Legislature(1997 - 1998)
05/28/1998 02:57 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT MEETING
HOUSE JUDICIARY STANDING COMMITTEE
HOUSE RESOURCES STANDING COMMITTEE
May 28, 1998
2:57 p.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 "Bill" Williams
Representative Irene Nicholia
Representative Reggie Joule
HOUSE RESOURCES MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative Alan Austerman
Representative John Cowdery
Representative Gary Davis
Representative Terry Martin
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 102
Proposing amendments to the Constitution of the State of Alaska
relating to establishing a preference for subsistence uses of fish
and wildlife; 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 102
SHORT TITLE: CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
5/28/98 (H) JUD AT 2:30 PM HOUSE FINANCE 519
5/28/98 (H) RES AT 2:30 PM HOUSE FINANCE 519
WITNESS REGISTER
TED POPELY, Legal Counsel
House/Senate Majority
Alaska State Legislature
Capitol Building
Juneau, Alaska 99801-1182
Telephone: (907) 465-3720
GEORGE UTERMOHLE, Attorney
Legislative legal and Research Staff
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801
Telephone: (907) 465-2450
KEVIN JARDELL, Legislative Administrative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801-1182
Telephone: (907) 465-4990
ACTION NARRATIVE
TAPE 98-97, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the joint meeting of the House Judiciary
Standing Committee and the House Resources Standing Committee back
to order at 2:57 p.m. Present at the call to order from the House
Judiciary Committee were Representatives Bunde, Porter, James,
Rokeberg, Croft and Green. A quorum was present to conduct
business.
Number 0035
CO-CHAIRMAN SCOTT OGAN called to House Resources Standing Committee
to order. Present at the call to order from the House Resources
Committee were Representatives Hudson, Green, Dyson, Barnes and
Ogan. A quorum was present to conduct business.
HJR 102 - CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE
CO-CHAIRMAN OGAN: We have before us House Joint Resolution 102
which was read across the record this morning on the Floor and
there is a CS [committee substitute] that is before us we'd like to
adopt for purposes of discussion. For that reason, maybe we should
gavel out as a joint committee meeting and if we could take action
as a Resources Committee to adopt the CS, if the Chairman of
Judiciary doesn't have objection to that.
CHAIRMAN GREEN: Yeah, I think you're still in - we never went back
to joint - oh, we did ...
CO-CHAIRMAN OGAN: Yeah, we did go back as joint, so let's gavel
out as a joint meeting.
EDITORIAL NOTE: CHAIRMAN GREEN reconvened the joint meeting of the
House Judiciary and House Resources Committees at 2:59 p.m.]
CHAIRMAN GREEN: ... reconvene the joint committees for discussion
purposes on CSHJR 102. We have here -- we have been joined by
Representative Berkowitz and we have the sponsor for CSHJR 102,
Representative Barnes and we have Ted Popely here to answer any
legal problems. Representative Barnes.
Number 0051
REPRESENTATIVE RAMONA BARNES: Thank you, Mr. Chairman. Mr.
Chairman, the work draft that you have before you, Proposing
amendments to the Constitution of the State of Alaska relating to
a preference for subsistence uses of fish and wildlife; and
providing for an effective date and repeal of the subsistence
amendments. Mr. Chairman, this resolution first of all in
Section 1 is based on the existing constitution sustained yield
principles; Article II of Article VIII, Section 4 is the sustained
yield provision adding a new subsection to read:
"(b) The legislature shall establish, consistent with
the sustained yield principle, a preference for
subsistence uses of fish and wildlife that takes effect
when a fish or wildlife resource is not sufficient to
accommodate all beneficial uses of the resource.
Notwithstanding any other section of this constitution,
the State may in times of shortage of a particular fish
or wildlife resource, grant a preference for subsistence
uses of that fish or wildlife resource. The preference
shall be available to any individual resident who resides
within the area that is determined to be customarily and
traditionally dependent on the particular fish or
wildlife resource or who has demonstrated customary and
traditional dependence on that particular fish or
wildlife resource. Residents who do not reside within
the area that is determined to be customarily and
traditionally dependent on the particular fish or
wildlife resource are presumably presumed not to qualify
for the preference. This presumption shall be fully
rebuttable so that a resident may qualify for the
preference if customary and traditional dependence on the
particular fish or wildlife resource is demonstrated."
REPRESENTATIVE BARNES: And then, Mr. Chairman, as you can see it
goes on, on line 12, "(c) Except as provided in (b) of this
section" and in (b) you again go back to the sustained yield
principles and the preference that is there provided. It is what,
I believe, in this particular attempt at a constitutional
amendment, is a between the two far reaching principles that we
have had and it is an attempt to take care of the needs of all the
people of the state through both a presumption and a rebuttable
presumption to reach a resolution of this problem that exists under
Title VIII of ANILCA. I believe this constitutional amendment does
that. I would commend that you pass this resolution and that we
seek to resolve the differences that we have between the opposing
forces in our state and I'm going to ask that you address your
questions to Mr. Popely because he's the attorney and I am not.
CO-CHAIRMAN BILL HUDSON: Mr. Chairman.
CHAIRMAN GREEN: Representative Hudson. I believe the good lady on
page 2, line 9, may have for the record, missed the word
"rebuttably".
REPRESENTATIVE BARNES: I did say rebuttably, I believe.
CO-CHAIRMAN HUDSON: I was listening and I didn't hear it ...
REPRESENTATIVE BARNES: Well, excuse me ...
CO-CHAIRMAN HUDSON: ... I just want to make sure the record
indicated that it was there.
REPRESENTATIVE BARNES: Well, let me re-read it. "Residents who do
not reside within the area that is determined to be customarily and
traditionally dependent on the particular fish or wildlife resource
are rebuttably presumed not to qualify for the preference. The
presumption shall be fully rebuttable so that a resident may
qualify for the preference if customary and traditional dependence
on the particular fish or wildlife resource is demonstrated."
CHAIRMAN GREEN: And there will be a copy of this with the record.
CO-CHAIRMAN OGAN: Mr. Chairman.
CHAIRMAN GREEN: Representative -- yes.
CO-CHAIRMAN OGAN: For the record, the Resources Committee has been
joined by Representatives Joule and Nicholia.
CHAIRMAN GREEN: And we have Representative ...
CO-CHAIRMAN OGAN: Cowdery has ...
CHAIRMAN GREEN: ... Cowdery, thank you, has joined us, as well.
And we have Representative Berkowitz.
CO-CHAIRMAN HUDSON: We have Gary Davis in the audience.
Number 0346
REPRESENTATIVE ETHAN BERKOWITZ: Thank you very much. As I
understand it, my questions are to be directed to Mr. Popely, or
...
REPRESENTATIVE BARNES: I would prefer that Mr. Popely would answer
because he is an attorney; although, if I think he said something
wrong, I'll whip him.
REPRESENTATIVE BERKOWITZ: I'm sure you will.
REPRESENTATIVE BARNES: Attorneys do make mistakes sometimes.
REPRESENTATIVE BERKOWITZ: So do former speakers.
REPRESENTATIVE BARNES: (Indisc.).
REPRESENTATIVE BERKOWITZ: Looking at subsection (c) here, it
states, "Except as provided in subsection (b), the state may not
grant a preference for subsistence uses based exclusively or partly
on a resident's place of residence." This, it seems to me, is a
tacit acceptance of the idea that you can base a preference on
place of residence. Is that a fair assessment?
Number 0398
TED POPELY, LEGAL COUNSEL, HOUSE/SENATE MAJORITY, ALASKA STATE
LEGISLATURE: Mr. Chairman, Representative Berkowitz. Yeah, my
name is Ted Popely for the record - I'm counsel for the Senate and
House Majority. Mr. Chairman, Representative Berkowitz, my
understanding is that reading of Section (c) does not imply that a
residence based criteria are allowed absent this amendment to the
constitution under Section (b).
REPRESENTATIVE BERKOWITZ: Perhaps I didn't make my question clear.
What I'm suggesting is that you are accepting of the idea that
there can be a distinction based on place of residence.
Number 0435
REPRESENTATIVE BARNES: Mr. Chairman, since that's a policy
question perhaps I should ...
CHAIRMAN GREEN: Representative Barnes.
REPRESENTATIVE BARNES: ... speak to it. What this says,
Representative, is that we have a problem in the state and the
problem is one with Title VIII of ANILCA. So, we are presuming to
fix that problem as best we can under our existing constitution;
doing it two ways. First, with the presumption in a time of
shortage that people qualify and secondly, that there be a
rebuttable presumption for those that live outside of those
presumed qualified areas. So, your question then says, we're
saying that we admit a fact - I'm answering you in the way I look
at it.
REPRESENTATIVE BERKOWITZ: Let me ask it again, just because I need
...
CHAIRMAN GREEN: And then I'll take a shot at it. Representative
Berkowitz.
REPRESENTATIVE BERKOWITZ: Representative Barnes, what you are
saying is that with the constitutional amendment, it is permissible
to make a distinction based on place of residence.
CHAIRMAN GREEN: Not exclusively ...
REPRESENTATIVE BERKOWITZ: I can ask my own questions ...
CHAIRMAN GREEN: And the reason for the that is -- if you'll hear
me out -- the reason for that is the rebuttable presumption that
you don't have to live within the area that is impacted by the
scarcity of game.
REPRESENTATIVE BERKOWITZ: Mr. Chair, I appreciate the help you're
trying to offer, but the point I would like to make or like to
understand, is best answered by Representative Barnes.
REPRESENTATIVE BARNES: Would you care to ask it again and once
again, I will answer it.
REPRESENTATIVE BERKOWITZ: Does Section (b), as acknowledged in
Section (c), allow distinctions based on place of residence?
REPRESENTATIVE BARNES: It would allow two kinds of distinctions.
One, a presumed distinction and the one, a rebuttable distinction.
REPRESENTATIVE BERKOWITZ: So, the answer is yes.
REPRESENTATIVE BARNES: I am not answering yes; I am answering yes
two ways.
REPRESENTATIVE BERKOWITZ: So, you're answering yes twice.
REPRESENTATIVE BARNES: It would allow a rebuttable and ...
CHAIRMAN GREEN: Alright, there is a response - yes.
CO-CHAIRMAN OGAN: Mr. Chairman.
CHAIRMAN GREEN: Yes.
CO-CHAIRMAN OGAN: (Indisc.).
CHAIRMAN GREEN: We have other people - okay. Representative
Croft.
Number 0576
REPRESENTATIVE ERIC CROFT: Representative Barnes, is this a House
Rules Committee by request of the Governor or should it have still
said by the House Resources Committee?
REPRESENTATIVE BARNES: Well, as it exists right now, our CS for
House Joint Resolution 101, I think, was introduced by the Governor
and so the CS would eventually become CS for House Joint Resolution
101 Resources.
REPRESENTATIVE CROFT: I thought we were 102.
CHAIRMAN GREEN: We're on 102, I'm sorry.
REPRESENTATIVE BARNES: Whatever it is - I've got 101 ...
CHAIRMAN GREEN: Yes, it should be 102.
REPRESENTATIVE JEANNETTE JAMES: It should be 102 and it should not
say ...
UNIDENTIFIED SPEAKER: ... by the House (indisc.).
REPRESENTATIVE CROFT: If it says 102, then it should be by House
Resources, instead of House Rules ...
CHAIRMAN GREEN: That's right.
REPRESENTATIVE CROFT: Just - we're doing things quickly and I
thought that's probably the way it should go. On Section (b), I
understand, I think, the distinction that you described and the
distinction that I've heard described different ways. One in a
conversation with Representative Davies. I worry that the way
we're using customary and traditional - ANILCA makes two
distinctions; the type of area - subsistence or nonsubsistence area
- and then customary and traditional use of the resource - and I'm
trying to understand whether we mean to say, if you live in an area
that's primarily dependent on fish and game, you have the
preference. If you don't, you may based on individual criteria.
If we're trying to say that, using the words customary and
traditional confuses the issue or may. Let me try it -- on page 2,
line 3, the heart of the matter, in my opinion, "the preference
shall be available to any individual resident who resides within
the area that is determined to be customarily and traditionally
dependent on the particular fish or game resource ..."
REPRESENTATIVE BARNES: Fish or wildlife resource.
