN: Representative Williams.
REPRESENTATIVE WILLIAMS: You mentioned something earlier about the
population growth that we are concerned about and I am concerned
about that because of the fact that Bethel, for one, is an area
that probably will grow here before too long above the 6,000 mark
or whatever that mark is (indisc.-coughing) for our definition, but
once we get this, if let's say for this discussion - maybe you'll
understand where I'm coming from - let's say that we do get our
management back for our resource management - okay, whatever it may
be - fisheries or wildlife. Under this amendment that is before us
today that we are discussing, I believe ...
CHAIRMAN GREEN: Actually, we're talking about these changes to
ANILCA, if that's what you're referring to.
REPRESENTATIVE WILLIAMS: Okay. Well, under the population growth,
what I was concerned about is that once we get the management back,
we will be able to talk about those areas and work and make it an
Alaskan fix, but we have to get our management of our resources
back. And you mentioned earlier about your feeling, well my
feeling is that I believe we should have -- I don't know if we
should get into feelings right now ...
REPRESENTATIVE CROFT: Share your feelings.
CHAIRMAN GREEN: Are you going to enter into song?
REPRESENTATIVE WILLIAMS: I think everybody has their feelings here
and I don't want to get into scare tactics and I think feelings are
very close to it because you really can't go and say, "This is
going to happen, but I feel it right here cause ...." Maybe we
should stay off of that. Thank you, Mr. Chairman.
Number 0652
MR. ROSIER: Mr. Chairman, I'd like to say this again was a subject
that was brought up earlier that -- I'm having an old age moment
here ...
CHAIRMAN GREEN: Perhaps we could move on to one of the other ...
MR. ROSIER: I think it would be a good idea at this point.
CHAIRMAN GREEN: Dick, are you next?
Number 0713
DICK BISHOP, VICE PRESIDENT, ALASKA OUTDOOR COUNCIL: I guess I am,
Mr. Chairman. Thank you very much. I'm Dick Bishop. I'm with the
Alaska Outdoor Council and currently my hat is vice president of
Alaska Outdoor Council and I am testifying on their behalf. I
would like to just make a couple comments on the proposed amendment
relating to navigable waters. It is, as the discussion has
indicated, extremely important here - that issue as far as
jurisdiction over navigable waters and I think it really does go
beyond simply an observance of fact - a factual matter that there
has been a court decision. By having it in the congressional
findings, I think that it ratifies that decision as being correct
and accepted as the end of the story. How much significance is
attached to that may be a matter of opinion, but it constantly
amazes me how obscure documents come back to be used in the various
discussions of this and other issues from time to time even though
they're in no way part of the law. So, this in fact is listed as
a finding of Congress and it is part of the statute that has been
adopted by Congress and will remain in effect if the state comes in
to compliance again. I think that it has considerable significance
and in that regard I would point out that in S 1920, Senator
Murkowski and Representative Young, who have combined to work on
that bill in Congress, specifically put a paragraph in their bill
that essentially did what this proposed amendment does; that is,
make sure that the definition of federal public lands does not
include state navigable waters or those navigable waters that are
considered federal reserve waters. Senator Murkowski knew
perfectly well that that was an extremely critical issue with
respect to management of fisheries in Alaska and went to the extent
of putting it in his proposed bill, which I don't have in my hip
pocket, but I do have it in town. So, I want to emphasize the
importance of that.
Number 0832
MR. BISHOP: Similarly, I think it's extremely important with
number 4 in 801 that the expansion of the Secretary's authority to
manage fish and wildlife beyond what was in the original ANILCA is
totally uncalled for and I'm not at all pacified by the idea that
the attorney general brought up that well, if the state conforms to
the federal law and is managing, you don't have to worry about it.
And I'm not pacified by that with respect to navigable waters,
either. These things set a precedent and you can argue about how
much of a precedent - excuse me, Mr. Chairman - but the precedent
is there. Again, I just repeat committee reports, congressional
record and so on that are used to give inflection to laws that are
passed even though in fact they have no bearing on the content or
necessarily, the intent of the law. So, I think those things are
really important.
Number 0906
MR. BISHOP: I would like to go on to another issue that has been
discussed a little bit - well, more than a little bit as a matter
of fact - there has been quite a bit of discussion about the extent
of the federal authority under the property clause and in
testimony, I think it was probably early this morning, it may have
been late last night, but maybe early this morning in the Senate
Resources Committee, I really urge the Senate Resources Committee
to get a second opinion on the extent of federal authority under
the property clause. Former Attorney General Cole made a very
strong pitch that the federal agencies - or Congress - have
virtually unlimited or as he said earlier today, unplumbed, or
whatever the word was, undetermined limits to their authority.
Well, that relates, as I understand it and I can't debate it with
him, but that relates to what is federal property and as far as I
know, fish and wildlife are not federal property even those on
federal lands. So there is, as far as I'm concerned, an
uncertainty there.
Number 0990
MR. BISHOP: And the other factor that's really significant in this
that I think is routinely missed - and I do believe that Attorney
General Cole missed it as well - the property clause does not go -
even though there is substantial power under it - it does not go
into effect unless Congress has explicitly authorized it. So they
have that authority, but unless they initiate that authority by a
specific act, it's not there and I would provide to you and I'll
just read briefly from an opinion that we got ten years ago when we
were on the same subject from a lawyer, who is probably the leading
lawyer nationally on public land law issues, fish and game
management issues, his name is Paul Linzini (ph). He's with a
Washington, D.C. law firm and eight years ago, in 1992, he was
under contract in fact with the Department of Law under Attorney
General Cole and as a matter of fact, he's still under contract
with the Department of Law. His name is Paul Linzini (ph),
nationally and internationally recognized lawyer in natural
resource issues and this is what he said several years ago - we
contracted with him to examine the extent of the property clause,
especially in relation to off federal land authority. So, here's
the issue, "ANILCA and the Property Clause, Extension of the
Federal Wildlife Jurisdiction over Non-federal Lands." Our
question was, "May the federal government exercise regulatory
authority over management of fish and wildlife on state and private
lands and waters upon implementation of a subsistence program under
Title VIII of ANILCA?" And I'll kind of skip around on the
discussion. This is the discussion, "Under the property clause of
the United States Constitution, Congress is empowered to extend
federal regulatory authority over federally-owned lands and
activities thereon to the exclusion of state law. The property
clause power has been interpreted liberally by the federal courts
and it has been held to extend to the management of wildlife on
federal land. The property clause power is vested in the Congress"
- this is the important part - "which must act affirmatively
through legislation to exercise the power." Congress has to act
affirmatively through legislation to exercise the power.
MR. BISHOP: With regard to off federal lands under ANILCA, his
conclusion is, "We conclude that Congress has not exerted its
property clause power in ANILCA so as to authorize an extension of
federal management of fish and wildlife to state and private lands
and waters in Alaska even after the federal government assumes
administration of the ANILCA subsistence management system." So in
short, that has not been authorized by Congress. There has been no
amendment to ANILCA since to accomplish that. The thing I would
like to add to that which has come up since he wrote this opinion
is that when the Alaska v. Babbitt case went to court and the
federal district court Judge Holland ultimately decided that the
federal government had authority to manage fish and wildlife on
federal lands under ANILCA. Interestingly enough though, he found
no where in ANILCA that Congress had acted affirmatively to give
the Secretaries of Interior and Agriculture this authority. So, he
said by golly, I think that Congress unintentionally and
inadvertently forgot - it must have been a lapse, and so he plugged
it in. So that's how it (indisc.) and it went to the Ninth Circuit
Court of Appeals and as you know the Governor dropped the appeal
with prejudice so that that issue could not be taken to the highest
extent of law and the issue resolved one way or the other which was
a complete disservice to the state of Alaska. But at any rate,
that question is now there with regard to federal lands as well,
because there's nothing in ANILCA that Judge Holland could find
where Congress acted affirmatively to give the federal agencies
authority over fish and game management on federal lands, must less
as Mr. Linzini (ph) has indicated, off federal lands.
Number 1206
MR. BISHOP: So, you know, all I'm saying to you is I really
suggest and urge you to take with a grain of salt the sweeping
generalization that former Attorney General Cole has made that the
federal government can do anything they want on federal lands and
off, if I remember his statement correctly. I would get a second
opinion if I were you. It's sort of like having a bad tummy ache -
you better have a second look at it before you have the thing
jerked out. I guess if there are questions on those issues, I'd be
happy to entertain them. There's a couple things about definitions
I'd like to comment on if I can.
CHAIRMAN GREEN: We have at least one. Representative Croft.
Number 1242
REPRESENTATIVE CROFT: Can I have that legal opinion? Could I see
a copy of it?
MR. BISHOP: Sure.
CHAIRMAN GREEN: Do you want time to read that Representative Croft
and we'll ...
REPRESENTATIVE CROFT: Sure.
CHAIRMAN GREEN: Representative Porter.
Number 1251
REPRESENTATIVE PORTER: Thank you, Mr. Chairman. Dick, if it is
that reason that they would not be able to assert this power right
now is a technical oversight on their part to assert their right
which they have, but haven't effectuated, am I correct that it
would not take much for them to correct that oversight? If we
prevailed in a lawsuit that had that as a point, would they be
somehow unable to respond by just giving themselves that power?
MR. BISHOP: I'm sorry, I didn't hear the last part.
REPRESENTATIVE PORTER: Congress - would they not be able to
respond very quickly by just asserting their power in the positive
way rather than ....
MR. BISHOP: Mr. Chairman, Representative Porter, I don't know how
quickly they could do it, but if they felt that that was an error
or omission, they could certainly do that. But if you look at the
congressional record, which I referred to a moment ago
disparagingly, but if you do look at that what you find - and the
various versions of the bills that went through Congress before the
final one that passed this ANILCA - you'll find the authority that
began that was first included in initial bills proposed for the
ANILCA language - from there to the end the authority of the
Secretaries of Interior and Agriculture stair stepped - was
systematically pared down until, in fact, it was gone. So, what
that reflects is that Congress had a kind of a sweeping
authorization of authority for the Secretaries at the outset and in
the course of their deliberations over a period of three or four
years, that level of authority was diminished considerably and it
was not done willy-nilly random; it was clearly - if you look at
the succession of those, it was clearly done in a systematic
fashion. As questions came up, changes were made (indisc. - paper
crunching) reflected a greater concern frankly for the authority of
the state to retain its traditional management authority. So, they
might do it, but I guess I would think that given that record, the
odds of Congress sort of saying, "Oh by golly, Judge Holland was
right - we did just forget that and we'll plug it in" - I don't
think that will happen. That's just my opinion.
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: That was sort of my question. Briefly, they
have the power to do it, you just don't think they've done it yet.
MR. BISHOP: Mr. Chairman, Representative Croft, that's my
understanding at this point. I'd get a second opinion on that,
too, frankly because I know that there are legal authorities who
question how far that goes and I think it does go back to the
question of whether or not it's federal property in the first place
and I can't argue it, I'm just saying that's a doubt that is raised
that I don't know the answer to.
Number 1410
REPRESENTATIVE CROFT: Because I agree with this memorandum in its
assertion of plenary power by Congress over property in the
property clause. I think it says that. Now, it doesn't have a
date on this memo - do you remember what date it was?
MR. BISHOP: It was about 1990, as a matter of fact. It was 1990
because that was -- let's see what was that -- that was the second
special session, I guess or was that the first?
UNIDENTIFIED SPEAKER: You can tell time by special sessions ....
