Legislature(1997 - 1998)
05/28/1998 02:58 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
HOUSE RESOURCES STANDING COMMITTEE
May 28, 1998
2:58 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Fred Dyson
Representative Joe Green
Representative William K. (Bill) Williams
Representative Irene Nicholia
Representative Reggie Joule
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative Alan Austerman
Representative Pete Kott
Representative Joe Green
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION 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.
- MOVED CSHJR 102(RES) OUT OF COMMITTEE
(* First public hearing)
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
5/28/98 3980 (H) READ THE FIRST TIME - REFERRAL(S)
5/28/98 3981 (H) RESOURCES, JUDICIARY, FINANCE
5/28/98 3986 (H) RES RPT CS(RES) NT 3DP 2DNP 2NR 1AM
5/28/98 3986 (H) DP: GREEN, HUDSON, BARNES
5/28/98 3986 (H) DNP: JOULE, NICHOLIA
5/28/98 3986 (H) NR: OGAN, MASEK; AM: DYSON
5/28/98 3987 (H) ZERO FISCAL NOTE (H.RES/GOV)
WITNESS REGISTER
KEVIN JARDELL, Legislative Administrative
Assistant to Representative Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4990
STEPHEN WHITE
Assistant Attorney General
Natural Resources Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3600
THEODORE POPELY, Legislative Assistant
to House and Senate Majority
Alaska State Legislature
Capitol Building, Room 116
Juneau, Alaska 99801
Telephone: (907) 465-3439
THEO MATTHEWS, President
United Fishermen of Alaska
P.O. Box 69
Kasilof, Alaska 99610
Telephone: (907) 283-9540
DICK BISHOP, Vice President
Alaska Outdoor Council
211 Fourth Street, Suite 302 A
Juneau, Alaska 99801
Telephone: (907)463-3830
MARY BISHOP
1555 Gus's Grind
Fairbanks, Alaska 99709
Telephone: (907) 455-6151
ACTION NARRATIVE
TAPE 98-56, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 2:58 p.m. Members present at the
call to order were Representatives Hudson, Ogan, Barnes, Dyson,
Green and Williams. Representatives Masek, Nicholia and Joule
arrived as the meeting was in progress.
HJR 102 - CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE
Number 0026
CO-CHAIRMAN OGAN: We have before us House Joint Resolution 102,
there's also a work draft and CS for House Joint Resolution - it
says 101, but it should be 102, Version K.
CO-CHAIRMAN BILL HUDSON: Mr. Chairman.
CO-CHAIRMAN OGAN: Yes Mr. Co-Chairman.
CO-CHAIRMAN HUDSON: Mr. Chairman, I would move that we adopt the
K version, dated 5/28/98, of the committee substitute for House
Joint Resolution 102, and ask consent to adopt that before us for
discussion.
Number 0051
REPRESENTATIVE RAMONA BARNES: You're asking unanimous consent?
CO-CHAIRMAN HUDSON: And ask unanimous consent.
CO-CHAIRMAN OGAN: Is there objection? Hearing none, we have
Version K before us for discussion. At this time I would like to
gavel out of the Resource Committee and go into a recess of the
call of the Chair [2:59 p.m. - 6:50 p.m.].
Number 0104
CO-CHAIRMAN OGAN: ....committee to order. We have before us CS
[committee substitute] -- what is the number anyway, 102(RES). We
adopted a CS I believe, we have some amendments. I'd like to open
it for public testimony.
REPRESENTATIVE BARNES: Can we do the amendments first, then they'd
know what they were testifying on?
CO-CHAIRMAN OGAN: Okay, works for me. Does anybody have objection
to that? Okay, no objection.
CO-CHAIRMAN HUDSON: Mr. Chairman, Mr. Chairman. Oh, excuse me.
CO-CHAIRMAN OGAN: Okay, no objection. We don't have minority
members - come on minority, let's go.
REPRESENTATIVE BARNES: It doesn't matter, we've got a quorum.
REPRESENTATIVE BEVERLY MASEK: We've got a quorum.