REPRESENTATIVE CROFT: ... fish or wildlife, you're quite right.
Is Anchorage customarily and traditionally dependent on the Kenai
River run or the Ship Creek run?
REPRESENTATIVE BARNES: There may be -- Mr. Chairman ...
CHAIRMAN GREEN: Representative Barnes.
REPRESENTATIVE BARNES: ... there may be some residents, that under
customary, traditional uses would be rebuttably presumed to
qualify.
REPRESENTATIVE CROFT: Okay, but that's the second part of that
sentence that goes on to say, "or who has demonstrated customary
and traditional dependence" - that's an individual ...
REPRESENTATIVE BARNES: That's correct.
REPRESENTATIVE CROFT: Is Anchorage, as a community, customarily
and traditionally dependent on the Ship Creek or Kenai River runs?
REPRESENTATIVE BARNES: No.
Number 0749
REPRESENTATIVE CROFT: I mean, it seems to me that they are - that
they have -- unless we really mean the concept of - and I think we
probably should - are they an area that is dependent on fish and
game resources? Those were two steps in ANILCA and we're using a
term of art - customary and traditional dependence - that there's
just the one. So, that's a concern. Let me address the second
part of that sentence where it says, "... or who has demonstrated
customary and traditional dependence on that particular fish and
wildlife resource." If I tell you, Representative Barnes and you
believe me, that my family has gone to Kodiak and hunted deer for
20 years am I customarily and traditionally dependent on Kodiak
deer?
REPRESENTATIVE BARNES: You would have to show for the Board of
Fish and Game eventually, that you were dependent on that resource,
so it would be a laid down criteria before the Board of Fish and
Game that would establish whether or not you were dependent.
REPRESENTATIVE CROFT: And what kind of criteria - would it make a
difference whether I was wealthy and had done that for 20 years or
poor and had done that for 20 years?
REPRESENTATIVE BARNES: Doesn't make any difference.
REPRESENTATIVE CROFT: Okay. Would it make any difference whether
that was the only game that I ate or I ate a lot of different game?
REPRESENTATIVE BARNES: Well first of all, you will have to have
enabling legislation to establish this bill and those questions
would fall under the enabling legislation.
REPRESENTATIVE CROFT: I guess that's my final question until we
come back around. Why do we want to put this in the constitution
when it seems to me we could take the constitutional amendment we
rejected today, "may distinguish based on ..."
REPRESENTATIVE BARNES: Mr. Chairman, the constitutional amendment
that we rejected today is not before us.
CHAIRMAN GREEN: No, but there is a question as to -- I'll accept
that.
REPRESENTATIVE CROFT: It just goes to why would we want to put
this language which seems to me, statutory language -- we could
take any number of constitutional amendments, including one very
short and specific and then put this in a statute, couldn't we?
Number 0874
REPRESENTATIVE BARNES: You could, if you could get the support for
it.
REPRESENTATIVE BERKOWITZ: On that point ...
CHAIRMAN GREEN: Representative Berkowitz.
REPRESENTATIVE BERKOWITZ: But wouldn't it be easier to get 21 to
support a statute than 27 to support an amendment?
CHAIRMAN GREEN: Representative Porter.
Number 0889
REPRESENTATIVE BRIAN PORTER: Mr. Chairman, I've been called away,
for I hope not too long, and I just wanted to make a point before
I left. This constitutional amendment, I believe, presumes that a
statutory structure that would implement it will have as its
beginning, the establishment of subsistence and nonsubsistence
areas basically along the lines that exist today. Consequently, we
could go to great lengths in putting all of those kinds of things
into the constitutional amendment - I don't think that's advisable.
It does refer to that notion pretty graphically in an area that has
been determined to have a customary and traditional dependence, but
I'll leave it up to the committee on how far they want to go in
plodding along that fine definition. But what I think that this
does represent is a rural preference plus the ability of some
individual who can demonstrate that he/she has relied customarily
and traditionally on that resource as the shortage to be able to go
into that area of shortage after establishing this long-term
customary and traditional ANILCA definition and be able to provide
for their families as they had been traditionally and customarily
doing - albeit from Fourth and C in Anchorage or downtown Kenai or
wherever. So, it is the balance, I think, that works and if we can
put it into a little better shape with the committee process -
great - but, this is pretty close to being it. Thank you, Mr.
Chairman, I'll be back just as soon as I can.
REPRESENTATIVE CROFT: On that point and ...
CHAIRMAN GREEN: Okay, follow-up.
Number 1002
REPRESENTATIVE CROFT: I think it could say that - I just don't
believe it says that now and particularly with the use of customary
and traditional, I don't think it -- we could take the statutes
that describe subsistence and nonsubsistence area, this doesn't
reference them and it prohibits any preference based on them. It
substitutes another concept which is not co-equal with it - it
doesn't mean the same thing as subsistence and nonsubsistence areas
and in fact, denies the ability to use those areas in statute.
REPRESENTATIVE BARNES: Mr. Chairman, could I ask our attorney to
respond to the attorney who has just spoken.
UNIDENTIFIED SPEAKER: Actually ...
CHAIRMAN GREEN: Mr. Popely.
REPRESENTATIVE BERKOWITZ: Point of order - it's the Representative
who spoke.
REPRESENTATIVE BARNES: Excuse me.
REPRESENTATIVE BERKOWITZ: (Indisc.) title so important.
UNIDENTIFIED SPEAKER: He doesn't think I'm an attorney.
CHAIRMAN GREEN: Mr. Popely.
MR. POPELY: Mr. Chairman, Representative Croft, I'd be glad to
comment. I understand the distinction you're drawing between
customary and traditional as it's been used in ANILCA with regard
to individuals versus the way it appears to be depicted here and
would be depicted in any enabling legislation in terms of an area,
which is a bit of a novel approach. But if you look to the state
statutory definition of customary and traditional, I think that the
drafter's notion is that it would be reasonable to utilize the same
definition and apply it to the area - that would be the boards
applying it - in order to determine whether an area or community
satisfies the definition. If I could read it briefly - the
customary and traditional definition from the state statutes is the
noncommercial, long-term, consistent taking of, use of, reliance on
fish and wildlife in a specific area - fish and game is what it
says - fish and game in a specific area and the patterns of that
fish or game that have been established over a reasonable period of
time, et cetera. I do understand the distinction you're drawing.
Number 1107
REPRESENTATIVE CROFT: Doesn't Anchorage qualify with Ship Creek
under that very definition?
MR. POPELY: Mr. Chairman, Representative Croft, for one thing,
that decision would be up to the boards. Ultimately, all of the
decisions on which areas qualify, which areas do not, would be up
to the boards - there would be statutory guidelines and my answer
to that would be, probably not for several reasons. One, it would
still be established in statute nonsubsistence areas - Anchorage
would undoubtedly be one of them. Even if it were not, in the
determination on whether or not the area was customarily and
traditionally dependent on that particular fish stock, I think it
unlikely that the Board of Fish would determine that the Anchorage
community, as a whole, could qualify for the preference based on a
generalized customary and traditional dependence on that resource
for food. And that's the standard that will have to be used under
this regime.
Number 1151
CHAIRMAN GREEN: But residents within Anchorage could qualify.
MR. POPELY: Yes, they could, Mr. Chairman, but they would not
qualify on the fish stock within Ship Creek.
CHAIRMAN GREEN: Would not, if that's a nonsubsistence area, but
they could qualify on the rebuttable presumption to another area.
MR. POPELY: Mr. Chairman, that's correct. I think what you're
facing is the board's going to determine first of all, if the
statutory scheme were adopted, the board would determine whether or
not the fish stock taken out of Ship Creek has any communities that
depend on that for food in a subsistence way. And I think it's
likely that the Board of Fish would determine that there are no
communities and no individuals who have customarily and
traditionally depended on Ship Creek as a subsistence resource.
Personal use, sport, a variety of other uses - yes, but the board
would probably determine that Ship Creek has not been depended on
in a long-term and consistent use pattern for a primary food source
by people in Anchorage which would thereby implicate Anchorage as
a qualifying community for that particular stock.
REPRESENTATIVE CROFT: I keep promising the last one, but we keep
leading on to others. If I can, just ...
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: Where does it say that the particular fish
or game resource has to exist in a subsistence area and can't exist
in a nonsubsistence?
MR. POPELY: Mr. Chairman, Representative Croft, I agree, it's not
written in the constitutional amendment. I think it's
inappropriate to have that in here - it probably would be included
in the enabling legislation.
REPRESENTATIVE CROFT: One more.
CHAIRMAN GREEN: Next to last.
REPRESENTATIVE CROFT: Right, maybe. And I will cut it off and we
can come back around if you want. The customary and traditional
that applies to the individual, Representative Barnes says --
you're not an attorney, right?
REPRESENTATIVE BARNES: Heavens, no.
REPRESENTATIVE CROFT: Then I'll just call you Representative
Barnes -- customary and traditional dependency applies - the
individual one applies to me who goes to Kodiak and hunts even
though I'm not dependent in the sense of have to have it for food.
I've been doing it under a sports hunting license forever and ever,
so when we use it there it doesn't mean have to have it to live or
whatever. But in that same sentence, up above two lines, when we
say customary - an area who is customarily and traditionally
dependent - now that's supposed to mean dependent in the sense -
Anchorage dependent on Ship Creek in the sense of Anchorage
wouldn't survive without it? I worry that in the same sentence,
the same phrase is given dramatically different meaning and would
be more comfortable, if this is our intent, that we say, "a
resident who resides in a nonsubsistence area" or I guess it would
be "a subsistence area that is determined to be customary and
traditional" if that's the irrebuttable part we intend, I think we
should say it. And the other part where we say if you're not,
"residents who live in a nonsubsistence area" -- (indisc.) that
sentence that starts on 7 that I guess means to talk about
residents of nonsubsistence areas - what it really says is
residents who do not reside within an area that is determined to be
customarily and traditionally dependent on the particular fish or
wildlife resource. ANILCA -- well, let's leave it at that first
one that we're using customary and traditional dependence radically
different when we go from an individual to the area and that if we
mean subsistence or nonsubsistence area, we ought to say it.
REPRESENTATIVE BARNES: You're talking about in time of shortage.
CHAIRMAN GREEN: And I think rather than get embroiled now, I think
you have a point -- I think there are probably some drafting
changes that would be ready through amendments. I think what we
want to do is get the overall view first and then probably come
back and address changes. Because I know there's some other -- on
that point, we have other people.
REPRESENTATIVE BARNES: Mr. Popely, that's something you ...
MR. POPELY: Mr. Chairman, if I might. Representative Croft, if I
could just kind of -- briefly on what you said, I might be able to
clear up a little bit. I think your reference on line 7 to
residents who do not reside within the area - I don't think the
intent of the drafters was that that be only nonsubsistence area
residents; rather, since the scheme here is drawing a dependence on
a particular fish or game stock by a particular community, that you
could still be outside of a nonsubsistence area and still not
qualify for that particular stock. You could still live in a very
remote Bush area, for example, and not qualify for a particular
fish or game stock. It's sort of the local preference idea where
you don't qualify everywhere once you qualify in a particular fish
or game stock so, you could still not qualify even though you're
outside a nonsubsistence area. And I know I'm probably further
confusing you because ...
REPRESENTATIVE CROFT: No, no, that clarified it pretty well. It
doesn't address the line 4, customary and traditional, but it does
the line 7 or 8 ...
CHAIRMAN GREEN: Representative James.
Number 1405
REPRESENTATIVE JAMES: Well, rather than asking a question up
front, I want to say what I understand this does and then have
anyone correct me if I am wrong. First of all, my reading of this
indicates to me that - and I believe I've heard it other places ...
CHAIRMAN GREEN: ... you have.
REPRESENTATIVE JAMES : ... is that constitutionally, we can
identify nonsubsistence and subsistence areas without a
constitutional amendment. Is that correct? We can do that? Okay,
so now what we have done is we've assumed that we've done that and
that we have known areas of nonsubsistence and known areas of where
subsistence happens. Then it seems like the next premise is that
a preference for the subsistence uses is only in times of shortage
because it says, "only happens when the wildlife resource is not
sufficient to accommodate all beneficial uses" so, what we end up
identifying here is beneficial uses. Am I correct on that
assumption?
CHAIRMAN GREEN: So far.