Number 1436
REPRESENTATIVE CROFT: Because I agree, "Under the property clause
of the United States Constitution, Congress is empowered to extend
federal regulatory authority over federally owned lands and
activities therein to the exclusion of state law." That's the
first sentence. "The property clause power has been interpreted
liberally by the federal courts and has been held to extend to
management of wildlife on federal lands." That's absolutely true.
This was before -- well, so I think they probably did do it in
ANILCA - we can disagree on that, but I think we agree that they
have the power to do it. And if you have anything on that issue of
a distinction between federal land that is parks and federal land
that is something else, particularly any case deciding that, I'd
like to see it, because I haven't. As far as I've heard, federal
land is federal land is federal land.
MR. BISHOP: Mr. Chairman, I think, if I understand the question
correctly, that probably goes to the organic acts that affect the
various kinds of conservation system (indisc.) lands and I guess I
don't have anything right at hand.
CHAIRMAN GREEN: If you find something, it would be good if you
could submit that through the Chair, so we'll make copies then for
everyone.
Number 1499
MR. BISHOP: Mr. Chairman, I suspect I can find something along
that line - at least where to look. And if I may, Mr. Chairman, I
would like to address some of the definitions here. Some of these
definitions - I'm looking at number 7 on page 2 of this proposed
Joint Resolution - "customary and traditional," "customary trade,"
and "barter" I believe, already have been plugged into the
amendments to ANILCA that Senator Stevens miraculously got passed
overnight and I think there's a couple things about that.
"Customary and traditional" for example, should exclude - it
presently includes the terms "patterns and practices" of use of
fish and wildlife and it should exclude practices and there's a
very practical reason for that. By including practices, it can
include legalizing or condoning methods that have been consistently
illegal under both federal and state law for decades. I'll give
you an example from one of the court cases that has been spoken
about here - the Totemoff case and that's shining deer at night
with a light and shooting them with a rifle. Mr. Totemoff claimed
that that was a traditional practice. Well, the state Supreme
Court didn't buy that line, but it does provide a good example of
the sort of thing that could be arguably condoned as a customary
and traditional practice. Shooting ducks at night, shooting ducks
or geese or whatever with a rifle which has been illegal for many,
many years - things like that and it would be appropriate also to
include the term "lawful" to make sure that these customary and
traditional uses are lawful so that there absolutely should be no
doubt about that.
Number 1593
MR. BISHOP: With regard to that term also and its use in
"reasonable opportunity", the definition of "reasonable
opportunity" says that there should be a reasonable opportunity
provided for subsistence use consistent with customary and
traditional practices. Well, either that term "customary and
traditional" ought to be dropped out of the definition of
"reasonable opportunity" in the amendments or the "customary and
traditional" definition ought to be tightened up with the deletion
of practices and with the addition of lawful so that it does not
provide an opening for mischief.
Number 1627
MR. BISHOP: Let's see I think there was another one here - yeah,
the federal definition of "rural" which is not actually listed on
this, but I suggest it be added. The federal definition in Senator
Stevens [amendments] refers to reliance on fish and wildlife and
other wild renewable resources, I think, for nutritional purposes
and other subsistence uses. I believe it would be appropriate to
get to the heart of the matter and limit it to food and delete the
other subsistence uses. There's one specific reason that we have
argued frequently in the past over that and it has to do with the
inclusion of the term "cultural" which is a pandora's box of
opportunity for new and inventive demands for sanction under
subsistence uses. My observation is that I keep hearing of new
cultural practices that occur that I've never heard of in 30 years
in Alaska and the essence of the subsistence question going way
back to the beginning of the argument has to do with the reliance
on the taking of fish and wildlife for food and the auxiliary uses
of those resources for other purposes, such as furs or implements,
et cetera, and I think it's realistic to restrict it in that
regard. So, I would recommend deleting "other subsistence uses" or
defining it more narrowly in the definition of "rural" areas.
UNIDENTIFIED SPEAKER: Mr. Chairman.
CHAIRMAN GREEN: I was going to let him finish and then take ....
MR. BISHOP: I think that's all I have on those.
CHAIRMAN GREEN: Okay. Well, I think you have a good point if
we're talking subsistence in looking toward food or something for
consumption. The other question I was going to ask was, do you
feel that it's necessary if we've shifted now as opposed to rural
to place of reference, do you still think there should be a
stronger or different definition of rural?
MR. BISHOP: Mr. Chairman, that's a difficult question and the
short answer is no.
CHAIRMAN GREEN: No, on which ...
MR. BISHOP: I don't think it ought to be either one .... I guess
that's not a constructive answer, is it? If it's a matter of
choice between the two, I don't know that I have a choice, I guess,
to be candid about it. There are obviously arguments both ways.
The one that at the moment appeals to me is that if it says rural,
at least it's clear that they're talking about a rural area. I
think the other side of the argument "place of residence" gives a
little more flexibility.
CHAIRMAN GREEN: I said "reference". Yes, Representative Porter.
Number 1760
REPRESENTATIVE PORTER: Dick, I was under the impression that the,
at least as we've been describing it the Stevens amendment
definitions in ANILCA, would only allow the use of fish and
wildlife for cultural or other reasons that were by-products of
fish and wildlife taken for sustenance reasons. Am I missing it or
....
Number 1785
MR. BISHOP: Mr. Chairman and Representative Porter, this is the
document that Senator Stevens put out - P.L. 105-83 - I don't know
if it's widely distributed today, but on page 6 of that document
under Section 803, Definitions, there's several there and if you go
to number 5, "rural Alaska resident" means a resident of a rural
community or a rural area. A rural community or area means a
community or area substantially dependent on fish and wildlife for
nutritional and other subsistence uses. And that's the place that
I was suggesting simply dropping "and other subsistence uses".
REPRESENTATIVE CROFT: On that point, Mr. Chairman.
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: On 803 at the top it says, "as used in this
act, the term subsistence uses means the customary and traditional
uses by rural Alaska residents of wild renewable resources for
direct personal or family consumption as food, shelter, fuel,
clothing, tools or transportation". That's the inclusive, but then
on the cultural, "or for the making and selling of handicraft
articles out of nonedible by-products of fish and wildlife
resources taken for personal or family consumption." So, while
they can directly use subsistence for things that they use, they
can only do the handicraft part with the nonedible by-products.
They can do seal oil for themselves, they can make a coat out of
the skin, but if they're going to do handicraft, it can only be
done -- can't be done for that purpose. Is that where you're going
....
CHAIRMAN GREEN: That's I think the majority feeling that that's
what that reference is.
UNIDENTIFIED SPEAKER: I'm sorry ...
CHAIRMAN GREEN: I think that's the consensus feeling that because
of that consideration, they would have to take it first for food
and then what's left over, they would utilize for other
consumptions.
REPRESENTATIVE PORTER: Food or one of these other specific reasons
- fuel, clothing, tools, but the cultural handicraft can only be
by-products of things taken for those reasons.
Number 1879
MR. BISHOP: Mr. Chairman, I think that's a point well taken. I
still have to wonder about how the inclusion of the term "and other
subsistence uses" affects the definition of rural community or
area. It may not indeed affect the taking of the fish and
wildlife, but - I'm trying to think of an example - but if for
example, and this is pretty hypothetical, there were some species
of wildlife that were taken for ceremonial purposes - significant
activity in the community let's say, but they were not used for
nutritional purposes, then it seems to me that the way this is
worded that could be arguably a basis for declaring it a rural
area. It somehow just doesn't seem to fit with the
characterization of a rural community or area and if we really ...
CHAIRMAN GREEN: ... confusion factor if nothing else, so.
MR. BISHOP: Frankly, I think it's probably unnecessary.
CHAIRMAN GREEN: Representative Williams.
CO-CHAIRMAN HUDSON: Is that one of our points or is this a new one
that you're suggestion, Dick?
MR. BISHOP: Mr. Chairman, Representative Hudson, I did mention
that's a new one, yeah. It was not on the list, but it could be
considered along with number 7, for example.
CHAIRMAN GREEN: Representative Williams.
Number 1948
REPRESENTATIVE WILLIAMS: Thank you. Could you tell me how
customary and traditional got into ANILCA? Who pushed it? Why is
it there?
MR. BISHOP: Mr. Chairman, Representative Williams, I think to the
best of my recollection, it probably was simply adopted from state
statute that had passed in 1978 because a state subsistence
priority law had passed in 1978 and it would have the terminology
- almost the very same definition of subsistence uses that wound in
the federal law, except it did not have rural. But otherwise, I
think it was virtually identical and now that Representative Barnes
is here, I'm sure that if I'm wrong, she will correct me.
REPRESENTATIVE WILLIAMS: Was it mentioned in the Alaska Native
Claims Settlement Act?
MR. BISHOP: Not that I know of, Representative Williams, through
the Chair - I don't recall that it was. That doesn't mean that I
recall correctly, but ....
CHAIRMAN GREEN: Follow-up, Representative Williams?
Number 1992
REPRESENTATIVE WILLIAMS: He mentioned earlier about the customary
and traditional or something to that effect. Maybe you could
restate it - it sounded like some people were misusing that term or
something to that effect. Could you give me examples of that?
MR. BISHOP: Mr. Chairman and Representative Williams, the term
customary and traditional in federal law was undefined in fact
until Senator Stevens' amendments and now it does have a
definition. But the concern about that term was that based on its
interpretation by the federal court, it essentially provided the
opportunity for no closed season, no bag limit taking of fish and
game by subsistence users. An example is the Bobby (ph) case which
is the most illustrative, where the judge ruled that regulations of
subsistence use could not be more restrictive than what had been
customary and traditional practices in that particular area in that
time and after hearing the evidence, he concluded that what was
customary and traditional there - and this is in reference to
hunting moose - had been year-round hunting with no bag limit - no
closed season, no bag limit. So, essentially what that meant was
that the federal court interpretation of customary and traditional
was that if customs and traditions in the collective past did not
involve seasons and bag limits, then that was what the federal law
- or the state if it was in compliance - should allow. And of
course, that makes for a very difficult management regime if you
can't use seasons and bag limits to regulate human take. But as I
mentioned in the Totemoff case, the other part of the story was
more along the lines of your question where Mr. Totemoff alleged
that his taking of deer by spotlighting was a traditional means of
taking deer in his area, which perhaps it was. But if it was, I
don't believe that it's appropriate for either federal or state law
to condone it and certainly the state law did not. But I think it
would be appropriate that customary and traditional be defined in
such a way that there's no possibility that practices such as that
that have consistently been illegal for decades literally, should
not be condoned in law.
CHAIRMAN GREEN: We perhaps ought to move along a little with
Messrs. Kelleyhouse and Sheridan.
Number 2110
DAVID KELLEYHOUSE, SECRETARY, ALASKA OUTDOOR COUNCIL, AND FORMER
DIRECTOR, DIVISION OF WILDLIFE CONSERVATION: Excuse me. Dave
Kelleyhouse, former director of Wildlife Conservation and I'm
currently on the Board of Directors of the Alaska Outdoor Council
as their secretary. The first thing I'd like to address if the
legislature is indeed seeking an Alaskan solution, I have a
suggestion I think most people here could buy into and has been
overlooked for 18 years. If you will look at Sections 802 and
Sections 804 of ANILCA, you'll see that the subsistence priority
only exists as a priority over other consumptive uses. As former
director of Division of Wildlife Conservation, I think I can say
with a fair certainty, that the greatest threat that subsistence
users in Alaska will face in the future will not be at the hands of
competition from urban hunters or sport hunters or personal use
hunters, it will be at the hands of federal judges or federal
bureaucrats that are trying to substitute nonconsumptive uses for
consumptive uses. ANILCA does not give subsistence priority for
nonconsumptive uses. And I just thought I'd put that out and it
could be cured with changing three words actually - two
"consumptives" and one "taking" and it would be a fairly simple
thing to do and make it very clear that we take subsistence
seriously here over all uses of wildlife.