CO-CHAIRMAN HUDSON: Could you establish, for the record, we have
a quorum?
Number 0150
CO-CHAIRMAN OGAN: Yah, we have a quorum. We have Representative
Dyson, Representative Barnes, Vice Chairman Masek, Co-Chairman
Hudson, myself, and Representative Green, and as a visitor we have
Representative Austerman. I don't see anybody else out in the
audience. Okay, I don't see the amendments before me, do we have
amendments.
CO-CHAIRMAN HUDSON: Mr. Chairman, I'll make them, we've had them
simply written down by our legal assistants.
REPRESENTATIVE BARNES: They're easy enough to understand.
CO-CHAIRMAN HUDSON: Yes.
CO-CHAIRMAN OGAN: Okay, (indisc.)...
Number 0227
CO-CHAIRMAN HUDSON: Mr. Chairman, if you wouldn't mind sir, I'd
like to take them, and I'll call them by number. And then if
there's any questions I'll try to answer them. These are
recommended amendments to this resolution that were presented in
prior testimony as well as in consultation between our legal
advisors and others, both within the Administration and people of
concern, as well as the prime sponsor.
REPRESENTATIVE BARNES: Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Barnes.
REPRESENTATIVE BARNES: We just start at the top of the page where
the - and go down it with the amendments, like he's got. Do you
have one on page 1?
REPRESENTATIVE JOE GREEN: We have two on page one.
CO-CHAIRMAN HUDSON: I only have one on page 1.
REPRESENTATIVE GREEN: Well, assuming that you have...
CO-CHAIRMAN HUDSON: No, I have two on page 1, you bet.
CO-CHAIRMAN OGAN: Go ahead Mr. Co-Chair.
Number 0317
CO-CHAIRMAN HUDSON: Mr. Chairman, I would move -- the first
amendment is on page 1, line 12, after the small (b). We insert
these words, "except in areas designated by the legislature as
nonsubsistence areas", and then it proceeds, "the legislature shall
establish, consistent with the sustained yield principle", et al.
Is that understood by everybody?
REPRESENTATIVE BILL WILLIAMS: Could you repeat it one more time.
CO-CHAIRMAN HUDSON: Yes, right after small (b), on page 1, line
12, insert, "except in areas designated by the legislature as
nonsubsistence areas", and then it goes on, "The legislature shall
establish", et cetera.
CO-CHAIRMAN OGAN: Okay, does everyone understand that? Is there
discussion?
Number 0420
CO-CHAIRMAN HUDSON: Mr. Chairman, I would move that as Amendment
1.
CO-CHAIRMAN OGAN: There's a motion on the table.
REPRESENTATIVE BARNES: Did you ask unanimous consent?
CO-CHAIRMAN HUDSON: And ask unanimous consent.
CO-CHAIRMAN OGAN: Is there objection to the amendment? Hearing
none, the amendment is moved.
CO-CHAIRMAN HUDSON: Okay.
Number 0438
CO-CHAIRMAN OGAN: Don't you want to go and do, on page 1, change
-- I'd like to move an amendment, if I might. Change, where it
says, "Sponsor(s): HOUSE RULES COMMITTEE BY REQUEST OF THE
GOVERNOR", and substitute that with the "HOUSE RESOURCES
COMMITTEE".
CO-CHAIRMAN HUDSON: I'm sorry, give us the line and all that type
of stuff.
CO-CHAIRMAN OGAN: On sponsor, at the top.
CO-CHAIRMAN HUDSON: Okay.
CO-CHAIRMAN OGAN: Under the title, who the sponsor is, there's a
technical error there, the sponsor is the House Resources Committee
- not the Governor. That's a motion, does anybody object to that
motion? Is there discussion? Hearing none, so moved.
Number 0511
CO-CHAIRMAN HUDSON: Mr. Chairman, on page 2, on line 1, the
proposal is to remove - and I would like some discussion by some
committee members here, "Notwithstanding any other section of this
constitution." It has been brought to my attention that this does,
perhaps create some conflict with the common use clause in some of
the other provisions of the constitution. If I understood it
correctly, but I would like some...