REPRESENTATIVE JAMES: Moving along then, it seems to me like what
this is saying is that - and there is a gap in there because now
we're talking about a shortage of a particular fish or wildlife
resource and then we go on to talking about areas and there's no
way to get from the fish and wildlife resource that's short to the
area - there's no line to that, but we're saying that anybody who
resides within an area that is a subsistence area, whether they be
up north or down south or whatever, and there's a shortage of the
fish or wildlife in this area - which it doesn't say where these
things are - then that if you're living anywhere in a subsistence
area, you're presumed to qualify if you were dependent upon that
fish or that wildlife and that because you live in one of these
subsistence areas, you're rebuttably presumed to qualify or
presumed to qualify without rebuttable.
UNIDENTIFIED SPEAKER: Presumed.
REPRESENTATIVE JAMES: I think it's without rebuttable, is that
right?
REPRESENTATIVE BARNES: That's correct; you're presumed to qualify.
REPRESENTATIVE JAMES: Okay, moving on here so I can understand
what this says, then - but if you don't live in a subsistence area,
anywhere you don't live there where there's a subsistence area and
you've been using that fish or wildlife customarily and
traditionally over a period of time and have established or
demonstrated that you have this dependence upon it no matter where
you live, it's the rebuttable presumption; in other words, you say
you're assumed that you're qualified and somebody has to say you
aren't. Is that what that means?
CHAIRMAN GREEN: No ...
REPRESENTATIVE JAMES: ... or do you have to come in and prove that
you are?
CHAIRMAN GREEN: Yes.
REPRESENTATIVE JAMES: Okay, you have to come in and prove that you
are. Okay, so this all can happen and then it says, okay, in times
of shortage, we are giving a subsistence preference or priority in
times of shortage, but it goes on and in (c) it says, "except for
that period of time when there's a shortage of fish or wildlife" we
cannot base any kind of subsistence preference on partly or -- on
exclusively or partly where you live. So that seems to me like
that we have a dichotomy there, because first of all it says that
you're presume to qualify for subsistence if you live in an area
that's been identified a subsistence area and we're talking about
you being that, and then it goes on to say, you can't base it on -
basically, exclusively or partly on the resident's place of
residence. So, it seems like you say you can and then you say you
can't.
CHAIRMAN GREEN: No, and ...
REPRESENTATIVE JAMES: Would you correct me on that one?
CHAIRMAN GREEN: Alright, again we're talking about the
constitutional amendment here, but there will be in the bill that
goes with this, a litany of things that will qualify you as a
resident within the area or a rebuttable presumption for you
without, but it's not just on residence; it's on your need, it's on
your prior experience, it's on a very defined list of things that
they will look at.
REPRESENTATIVE JAMES: But it says you can't do it on partly.
CHAIRMAN GREEN: That's right and we will ...
REPRESENTATIVE JAMES: That means you can't do it on residence at
all.
CHAIRMAN GREEN: We will address that because I have a heartburn
with that word "partly" and we'll get to that just as we'll get to
these other areas. I object to that same thing. I think it should
be you can't rely on it completely.
REPRESENTATIVE JAMES: Okay, if I might make one more statement.
I think I understand what this is intending to do and that's what
I was trying to do in this process. But there's one other thing
that I just -- statement that I want to make. From all the
testimony that I've heard - and I don't know if there's anybody
here that can answer for me on this ...
CHAIRMAN GREEN: George Utermohle, I think - yes, is here now.
REPRESENTATIVE JAMES: ... is that it seems to me that the voices
I'm hearing on the subsistence issue doesn't necessarily recognize
an individual's right to subsistence. It seems to me like always
the subsistence that I'm hearing about that is customary and
traditional is a group right and never an individual right. And if
I'm not -- that's not what I've been hearing, I'd like to have
other people respond to that because I know a lot of people in my
district who are individuals who are living a subsistence
lifestyle. And they're living that subsistence lifestyle under
sports hunting and fishing regulations, but they are definitely
living a subsistence lifestyle.
CHAIRMAN GREEN: And - I know George is here, but if they can
qualify with these other criteria, they would qualify on a
rebuttable presumption where they go if that game is in short
supply, they would qualify under the rebuttable presumption. It's
not just because they've done that though, there are other things -
alternative food (indisc.), those kinds of things. There'll be a
list of things that if they use that, they go there under personal
use, but they go to the grocery four times a week, they're going to
have a hard time rebutting a presumption.
REPRESENTATIVE JAMES: If I might, Mr. Chairman, I don't mean to
take an awful lot of time here ...
CHAIRMAN GREEN: No, I think we need to get this ...
REPRESENTATIVE JAMES: ...but going to the grocery store depends on
what you go to the grocery store to get. If you're getting your
protein from wild fish and game, and you're getting other things
from the grocery store, it's not the same thing.
CHAIRMAN GREEN: I agree and ...
REPRESENTATIVE JAMES: ... and so is that considered?
CHAIRMAN GREEN: That will be up to the board to determine whether
you are a subsistence lifestyle by going to the grocery store for
flour or whether that doesn't really count - we're only talking
about meat - with the other abilities to find food that ...
REPRESENTATIVE JAMES: Alright. Alright.
CHAIRMAN GREEN: George, welcome. Would you identify yourself for
the record.
Number 1727
GEORGE UTERMOHLE, ATTORNEY, LEGISLATIVE LEGAL AND RESEARCH STAFF,
LEGISLATIVE AFFAIRS AGENCY: Good afternoon, Mr. Chair. My name is
George Utermohle. I'm legislative counsel with Legislative Affairs
Agency.
CHAIRMAN GREEN: Have you been here long enough to hear the
dialogue with Representative James and some of the questions that
she's asked?
MR. UTERMOHLE: Mr. Chairman, I have been in the room during part
of the conversation, but I didn't get a chance to understand
actually the context - I've missed most of your meeting today and
I really don't have the context that you've developed in your prior
discussions. I'm not even sure which versions of bills or
resolutions that ...
CHAIRMAN GREEN: We're looking at the K Version ...
MR. UTERMOHLE: ... you're considering.
CHAIRMAN GREEN: ... your most recent version. Representative
Bunde.
Number 1756
REPRESENTATIVE CON BUNDE: On another subject if I might, Mr.
Chairman. I'll add that I share some concern about - on page 2,
line 14 - the partly on residence and expect further discussion
there. On page 3, line 5, where it discusses the lawsuit and just
a question about policy, I guess. I'd heard discussion previously
that this is a particular lawsuit and another election could change
whether Leg. Council [Legislative Council] wanted to continue the
lawsuit and it may be picked up by another entity of state
government or whatever -- my question is, do you intend to single
out that specific lawsuit or would it be advisable to be more
generic? And that would, I guess, be Mr. Popely.
REPRESENTATIVE BARNES: Mr. Chairman, since he asked a question
about the lawsuit, could I respond?
CHAIRMAN GREEN: Yes.
REPRESENTATIVE BARNES: Representative Bunde, the question of the
lawsuit is because it had both legislators and the Chair of Leg.
Council and Leg. Council members on the lawsuit, the lawsuit would
continue because we have a contract that is paid for with the
attorney and you would have to withdraw those individual
legislators from that lawsuit before you could withdraw the
lawsuit.
REPRESENTATIVE BUNDE: And so, Mr. Chairman, the short answer is
that's not a concern that the committee ...
REPRESENTATIVE BARNES: It's not a concern for me.
CO-CHAIRMAN OGAN: Mr. Chairman, on the point of the lawsuit.
CHAIRMAN GREEN: Yes, Representative Ogan - I'm sorry.
CO-CHAIRMAN OGAN: I think this whole issue here the way it's
written is kind of a moot point because if the Supreme Court
decides that Congress exceeded its constitutional authority, it
goes away, anyway.
UNIDENTIFIED SPEAKER: No, it doesn't.
UNIDENTIFIED SPEAKER: It doesn't affect our constitutional
amendment.
CO-CHAIRMAN OGAN: But the need for the constitutional amendment
goes away because we don't have a rural priority anymore.
UNIDENTIFIED SPEAKER: But we already have the lawsuit.
CHAIRMAN GREEN: Yeah, it would have to be removed. I think we
discussed that this morning. Representative Hudson.
Number 1858
CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. Listening to the
information the first time around on this particular version, I
think that this has been pretty well crafted. I wish
Representative Croft was still here because the way I looked at
this thing when I looked it over several times, is that for the
first time in Section 4, Article VIII, we establish that the
legislature shall establish a preference for subsistence - and
that's the first time we've done that, so that's an essential
element within the constitution and it is also -- they do this --
they shall do this in times of shortage essentially, because it's
not available. And then the second thing of it is, is it says that
in times of this shortage, that they may - which is the same thing
we've done on some of the other resolutions we talked about earlier
- grant a preference available to any individual resident on the
basis of residency within an area determined to be customary and
traditionally dependent. So that's again, sort of the subsistence
areas and it's assuming, I guess, that the Boards of Fish and Game
can create those or establish those and there's other criteria for
that - you don't have to put that in the constitution - and that
someone who lives within there is essentially determined to have
that preference, but it also says ...
UNIDENTIFIED SPEAKER: Qualified.
CO-CHAIRMAN HUDSON: Yeah, that's he's qualified; he's pre-
qualified, yeah. But it goes further - different than anything
else we've seen - by stating that someone who lives outside of this
area there, but has demonstrated that dependence shall also have an
opportunity to acquire that same preference. I think that's all
this really says there, other than some qualifiers. So, it's fair
and then I think that Section (c) on line 12 that's been talked
about, is again just a matter of strong qualifying language that
simply says that unless times of shortage and you meet these other
criteria we've established on a constitution, the state may not
grant that preference. I think that just simply cuts off a lot of
the wishy-washiness. That's what I see it.
CHAIRMAN GREEN: The Chair would like to recognize we have been
joined by Representatives Masek, Williams, Martin, Cowdery and
Austerman. Representative Berkowitz.
Number 1968
REPRESENTATIVE BERKOWITZ: Thanks very much. This is for either
Mr. Popely or Mr. Utermohle - the scheme that's described in the
body of this resolution - if that were a statutory scheme, would
that statutory scheme be permissible under today's constitution?
MR. POPELY: Mr. Chairman, Representative Berkowitz, in my opinion,
no.
REPRESENTATIVE BERKOWITZ: Now would that scheme be permissible
under the resolution that we rejected this morning in the House?
MR. POPELY: Mr. Chairman, Representative Berkowitz, I'm afraid I
don't have that in front of me. I can't ...
REPRESENTATIVE BERKOWITZ: That allowed for consistent with
sustained yield, a subsistence priority based on place of
residence.
MR. POPELY: Mr. Chairman, Representative Berkowitz, in my opinion,
it probably would be permissible under that constitutional
amendment, yes. But I think what you're getting at if ...
REPRESENTATIVE BERKOWITZ: That's all I asked. The next question
that I have has to deal with ANILCA. In your opinion, is Version
K consistent with the requirements of ANILCA?
MR. POPELY: Mr. Chairman, Representative Berkowitz, no, it clearly
is not and it requires that ANILCA be made consistent with this
provision.
REPRESENTATIVE BERKOWITZ: So, in your opinion, we would fall out
of compliance if nothing further were done based on adopting
Version K.
MR. POPELY: Mr. Chairman, Representative Berkowitz, we would be in
compliance if this became effective because it would require ANILCA
to be changed to conform to this scheme.
REPRESENTATIVE BERKOWITZ: And maybe someone else can answer this
- I don't know if you all know, but have you had any indication
that the proposed ANILCA changes that are required under this
resolution are any where in the offing?
MR. POPELY: Mr. Chairman, Representative Berkowitz, it's not my
line of work, so no.
CO-CHAIRMAN OGAN: Mr. Chairman, on that point.
CHAIRMAN GREEN: Representative Ogan on that point; in fact, you're
up anyway.
Number 2054
CO-CHAIRMAN OGAN: Are you done with your line of questioning?
I'll just wait.
REPRESENTATIVE BERKOWITZ: Well, I have a third line of
questioning.
CO-CHAIRMAN OGAN: Okay, I'll just wait.
REPRESENTATIVE BERKOWITZ: On page 14 -- or line 14, page 1, we're
talking about all beneficial uses - all beneficial uses seems
universal, would that mean statewide?