REPRESENTATIVE BARNES: Mr. Chairman, would you ask him to restate.
UNIDENTIFIED SPEAKER: Mr. Chairman, where specifically?
MR. KELLEYHOUSE: Section 802 (2). It states, "Nonwasteful
subsistence uses of fish and wildlife and other renewable resources
shall be the priority consumptive uses of all such resources." It
goes on to the end of that section and it says, "continuation of
subsistence uses of such population, the taking of such population
for nonwasteful subsistence uses shall be given preference on the
public lands over other consumptive uses." By deleting the word
"consumptive" I think it would be very clear then that subsistence
is the priority use. Because we're not talking what's going to
happen next year or in 10 years or in 20 years, but I would say
that in 30 years or so down the road, you will see a constant
diminishment of consumptive use opportunities. In Section 804, the
term ....
REPRESENTATIVE PORTER: Mr. Chairman, could I get clarification ...
CHAIRMAN GREEN: Yes, Representative Porter.
Number 2213
REPRESENTATIVE PORTER: Take out consumptive in the last line, but
leave it in in the first line of that number 2?
MR. KELLEYHOUSE: Mr. Chairman, Representative Porter, I would take
consumptive out in both places - just say it is the priority use of
fish and wildlife and that will cover it.
Number 2231
REPRESENTATIVE CROFT: What is the third? You said two
"consumptives" and a "taking" - that's in 804?
MR. KELLEYHOUSE: The third was in 804 and the wording says,
"Except as otherwise provided in this Act and other federal laws,
the taking on public lands of fish and wildlife for nonwasteful
subsistence uses shall be accorded priority over the taking on such
lands of fish and wildlife for other purposes." Recommended
changes would be to delete "taking" and put in instead "uses" and
then it would read, "Except as otherwise provided in this Act and
other federal laws, the taking on public lands of fish and wildlife
for nonwasteful subsistence uses shall be accorded priority over
uses on such lands of fish and wildlife for other purposes."
REPRESENTATIVE CROFT: I don't see over - I see for - it doesn't I
guess make much difference - in 804(a)?
MR. KELLEYHOUSE: The second issue I'd like to comment on is number
7 - pardon me - number 6 which would repeal the federal regional
advisory councils or amend the powers and functions of the
councils. I'd like to point out that Alaska currently has the most
democratic system on fish and game regulation formulation of any
state in the union. We have over 80 local fish and game advisory
committees which are elected by their local people and those
advisory committees are empowered to submit regulation proposals,
their recommendations to the Boards of either Fisheries or Game,
and it's a fairly complicated system and it has worked very well
since statehood. Now when I was director, and it still remains the
case today, there are only about two dozen area management
biologists, wildlife division biologists in the state of Alaska and
they are expected to work closely with the local advisory
committees and by working closely together develop good, sound
conservation proposals and recommendations that are appropriate for
the area. And then when it comes time for the Board of Game to
address those proposals, I've made a point and the current
Administration is doing the same, to try to bring the area
biologists into that Board of Game to discuss those proposals when
they're on the agenda. That way they're, the board members have
the best, most current, accurate information possible when they're
making their decisions. By creating another whole tier of
bureaucracy is what I'll call it, you're talking a minimum of six
regional councils with ten members on each and not in the federal
law, but I will point out that in the task force proposal, the task
force proposed statutory language goes actually further than the
federal law and allows those regional councils to review - requires
them to review proposals from the public or from the local advisory
committees before they can go to the Board of Game. Quite simply,
if the regional councils choose not to review a regulation, there's
nothing in law that allows it to go on to the board in that task
force proposal. My advice would be to ....
TAPE 98-94, SIDE B
Number 0001
MR. KELLEYHOUSE: .... members to come from nominees from tribal
councils. As far as I know, in state law that might be a first as
far as limiting representation on a board to a racially exclusive
group. I mean, I can be rural, but I can't be a Native - I'm
sorry. And that kind of bothers me. Three other members have to
be nominated from local governments or advisory committees in the
area - local advisory committees in the region - that would
represent subsistence users. And I'm not highly educated in
mathematics, but that's seven out of ten votes and then if you
bestow powers to establish policy, strategies and recommendations
both to the Secretaries of the Interior and Agriculture in
Southeast and to the Boards of Fisheries and Game and then require
the Secretary or the boards to adopt those regulations, unless they
can prove that it's contrary to sound fish and game management or
conservation principles not supported by substantial evidence or is
contrary to subsistence uses, they have to adopt it. What you've
done is regionalize the legislature's own authority to manage fish
and game, which you have delegated to the Boards of Fisheries and
Game and now you're talking six different entities that can
basically dictate to the Boards of Fisheries and Game. I, as a
director, would have had a most difficult time supporting those
regional councils. I heard my counterpart, Wayne Regelin and
Commissioner Rue, state that, "No problem, with $5 million we can
do this." Well, we can't. I mean, you can provide clerk typists,
you can provide people to coordinate travel, you can pay for travel
to get people at meetings and such; you can't afford the biological
staff to provide the information. I mean, if the game biologists
are at meetings all the time - 80 local advisory committees, 6 or
more regional councils and 2 Board of Game meetings a year, they're
not out in the woods gathering data. So, what they have to tell
the boards may not be as good as what they've been telling them in
the past, so my recommendation would be to repeal Sections 805(a) -
(c) or at the very least, make sure that they are advisory in
nature and that all users - all user groups are represented in a
reasonable mix on those regional councils if you're going to create
them. Thank you very much, Mr. Chairman.
REPRESENTATIVE BARNES: Mr. Chairman, ...
CHAIRMAN GREEN: Representative Barnes.
REPRESENTATIVE BARNES: It's on the point of regional councils.
One of the biggest problems I had with the Governor's task force
and with 406 was regional councils and I wanted to say that I
absolutely agree with Mr. Kelleyhouse. You absolutely cannot make
them work in the way that has been proposed under these bills and
it goes all the way back to the late '70s when they tried to
establish regional fish and game boards and fish and game know no
boundaries and you flat cannot make a system like that work I don't
believe and I wanted to take the opportunity to agree with somebody
around here on something.
CHAIRMAN GREEN: Representative Hudson.
CO-CHAIRMAN HUDSON: Dave, I was also looking in that in trying to
combine -- or look at that under Section 814 which is proposed by
the Stevens amendment, "during any time the state's complied with
Section 805(d), the Secretary shall not make or enforce regulation
concerning 805(a), (b) or (c)." So they took out - as I see it at
any rate - that would take out all of the original ANILCA 805(a),
(b) and (c) and then we'd have to take a look at the new language
that they put in over in here to see if that's more onerous or not.
Have you done that? And is it better?
MR. KELLEYHOUSE: Mr. Chairman, Representative Hudson, that's a no,
I have not. I have not looked at that ...
CO-CHAIRMAN HUDSON: I think we should because I've looked it over
and I think it at least satisfies some of what the lady is speaking
about over here.
CHAIRMAN GREEN: Representative Nicholia.
REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. You know
we've been talking about the regional councils and I heard what you
had to say about them and I served on the local Tanana Fish and
Game Advisory Council for 8 1/2 years so I've got experience of
being in that level and then representing Tanana at the regional
council level. And so, I guess I get mixed feelings from what
you're saying that you don't think that system works - is that what
you're saying?
MR. KELLEYHOUSE: Mr. Chairman, Representative Nicholia, I think
it's an unnecessary extra layer of government that's going to be
very expensive and very time consuming and I think in my experience
as director, it was advantageous to have a local advisory committee
representative - a chairman, a co-chairman - talking directly to
the Board of Fisheries or Board of Game rather than go through yet
another filter - a regional council. And I just think it's
unnecessary and I'm just saying from a Department of Fish and Game
staffing perspective, trying to keep the best possible information
on fish and game populations in front of 80 advisory committees, 6
regional councils and the Boards of Fisheries and Game is a big
burden for an agency that only has about two dozen area biologists.
I mean we have a lot of support staff - regional biologists - but
it would be most difficult to support.
Number 0459
REPRESENTATIVE NICHOLIA: Well, I'd have to differ - Mr. Chairman -
I'd have to differ with that because I always said and I will stand
by this that the best biologists that you have are the people that
are in that local area because they know what's going on with their
fish and game resources. We know when the fish are running; we
know when it's a good run and we let Fish and Game know. And then
so that is the information that we share from the local level to
the regional council and then to the Board of Game. It's a system
that works. Otherwise you're not going to be getting that data.
You're not going to be getting that data that they normally -- that
you can't spread out all Department of Fish and Game through the
whole state of Alaska. We've got the largest state in the whole
United States, so to say that that system is not going to help -
it's too cumbersome - I don't think so. I think that they serve a
really good purpose of getting that data to the Department of Fish
and Game, getting that data to the Board of Game because already -
if you already look at the state budgets for the Department of Fish
and Game, it is low. And for the Board of Game and Board of Fish,
it's low as well. So, I don't understand where you're coming from.
UNIDENTIFIED SPEAKER: Mr. Chairman.
CHAIRMAN GREEN: Is that a question or a debate?
REPRESENTATIVE NICHOLIA: Well, it's just a comment like I said
because I've got experience of being on those levels.
Number 0556
MR. ROSIER: Could I speak to that, Mr. Chairman? A little bit of
experience that we had with the state's regional council approach
on this, and there was, there was mixed results primarily in what
we referred to as the EYK Region, it worked fairly well, just as
Representative Nicholia was talking about here on this. Because
generally speaking, you had two user groups - they were commercial
and subsistence and in most cases, they were the same people, but
you didn't get into the allocation issues there that you got into
with other areas. Here in Southeastern, we had 18 advisory
committees set up down here and out of that, you had virtually
every community represented here in Southeastern. Each of those
communities had their own allocation problems and they could never
- the regional council could not deal with the allocation wrestle
because there was just too many interests that were involved there.
They ultimately centered on the subsistence issue. They became
essentially a regional council devoted to subsistence because
everybody could agree with one another on that. But that put them
at odds then with the other user groups because the other user
groups then, not only did they have to go to their local advisory
committee, they also had to be participating in the regional
council and there was a lot of resentment toward that regional
council system as a result of that thing in the more complex areas.
But it did - it worked up in the Bristol Bay northwest coast area
and it worked on the Yukon - I would agree.
REPRESENTATIVE BUNDE: Mr. Chairman.
CHAIRMAN GREEN: Representative Bunde.
REPRESENTATIVE BUNDE: On the point of regional councils - it
appears that there could be information feeding up from local
residents to the advisory council to the regional council, but do
you have any experience with how well information goes back the
other way and how well it's accepted. I remember reading in the
paper this spring or winter I think it was, somewhere in Western
Alaska they wanted to have a special moose hunt and the regional
advisory council said no and if the quote I read in the paper was
correct, the local mayor said, "Well, we'll just shoot the moose
anyway and won't tell anyone." Do you have information about the
flow of information going the other way?