REPRESENTATIVE JOE GREEN: I object.
CO-CHAIRMAN OGAN: There's objection to the motion, your objection,
Representative Green.
Number 0550
REPRESENTATIVE GREEN: Well, there was some concern registered by
a member of the audience, and I thought the objection was well
founded until we had discussion from the attorneys indicating that
what this section (indisc.--loud noise), statement actually does,
it in effect immunizes this section for, against any other sections
of the constitution. Whereas, I think, your earlier thought was
that that might be in conflict with the equal protection, or some
other portions of the constitution. But I think the attorneys have
indicated to us that it actually is working the other way to keep
other portions of the constitution from overshadowing it.
Number 0564
CO-CHAIRMAN OGAN: Is there any other discussion? Let's have a
brief at-ease [5:54 p.m. - 5:55 p.m.].
CO-CHAIRMAN OGAN: We're back on the record.
CO-CHAIRMAN HUDSON: Mr. Chairman.
REPRESENTATIVE BARNES: Did you ask for unanimous consent for that
amendment?
REPRESENTATIVE GREEN: And I remove my objection.
Number 0657
CO-CHAIRMAN OGAN: Is there any other objection? Any other
discussion? Amendment 2 is adopted. Oh, that's number 3.
UNIDENTIFIED SPEAKER: Point of order Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Dyson.
REPRESENTATIVE FRED DYSON: I assume that when we do this, we kind
of automatically take care of putting the capital letter on the
(indisc.--talking) and all that kind of stuff, we don't have to
worry about that. Thank you.
CO-CHAIRMAN OGAN: Unless there's a mistake on the next draft, then
the committee can change it, or if you see some other mistake here,
yah they'll.
Number 0734
CO-CHAIRMAN HUDSON: Mr. Chairman, on page 2, line 4, I would offer
Amendment, I guess this is number 3 now - 4, that's right, the last
one was 3. Can the - can you follow us over in the - are you
following us pretty well on this? All right, good. Line 4, after
"resides", which is the fourth word in.
REPRESENTATIVE GREEN: Actually, wouldn't it be after within?
CO-CHAIRMAN HUDSON: Who resides, you're correct, yes, resides
within, after "within", right. After, "resides within", we add
these words, "an area outside a nonsubsistence area designated by
the legislature". And then it goes on to say, "that is determined
to be customarily and traditionally dependent on", et cetera.
CO-CHAIRMAN OGAN: So you would strike...
CO-CHAIRMAN HUDSON: Hold on. Mr. Chairman, just one moment sir,
let me check with my -- I'm not a very good secretary obviously.
Number 0858
REPRESENTATIVE BARNES: Why don't we just have the attorney to read
it for us?
CO-GREEN OGAN: Okay.
CO-CHAIRMAN HUDSON: Mr. Chairman, I would ask Kevin to read it so
that we don't make a technical mistake here.
Number 0910
KEVIN JARDELL, LEGISLATIVE ADMINISTRATIVE ASSISTANT TO
REPRESENTATIVE JOE GREEN, ALASKA STATE LEGISLATURE: For the
record, my name is Kevin Jardell, staff counsel to the Judiciary
Committee. It's on page 2, line 4, after "resides", insert,
"within an area outside a nonsubsistence area as designated by the
legislature and", then it would go on to read, "within the area
that is determined to be customarily and traditionally dependent.
REPRESENTATIVE HUDSON: Does everybody understand that?
CO-CHAIRMAN OGAN: I understand that, does anybody need it
repeated? Okay, we've got it. This looks to me like a...
Number 0905
CO-CHAIRMAN HUDSON: Mr. Chairman, I'd move that as Amendment 4.
CO-CHAIRMAN OGAN: Okay. As discussion, it looks like we're just
simply -- that coincides with the -- how Amendment 1 we have...
CO-CHAIRMAN HUDSON: Yes.
CO-CHAIRMAN OGAN: We're giving the legislature the explicit
authority to create subsistence and nonsubsistence use areas. I
have one question, maybe for Mr. White, if he'd be kind enough to
come up.