MR. POPELY: Representative Berkowitz, I believe so, yes.
REPRESENTATIVE BERKOWITZ: On line 12, you talk about - you have
the mandatory "shall" instead of the permissive "may". Perhaps I
misunderstood some of the arguments that people were raising this
morning, but they seemed to be the more objectionable portions in
terms of what ANILCA required. Aren't we just implementing those
objectionable portions here by mandating that subsistence "shall"
be what we manage for? Isn't that going to interfere with
commercial fishing - resource exploitation?
MR. POPELY: Mr. Chairman, Representative Berkowitz, I believe
lines 12 - 14 merely require a preference for subsistence use in
the generalized sense. The "may" language on page 2 refers to this
specific scheme for affording a preference. This language that
you're referring to that's mandatory doesn't spell out any
particular preference scheme and it's something that the state does
anyway as far as affording a subsistence preference in times of
shortage.
REPRESENTATIVE BERKOWITZ: If I might, it says, "the legislature
'shall' establish a preference for subsistence use."
MR. POPELY: Yes.
REPRESENTATIVE BERKOWITZ: So we have no choice; that is required,
which means that we will manage for subsistence.
MR. POPELY: Well, it means that we'll afford a preference in times
of shortage. That's certainly true under this language.
REPRESENTATIVE BERKOWITZ: Has anyone discussed the impact of this
requirement vis a vis commercial fishing?
MR. POPELY: Mr. Chairman, Representative Berkowitz, that's for you
to do here, I assume.
REPRESENTATIVE BERKOWITZ: And the impact - for example, regarding
the ability to develop upstream resources - anyone to your
knowledge had any discussion in that regard?
MR. POPELY: Mr. Chairman, Representative Berkowitz, no, not with
me, but (indisc.) reply to is that this isn't anything that's new
or unique - the state could afford a subsistence preference in
times of shortage ...
REPRESENTATIVE BERKOWITZ: We could, but there's ...
CHAIRMAN GREEN: Excuse me, what is your purpose for this line of
questioning, Representative Berkowitz?
REPRESENTATIVE BERKOWITZ: I'm just trying to get a better
understanding of the language here because it seems to me that what
we've done - or I'm not going to include myself in that first
person - but what you are attempting to do is require that we
manage for subsistence which is the most objectionable portion of
ANILCA according to my understanding of the arguments I've been
hearing.
CHAIRMAN GREEN: No, that's not quite true.
REPRESENTATIVE JAMES: You're not listening.
REPRESENTATIVE BERKOWITZ: Well, I am listening, Representative
James and if I'm not listening, then perhaps this isn't being
clearly expressed because the language on lines 12 - 14 says you
shall establish a preference for subsistence.
CHAIRMAN GREEN: That's right and then it goes on to say how that's
going to be done and there will be enabling legislation that says
there will be a criterion that has to be determined; there will be
subsistence, nonsubsistence areas, and when there's a shortage in
a particular area, those residents of that shortage area will
ultimately have the preference; those who don't live in that
subsistence area or that shortage area, will qualify if, by a
rebuttable presumption, they can show a dependent need and a
sustained history of use.
REPRESENTATIVE BERKOWITZ: I'd like to develop this line of
questioning with people who are expert in the impact of mandatorily
establishing a subsistence preference.
CHAIRMAN GREEN: Okay, so you're going to wait for other
testifiers.
REPRESENTATIVE BERKOWITZ: I'll wait for other testifiers.
CHAIRMAN GREEN: Alright. Representative Ogan.
CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. Well, I'm real pleased
to see we're having this discussion on Article VIII, Section 4 of
the constitution and sustained yield, and the preference that I
think we were just discussing. Mr. Utermohle, in that existing
section it says that fish, wildlife, forest, grasslands, and other
replenishable resources - we can give a preference in times of
shortage so under the sustained yield principle which interprets
...
TAPE 98-97, SIDE B
Number 0001
CO-CHAIRMAN OGAN: ... of fish and game and the use of fish and
game can be subsistence. Is that correct - we already have that
authority, correct?
MR. UTERMOHLE: Mr. Chairman, Representative Ogan, yes, that's
true.
CO-CHAIRMAN OGAN: So, now when we give a preference of use of fish
and game under the existing constitution as it stands today, there
is not a problem with inherent rights because we already have the
ability to give a preference established in the constitution, is
that correct?
MR. UTERMOHLE: Mr. Chairman, Representative Ogan, yes, you have
the authority to establish preferences among beneficial uses. This
provision, as all of the provisions of the constitution, are in
tension with each other. ... extent that you provide a preference
among beneficial uses that does not impinge upon something
prohibited by another provision of the constitution, there's no --
that's within the scope of the legislature.
CO-CHAIRMAN OGAN: Does the expansion - if I might just go ahead
and continue the line of question ...
CHAIRMAN GREEN: Representative Ogan.
CO-CHAIRMAN OGAN: ... Mr. Chairman, the expansion of the
rebuttable presumption if you live outside of the subsistence use
area, does that create any additional problems in the inherent
rights section - common use section?
MR. UTERMOHLE: Mr. Chairman, Representative Ogan, I don't see it
as a problem. It eliminates a large portion of the tension that
would exist between such a scheme of presumptions and a number of
provisions of the constitution - uniform application section, the
common use provisions of the Alaska Constitution, even the equal
protection provisions in the Alaska Constitution.
Number 0176
CO-CHAIRMAN OGAN: Okay, now currently under our Supreme Court
rulings and under our constitution, we can have - and there is
currently in statute - subsistence areas and nonsubsistence areas,
is that correct?
MR. UTERMOHLE: Yes, there are.
CO-CHAIRMAN OGAN: As long as there's a rational criteria for that,
we can do that, is that correct?
MR. UTERMOHLE: That is correct.
CO-CHAIRMAN OGAN: And that's been litigated to the Supreme Court in
our state.
MR. UTERMOHLE: Yes, it has.
CO-CHAIRMAN OGAN: Okay. So, we get -- as long as we allow people
that have a -- is it customary -- what's the language in here --
customary and traditional dependence on that particular fish and
wildlife resource - as long as we establish a rational criteria for
that customary and traditional dependence and we give them - if
they don't live in the area, we give them a rebuttable presumption
to go into the area, that doesn't violate the common use provision
of the constitution or inherent rights because we already have that
authority, in your opinion?
MR. UTERMOHLE: Mr. Chairman, Representative Ogan, this
constitutional amendment, if adopted, would provide for such a
scheme and would avoid the problems that might otherwise exist with
the uniform application clause, common use provisions, or equal
protection provisions of the constitution.
Number 0285
CO-CHAIRMAN OGAN: Okay, we couldn't give -- in other words, we
couldn't give the rebuttable presumption without this
constitutional amendment because it would violate the common use
clause?
MR. UTERMOHLE: Mr. Chairman, Representative Ogan, based on the
existing precedence of the Alaska Supreme Court, yes, that is the
case - we would not be able to provide for such presumptions.
CO-CHAIRMAN OGAN: Okay. There was some discussion earlier - maybe
just a comment not a question for the witnesses - of I believe, if
I understood correctly, there was a discussion of whether or not
the congressional delegation would sign off on this or whatever --
clearly, it's been real clear that if minority and majority agree
and the Governor's Office signs off on it, they'll advocate for it
and I think it's workable politically if we can get a consensus.
That remains to be seen; I don't think that can be answered here.
I don't have any other questions at this time.
CHAIRMAN GREEN: Representative Austerman.
Number 0370
REPRESENTATIVE ALAN AUSTERMAN: Thank you, Mr. Chairman. First
off, to Mr. Berkowitz - his question referenced the commercial
fishing industry and I think that anybody in the commercial fishing
industry has already accepted the fact that during a time of
shortage, subsistence will be number one after sustained yield. I
don't think that's been a question, never has been a question as
far as the subsistence issue is concerned. It doesn't really raise
the question .... My other question is more technical and I
apologize for being late and maybe you already answered it, but on
page 2 in Section (c) when you're talking about the place of
residence or partially on a place of residence, seems to conflict
a little bit with the lines above when you're talking about time of
shortage you're going back to that resident area - you have to be
a resident of that area to get -- so, it seems there's a little bit
of confliction there. It's probably more of a technical ...
REPRESENTATIVE JAMES: I get it - I get it.
REPRESENTATIVE AUSTERMAN: Did you already answer that question.
REPRESENTATIVE JAMES: In my mind.
CHAIRMAN GREEN: That has ...
REPRESENTATIVE AUSTERMAN: I think it's more of a technical
question as to whether there's a conflict.
CHAIRMAN GREEN: That has come up for three people and it might be
wise that we do explain that because I have the same problem and I
know the attorney for the House Judiciary says no, we probably need
that in there with partly. It seems to me like it's a conflict, as
well.
Number 0469
MR. POPELY: Mr. Chairman, Representative Austerman, Section (c)
that you're referring to on line 12, my understanding is that the
initial clause "except as provided in sub (b) of this section" -
which is the point you're referring to where that may be a factor,
so by inserting "except as provided in section (b) of this section"
it allows for that and then the following three lines, "the state
may not grant a preference for subsistence uses based exclusively
or partly on a resident's place of residence" would prevent
another, additional or different scheme based on residence or
residence criteria.
REPRESENTATIVE AUSTERMAN: I didn't read it thoroughly enough.
Thank you.
CHAIRMAN GREEN: Well, probably though - it still seems to give me
a little bit of grief because you say in effect then, they may not
grant a preference for wildlife resources based partly on a
resident's place of residence.
REPRESENTATIVE NORMAN ROKEBERG: Part time - seasonal.
MR. POPELY: Mr. Chairman, you may recall the state law that was
struck down in the Kenaitze decision, for example, had place of
residence as a partial factor in determining whether or not
somebody qualified for a subsistence preference and it was found to
be invalid under the equal access provisions. This was designed to
prevent that sort of a scheme where there would be a number of
factors - one of which would be proximity to the resource or
locality or something of that nature, would not be allowed to be
used. The only scheme based on residence that would be permitted
under this section is that contained in sub (b) in pages 1 and 2.
Number 0580
CHAIRMAN GREEN: But if the litany of requirements that are going
to be in the statute - you go through this various litany and one
of those things might be - not exclusively, but one of those things
might be residence. You're saying that you can't use that as a
partial ...
MR. POPELY: No, Mr. Chairman, I'm saying that that is permissible
because of the phrase, "except as provided in sub (b) of this
section". The statute would be designed to match subsection (b) of
this and implement it and would therefore be allowed because under
subsection (c) it says, except as provided in (b) you can't use it
for partial consideration.
CHAIRMAN GREEN: I'll back off - we'll debate that later then when
we debate the other amendments. Is that all you had,
Representative Austerman?
REPRESENTATIVE AUSTERMAN: Yes, thank you.
CHAIRMAN GREEN: Representative Rokeberg.
Number 0635
REPRESENTATIVE ROKEBERG: Well, thank you, Mr. Chairman. The first
question I'd like to direct to Mr. Popely has to do with the state
definition of customary and traditional dependency. There was
earlier a question that related to whether need could be a criteria
as it related to dependency and therefore, that you couldn't set in
this because of an existing statutory definition -- you couldn't
have like an income level or any kind of need based criterion, is
that the way the interpretation of the existing statute is?
MR. POPELY: Mr. Chairman, Representative Rokeberg, I don't think
anything currently in Alaska law prohibits the use of need in
affording a subsistence preference, no.
REPRESENTATIVE ROKEBERG: But if we had a need, for example, income
level, wouldn't you need a constitutional authority to do that
because or would you not? Or is that part of how you define the
criteria for determining dependency?
MR. POPELY: Mr. Chairman, Representative Rokeberg, there's nothing
that I know of that specifically has addressed whether or not you
could use criteria like need or dependency or individualized
reliance characteristics in affording the preference. The problem
comes in when you start looking at place of residence. As far as
need and dependence, nothing to my knowledge would prevent that
from happening without a constitutional amendment.
REPRESENTATIVE ROKEBERG: Well, Mr. Chairman, it just seems to me
if you have dependence in the word that need would be a constituent
element of trying to define what dependence was. Is that (indisc.)
in the legal sense?
MR. POPELY: I believe so, yeah.