MR. KELLEYHOUSE: Mr. Green, Representative Bunde, when I was
director, we did not have state regional councils and I had to make
the decision of our level of participation with these new federal
regional councils and given the budget limitations - actually right
in this room - I had to make the decision that I would have only
two or at the most, three staff people just going to the federal
regional council meetings to monitor what was going on and to the
Federal Subsistence Board so, we didn't have a great deal of
involvement with that federal system because I flat couldn't afford
the extra personnel to dedicate that amount of time to it. So, I
don't know how well information goes back down. I'm not sure how
well it went up.
CHAIRMAN GREEN: Okay. Walt do you have ...
Number 0766
WALT SHERIDAN, NATURAL RESOURCE CONSULTANT; BOARD MEMBER, ALASKA
OUTDOOR COUNCIL; AND RETIRED FOREST SERVICE EMPLOYEE: I'll be very
brief. My name is Walt Sheridan, retired Forest Service employee,
currently a natural resource consultant here in Juneau and I'm also
a board member of the Alaska Outdoor Council. While I was with the
forest service, I worked for quite a few years with things like
implementation of the Alaska Native Claims Settlement Act and also
with ANILCA, although I didn't have a whole lot to do with
subsistence after the early '80s. I guess I'm convinced though
that we, as Alaskans, have the will and the commitment to craft a
subsistence management system that will meet the needs of our
citizens. And I think we're thwarted in that effort by what I
consider to be faulty federal law and that's ANILCA, particularly
with Title VIII, the rural preference provision of Title VIII. I
think that the rural preference just paints too broad a swath; that
it builds in inequities that in my view will lead to resentment and
difficulties among our citizens for generations to come. And I
think that that provision in ANILCA needs to be changed and with
that change then, that we, as Alaskans, can craft that kind of a
system that will meet the legitimate needs of our people. And
that's about all that I have to say.
CHAIRMAN GREEN: Appreciate that. Representative James.
REPRESENTATIVE JAMES: I finally had somebody say something that
was on the line of my thoughts and I want to ask him a question
based on that issue. It's been my opinion for a long time that to
have an Alaskan solution on this problem, we need to have Alaska
law that fixes the problem and protects subsistence. And I've been
working for two years on this issue and I wanted to just see if
I've been on the wrong track because I cannot get people to
willingly say they will help us write the legislation. And
particularly the Native people in the state are so sold on the
protection that's given by the federal government, they won't help
us write the definition and the way to address it, even if we had
to do a constitutional amendment. If we could do this - my
question is - if we could do this, if we could write subsistence
law that protected the subsistence in Alaska and Title VIII of
ANILCA went away, I might even be willing to do a constitutional
amendment, but I'm not willing to do it with ANILCA in the
background. Would you agree with me on that assessment?
MR. SHERIDAN: Mr. Chairman, I absolutely would agree with that and
even going so far as to talk about the possibility of some type of
a constitutional amendment that may be might be simply just a way
of reassuring all the segments of our Alaskan society that we're
serious about providing for subsistence needs.
CHAIRMAN GREEN: Thank you. Representative Austerman and then we
have two people on teleconference.
Number 0939
REPRESENTATIVE AUSTERMAN: A question that any of you can answer it
and that is given what we have in Washington, D.C. right now as far
as the Administration is concerned, do you see ANILCA being
changed, taking rural preference out, allow us to go ahead with
what to do. Everybody agrees with you that (indisc.), but there's
some reality checks here that we're faced with.
MR. ROSIER: I'll take a crack at it. The only way that would
happen, in my estimation, is if exactly what Representative James
was talking about here a moment ago. As long as we're fragmented
the way we are, it's not going to happen, but if you have an
Alaskan solution on this, and I don't know how you go about making
that kind of a deal to where there's a promise that you would in
fact have a state system that would, in fact, protect and give a
preference for subsistence use, then you might have some success.
And I would guess that our delegation would in fact pick up on
that. That they would, in fact, be willing to go to bat on this
thing, but as long as we're divided the way we are, I don't think
so, Alan.
Number 1020
REPRESENTATIVE AUSTERMAN: On that point, Mr. Chairman, it gets
right back ...
CHAIRMAN GREEN: One follow-up and then we're going to
teleconference.
REPRESENTATIVE AUSTERMAN: Okay. It gets right back to it, I mean,
how many years has it been that we've been talking about an Alaskan
....
CHAIRMAN GREEN: Dick.
MR. BISHOP: Well, Mr. Chairman and Representative Austerman, I
think one thing is really clear that if people don't push the
envelope, there will be no change and that's why I have argued that
I think it's really important for the legislature to do as
Representative James has said, and Walt has said, and Carl has
said, and that is develop a package that clearly provides strong
accommodation of subsistence uses and gives fair treatment to other
uses and present that to Congress and the Department of Interior
and say, "Look, we have a better idea than ANILCA and we have
adopted this and we entreat you to change ANILCA to match it and if
you have provided adequately for subsistence uses which is again
principally based on food gathering, I think it would be very
difficult for the critics that in the past have said that the
legislature or the state or whomever has not been responsible in
addressing these needs. They will not have that criticism to make.
I think it's a very powerful tool, but it's not going to be done
unless frankly, the legislature is willing to push the envelope.
CHAIRMAN GREEN: I'm not going to take any more questions for just
a moment. We are losing our two people who have been standing by
for six hours now on teleconference. Mr. Seekins, are you
available? Mr. Seekins, can you hear us? Mr. Levengood? Okay, we
may have lost them.
UNIDENTIFIED SPEAKER: Mr. Chairman, are we done?
CHAIRMAN GREEN: I think - oh, one question.
REPRESENTATIVE CROFT: Shouldn't we have on this list, a deletion
of ANILCA's rural preference? I mean, isn't that what all of you
have said and we don't now?
Number 1127
REPRESENTATIVE BARNES: Mr. Chairman, while you're trying to get
them on the line.
CHAIRMAN GREEN: Representative Barnes.
REPRESENTATIVE BARNES: On the point that Mr. Bishop spoke to - we
brought this issue up twice - HB 960 in 1978 was the law that
promulgated subsistence in the state and it is that law that was
written into ANILCA. That's where the language in here for
customary and traditional use, all of that came from. Is that not
true? So, if we could come up with a better solution than what was
originally in HB 960, it seems to me that that ought to be given
some consideration by those that support a subsistence lifestyle.
REPRESENTATIVE WILLIAMS: On that point, Mr. Chairman ...
CHAIRMAN GREEN: Representative Williams.
REPRESENTATIVE WILLIAMS: I asked him earlier on that same question
about where this customary and traditional originated from and he
said he couldn't tell me whether it came from ANCSA or this bill.
But I can sit here and say also that I think it came from ANCSA.
Then that would put a different light on the word "customary and
traditional". If we were to sit here and negotiate customary and
traditional, who was negotiating customary and traditional at that
time for the Alaska Native Claims Settlement Act. It was the
Alaska Natives that were talking about customary and traditional.
REPRESENTATIVE BARNES: Mr. Chairman, just in response. I would
point out that HB 960 was developed by a subsistence task force
here in this legislature that was by the Native representatives and
it was chaired by the representative from Dillingham at that time.
And I think the Washington, D.C. record will reflect that it was
that bill carried by Representative Nels Anderson and others from
this legislature that put this into federal law.
Number 1237
REPRESENTATIVE WILLIAMS: What I'm saying, Mr. Chairman, I don't
want to debate it I guess, but I'll say this that we've discussed
where did customary and traditional originally come from and I'll
say it came from the long public hearings that we were having
throughout the state of Alaska when the Alaska Native Claims
Settlement Act was being passed.
CHAIRMAN GREEN: Dick.
MR. BISHOP: Mr. Chairman, I just wanted to nail down the answer a
little bit and that is the first time that I know of that that term
wound up in statute was in fact in the 1978 law that Representative
Barnes was referring to. Its origin, its development, I'd have to
go back and dig around.
CHAIRMAN GREEN: Representative Hudson.
CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. Dave, once again I'd
really like to have a further explanation of your recommendations -
I thought they were constructive; that is, the removal of
consumptive in the two provisions as well as the taking and maybe
you could just scratch something out and give it to the Chairman so
we can understand. You know, you made reference to that being
something that should have happened 25 years ago and it had magic
potions. I would like to know in a better context, just exactly
what that magic produces.
CHAIRMAN GREEN: Representative Ogan.
Number 1372
CO-CHAIRMAN OGAN: Thank you. In regards to the question that
Representative Croft asked that on these recommendations here if
what you were saying was true that rural priority should go away,
would any of you have any objections to a constitutional amendment
that protected subsistence that didn't compromise equal protection.
For example, a clarification of Article VIII, Section 4 and that's
the sustained yield portion that says that -- obviously we'd have
to do something like that to try to get rid of if we were going to
make a recommendation to eliminate rural priority. And give
subsistence the highest and best protection in times of shortage
because that's what sustained yield is all about. In times of
shortage, we constitutionally protect subsistence and ask for
Congress to acknowledge that we've constitutionally protected
subsistence and that's the highest and best use in times of
shortage and ask for rural priority to be eliminated from ANILCA.
Would anybody have an objection to something like that if it didn't
compromise equal protection?
Number 1371
MR. BISHOP: Mr. Chairman, Representative Ogan ....
CHAIRMAN GREEN: Identify yourself, please.
MR. BISHOP: Excuse me?
CHAIRMAN GREEN: For the record would you identify yourself.
MR. BISHOP: Dick Bishop, Vice President ...
CHAIRMAN GREEN: That's alright - just so she knows who it is.
MR. BISHOP: In response to Representative Ogan's question, I think
given the right conditions, the answer is probably no. In other
words, if it were possible to re-enforce what is obviously the
capability of the state to accommodate adequately subsistence uses
even by a constitutional amendment if it didn't violate the common
use, equal protection provisions that we currently have, I suspect
that it would be okay. I guess I'd want to make sure I saw the
exact language and so on and so forth. But the concept is one that
we have talked about, so I would say that simply from my own
perspective, I guess, and qualify it in that regard.
CHAIRMAN GREEN: Commissioner.
Number 1419
MR. ROSIER: Yeah, Mr. Chairman, I, like Dick, would take a real
hard look at that kind of a provision on this because I think we're
getting closer to what Jeannette - Representative Jeannette James
was talking about here in terms of an Alaskan solution
demonstrating our will to in fact do this, but and that's a big one
because somewhere, somehow we've got to have the assurance that
that's what's going to happen on the other end before I'd go for
it.
Number 1445
CHAIRMAN GREEN: That kind of brings us full circle then. We've
got to have someplace to negotiate from and .... Walt.
Number 1449
MR. SHERIDAN: Walt Sheridan. I think that not only does the rural
priority provision in ANILCA need to go away, but it needs to be
replaced with some language in ANILCA that probably recognizes
subsistence uses on federal lands under state management as a
legitimate use of those lands. And then that coupled with what we
can do as a state, I think that we can probably provide for the
legitimate needs of our folks.
CHAIRMAN GREEN: Representative Porter.
REPRESENTATIVE PORTER: Within that concept, are we still within
your comfort zone by defining subsistence use as customary and
traditional as it generally appears now in ANILCA.
Number 1486
MR. KELLEYHOUSE: Mr. Chairman, you'd be out of my comfort zone
unless, as Dick Bishop said, that there was a redefinition of
customary and traditional. Because it has become a convenient
defense for practices that are not accepted - conservation
practices - and I do believe it will lead to abuse. Customary and
traditional in my tenure with the Department of Fish and Game,
which was 20 years, almost all of it under ANILCA, I've seen
customary and traditional use to argue the fact that "my culture
and my ancestors used musk ox in the late 1800s; therefore, I
should have priority use now" all the way to "Well, I've developed
customary and traditional use patterns on a recently introduced
animal like rocktail deer in Prince William Sound and therefore, I
deserve preference." Customary and traditional has caused some
problems; it has been used to justify shooting at deer from moving
boats that have been forced to the beach - you know, the deer have
been forced to the beach with high snows in mid-winter; it's been
used to justify jack lighting; it's been tried to be used to
justify chasing animals down with motorized vehicles like a
snowmachine and these things -- customary and traditional can be
what happened yesterday or what happened 500 years ago and we've
got an evolving technological culture right now. Just beware that
it's kind of a pandora's box and ...
CHAIRMAN GREEN: That was Mr. Kelleyhouse for the record.
Representative Porter.
REPRESENTATIVE PORTER: Thank you. A quick response. Looking at
the suggestions of Mr. Bishop, perhaps just adding the word
"lawful" before practices would provide the comfort zone.
CHAIRMAN GREEN: Representative Croft and then we have a little
wrap up that I'd like to have presented by the Judiciary Council.
REPRESENTATIVE CROFT: Great. So, you guys aren't opposed to
amending the constitution; you're just opposed to this particular
amendment.
MR. BISHOP: We have consistently opposed amending the constitution
and the reason we have consistently opposed amending the
constitution is we have not seen nor have we been able to dream up
anything better in terms of sound conservation and fair allocation
than that which we have found in the constitution. It seems - and
there have been lots of different ideas - it seems that all of them
though had some frailty either with regard to the erosion of civil
rights, equal opportunity for people - all Alaskans, or some
heightened risk as far as sound conservation of fish and wildlife
in the state, or both in some cases. An example of both is the
terms of ANILCA, not necessarily just the priority. But anyway,
that's basically where we've come from. Furthermore, we've always
said that based on history there is not a need in order to properly
accommodate subsistence uses to have a priority in law. We've also
added to that, nevertheless we recognize that the social decision
may be that there should be a priority. If there's going to be
one, then it should treat all Alaskans fairly and equitably with
respect to their standing before the law and their opportunity to
qualify for that priority if there is one ...
CHAIRMAN GREEN: Carl.
MR. BISHOP: ... and it has to assure sound conservation.
Number 1670
MR. ROSIER: Thank you, Mr. Chairman. Briefly, again it's the gun
to our head called ANILCA - it's the gun to our head. You're
dealing from the bottom of the deck in trying to get a
constitutional amendment as long as ANILCA sits there with the
requirements that it has.
CHAIRMAN GREEN: Briefly.
Number 1688
REPRESENTATIVE NICHOLIA: Yeah, I just have to respond to the gun
to the head - I just have a question on that.
CHAIRMAN GREEN: Alright.
REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. You said
ANILCA is a gun to the head - when the subsistence harvest is only
2 percent of all the harvest - how can that be a gun to your head?
MR. ROSIER: Mr. Chairman, it's not the harvest level that bothers
us; it's what ANILCA is requiring us to do - change the
constitution ...
CHAIRMAN GREEN: One percent or five percent - that's not the
issue.
MR. ROSIER: Yeah, it's not a resource problem.
REPRESENTATIVE WILLIAMS: How do you tie in the ...
CHAIRMAN GREEN: Representative Williams.
REPRESENTATIVE WILLIAMS: How do you tie in the agreement that was
made with the Alaska Native Claims Settlement Act with subsistence.
The conference committee had said that they're going to take care
of the subsistence lifestyle of Alaska Natives - that was part of
a negotiated settlement. How can you say that ...
MR. ROSIER: Mr. Chairman, I would like to respond to that because
I certainly disagreed with what was being said here earlier by the
lawyers on this thing. The settlement under ANCSA was 44 million
acres. It started out as a much lower figure - perhaps half of
that - and it was increased to 44 million acres for control by fee
simple on this and the primary purpose of that - at least in my
understanding - was that it was in fact for subsistence purposes.
CHAIRMAN GREEN: It was a half million and then another half
million (indisc.) - a billion.
REPRESENTATIVE WILLIAMS: How it went though, I mean - you were
here, Carl when this was being negotiated weren't you?
MR. ROSIER: I wasn't involved, Mr. Chairman ...
REPRESENTATIVE WILLIAMS: No, but I mean you were here in the state
of Alaska.
MR. ROSIER: Yes.
CHAIRMAN GREEN: I think we've strayed a little here now. We're
back off of the issue that we're gathered for, but ...
REPRESENTATIVE WILLIAMS: Okay, I'll ...
CHAIRMAN GREEN: I know where you're coming from and ...
REPRESENTATIVE WILLIAMS: Then I'll just say that I disagree with
his comments.
CHAIRMAN GREEN: Okay.
REPRESENTATIVE WILLIAMS: He's way off base.
CHAIRMAN GREEN: Representative Barnes.
Number 1786
REPRESENTATIVE BARNES: Mr. Chairman, before your attorney wraps
up, there is one issue that I most definitely want to raise because
it has concerned me greatly and if you will all flip in your book
to 810 and read it, because what this subsistence fight is all
about is the control of the economy of the state. And if you don't
believe it, read Section 810. Now, I don't want to see Section 810
used for controlling ANWR or any other state lands because of the
whole subsistence debate and it is crucial, I believe, that we do
not let the economy of this state be controlled by a few people.
And I believe that's what 810 does and I would like to see it
addressed in the amendments that you proposed.
Number 1826
CHAIRMAN GREEN: Well gentlemen, I want to thank you very much for
taking your time to make a presentation to us and hope we didn't
offend anyone with contrary thoughts.
MR. ROSIER: Thank you very much, Mr. Chairman.
CHAIRMAN GREEN: Questions were asked - whoop, where did he go - by
Representative Croft as to what in the world we're doing here
anyway with these 15 reviews or issues of ANILCA and I've asked
both our Judiciary attorney and the attorney from the joint
committees as well as our walking encyclopedia in reference to kind
of wrap up for us. So, if you would.
UNIDENTIFIED SPEAKER: Our advisory team.
CHAIRMAN GREEN: That's right.
Number 1868
KEVIN JARDELL, LEGISLATIVE ADMINISTRATIVE ASSISTANT TO
REPRESENTATIVE JOE GREEN: Mr. Chairman, for the record my name is
Kevin Jardell. I'm the staff attorney for the Judiciary Committee.
After the department's presentation, I had made a list of
explanations as to why each of the elements in the litany of
requests does have a rational reason and a basis for the request.
Subsequent to my being here, the four gentlemen broached most of
those subjects explaining, from my point of view, basically where
the subject matter arose from and why those things are rightfully
being asked to be addressed by Congress. What I would like to do
in the interest of time, is maybe just ask if there are any
questions that we can address on any specific issues there's still
confusion on and even more so, to offer our services to sit down
individually and maybe present some of the case law as to exactly
where these things arose, let you read, and then explain it from
that point of view. Sometimes this gets confusing whenever you
start talking about what judges have said in one case and another
case and sometimes just reading on your own, specific phrases
clarifies it. So, at that time if it's okay with the Chair, I'd
like to just open up for questions.
CHAIRMAN GREEN: We can start off - Representative Croft questioned
the first four earlier in the afternoon and we have addressed the
navigable waters issue with Dick and Carl, but you might just
briefly give us a reference.
MR. JARDELL: Briefly, as far as the navigable waters, in a
nutshell we have an Alaska Supreme Court case saying that the state
has the ability to regulate fish and game in navigable waters. We
have a Ninth Circuit Court of Appeals case in opposition to that
and we have a United States Supreme Court case in (indisc.) which
isn't quite controlling, but is persuasive, tending to go along
with the Alaska case. The Court of Appeals in the Ninth Circuit
made several references to the fact of the inadequacy of the
Congress addressing the issue. They filled in the blank - they
recognized that it was inappropriate. That being said, it is an
appropriate question for Congress to address, they are the people
who should address it and we should ask them to address it in the
manner in which the best interests of the state are preserved.
CHAIRMAN GREEN: Representative Croft.
Number 1973
REPRESENTATIVE CROFT: Doesn't that presume that we're not going to
be in compliance? I mean, if we come into compliance, whether by
doing what ANILCA says, some compromise, or whatever, we don't care
what the jurisdiction is if we're not in compliance.
MR. JARDELL: Through the Chair, two parts to that. One, I think,
both as policy makers and as citizens, we do indeed care whether or
not we have ownership of navigable waters in the state of Alaska.
As far as us as a state being in compliance, if, in fact, we do
have navigable waters, our subsistence regulations regarding those
waters may not be subject to attack by the Department of Interior
which would greatly reduce the amount of land that the department
will be controlling or supervising or have an overview of the
outcome. So, I think the impact would be severe even if we were in
compliance as to future litigation - what we're required to do, I
think from a policy standpoint, the more control that the state can
have over its own lands, the better off the state is.
CHAIRMAN GREEN: Ron.
Number 2028
RON SOMERVILLE, TECHNICAL CONSULTANT, SENATE/HOUSE MAJORITY, ALASKA
STATE LEGISLATURE: Mr. Chairman, if I might just add briefly to
what Kevin has said. My name is Ron Somerville. I'm technical
consultant to both the Senate and House Majority. Just quickly, my
background is 23 years with Fish and Game and under the Hickel
Administration, I served as kind of a liaison with the Department
of Law so I had some chance to deal on a daily basis between the
commissioner's office and Charlie Cole's office and the staff in
Anchorage. As was presented by Attorney General Botelho and former
Attorney General Cole, 1 through 4 and 10 do deal with the Katie
John case and what the majority asked us to do - and this is
precisely what the staff was asked to do when we were involved in
the Katie John case is what if we lose it, what's necessary in
order to fix it. And the attorneys, and who are still with the
Department of Law, in essence came up with kind of this - now you
could argue that any one part isn't necessary, but this is the
ultimate - if, in fact, the intent policy of the legislature is a
quid pro quo for us amending our constitution which was instruction
given to the staff here, what changes to ANILCA can we initiate
that will assure that the state sovereignty of its lands and waters
are protected. I disagree totally that there is no problem as long
as you're always in compliance because as soon as a federal court
or a federal agency somehow gets involved in saying, "If you don't
do the following, you're out of compliance," the threat is always
over your head that, in fact, the feds are coming. And we had that
- I think it was expressed by former Commissioner Rosier as it
relates to walrus. I was director during the period when we
managed walrus and that threat was continually there - "We're going
to come in and take you to court. Or we're going to do such and
such if you don't modify your regulations to, in fact, discriminate
against your own residents" in many cases far in excess of what the
federal agencies could do themselves. We just finally said we
can't do that and we gave it back to them. I'm just using that as
an example and that's correct. Charlie Cole and I have had long
discussions during the task force meeting on specifically that
issue - we respectfully disagreed with each other. I must say I
had some experience in the agency in dealing with it - this is only
in the matter of what does it look like on paper.
Number 2119
MR. SOMERVILLE: So, 1, 2, 4 and 10 are exactly what the majority
told us to craft - what can we get in ANILCA which will protect
sovereignty of the state and assure the state that its authority to
manage in its own lands and water will not be diminished regardless
of what the federal agencies do in the future.