Number 0749
REPRESENTATIVE ROKEBERG: I'll go on, Mr. Chairman.
CHAIRMAN GREEN: Representative Rokeberg.
REPRESENTATIVE ROKEBERG: In response to a further inquiry about a
question that Representative Berkowitz brought forward regarding
the applicability of this particular amendment to whether or not
this would conform for ANILCA. If I could pose it to you a
hypothetical - if you remove Section 3 for purposes of discussion
from this amendment - this is the ANILCA changes and the lawsuit,
et cetera -- assuming you remove Section 3, would in fact this
language provide that we would be in conformance with the
requirements of ANILCA, particularly as they relate to the
December 1 conforming date and the needed changes in the state of
Alaska's Constitution so this would preclude the entry of federal
management for fishery.
MR. POPELY: Mr. Chairman, Representative Rokeberg, no, it would
not comply with ANILCA without that section.
REPRESENTATIVE ROKEBERG: Or even -- Mr. Chairman -- even though
you would take out the required changes for ANILCA here, you still
would not conform to ...
MR. POPELY: It's clearly a different preference scheme.
REPRESENTATIVE ROKEBERG: Okay, so because of that this would not
necessarily preclude federal takeover, then. Is that your
testimony?
MR. POPELY: Without that section, it probably would not from what
we've been told unless the federal agencies or Congress tell us
something different from what we've heard up until now.
REPRESENTATIVE ROKEBERG: And if you put that back in, then
particularly there would be -- necessary congressional changes
would have to take place before this would be effective anyway, is
that correct?
MR. POPELY: Yes, sir.
Number 0865
REPRESENTATIVE ROKEBERG: Okay. And for this question, I see
Representative Barnes isn't here, but page 2, subsection (d)
regarding the preferences -- will not be diminished for the
utilization of forest, grasslands, et cetera - I'm not sure I
understand the rationale of why or what the purpose of putting that
in here was. Would you expand on that - either you or Mr.
Utermohle.
MR. POPELY: Mr. Chairman, Representative Rokeberg, I believe the
drafters intended that that section be used to stand as a factor to
keep subsistence from standing in the way of further use of public
lands in Alaska. Subsistence would not -- the preference scheme
before the body here would not then, as I say, diminish the
utilization of forest, grasslands and other replenishable
resources.
REPRESENTATIVE ROKEBERG: Mr. Chair, is that because it's in the
same Article VIII, Section 4, as it relates to the now sub (a) and
the recitation of those particular resources there - is that just
a clarification? Clarification to do what you just indicated that
it wouldn't preclude further development?
MR. POPELY: I think we're on the same track - that's right. It
would prevent the subsistence priority from impeding further use of
the land.
REPRESENTATIVE ROKEBERG: I just wanted to make sure I understood
that and then we have it on the record - that's why I asked the
question. Mr. Chairman, also Ms. Barnes isn't here - I was going
to ask the status of the case recited in the Alaska Legislative
Council - the Babbitt case - what the current status of that cause
of action is. Are you aware of that?
MR. POPELY: Mr. Chairman, Representative Rokeberg, a complaint has
been filed in the district court for the District of Columbia and
a response has been filed which includes a motion to dismiss on a
variety of procedural grounds and I believe an opposition to that
motion was recently filed and is now pending.
REPRESENTATIVE BILL WILLIAMS: Could you go over that last portion
again, there was a car going by.
MR. POPELY: Mr. Chairman, Representative Williams, the complaint
has been filed in the district court for the D.C. Circuit and
opposition has been filed in the form of a motion to dismiss on a
number of procedural grounds and I believe an opposition to that
motion to dismiss has been filed in the last several days and is
now pending.
Number 1029
REPRESENTATIVE WILLIAMS: So, the court doesn't want to hear ...
REPRESENTATIVE JAMES: No, it's not the court.
MR. POPELY: The defendant doesn't want the case heard.
REPRESENTATIVE WILLIAMS: What does the court say?
MR. POPELY: It's pending; we'll have to wait and see.
Number 1041
REPRESENTATIVE ROKEBERG: Mr. Chairman, well to follow up on that -
on the Floor this morning we had another amendment that was adopted
on the resolution before the body this morning which was a more
generic draft - it did not stipulate this particular case - it said
any other case that evolved. Is there a particular reason this
case was stipulated specifically?
MR. POPELY: Mr. Chairman, Representative Rokeberg, you may have to
ask Representative Barnes that question, but my understanding is
that if you wanted to broaden that, I don't see why it wouldn't
achieve the same purpose to add that the Legislative Council v.
Babbitt or other litigation or something to that effect that would
do one of these two things, would thereby repeal this resolution.
CHAIRMAN GREEN: George, as the drafter, is that your feeling that
there'd be no reason not to expand it if it was desired?
MR. UTERMOHLE: Mr. Chairman, that is correct. There's no reason
that this provision cannot be expanded to cover any other
litigation before federal courts.
REPRESENTATIVE ROKEBERG: And to follow up, Mr. Chairman, on that.
On page 3 in the subsection (b) starting on line 4, then the
provisions on lines 9 and 11, the sub (1) and sub (2), the syntax
there I'm not real comfortable with says either (1) a rural
resident preference et cetera or (2) a preemption of authority -
these are specific reasons -- I'm not sure I understand why those
were stipulated there rather than just a generic exceeding scope or
there was a finding by the court that a portion of ANILCA may be
unconstitutional -- is there a specific reason these were
stipulated or not a more generic approach taken for this paragraph.
MR. UTERMOHLE: Mr. Chairman, Representative Rokeberg, those
particular issues are addressed and listed in this provision
because those are the two issues relating to the constitutionality
of ANILCA that are currently before the court in the Alaska
Legislative Council case.
REPRESENTATIVE ROKEBERG: Mr. Chairman, is it conceivable that
another party that might have standing could bring a cause of
action on another theory or grounds to try to overcome or challenge
some portions of ANILCA that might be applicable to this?
MR. UTERMOHLE: Mr. Chairman, Representative Rokeberg, yes, that's
within the realm of possibility.
REPRESENTATIVE ROKEBERG: So, there's an either or here in terms of
the sentence structure in the way this is put together, so it could
be either one or the other then, but not a third possibility?
MR. UTERMOHLE: Mr. Chairman, Representative Rokeberg, yes, it has
to be either one of these events occurring - either one of these
being found to exist by the courts that the rural residents'
preference is unconstitutional or that the preemption of state
management authority on federal public lands is unconstitutional -
either of those would cause this constitutional amendment to be
repealed. Either one of those findings would have the effect of
removing the authority of the federal government to impose the
management scheme they currently have in place.
Number 1227
CHAIRMAN GREEN: Is there a benefit to enumerating them as opposed
to just saying if something is found in that case -- I'm just
asking -- is that why they're enumerated and doesn't maybe have a
possible third that Representative Rokeberg (indisc.) something
else coming up.
MR. UTERMOHLE: Mr. Chairman, these issues are listed because they
go to crux of the conflict between the state of Alaska and the
federal government as to the ability of the state to manage its
fish and game resources.
CHAIRMAN GREEN: I heard you say that and then the question was
though, is there any merit to showing those two as the crux of the
thing, but wouldn't if either of those came up, if you just said if
there's an issue that comes up in that case, whether it's these two
or something else. Or is the purpose just to refer to those two?
MR. UTERMOHLE: As to what events would trigger the repeal of these
constitutional amendments, is a policy decision that's left up to
you. The function of you determining how important a particular
issue is that might come before the federal court to determine
whether or not our constitution should be amended in response to
that. For example, making this contingent upon, say the federal
government's authority to manage navigable waters in the state is
found to be unconstitutional, that's a very important issue, but it
doesn't go to the heart of the ability of the federal government to
manage fish and wildlife. It just affects a small portion of their
jurisdiction in the state.
Number 1317
REPRESENTATIVE ROKEBERG: Well, Mr. Chairman, my last question is
to the Chair, is that are we going to have anybody from the
Administration or Department of the Interior here to testify?
CHAIRMAN GREEN: I don't know that they have been requested. The
aide is gone, so I don't know.
REPRESENTATIVE WILLIAMS: Well, can we?
CHAIRMAN GREEN: Can we? Certainly, if we can ask them.
REPRESENTATIVE ROKEBERG: Thank you, Mr. Chairman.
CHAIRMAN GREEN: On that point, Representative Porter?
Number 1341
REPRESENTATIVE PORTER: Yes. I believe that the Administration's
position at this point - and I very cautiously offer it - is that
they're looking at this right now and evaluating it and at this
point, would not be prepared to testify - whether or when that
changes, remains to be seen.
CHAIRMAN GREEN: Representative James.
REPRESENTATIVE JAMES: Well, I'm back to this -- thank you, Mr.
Chairman -- I'm back to page 2, on line 12, (c), and I just need to
go over this one more time so that I can understand if I understand
it. And so what the attorneys had responded is that what that
means, "Except as provided in (b) of this section, the state may
not grant a preference for subsistence uses of a fish or wildlife
resource based exclusively or partly on a resident's place of
residence." To me - and the response that we got had to do with
the Kenaitze case where they used part of the reason why the people
had a right to take this wildlife was because of where they lived
and it's saying that you can't do that. However, it seems to me to
read, because (b) only talks about a preference for subsistence
uses in the times of shortage - it doesn't say it like that, but
that's what it means - so I would read then (c) to mean, except as
in times of shortage, the state may not grant a preference for
subsistence uses of fish or wildlife based exclusively or partly on
the resident's place of residence. It seems to me like what we're
saying here is that the subsistence preference or priority is only
in times of shortage and no other scheme is allowed. Now if I
might just go on from that because then I have a question and that
question is, assuming - and there has to be some assumptions with
(b) here - it assumes that there is a scheme in statute that
identifies nonsubsistence and subsistence use areas and our
existing constitution indicates that we can have priority order of
beneficial uses based on sustained yield and we have already
amended our statutes, but I don't know if it ever went through,
that said that subsistence is the highest priority which assumes
that we're recognizing that subsistence is a use. But we heard
testimony from the attorney generals yesterday is that our
constitution allows us to give a priority of uses, but not of
users. And so, it seems to me like (b) delineates a scheme which
says that we've already identified subsistence use areas and
nonsubsistence use areas which means that without doing anything,
if anyone lives in a use area, they can do it there and that's the
only place they can do it and that that's just automatically okay
because we haven't identified the users, we've only identified the
use and this is where it's done. And so anybody that's there can
do it there.
REPRESENTATIVE JAMES: And so then we go on to say that that's the
only time that they get an actual preference is when there's a
shortage. Have I got that right? So, the rest of the time they're
just doing it because they're doing it and it's because it's a
preference in beneficial uses.
Number 1529
CHAIRMAN GREEN: Not exactly - and that's not a car ad. George, do
you want to answer that.
MR. UTERMOHLE: Mr. Chairman, I think I agree with Representative
James' last statement - you're last sentence, I agreed with. I
couldn't necessarily say I followed the discussion up to that, but
I think your last statement summing up was an accurate description
of the situation that would exist under this language.
REPRESENTATIVE JAMES: If I might follow up, Mr. Chairman. I'm
struggling with this - you can tell I'm struggling with this
because I want to understand it and also I understand the goal and
see if I'm correct on this - the goal of this exercise is to try to
find something that can get 27 votes on the House floor.
(Laughter) Is that correct?
CHAIRMAN GREEN: I'm not so ...
REPRESENTATIVE BUNDE: Point of order. I think the goal is to find
a successful solution to ...
CHAIRMAN GREEN: I think so.
REPRESENTATIVE BUNDE: ... the subsistence problem.
REPRESENTATIVE JAMES: Well, I think that would be a paradox, but
in any event that being the case then - and I think we heard
testimony on the House floor today that the subsistence priority
only takes place in times of shortage - it's the only time it
affects it and Senator Stevens has said that over, over and over
again, so does this meet the criteria that is intended in ANILCA?
Number 1590
CHAIRMAN GREEN: I believe yes, we're working in that direction,
but (indisc.) a little bit earlier is as we move down from the horn
of plenty to that veneer of resource that can be harvested just
above the sustained yield, there will be other uses that are taken
out first while the subsistence portion continues.
REPRESENTATIVE JAMES: I understand that.
CHAIRMAN GREEN: Okay. Representative Joule.