CHAIRMAN GREEN: Follow-up, Representative Croft?
REPRESENTATIVE CROFT: I guess, Ron, where you see a threat, I see
a guarantee - I mean, that this the safety net for the ultimate
guarantee that there will be -- a federal guarantee that there will
be a protection for a rural subsistence lifestyle and for us to now
after not doing this over and over to say "Okay, we'll do it as
long as you take away the guarantee - you take away the backstop"
seems verging on disingenuous. I didn't ask you to write this. I
know it was a directive from the majority - there's no minority
legal representation there or minority viewpoint, but to the extent
that I can add it, it guts the guarantee that got us here and in
exchange for us promising we'll be good this time and to me that's
no way to bargain. If we're going to do it, we don't care about
this. If we're not going to do it, we care a great deal and that
may be why we care a great deal about it.
MR. SOMERVILLE: Mr. Chairman, if I may. Representative Croft, I
mean you make a good point - I guess the policy decision that you
people have to make is what did ANILCA intend to do. Was the
intent to preempt the state or was it an attempt to set up and
manage - I think the people crafted ANILCA, and I was there -
nobody even presumed the state would not be managing - I don't
think they even thought of the possibility of the situation that
we're in today. But the fact is, we're there and certainly, if the
state does something - changes its regulations, laws, that puts it
out of compliance - it loses the right to manage on federal land.
I mean, the laws of general applicability then will kick in and we
will be precluded from that. So there is a quid pro quo in what
the majority has asked us to draft here and that is sovereignty
over (indisc.) state lands and waters and compliance with the
federal law. As long as we stay in compliance, we manage on
federal land. If we're out of compliance, we don't manage on
federal lands, but we're protected on state and private lands. And
I think what we were instructed to do was to provide that sort of
quid pro quo as an exchange for amending our constitution. I mean,
that was what I felt our instructions were.
REPRESENTATIVE CROFT: Probably were.
CHAIRMAN GREEN: Representative Rokeberg.
Number 2216
REPRESENTATIVE NORMAN ROKEBERG: Mr. Chairman, I just - a couple of
technical points. I'm looking at the E Version of the House Joint
Resolution which became 66, which these particular provisions are
from and my notes at the time of the Judiciary Committee were to
write it so people understand it and I've got some concerns about -
whereas, I understand the distinction, particularly 1 through 5 and
10, that there are differences there, but has there been any
further effort for economy of language here to cut those down. I
was concerned about that. And another one I have a concern about
is, I'm not sure why number 8 is remaining. We had some testimony
on that today and perhaps I missed 12 and 13. I'd like to -- 11,
12 and 13 -- why they would stay.
Number 2263
MR. SOMERVILLE: Mr. Chairman, if I may -- I'm sorry.
Representative Rokeberg, relative to 7 and 8, again the request
that we received was if you see a problem in this area -- the only
problem that we foresaw and that was the possibility of the federal
government would change the law. So, in essence requiring -- and
these are kind of key components of the solution -- saying you got
to keep it kind of aligned with what we have in state law or else
they're going to be responsible for getting rid of the subsistence
priority. You know, that certainly could be dropped if you're
satisfied and the policy decision is what Congress did, the intent
was there, it was good intention - it could be dropped and hope
that we don't have a conflict in the future. That was just our
instructions, I think, to craft that in such a fashion that we have
some guarantee it would remain that way.
CHAIRMAN GREEN: Follow-up, Representative Rokeberg.
REPRESENTATIVE ROKEBERG: Well, Mr. Chairman, it's just that
originally it was drafted to be a part of a constitutional
amendment to be offered to the public and that was one of the
concerns that we had in committee was that the people would
understand what was in here. As legislators, we've had the
opportunity to understand this better, but for the average common
citizen to understand it, it's extremely difficult, so keeping it
as simple as possible, I think, is an important thing and also, to
make sure it's explainable on its face is important.
CHAIRMAN GREEN: And we will get into that in our respective
committee deliberations. Representative Ogan.
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I'll try to be brief.
Mr. Somerville, there was some discussion earlier in the committee
with the attorney general about the Section 1314(a) of ANILCA that
said, "Nothing in this Act is intended to enlarge or diminish
responsibility and authority of the state of Alaska for management
of fish and wildlife on public lands except as may be provided in
Title VIII of this Act or to amend the Alaska Constitution." You
were there when ANILCA was being drafted. You said just a minute
ago that surely no one expected that anybody (indisc.-coughing)
would manage at the time it was being drafted. What do you think
is meant -- I mean, I'm a lawmaker, I'm not a lawyer, but I write
laws and I know when I write laws, I intend the laws to mean what
they say and to me this is plain on its face that it says that
nothing is to be construed that we amend our constitution. I know
the attorney general disagreed with me and he gets paid to look at
different ways to look at laws differently, I guess - I'm not sure
- I'm not an attorney. But I do write laws. As I said, I write
them to mean what they say and -- what was the intent ...
TAPE 98-95, SIDE A
Number 0001
MR. SOMERVILLE: ... Dick Bishop - both of us were volunteers, if
you will, on the Governor's task force. I was one of the first
people in 1974 - I volunteered for Governor Hammond's task force
and we went around the state and crafted what eventually became
S 7, the compromise that was agreed to by Senator Stevens, Senator
Gravel and Congressman Young and the Governor at the time, Jay
Hammond. And I was from the Alaska Department of Fish and Game and
during the middle and latter part of our discussion there, I was
asked to go back with three specific requests to Senator Stevens.
We were working in Jackson's committee at the time in the Senate
and we had three - one of which I can't quite remember - it was
rejected by Senator Stevens. But the two most important ones are
we requested that the boundaries of all the conservation units be
limited to mean high tide and the Senator agreed with that and
today we were successful in doing that - a very important thing
relative to our commercial fisheries. The other was that Alaska
not be required to amend its constitution. Senator Stevens said he
did not want to place that out as a red flag - that he would insert
it someplace within there with the intent of providing that sort of
protection. That's why it's where it is - it's kind of vague - I
mean, it doesn't do what we requested; that is, have a specific
section that clearly mandated that - it's stuck in the back. So,
I'm just telling you, that's how it got there and you can interpret
however you will.
CHAIRMAN GREEN: Representative Berkowitz.
Number 0123
REPRESENTATIVE BERKOWITZ: Just on that point and then I have my
own question. On December 2, 1980, when this ANILCA came to pass,
there was no requirement from the federal government that Alaska
amend its constitution.
MR. SOMERVILLE: Mr. Chairman, Representative Berkowitz, that's
correct.
REPRESENTATIVE BERKOWITZ: In fact, the necessity for amending the
state constitution didn't actually occur vis a vis ANILCA until the
McDowell decision.
MR. SOMERVILLE: Representative Berkowitz, that's correct.
REPRESENTATIVE BERKOWITZ: So, in 1980 when Congress crafted
ANILCA, they had no way of anticipating how the Alaska Supreme
Court would act in 1989, is that fair to say, too.
MR. SOMERVILLE: Fair statement.
UNIDENTIFIED SPEAKER: Mr. Chairman.
CHAIRMAN GREEN: Well, I think that you have ...
REPRESENTATIVE BERKOWITZ: I have questions of my own. I just
wanted to make that point real clear.
CHAIRMAN GREEN: You are up now, but I'm wondering if I could -- we
do have these two offnet sites back on now, if we could hold you
gentlemen at the table, briefly catch these people before they go
off again. They've been waiting all day, as well. Mr. Seekins,
can you hear us?
Number 0202
RALPH SEEKINS, REPRESENTATIVE, ALASKA WILDLIFE CONSERVATION
ASSOCIATION: Yes, I can.
CHAIRMAN GREEN: Could you briefly tell us what you'd like us to
hear.
MR. SEEKINS: Well, I'm testifying, of course, I'm with the Alaska
Wildlife Conservation Association, which is made up of hunters and
fishers across the state and we've put a lot of time into
researching just exactly how Title VIII does affect the state of
Alaska and one of the things that we have determined by trying to
follow the legislative progression of bills, such as Title VIII of
ANILCA, is what things can get better, can get worse and the next
Congress, Administration, legislature, governor, et cetera, may
change the relationships between these two sovereign entities - the
state of Alaska and the United States of America. One of the
things that we have also found out in our research is that when it
comes to a question of defining where the lines are between these
two equal sovereigns, the states and the United States of America -
that very often some of the most notable and some of the most well
debated and longest lasting decisions of the United States Supreme
Court come from just those kinds of questions. And we believe that
one of the things that has to happen is that the rules, the lines
of authority or sovereignty between the United States of America
and the U.S. Congress and the legislature of the state of Alaska
must be clearly defined so that when we're looking at these areas
that intrude or at least the perception is that they would intrude
on areas of state's sovereignty, they must be clearly defined by
the arbitrator and this is a serious issue with the state today and
that's why we're here. We're here not because (indisc.-coughing)
anything having to do with subsistence or the need for subsistence
or anything at that question, except who has the sovereignty over
the lands of the state of Alaska when it comes to management of
fish and game, for whatever reason. And I think that question and
what we encourage you to do is to say, "Look, we need a time out
here where we can sit down - the United States of America, state of
Alaska" and go here to this nine-member body and say, "Okay, based
on the law, based on the history of this nation, who has this
sovereign power to be able to make these decisions on federal
public lands, or on state lands, or on private lands." Once we
have those rules and lines of authority clearly defined, then I
think the discussion can be fruitful. Until that point, what we
feel that we're leaning toward is just further confusion in just
what can we as a state do, what can they as a federal government
do. And so our purpose even to appear to you and we spent some
time in an examination of federal authority to manage fish and game
in Alaska, we've tried to get a copy of that study to each of you
to consider and we see a definite conflict here between what the
federal government says they can do and what Alaska feels that the
federal government cannot do and what I don't understand in that
process is why these two bodies - these sovereign entities can't go
to the highest court in the land and say, "Okay, since there is
this question of law, who has this sovereign authority and what
authority exists in this area of traditional state management on
federal public lands." And so I think that if we were to do that,
we could finally get to the bottom of solving the subsistence issue
because it's not subsistence that we're arguing about, it's
authority - it's sovereign authority.
Number 0500
MR. SEEKINS: Once we've done that, then the people who,
subsistence is part of the fabric of their life, no longer will
feel threatened because we'll be able address that issue fairly,
soundly and legally so that we can get out of the courts and get on
with taking care of the needs of the people. And that's what we
would encourage you to do. While it's a good exercise to look at
all the points of ANILCA that we think maybe could be changed, we
still believe that the basic premise of Title VIII of ANILCA should
be challenged, not belligerently, but in order to define and
clearly define those lines of authority and sovereignty. Once
that's done, again, we believe you could get on with your job and
take care of the people of the state of Alaska and we have full
faith that you would do that as a body, as the trustees of this
great public trust. So, I guess that's the full element of what I
would ask you to do. I think that the -- when we talk about the
Legislative Council's lawsuit, I don't like to think of that as a
lawsuit, an adversarial proceeding, even though at this point the
federal government is treating it as an adversarial proceeding and
doesn't appear to want to listen to it based on the merits, but
would like to throw it out on a technically. But it could be a
serious inquiry between two sovereign entities to find out what the
rules really are and I think if we were to approach it from that
direction, ask the court, "Look, we need to have injunctive relief
from any further implementation of this law until we find out what
those clear lines of authority are" and then I think we could get
on with really solving the conflict. So that is where we're coming
from. We're asking that you, as the legislature, get behind that,
not from an adversarial, but from a clarification standpoint.
Number 0630
CHAIRMAN GREEN: Well, assuming that we may not get injunctive
relief through the litigation in time to prevent takeover, do you
see a constitutional amendment as the best way as a follow-up to a
negotiated situation to try and do something to get relief from
ANILCA?
MR. SEEKINS: Personally, I would have a problem with a
constitutional amendment coming from the state because it weakens
the appearance of the state's position on the issue. Do you, as a
body, really feel that you have the sovereign authority to manage
fish and wildlife inside the state of Alaska. If you think that
Section 6(e) of the statehood agreement gave you that authority,
that the Presidential Executive Order of December 29, 1959, gave
you that authority, that the Submerged Lands Act of 1953 gave you
that authority, and if you think that any other state has that
sovereign ability, then I think that it would be wrong to go in and
change what is a very strong and very powerful constitution to
erode any part of it. But I do believe that if you were to go to
the court as the entire legislature - Senate and the House - and
you were to ask the Governor to join with you - I don't know
whether he would or not - Senator Stevens, Senator Murkowski,
Congressman Young - to join with you to say we want this clarified
in the courts, I think that the court in all justice would probably
give injunctive relief and that as long as there was a good faith
effort on all the parties to finally delineate where that authority
is. So, I don't want to think that we would take a weak position
on something if you felt that you, as the legislature, were acting
on the proper side of the line of your sovereign authority. To
compromise, I think at that point, the perceived battle line the
next time the issue of sovereignty comes up is wherever we left it
with a constitutional amendment. So, I would rather continue to
argue the issue until I had a final decision of the Supreme Court
than to fashion an amendment which might be necessary to repeal.
Number 0786
CHAIRMAN GREEN: Yeah, well I would assume then from that response
that you're not in any particularly receptive mood to discuss the
15 changes to ANILCA.
MR. SEEKINS: Well, I would say that -- for my response, I would
say it is a good exercise to say okay, maybe if we're going to
compromise, where do we ask them to back off, but I would be
reluctant to compromise. I do believe some of these things are
hitting right at the meat of the issue and that I think from what
I see in these 15 proposals, you basically are saying that you
believe that the state has sovereign authority to manage fish and
game within this jurisdiction of the state of Alaska. Am I
incorrect there?
CHAIRMAN GREEN: I would think that that certainly is my feeling
and I'm not so sure how many others, but I think it's the majority
feeling.
MR. SEEKINS: ... if you believe that you have that sovereign
authority, then I think you have a trust responsibility to the
people of the state of Alaska to assert that authority. And so,
I'm not telling you what to do - I guess it's difficult. I
wouldn't want to be the one having to make the final decision, but
I do believe that looking at these proposals that at least the
majority or the submitters of these proposals do believe that the
state does have that authority. So, I would try to pursue that as
far as was rationally possible. I guess I would ask all the
parties - and I don't know, you guys know better than I do - how
receptive the federal government is going to be towards trying to
discuss the issue on the merits or whether they want to kick it out
on a technicality and take control.
CHAIRMAN GREEN: Well, thank you. I don't see any questions.
CO-CHAIRMAN HUDSON: I have a question.
CHAIRMAN GREEN: Oh, excuse me. Representative Hudson.
CO-CHAIRMAN HUDSON: Ralph, this is Bill Hudson. Have you --
you're representing a very powerful and obviously important group
in the state of Alaska - have you brought your own attorneys to
bear on trying to strategize how the state can develop its best
position and how likely it might be to do what you're just
suggesting that we do; that is, to try to get to the Supreme Court
with this kind of an issue.
MR. SEEKINS: Well, we looked at it and based on some of ...
LYNN LEVENGOOD: Ralph, I'm standing by on the line.
MR. SEEKINS: Okay. Based on that, Lynn Levengood, our attorney
who has been working with us on this issue could probably answer
that better than I can. But, you know, I think the thing that I've
seen - and then I'll let Lynn talk about the legal aspects of it -
is that this is a question which has never been presented to the
U.S. Supreme Court before and based on that and based on the
continuing refinements of how the property clause would apply to
federal public land, I think it demands what the Supreme Court
calls a de novo review and I think that they would review it simply
because it is a clear issue of trying to delineate the line between
state sovereignty and federal sovereignty. There's a very good
discussion on that that was written by Justice O'Connor in a 1992
case called New York v. United States of America where she goes
into great lengths - three or four pages - to say that it's a
necessary thing for the Supreme Court to do exactly that -
delineate the lines of authority and sovereignty between these two
sovereign entities. And neither can exist without the other and
both must be strong. So, I think that - I could defer that to Lynn
- he'll probably give a different answer ....
CO-CHAIRMAN HUDSON: Thank you.
CHAIRMAN GREEN: Well, I'd certainly agree with the fact that if we
could get a de novo review, that would be great, but -- Lynn, are
you available.
MR. LEVENGOOD: Yes, Mr. Chairman. My name is Lynn Levengood. I'm
an attorney in Fairbanks, Alaska. I'm an executive member of the
Alaska Wildlife Conservation Association and as our Chairman, Ralph
indicated, we're the group that put together the examination of the
court decision and other authorities regarding the management of
fish and wildlife in Alaska. Hopefully, you've all had a chance to
read that. We believe that Alaska has a very strong case - that
finality is what all Alaskans want because without finality we will
not be one people under one law. And to get finality will require
a review by the U.S. Supreme Court and it can come in one of two
ways. The quickest way is for the legislature to ask the Governor
and I think the rest of the delegation would join and bring a
direct action suit against the United States government on this
issue, it'd go directly to the Supreme Court and would, by
necessity, be handled with the next session of the U.S. Supreme
Court. That's the quickest way, the fast way. However, if the
Governor refuses to defend Alaska's sovereign interests, the
existing suit brought by the legislature could wind its way through
the federal system and into the Supreme Court (indisc.) one to two
years. But the dilemma you're in is one that you do have a strong
case and my testimony is going to be very different from what you
heard from former Attorney General Cole and Attorney General
Botelho. And this is a very, very important point. First of all,
the property clause provides that the federal government does have
superior authority for the management of federal lands where they
occur. And the main issue there is lands. They do not have the
ability to manage wildlife, per se. ANILCA - and everybody that's
read ANILCA in the room can raise your hand and if you've read
ANILCA, you'll find that there's not one word in ANILCA that
provides management authority to the federal government or the
Secretary of the Interior. Now, Senator Stevens put that in his
last set of amendments, that may come into being if we capitulate
to a constitutional amendment, but as written, there is no
management authority.
Number 1129
MR. LEVENGOOD: Now that being said, the property clause gives them
vast authority if there is negative impact to the land which the
federal government is managing - and we've heard about the Kleppe
case which is a case involving the protection of wildlife - in this
case burrows and free roaming horses that were on federal lands
that were endangered. That is the reverse of the situation in
Alaska. In Alaska, this is an allocation scheme in which the
federal government is attempting to allocate the sovereign wild
natural resources of the state of Alaska discriminatorily to one
class of people and - very important point here, very important
legal point - even if the federal government has management
authority on federal lands - which our research believes they don't
and ANILCA doesn't provide that - ANILCA only provides them the
ability to provide for subsistence on federal lands, not to manage
wildlife, but to provide for subsistence. And that's my point.
Even if the federal government had management authority on federal
lands in Alaska, they must abide by the federal public trust
doctrine that requires absolute impartiality in the treatment of
all trust beneficiaries. The trust beneficiaries of wildlife
resources are every citizen in the United States and every citizen
of Alaska; past, present and future. And the violation of the
public trust doctrine to allocate to one user group over another.
So, even if the federal government has the ability to manage
wildlife on federal lands, which we don't believe they do, they
cannot discriminatorily provide higher allocation to one user group
over another. It's a very important point. We believe the Supreme
Court would rule in our favor on that issue.
Number 1285
MR. LEVENGOOD: You, as a body of the state of Alaska, have the
same public trust responsibility as the trustees of Alaska's
wildlife resources that you also cannot discriminate in the
allocation of Alaska's resources unless there is a shortage and a
rationing situation occurs. Under Title 16, current state law, we
provide in times of shortage that preferences are provided. That
is legal and should be maintained. But to provide for a 365-day
preference to rural persons violates that public trust doctrine and
if it was attempted to be placed into statute would be subject to
being overturned under both the federal court under the federal
public trust doctrine and under state court under your
responsibilities as trust beneficiaries of Alaska. More
importantly, another court legal point that you haven't heard today
is that ANILCA is not Indian law. If it was Indian law, the word
Native could be placed in ANILCA and there would be no question
that the federal government could provide a Native preference and
we would not be having this debate. But, regardless of what the
conference committee note says (indisc.) actually had Native
preference in their version of the bill before us (indisc.),
Congress chose not to make this law Indian law. Now you've all
heard that ANCSA has extinguished the aboriginal claims to fish and
wildlife resources and the important point here is that you, as the
legislative body, cannot under the 14th Amendment to the U.S.
Constitution, provide a discriminatory allocation scheme favoring
certain classes of people over others. If you did, it would be
challengeable under the U.S. 14th Amendment which precludes states
from discriminating among their citizens. Under state law, we have
the same equal protection problem that cannot be got around and
yesterday on the Senate side, and you may hear it later tonight, we
had a plea by a certain group for the Senate to craft legislation
that would fancifully tip toe around the equal protection clause of
Alaska's Constitution. You can't do it. So, you're in a dilemma
that is unresolvable - if you try to amend our Alaska Constitution,
it would be challengeable under the federal equal protection clause
and under the public trust doctrine.
Number 1444
CO-CHAIRMAN OGAN: Mr. Levengood?
MR. LEVENGOOD: Yes.
CO-CHAIRMAN OGAN: This is Representative Ogan. Through the Chair,
if I might interrupt for just a minute. I'm pretty familiar with
the public trust doctrine; in fact I have the book sitting on my
desk in front of me and we've had some discussion today about it.
Are you familiar with Article VIII, Section 4 of the Alaska
Constitution?
MR. LEVENGOOD: Which one's 4?
CO-CHAIRMAN OGAN: Sustained yield on fish and game, wildlife ...
MR. LEVENGOOD: Common use.
CO-CHAIRMAN OGAN: No, that's Section 3. Section 4 is sustained
yield.
MR. LEVENGOOD: Sure.
CO-CHAIRMAN OGAN: It says that we must manage these resources on
a sustained yield principle, subject to preferences among
beneficial uses and so we have the authority to give a preference
of the use of fish and game and I would interpret the sustained
yield portion to be in times of shortage. Do you feel if there was
a constitutional amendment that was passed to clarify that the
highest use of fish and game shall be for subsistence that that
would be a violation of the public trust doctrine?
MR. LEVENGOOD: No, absolutely not. Use is consistent with the
Alaska Constitution, but user is not. So, subsistence uses could
be the highest and best use and/or the predominant use (indisc.)
protective use, but the user could not be defined as where they
live geographically by zip code. You understand that distinction
is very important.
CO-CHAIRMAN OGAN: Sure I do. Thank you very much.
CHAIRMAN GREEN: Piggybacking on Representative Ogan's question
then, if that were the tact to be taken, do you feel that that
would suffice to allow the preference that is necessary if we can't
get all of the changes to ANILCA that we would like?