Number 1614
REPRESENTATIVE REGGIE JOULE: With an earlier line of questioning,
I just wanted to take this scenario out if certain things occurred
for the purposes of discussion. If there are 27 votes here and 14
votes in the other side - it makes it that far ...
CHAIRMAN GREEN: I'm sorry, there are 27 and 14?
REPRESENTATIVE JOULE: Twenty seven ...
CHAIRMAN GREEN: We got a problem.
UNIDENTIFIED SPEAKER: Why? Forty-one.
CHAIRMAN GREEN: Oh, alright - on the other side.
REPRESENTATIVE JOULE: On the other side.
CHAIRMAN GREEN: Sorry.
REPRESENTATIVE JOULE: Okay. What I'm saying is if this passes
both Houses with the required margin for a constitutional amendment
- it doesn't comply with ANILCA and for argument purposes, the
Administration doesn't back it - of course, it goes to the vote of
the people regardless of whether they support it or not. And I
think Mr. Popely said earlier that there were no assurances that
our congressional delegation would introduce legislation to make
the necessary changes for this to work; i.e., ANILCA. And all of
this plays out to that point where we do not get the backing of the
delegation, then where are we? Are we at the point of - because
we're not in compliance because this doesn't get it - we may have
something on the books that maybe passes by the voters, but at the
national level we can't get the changes to Title VIII of ANILCA
that we would like to see - what happens? Are we then - do we then
come under federal management and then where we have this in our
constitution, but can't do anything? I'm just trying to take this
out that far - I don't know.
CHAIRMAN GREEN: Currently, that would happen. There is going to
probably be an amendment to suggest that if - say there are four
items that are required and we only get three of them - that the
amendment would say that substantially gets what we were asking for
in changes from ANILCA. Now what I think you're saying is what if
none of those come about - then the constitutional amendment would
become null and void. If that's the case, then the subsequent to
that would be, we haven't done anything to prevent federal
takeover.
REPRESENTATIVE JOULE: I was just trying to play this out. Thank
you.
CHAIRMAN GREEN: Representative Porter.
Number 1767
REPRESENTATIVE PORTER: Thank you, Mr. Chairman. Again, I
apologize for being gone and if I say something that's already been
covered - fine, then I apologize. Representative Joule's question
is very well taken - it certainly begs the entire policy question
on where do we go from here - obviously we have to get it out of
committee, but this kind of a special session with abbreviated time
to work - the overall picture is no secret and how it's going to
work is certainly shouldn't be a secret. I don't think anybody
sitting at this table doesn't recognize that our congressional
delegation has indicated that they want an Alaskan solution. The
Alaskan solution should be the legislature and the Governor saying
this is our best effort and the people to say we agree with their
best effort and if that requires ANILCA amendments, they say
they'll go for it - whether they'll get them or not, we don't know.
REPRESENTATIVE JOULE: I understand that. I was just looking --
thank you though, but I do understand that.
Number 1818
REPRESENTATIVE PORTER: To the specific question that came up on
Section (d) on page 2 - I'm sorry - Section (c) on page 2, I don't
think anything that has been said is incorrect - I would just kind
of codify it or synthesize it by saying to me what that does is
say, this constitutional amendment supports one singular approach
to this solution ...
REPRESENTATIVE JAMES: That's the way I understood it.
REPRESENTATIVE PORTER: ... that solution being (b). It is not
intended to provide a flexible constitutional amendment that
subsequently another legislature can come in and drop something
different into it. That's what that intent is. The definitions
that come into play within this are - it's my understanding and
please correct me if I'm wrong - but it's my understanding that
what we're also trying to do is to stay in compliance with ANILCA
as much as possible and that when we say customary and traditional
we mean by ANILCA definition. And when we say a subsistence area,
we're saying by ANILCA definition. For the discussion on
dependence and reliance and that, it's my understanding that a
subsistence area is an area that has a reliance - or a dependence
on that resource for subsistence and that a customary and
traditional user is someone who has a customary and traditional use
or reliance on that resource. For what it's worth, those are the
definitions of ANILCA and I think those are the definitions that
this constitutional amendment is aimed at being consistent with.
REPRESENTATIVE BARNES: Mr. Chairman ...
CHAIRMAN GREEN: I think some of the dialogue was on an "or" in
there - that conjunction "or partly" that's caused some grief, but
we'll probably address things as we get into amendments.
REPRESENTATIVE BARNES: Mr. Chairman ...
CHAIRMAN GREEN: Well, there have been several questions about
that. Representative Barnes.
Number 1928
REPRESENTATIVE BARNES: On the point that was raised by
Representative Porter. While he was out of the room, Mr. Popely
did read the definition of customary and traditional use out of the
book that you have got there and I thought it was pretty clear on
its face what that meant. And he did explain that section relating
to partially and our attorneys had clarified exactly what that
meant and the necessity for keeping it in there.
CHAIRMAN GREEN: Representative Croft.
Number 1952
REPRESENTATIVE CROFT: Thank you, Mr. Chairman. On page 2, lines
27 - 28, where we require that this constitutional amendment
doesn't come into effect until the Governor certifies that these
can happen and number two is that the federal law now waives
federal jurisdiction over state and private lands and waters in the
state. (Indisc.) feds have clean air jurisdiction - clean water,
they have criminal jurisdiction - I don't read any of the
qualifiers that were in other parts of this about fish and game,
subsistence, wildlife management in general - this seems to require
that the feds waive their jurisdiction over anything that happens
on private lands all the way down to criminal ATF [alcohol, tobacco
and firearms] gun possession. Is that how you read it?
MR. POPELY: Mr. Chairman, Representative Croft, I see no reason
why you couldn't clarify that. I think the intent of the drafters
was to limit this section to explicitly fish and wildlife
jurisdiction.
REPRESENTATIVE CROFT: A couple other questions if I may, Mr.
Chairman.
CHAIRMAN GREEN: Just a moment. I think that Representative
Rokeberg had a point on your point.
REPRESENTATIVE ROKEBERG: Right. Just to - despite what was said
on the floor this morning, the state does not have primacy over
water in this state; the federal government does.
UNIDENTIFIED SPEAKER: He's been smarting over that for some time.
CHAIRMAN GREEN: He has, definitely.
REPRESENTATIVE BARNES: Mr. Chairman.
CHAIRMAN GREEN: Yes, Representative Barnes.
REPRESENTATIVE BARNES: On the point that was raised on the water
- obviously if you read starting on lines 21, you know that all of
those (indisc.) subsections under the effective date and repeal of
subsistence amendments, that you're talking about Title VIII of
ANILCA. And I don't think in any way you cannot say that these
particular statements in here clearly go to Title VIII of ANILCA
not any other section of law.
Number 2075
REPRESENTATIVE CROFT: Mr. Chairman, I can move on, but the number
3 says, repeals the jurisdiction of the federal courts to hear
cases arising under and goes on to the wildlife. I mean, if it
feels it has to be clear there - and I think it should - if it just
said repeals the jurisdiction of the federal courts over state
land, I think it would be too broad. So, I don't see any reason
not to clarify it there. Back on ...
CHAIRMAN GREEN: And are you satisfied -- I think that Mr. Popely
indicated that that can be clarified even though the intent is
there and if clarification is necessary, no problem.
REPRESENTATIVE CROFT: Sure, if Mr. Popely says it can be
clarified, it can. The first sentence of (b) - so starting on
page 1, in its entirety, "The legislature shall establish,
consistent with the sustained yield principle, a preference for
subsistence uses of fish and wildlife that takes effect when a fish
or wildlife resource is not sufficient to accommodate all
beneficial uses of the resource." That is not limited to
subsistence or nonsubsistence areas, right? That's a blanket
statewide urban or rural requirement.
REPRESENTATIVE BARNES: Mr. Utermohle is trying to answer.
CHAIRMAN GREEN: I'm sorry.
MR. UTERMOHLE: Mr. Chairman ...
CHAIRMAN GREEN: Go ahead, George. I'm sorry.
MR. UTERMOHLE: Representative Croft, yes, this provision is
applicable statewide.
REPRESENTATIVE CROFT: In fact, I went over and over it before -
when Representative Porter said the definitions of subsistence and
nonsubsistence area in this that ought to be the same as ANILCA, I
don't see where we use the words "subsistence or nonsubsistence
area". Do we in this three pages?
MR. UTERMOHLE: Representative Croft, no, this constitutional
amendment does not use that language.
REPRESENTATIVE CROFT: And when we use the term "customarily and
traditionally dependent" or "customary and traditional dependency"
- either one - I see here an ANILCA definition of "customary and
traditional" - I don't see a definition of the word "dependency"
and that goes to a question I think you were asking before how that
modifies it - to the extent that dependency doesn't alter it
significantly - that it really just means customary and traditional
as we have in state statute - that means on the page that Ted
Popely was reading from -- "customary and traditional means the
noncommercial, long term and consistent taking of, use of or
reliance upon". So, when we were talking about these Anchorage --
does Anchorage have a customary and traditional use of Kenai or
Ship Creek or any other creek that runs through there, it would
seem to me to have some noncommercial, long term, consistent taking
of at least, use of - probably - reliance would be questionable,
but it's an "or".
CHAIRMAN GREEN: That's true and the areas that you're talking
about will fall in what is currently a nonsubsistence area.
REPRESENTATIVE CROFT: Okay, but as it's written, there's no
nonsubsistence (indisc.).
CHAIRMAN GREEN: That's right.
REPRESENTATIVE CROFT: So, it'd have to be amended if we're going
to do that intent. So, that covers the customary and traditional
part. I guess I worry, as Representative Rokeberg does, that when
we add the idea of dependency, it's not going to be us defining
that - I mean, we're putting this in the constitution - don't you
think it's going to be a court telling us what dependent means
there? What customary and traditional dependency means, but in
particular whether dependency means what Representative Rokeberg
and I think or something else.
Number 2212
REPRESENTATIVE PORTER: To that point, Mr. Chairman.
CHAIRMAN GREEN: To that point.
REPRESENTATIVE PORTER: .... looking for in ANILCA ...
UNIDENTIFIED SPEAKER: Oh, it's five.
REPRESENTATIVE PORTER: Five? Yeah, okay. As to the area being a
subsistence area or nonsubsistence area - that the wording that you
just read really on page 2, line 3, "the preference shall be
available to any individual resident who resides within" - I would
prefer "an area" as opposed to "the area" but nitpicky - "that is
determined to be customarily and traditionally dependent" - that is
an ANILCA definition of an area. The definition being ...
UNIDENTIFIED SPEAKER: 804.
REPRESENTATIVE PORTER: 804?
CHAIRMAN GREEN: While you're looking that up - did you have a
response to that, Mr. Popely?
MR. POPELY: Mr. Chairman, Representative Croft, I think just for
clarification - what I happened to be reading from - which is on
the bottom - yeah, the subtitle - that's part of the task force
proposed language - I believe that subject -- checking the statute,
I don't have it in front of me -- but I believe the actual wording
in today's state statute as it exists is "and" and that the task
force had proposed to make it "or".
REPRESENTATIVE CROFT: The task force shows where its changing here
and it changes "game" to "wildlife" and puts a new "of taking or
use", but it doesn't show the old - but we can find that out.
REPRESENTATIVE BERKOWITZ: It just on that ...
CHAIRMAN GREEN: On that point, Representative Berkowitz.
REPRESENTATIVE BERKOWITZ: In the ANILCA amendments, it's "or".
REPRESENTATIVE CROFT: Right. In Section 803 of ANILCA (a)(3) - or
just 803(3), customary and traditional uses - there they use "uses"
instead of dependency and that's the problem we discussed - means
the noncommercial, long term and consistent taking of, use of "or"
reliance upon. So, when we use that to describe an area, it's
long-term use of and if you've got a city that lives by a stream,
there's going to be long-term use of it, long-term taking of it,
maybe not long-term reliance on it, but under both state statute
and ANILCA, I believe every city is going to be a subsistence area,
basically.
CHAIRMAN GREEN: Well, I think it would be if you didn't make it
dependent, because if you left it just to long-term use, I can
qualify in a lot of areas because of a long-term use just from a
personal use standpoint. And I'm not dependent, but I certainly
have a history of use. And so I think that's the idea is to make
it a dependent, which then further narrows the band down to those
who need it most.