MR. SEEKINS: This is Ralph again. You know, if you read the
McDowell case, you notice even the state Supreme Court says that
it's just the way that it was presented where it was a monopolistic
group that was reprehensible to the court and to the constitution,
but I don't think you would need an amendment to the constitution
to be able to say that you want to dedicate as the highest
beneficial use for human subsistence and they were pretty clear in
their signals, I think, in the reading of that case that if there
was some kind of -- if it was based on a needs basis or other
personal qualifications or individual qualification basis, that it
would comply with our constitution. It's just when it's a
monopolistic group that it has the problem.
Number 1584
CHAIRMAN GREEN: Well, the question wasn't whether or not it would
go along with our constitution so much if we had the constitutional
amendment, but whether or not it would suffice to satisfy the
requirement that we're getting from the Secretary that we have to
be in compliance with ANILCA.
MR. SEEKINS: I don't think it would because they're just saying it
must be rural - that's the litmus test, but that's my own opinion.
MR. LEVENGOOD: Yeah - okay, I agree with Ralph. The rural
preference is a dilemma that you cannot satisfy and if you all had
your pencils handy and a piece of paper, I think I may have the
magic bullet and that is if you define subsistence as the reliance
upon wildlife resources for basic sustenance - that means the
ability to feed your family - basic sustenance - and that is
defined as a universal, natural right of all Alaskans, then with
that definition we would not need a constitutional amendment ...
UNIDENTIFIED SPEAKER: What we have now.
MR. LEVENGOOD: But the issue is, by defining subsistence in the
manner I just did, the protected class of people under the ANILCA
are rural people that, and then you have to use the state
definition, people who rely upon wildlife resources for their
sustenance, because the term subsistence is not defined in ANILCA.
If you define it, then the federal courts have to use your
definition. So, back to my analysis. The class of people
protected under ANILCA would be rural people who relied upon
wildlife resources for their sustenance. State law protects not
only that group of people, but all people in Alaska who rely upon
wildlife resources for their sustenance. Because the Alaska state
law would protect all of the class of people protected under
federal law, under a conflict of laws analysis, Alaska state law
would be in compliance with ANILCA because it gives absolute
protection to the protected class under the federal law. Now, that
being said, for insurance I would ask that one of the changes you
ask for ANILCA is that they drop the word "rural" and put in the
definition of subsistence as I just defined it. But that is
another avenue which would get Alaska out of this dilemma without
a constitutional amendment. And because I believe that the ability
to feed -- while the common use clause is an important individual
right, guaranteed by the Alaska Constitution, that it is not a
proper subject of a plebiscite. You cannot put on the popular
ballot the ability to take away individual rights of other
Alaskans. The next thing people will be wanting you to do is to
take away the rights to keep and bear arms by popular vote because
some people will get in a majority that didn't want to do that.
Well, we're a country of individual guaranteed rights and it's not
the proper subject of a plebiscite. So, ignore these pleas by the
rich few who are flooding the airwaves and the newspapers with
"just let us vote" because it's not the proper subject of a
plebiscite.
Number 1750
CHAIRMAN GREEN: Well, the problem I think some of us are having is
that we're not sure that we will have anything to offer for, even
as you say, just a redefinition of rural to include what you've
said for subsistence - that we would have that right without some
sort of a constitutional change if we just rely on legislation that
can be changed at the next convening of a legislature. I'm one who
is concerned that we would get any relief at all from the federal
government, but that's an opinion rather than fact. Representative
Ogan.
Number 1775
CO-CHAIRMAN OGAN: Well, briefly, Mr. Chairman, because I know we
have a 7 o'clock deadline. Mr. Levengood, you're an attorney by
training, is that not correct - a member of the Bar?
MR. LEVENGOOD: That's correct.
CO-CHAIRMAN OGAN: And you -- would you consider not only fish and
wildlife, but other natural resources like oil are public trust
resources?
MR. LEVENGOOD: I'm sorry, I didn't hear the question.
CO-CHAIRMAN OGAN: Oil and gas are held in public trust as well,
along with fish and game - all natural resources are, according to
our constitution, held in trust for the people of the state, is
that correct?
MR. LEVENGOOD: Alaska's unique since they have subsurface
resources, as well - correct.
CO-CHAIRMAN OGAN: So, I guess - I'm going to make a comparison of
the public trust issue here if we gave a rural priority for
permanent fund dividends because our permanent fund dividends
reflect our share of the earnings off the royalties from that asset
held in public trust. Would you think that's a fair comparison?
MR. LEVENGOOD: That is an analogy that is acceptable, certainly.
CO-CHAIRMAN OGAN: Okay, I don't think a whole lot of people would
support having a priority with that dividend, but thank you.
CHAIRMAN GREEN: Representative James.
REPRESENTATIVE JAMES: Thank you, Mr. Chairman. Lynn, I had been
thinking about this question and it has to do with the customary
and traditional use as being one of the qualifiers and I know that
in our current state regulations relating to subsistence, I believe
that there is a rule that says, I think, one generation of use or
something qualifies a person, so, one generation of use. And my
question is, the issue that we had with the permanent fund dividend
and also, the longevity bonus and a lot of other issues is that we
were not able to provide anything different to someone who had been
here a long time to someone who hadn't been here. And I wonder
does that - does that rule or that provision at all relate to us
giving a priority to someone because they've been here longer than
others?
MR. LEVENGOOD: Well, I think I understand your question - Mr.
Chairman and Representative James - I think I understand the
question and the way it would work with wildlife resources and it's
similar to the tier II hunt analysis we have under today's state
law, but using the definition that I promulgated earlier -
subsistence users are those who rely upon wildlife resources for
their basic sustenance - anybody who said that they relied upon
this wildlife resource could participate in a subsistence hunt and
that would be done just like it's done now with an allocation by
the Board of Game, but then when a shortage occurs and there was
not enough of whatever resource is being harvested to provide for
all subsistence uses, then we'd go into a situation like we have
today under a tier II in which the question would be asked of all
people who relied upon that particular stock, how long have you
relied upon this resource for your sustenance and it would be then
allocation would be given first to those who relied upon it the
longest. So, while it's not a -- so, I guess my answer to your
question is, it wouldn't be a universal exclusion based upon a ten
year (indisc.) threshold; as long as there was a reliance on the
resource established, that would be the threshold level and until
there was a shortage that required discrimination among users, it
would just then be based upon those who relied upon it the most.
Did that answer your question?
REPRESENTATIVE JAMES: Not really, but I'll think about it.
CHAIRMAN GREEN: Representative Hudson.
Number 1955
CO-CHAIRMAN HUDSON: Lynn, how did we get by with limited entry in
this provision - I mean, it's no time of shortage, it's ...
MR. LEVENGOOD: Well, the Ostrosky case of the Alaska Supreme Court
struggled with that question, said in very blatant terms that they
hated the concept because it violated the common use clause and I
guess quite frankly, how did we get it? Well, it was a situation
where we had at that time when limited entry was created, a very
limited resource and just an economic, I guess, situation that was
determined to be something that could not sustain open entries and
in economic terms, the reason it differs from the common clause of
our wildlife resource - or common use clause, I guess or basic
sustenance - subsistence - is that because then the commercial
harvest which is available to people who can go out and get enough
money to buy a permit, even through a bank loan or whatever. So,
it still is open - equal protection still applies - anyone who
wants to become a commercial fisherman has the ability to do so,
it's not restricted by zip code or anything else. But it was an
economic decision and not an individual right decision based upon
your basic sustenance. And that's a very -- not a very thick line
at all. The Supreme Court struggled with it quite heavily and they
did not like it at all. That's as close as I can come to
explaining it ...
Number 2030
CO-CHAIRMAN HUDSON: This is Bill Hudson, again. My only concern
is, is that when we originally issued them, we didn't issue them on
the basis of who's going to pay for them; we issued them on the
basis of how many years and poundage and all of those kinds of
things - it was an allocation issue and so, under your current
discussion of what our dilemma is here, it never would have passed.
CHAIRMAN GREEN: Well, I think that's probably true.
CO-CHAIRMAN HUDSON: I guess I'm asking.
MR. LEVENGOOD: I guess under a current analysis, I think it would
be very difficult to redo limited entry (indisc. - tape garbled).
CHAIRMAN GREEN: Representative Berkowitz.
Number 2056
REPRESENTATIVE BERKOWITZ: Just a quick point on the limited entry
which is, you know you can get a limited entry permit - they're
fairly expensive, but it's cheaper than that to move rural, so ...
MR. LEVENGOOD: Well, clearly.
REPRESENTATIVE BERKOWITZ: That's something people ought to
contemplate before they throw the equal protection analysis. But
what I really have for you, sir, is a challenge and the challenge
is this - if you think that the case is so strong, I think you
ought to take it to court and show it in court. And if it's going
to sustain itself, let the courts decide. If it's not, let us get
on and do our job here.
MR. LEVENGOOD: Well, the AOC - the Alaska Outdoor Council has
recently filed an intervener in the legislature's action which
raised public trust issues and other issues that the Legislative
Council suit did not have in its suit - these are issues that we
collaborated with and so, I guess legally the (indisc.) feels that
the issues that private citizens can bring are now in that
legislative suit. However, the most important rights that the
state has are, the Tenth and Eleventh Federal Constitutional
Amendment guarantees the state sovereignty amendments to the U.S.
Constitution and those can only be brought by the attorney general
through the Administration. And it is those issues raising the
state sovereignty to the Tenth and Eleventh Amendments that we
would implore the Governor to bring - enjoin the legislative suit
and bring the sovereignty issue as well and that would get us to
the Supreme Court immediately and we would have resolution within
the (indisc.).
CHAIRMAN GREEN: Representative Joule.
Number 2131
REPRESENTATIVE JOULE: Just a quick comment because I know you need
to go. But with regard to the comment on defining subsistence with
the wording of using sustenance. For people who engage in the
activity of subsistence, sustenance is only a very small portion of
what subsistence is and that was discussed and rehashed when that
issue was brought before us as part of 406 when it first came out.
So, I just wanted to bring that out ...
MR. LEVENGOOD: And I agree with you 100 percent; however, as it
relates to the wildlife resource itself, the fish or the wildlife
animal - the primary concern is that it is harvested -- I mean, the
priority is that that animal is harvested to provide basic
sustenance for the individual and/or his family members. Beyond
that, certainly it has the handicraft aspect, et cetera, but I'm
not so sure that the state needs to get into the protection of all
these other esoteric qualities when it's the basic sustenance issue
that's related to the wildlife harvest that is the primary state
concern (indisc.). And the reason I say that is, if you take the
other end of that spectrum, you find the state trying to guarantee
the protection of a culture and if there's anything that the United
States of America is, it's a melting pot of all cultures and the
state government and federal government has no business and no
legitimacy in promoting any one certain culture over anyone elses.
CHAIRMAN GREEN: Messrs. Levengood and Seekins, I want to thank you
very much for standing by. We are out of time and with that - the
joint committees will stand in recess to the call of the Chairs of
the various committees.
[EDITORIAL NOTE: CHAIRMAN GREEN recessed the Joint House Judiciary
and Resources Committees at 7:02 p.m.]
TAPE 98-96, SIDE A
Number 0001
CHAIRMAN GREEN: Call to order the Joint Judiciary and Resources
Committees to address House Joint Resolution 101. We will be
taking that up for adoption by individual committees and so I will
hand over the gavel - wherever he is - to the Chair of the
Resources Committee ...
[EDITORIAL NOTE: The Joint House Judiciary and Resources
Committees stood in recess until 2:57 p.m., May 28, 1998.
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