REPRESENTATIVE CROFT: Well, Mr. Chairman, it does narrow the band,
but to an extent that we can't predict here that some court is
going to tell us and I'd be much more comfortable telling them what
we mean - what criteria ...
CHAIRMAN GREEN: Agreed. Agreed.
Number 2349
REPRESENTATIVE CROFT: On that issue, Mr. Popely, the way it reads
now, if Kodiak were -- just to use that example -- if I've
established my customary and traditional dependence on that
particular wildlife resource - my family and I go to Kodiak for the
last 20 years and sport hunt deer - and somebody else has - say
Representative Austerman lives in an area that is customarily and
traditionally dependent on that deer resource - he lives in a
village that has always hunted that - in times of plenty, we both
go as subsistence users, is that correct? If there is a shortage,
who drops off first - Representative Austerman who lives next to it
or me who has got a remote customary and traditional urban-sort-of
subsistence?
CHAIRMAN GREEN: Mr. Popely.
MR. POPELY: Mr. Chairman, Representative Croft, that certainly
hasn't been contemplated by this resolution and would be a subject
for statutory ....
TAPE 98-98, SIDE A
Number 0001
MR. POPELY: ... to discern who, in fact, should be the priority
user and they've narrowed it down and narrowed it down and racheted
it by a point system, as one example for you and I can't say
exactly how that would be done, but I think that's a proper subject
for statutes and for board regulations.
CHAIRMAN GREEN: Excuse me, we do have members of Fish and Game
here so that question may be more appropriately answered by them.
Excuse me, just one more point that there is established a
racheting down and holding true subsistence users whole and moving
other areas - personal use, sports fishing - begin to drop off.
REPRESENTATIVE CROFT: This prohibits a racheting and that's why I
asked that very question.
REPRESENTATIVE AUSTERMAN: That doesn't matter.
CHAIRMAN GREEN: Representative Austerman.
REPRESENTATIVE AUSTERMAN: The words in the rest of that sentence
where it speaks of residents who reside in the area, so you and I
would not even qualify if there's a time of shortage in that area,
if I read this correctly ....
Number 0088
REPRESENTATIVE PORTER: Mr. Chairman, I found ...
CHAIRMAN GREEN: Okay, on that point -- okay, I'm sorry.
Representative Porter.
REPRESENTATIVE PORTER: Thank you. I don't know how many folks
have got this thing out, but 803 on page 6, number 5 at the bottom
of the page describes the last sentence, "a rural community or area
means a community or area substantially dependent on fish and
wildlife for nutrition" and it goes on. More specifically, 804(a)
-- I'm extrapolating, but it basically says to the point, whenever
it is necessary to restrict the taking of populations of fish and
wildlife - which is what this whole scheme does; it only kicks in
in the time of a shortage - the priority shall be implemented
through application of limitations based on the following: (1)
customary and direct dependence upon the population, local
residency and availability.
REPRESENTATIVE CROFT: So in response to that, this never uses the
ANILCA term "rural community or area" - we discussed that - and
that's really the dichotomy that ANILCA has between establishing an
area first and then a use - a customary, traditional use and the
two terms are not synonymous; they serve a different function. I
think that (indisc.) serve the function of the other here and in
that way confusing the matter. On the point that Representative
Austerman made, the sentence says that preference shall be
available to the individual resident who 1) resides within the area
that is determined to be customarily and traditionally dependent on
the particular fish or the resource - that's you, if you live next
door to it, Alan - or who has demonstrated customary and
traditional dependence on that particular fish or game resource -
and that's me. But the sentence is both of us and it doesn't
describe any racheting down - we both have that right. And in fact
if they tried to say as ANILCA would, we're going to do this when -
we've got a severe shortage, we're going to do it first on
customary dependency, next on local residency, this would step in
and say you can't do that. My right under this to a preference -
the preference shall be available to somebody who has that
traditional dependency - that's me. It cannot prefer the local
residents - Alan - over me. They can't under this; they could
under ANILCA.
CHAIRMAN GREEN: Since we're hung up on this - before we're getting
to the amendment portion - let's take about a five minute break and
I think that I've been advised that a couple of attorneys can get
together and can probably resolve this language very quickly. So,
we'll take a five minute at-ease.
Number 0301
CHAIRMAN GREEN: ... House Judiciary and Resources Committees. It
is my understanding that during the break, there was some language
developed that would resolve one of the issues that we were hung up
on.
Number 0342
KEVIN JARDELL, LEGISLATIVE ADMINISTRATIVE ASSISTANT TO
REPRESENTATIVE JOE GREEN, ALASKA STATE LEGISLATURE: Mr. Chairman,
that is correct.
CHAIRMAN GREEN: Would you identify yourself for the record,
please.
MR. JARDELL: Kevin Jardell, staff attorney to the Judiciary
Committee. During the break, we drafted a proposal for some
language that we believe will fix the issue that was raised by
Representative Croft and others. Whatever the Chair would like to
do - I know it's a joint committee and ...
CHAIRMAN GREEN: What I would think is, can you read us what you
were going to do and then we will deliver that to the Resources
Committee for implementation.
MR. JARDELL: If everybody will turn to page 1, line 12, we'll
insert "Except in areas designated by the legislature as
nonsubsistence areas".
IDENTIFIED SPEAKER: Where?
CHAIRMAN GREEN: Where do you put that?
MR. JARDELL: At the beginning of the sentence.
CHAIRMAN GREEN: After (b) you put in ...
MR. JARDELL: After (b).
CO-CHAIRMAN HUDSON: Say it again, please.
MR. JARDELL: Except in areas designated by the legislature as
nonsubsistence areas.
CHAIRMAN GREEN: And then go along with the legislature shall?
MR. JARDELL: Correct.
CHAIRMAN GREEN: Okay. Have we talked with the Department of Fish
& Game on this since that normally is a function of Fish & Game?
MR. JARDELL: Through the Chair, no, we've not discussed the
proposed language with Fish & Game. The idea that we were working
off of is the constitutional amendment didn't speak to
nonsubsistence areas - that it could be interpreted to apply to all
areas of the state - that nonsubsistence areas have been used in
the past - it's appropriate as it is already for the legislature to
designate those areas and that would basically just set up exactly
what we have today.
CHAIRMAN GREEN: Representative Porter.
Number 0470
REPRESENTATIVE PORTER: Mr. Chairman, if I may ask. Would that
language presume the legislature's ability to designate an agency
to make those kinds of determinations by statute?
MR. JARDELL: Through the Chair, Representative Porter, after
speaking with Mr. Utermohle, Mr. Popely and myself, I believe that
is correct - the legislature would designate the criteria and could
....
UNIDENTIFIED SPEAKER: Good idea.
CHAIRMAN GREEN: Representative Rokeberg.
Number 0503
REPRESENTATIVE ROKEBERG: Mr. Chairman, just for clarity purposes -
are nonsubsistence areas and subsistence areas defined in statute
currently?
MR. JARDELL: Currently they are ....
REPRESENTATIVE ROKEBERG: It is already, so we don't have to worry
about .... Okay.
CHAIRMAN GREEN: In fact, we have them.
REPRESENTATIVE FRED DYSON: I'm sorry, I didn't hear that response.
MR. JARDELL: Through the Chair, Representative Dyson, currently
subsistence areas and nonsubsistence areas are defined in present
law.
REPRESENTATIVE DYSON: State law?
MR. JARDELL: State law.
CHAIRMAN GREEN: We actually have them.
MR. JARDELL: Mr. Chair.
CHAIRMAN GREEN: Kevin.
MR. JARDELL: The second amendment would be on page 2, line 4,
after the word "resides", we would insert "within an area outside
a nonsubsistence area as designated by the legislature and" ...
CHAIRMAN GREEN: Wait a minute.
REPRESENTATIVE CROFT: And Kevin, why not just use a subsistence
area as the opposite of a nonsubsistence area?
MR. JARDELL: Through the Chair.
CHAIRMAN GREEN: Yes, Kevin.
MR. JARDELL: Through the Chair, Representative Croft, it's
consistent with present state law; that's the way it has been done.
CHAIRMAN GREEN: ... and outside a nonsubsistence area and what?
REPRESENTATIVE ROKEBERG: Would you repeat it, please.
MR. JARDELL: Sure. After ...
REPRESENTATIVE JAMES: And tell me again where it goes.
MR. JARDELL: After "resides", we'd insert "within an area outside
a nonsubsistence area as designated ...
CO-CHAIRMAN HUDSON: Go a little slower. Within an area ...
MR. JARDELL: Within an area outside a nonsubsistence area as
designated by the legislature and.
UNIDENTIFIED SPEAKER: ... is determined?
CHAIRMAN GREEN: Representative Croft?
Number 0663
REPRESENTATIVE CROFT: Kevin gave me the classic Republican answer
- he's doing it that way because it's always been done that way.
We don't in statute define subsistence and nonsubsistence areas?
We find nonsubsistence in the opposite?
MR. JARDELL: Through the Chair, Representative Croft, if I
understand you correctly, that's correct. The manner by which -
and if Mr. Popely could correct me if I'm wrong - the manner by
which nonsubsistence and subsistence areas have been defined in the
past in the state is for the Board of Game and Fish, jointly, to
identify nonsubsistence areas, thereby everything else being a
subsistence area. If we have to go in and do subsistence areas,
then it just creates more work.
CHAIRMAN GREEN: That was established by the Democrats, by the way.
Representative Dyson.
REPRESENTATIVE DYSON: Thank you. Kevin - through the Chair -
Kevin, would you read this as it would read as you amended it
starting with "Notwithstanding" at the beginning of that sentence.
MR. JARDELL: Certainly. Through the Chair, "Notwithstanding any
other section of this constitution, the state may, in times of
shortage of a particular fish or wildlife resource, grant a
preference for subsistence uses of that fish or wildlife resource.
The preference shall be available to any individual resident who
resides within an area outside a nonsubsistence area, as designated
by the legislature and within the area that is determined to be
customarily and traditionally dependent on the particular fish or
wildlife resource or who has demonstrated customary and traditional
dependence on that particular fish or wildlife resource." It
basically sets up the idea that the automatic preference only goes
to those individuals who reside outside of a nonsubsistence area
and thus in a subsistence area and reside within the local
dependent population of that particular stock. So you have the
local criteria, but it's only within subsistence areas. That's to
prevent the possibility of an area - maybe within Anchorage -
getting an automatic presumption because they have used a
particular fish stock ...
CHAIRMAN GREEN: No, this does not though preclude the resident
from Anchorage who can demonstrate - the rebuttable presumption -
that they would be justified.
MR. JARDELL: Through the Chair, that is correct. The rebuttable
presumption would apply to all residents of the state of Alaska
notwithstanding where they reside - the automatic presumption would
only apply to those people who reside within subsistence areas and
within the local area that's found to be dependent on the
particular fish stock or population.
CHAIRMAN GREEN: Representative Hudson.
CO-CHAIRMAN HUDSON: Since we're on that ...
CHAIRMAN GREEN: Oh, I'm sorry. Did you have a follow-up,
Representative Dyson?
Number 0859
REPRESENTATIVE DYSON: It's on this very section, but not this
wording. Would you prefer I wait?
CHAIRMAN GREEN: No, go ahead.
REPRESENTATIVE DYSON: Maybe Ted's a better one to answer. Does
what you all have put together here presume that a group of people
might be able to apply for the rebuttable presumption or is it only
individuals?
MR. POPELY: Mr. Chairman, Representative Dyson, my understanding
is that it's just for individuals.
REPRESENTATIVE DYSON: I'm sorry.
MR. POPELY: It would only be for an individual. You would apply
as an individual and qualify as an individual if you did not meet
the presumptive portion ...
REPRESENTATIVE DYSON: So a whole family couldn't, for instance -
so, you know, mom and dad couldn't - and the kids or ...
MR. POPELY: Representative Dyson, no, but I imagine the data would
be exactly the same for each member as it would be with, say a
permanent fund application or something that each member would have
to fill out ....
REPRESENTATIVE DYSON: Thank you. That was a little off the
subject, but thank you.
CHAIRMAN GREEN: Representative Hudson.
CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. On this particular
area, the words at the very beginning on line 1, page 2,
"Notwithstanding any other section of this constitution" - do we
need that?
CHAIRMAN GREEN: Kevin.
MR. JARDELL: Through the Chair, I'm going to start off by saying
that I'm not here representing the sponsor - you're asking for my
legal opinion. I think - let me answer you this way - it would
make this amendment a very superior amendment unlike anything else
we have in the constitution. I read that language to say that
possibility due process, equal protection, no other protection
afforded in our constitution would apply under this section. That
is quite a deviation from the norm - you would still have the
federal constitution minimums that you cannot go below, but any
constitutional protections that are afforded to residents of this
state under the state constitution may not be read to apply to
actions within this section.
CO-CHAIRMAN HUDSON: With the words that are in here.
REPRESENTATIVE CROFT: What section was that that does that?
CHAIRMAN GREEN: We're talking of line 1, page 2. But Kevin, the
problem is that we're amending Article IV which does not get into
equal protection, but if what this says do we have a possible
conflict then if we say "Not withstanding"? Really though we're
not addressing that section.
MR. JARDELL: Let me see if I understand your question, here. Let
me maybe assert again the way I read this - or the way I think it
could be read - "Notwithstanding any other section of this
constitution" - the courts would attempt to read that for exactly
what it says and not apply any other provision outside of this
section of our constitution to this provision. Typically, ...
CHAIRMAN GREEN: Oh, okay.
MR. JARDELL: ... all sections of the constitution are read to give
meaning to each other and read within a unit of the document. This
could have the effect - and I would say without knowing what a
court would do - certainly could have the effect of taking any
additional protections that the Alaska Constitution affords outside
of the realm of this section.
CHAIRMAN GREEN: I'm not so ...
UNIDENTIFIED SPEAKER: Mr. Chairman.
CHAIRMAN GREEN: Excuse me, just one minute. So, if I understand
what you just said, that even though we're not amending Section 3
that it could be interpreted by a court that we, in effect, with
this "Notwithstanding" do influence if not actually overrule the
equal protection portion. Or is it only as that may affect this
Article IV?
MR. JARDELL: Through the Chair, I think the latter part of your
statement would be the more correct answer. Those parts of the
constitution wouldn't necessarily have the effect on actions
arising under this section as they would without that language.
UNIDENTIFIED SPEAKER: And what does Mr. Popely think?
CHAIRMAN GREEN: Representative Hudson and I are focused on the
issue - and I hope you understand where we're coming from - and are
we getting ourselves into a problem here?
MR. POPELY: Mr. Chairman, to some extent you're correct - the
phrase "Notwithstanding any other section of this constitution"
could subjugate the provisions contained here such that the other
protections provided in the constitution may not be deemed to apply
if there are regulations or a particular statute that were passed
under this scheme - the "Notwithstanding" language subjugates those
provisions to this provision in the constitution.
CHAIRMAN GREEN: But it (indisc.) work the other way?
MR. POPELY: No.
CHAIRMAN GREEN: This would not adversely affect the other portions
of the constitution.
MR. POPELY: What this language could do, Mr. Chairman, is to
eliminate the applicability of those other provisions to the
statutes and regulations applied under this section of the
constitution. "Notwithstanding other provisions of the
constitution"; in other words, nothing else in the constitution
would be read to prevent ...
CO-CHAIRMAN HUDSON: ... stand alone.
MR. POPELY: ... would be read to prevent statutes or regulations
under this section.
CHAIRMAN GREEN: Does not adversely affect it. That's what you
were going to say - okay. Thank you. Any other questions,
Representative Hudson?
CO-CHAIRMAN HUDSON: ... Mr. Bishop's question to me, I want to
make sure that he understands what has been said here. At some
point in time, we don't need it ...
CHAIRMAN GREEN: You may want to review that when you get into
Resources. Alright. Are there -- we lost most of our folks, but
are there any other questions of the sponsor or any more dialogue
necessary .... Yes -- oh, I'm sorry, we've got other people.
Representative Bunde.
Number 1207
REPRESENTATIVE BUNDE: I was on the list there, but it was so long
ago, I ...
CHAIRMAN GREEN: I apologize.
REPRESENTATIVE BUNDE: Well, I'll add it just because it was
pertinent at the time. Representative Joule had some questions
about what would happen in the future with other people and
obviously, we don't have any guarantees about that and I would just
like to state for the record, from my point of view, that if the
legislature, the Administration and the people of Alaska speak in
concert on this issue, I think it's fair to assume that our
congressional delegation would take note of that and attempt to do
the will of the people. Nothing we do, however, as been often
stated - can predict, influence or determine what the federal
government is going to do. We've had some tacit agreement from the
Secretary of Interior at this point, but at any time there's a
change of administration or the Secretary wants to say "I'm going
back to regulating Indian gambling" or something else that he's an
expert at and say, "King's X" - we can't determine that. We can't
have any control over that so we've just got to do the best we can
within our realm.
CHAIRMAN GREEN: Thank you.
REPRESENTATIVE BUNDE: Satire aside.
CHAIRMAN GREEN: And next was Representative Ogan who is not here -
oh, the Chair would recognize we have been visited by
Representative Kelly. We have Representative James next. Pass?
And Representative Hudson?
CO-CHAIRMAN HUDSON: I think I'm done.
CHAIRMAN GREEN: Representative Rokeberg.
Number 1289
REPRESENTATIVE ROKEBERG: Mr. Chairman, earlier today we talked
about on page 2, line 27, in particular, about the need for some
clarity in language. Representative Barnes said that because of
the language above - I'm not sure I entirely agree with that
because there was a recitation of - in subsection (3) under Section
29 about repealing jurisdiction of federal courts under Title VIII,
and then there's a reference above that regarding subsistence uses
of fish and game. It seems to me that because this is a
constitutional amendment that the drafting and clarity of the
language needs to be appropriate here. I don't know if we can get
any suggestions on that. I believe the Chair indicated you
recognized that and wanted to pass it along for clarification if
necessary, but I wanted to bring that up.
CHAIRMAN GREEN: Do you have any suggested language or concepts?
Representative Porter.
Number 1345
REPRESENTATIVE PORTER: Well, recognizing that the Resources
Committee would have to do that ...
CHAIRMAN GREEN: Exactly.
REPRESENTATIVE PORTER: ... if we can ever get them back here - my
suggestion would be on line 27, waives federal jurisdiction over,
and insert, "management of fish and wildlife on" state and private
lands and waters in the state".
CHAIRMAN GREEN: Has everybody got that?
CO-CHAIRMAN HUDSON: I think we need this repeated just one more
time (indisc.), Mr. Chairman.
CHAIRMAN GREEN: Over management - between over and state -
management of fish and wildlife on ...
REPRESENTATIVE BUNDE: ... state and private lands.
REPRESENTATIVE PORTER: And then it'd go on with ...
CHAIRMAN GREEN: Yeah, that's already in there, though.
Number 1389
REPRESENTATIVE ROKEBERG: I think that's a good suggestion and Mr.
Chairman, I have another follow-up when you're done.
CHAIRMAN GREEN: Follow-up, Representative Rokeberg.
REPRESENTATIVE ROKEBERG: I also brought up to Mr. Utermohle when
he was here - I don't know if he ever picked up on it - the syntax
on page 3 of subsection (b) which related to the -- I don't know,
it just doesn't read well to me -- read the whole thing as one
sentence and then it says "either" (1) or (2) down there -- I don't
know, it's like it doesn't read quite right to me. Maybe it's just
me, but.
UNIDENTIFIED SPEAKER: Reads alright to me.
CHAIRMAN GREEN: I don't understand your concern.
REPRESENTATIVE ROKEBERG: Well, it says, "subsection regarding ..."
REPRESENTATIVE JAMES: ... either/or, I think.
CHAIRMAN GREEN: ... if either of those things happen.
REPRESENTATIVE ROKEBERG: Okay. Maybe that's what threw me off
because -- the way it's structured there. So they're going to be
repealed if either (1) or (2), is that ...
REPRESENTATIVE JAMES: That's it.
CHAIRMAN GREEN: Yes.
UNIDENTIFIED SPEAKER: Didn't you see the "or" in there?
REPRESENTATIVE ROKEBERG: I see it, but ...
REPRESENTATIVE JAMES: It's sitting over there all by itself.
CHAIRMAN GREEN: It does look strange, but.
REPRESENTATIVE ROKEBERG: I just brought this up because it is a
concern to me that when we do this - because it is a constitutional
amendment and will appear in its entirety on the ballot, I believe.
Is that correct - it would be the whole ...
CHAIRMAN GREEN: That is unfortunately the case and it would be
perhaps very difficult for some people to follow all of this. It
would take some good publicity.
REPRESENTATIVE JAMES: If the "or" was in the middle, it would be
...
REPRESENTATIVE BUNDE: On that point.
CHAIRMAN GREEN: On that point, Representative Bunde.
REPRESENTATIVE BUNDE: Well, there will be a number of explanations
and one of my concerns - and I'd like to state it for the record
and for the Gavel to Gavel - is that as I've said before on
constitutional amendments, the public is inundated with a great
deal of information, not all of which is accurate. In today's
paper, there's a very shiny, attractive, well-done insert
discussing subsistence from the AFN [Alaska Federation of Natives]
and it has a chart that would, I think, confuse people or be, at
least it is inaccurate, but in an attempt to over-simplify,
inaccuracies like this show up - it says, "Annual harvest of fish
and game in Alaska" and it shows a pie-chart and it says 97 percent
of the harvest of fish and game in Alaska is commercial. There is
no commercial game harvest in Alaska; it is against the law -
market hunting has been against the law before I was a hunter and
I've been a hunter all my life. What they're telling about is
commercial fish, of course, but this kind of information -
intentional or unintentional - over-simplification, dramatization
of the issues are why we have to make sure that we have a
constitutional amendment that is as clear as possible and achieves
the ends we want to achieve for the good of the state.
CHAIRMAN GREEN: Does that by chance have a series of figures of
.... Remember that thing that came out last week?
REPRESENTATIVE JAMES: You'll need a separate pie for fish and a
separate pie for game.
REPRESENTATIVE BUNDE: It doesn't say anything about Communists in
it though, so maybe it's a little better than previous ....
CHAIRMAN GREEN: Representative Rokeberg.
REPRESENTATIVE ROKEBERG: Mr. Chairman, maybe we can ask the
drafter - if he can deviate from the drafting manual, just even the
"either" "or" and the way it's set up in there, but it reads more
clearly ....
REPRESENTATIVE JAMES: What will happen is this is -- there's not
room for the "or" over there on the end of the sentence - that's
the problem.
REPRESENTATIVE ROKEBERG: Well, that's because they're following
the drafting manual - that's why.
REPRESENTATIVE JAMES: Well, no it should be part of the sentence.
REPRESENTATIVE ROKEBERG: I know.
CHAIRMAN GREEN: Are you suggesting that maybe that's too long of
a sentence - that is should be broken and then ...
REPRESENTATIVE ROKEBERG: No, just the way it's structured. I
mean, people don't read ...
REPRESENTATIVE JAMES: Well, and there's no way -- on the ballot
measure, there's no way of telling that it's going to come out way.
There may be room on the line for the "or" at the end of number 1,
which there isn't on the way this is typed up.
CHAIRMAN GREEN: I guess we could shove (1) back a little.
REPRESENTATIVE PORTER: It isn't after "either"; it's after
"wildlife".
UNIDENTIFIED SPEAKER: It's between (1) and (2).
CHAIRMAN GREEN: Yes.
REPRESENTATIVE JAMES: That's my point and that's where it should
be, is right here.
CHAIRMAN GREEN: Would that read clearer to you, Representative
Rokeberg, if the drafting would move those (1) and (2) to the left
a little bit and have "or" on the same line ...
REPRESENTATIVE ROKEBERG: It might help people read it better. It
could be just a format and that's when I first read it.
REPRESENTATIVE JAMES: It is a format.
REPRESENTATIVE ROKEBERG: Yeah ....
CHAIRMAN GREEN: Representative Ogan's still out. Are there other
questions or comments? Hearing none, I am going to recess the
Joint Committee to the call of the Chair and turn this document
over to the Resources Committee.
[EDITORIAL NOTE: Chairman Green recessed the joint meeting of the
House Judiciary and Resources Committees at 6:41 p.m.
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