Number 1028
STEPHEN WHITE, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES
SECTION, DEPARTMENT OF LAW: Thank you, Mr. Chairman, I'm Steve
White, Department of Law.
CO-CHAIRMAN OGAN: Thank you Mr. White. Mr. White, currently,
under existing constitutional authority, this legislature can
establish subsistence and nonsubsistence areas. Is that correct?
MR. WHITE: That's correct.
CO-CHAIRMAN OGAN: And, where is that authority?
MR. WHITE: That's an interpretation by the Alaska Supreme Court.
The rationale is that what you're doing is establishing a priority
use, which is allowed by Section 4, of Article VIII, in official
uses, priorities, preferences amongst beneficial uses. And the
supreme court was persuaded that, in particular areas of this
state, you're saying that all other uses may be used there, have
priority except for subsistence. So those were held to be
constitutional.
CO-CHAIRMAN OGAN: Thank you very much. I like that Article VIII,
Section 4. It answers my concerns. So, is there any questions of
Mr. White? Hearing none, you're welcome to wait at the table if
you like, in case something else comes up, if you don't mind.
MR. WHITE: I'd be glad to.
CO-CHAIRMAN OGAN: Any other discussion, there's a motion, any
objection? Hearing none, that amendment is adopted.
Number 1142
CO-CHAIRMAN HUDSON: Mr. Chairman, I have one other that I believe
I mentioned to the prime sponsor. It is also on page 2, line 27.
REPRESENTATIVE GREEN: Excuse me Mr. Chairman, if we're going down
this, I have another amendment on line 5.
CO-CHAIRMAN HUDSON: Mr. Chairman, I would defer to Representative
Green.
Number 1200
REPRESENTATIVE GREEN: At least for consideration. On that same
line after "area" -- in middle of the sentence. Line 4, it's
Amendment 5, it would be line 4. Where it says, "area that is".
Okay, after "area", we scratch "that is". And it would add in
then, "in which the residents are". And the reason for that is
that areas are not determined to be something, the residents within
the areas are determined to be something. So, it would read, "area
in which the residents are determined to be customarily and
traditionally dependent."
REPRESENTATIVE BARNES: Mr. Chairman, could we have an at-ease
while we consult with the attorney?
CO-CHAIRMAN OGAN: Let's have an at-ease [6:03 p.m. - 6:05 p.m.].
Number 1256
CO-CHAIRMAN OGAN: Okay, Mr. White, did you get that last
amendment?
MR. WHITE: No, I didn't, I'm afraid (indisc.) Mr. Chairman. In
fact, I didn't get a lot of the amendments, so, I'm kind of picking
up halfway through, but I'll do the best I can.
CO-CHAIRMAN OGAN: Alright. It's really an amendment to the
amendment. Or, well, it...
REPRESENTATIVE GREEN: It's Amendment 5.
REPRESENTATIVE MASEK: It's Amendment 5.
Number 1323
CO-CHAIRMAN OGAN: Right, it's Amendment number 5, but it amends an
area we already amended previously that's now part of the bill.
REPRESENTATIVE BARNES: Could we have it read again?
REPRESENTATIVE GREEN: We didn't amend that portion.
REPRESENTATIVE WILLIAMS: Read it again, please.
CO-CHAIRMAN OGAN: Okay.
Number 1340
REPRESENTATIVE GREEN: What I'm suggesting -- okay, we didn't amend
past, starting with area, midway through the sentence. The
Amendment 4 stops short of that.
CO-CHAIRMAN OGAN: Okay.
REPRESENTATIVE GREEN: And then after the word "area", midway
through, I'm recommending that we drop that is and insert, "in
which the residents are", and then go on with "determined to be
customarily", and so on.
REPRESENTATIVE BARNES: No objection.
CO-CHAIRMAN OGAN: I'll object for discussion.
Number 1414
REPRESENTATIVE GREEN: Mr. Chairman, I'm suggesting that -- Mr.
Chairman, is that areas don't determine -- are not being
determined, it's the residents within the area that are determined
to be customarily and traditionally dependent.
CO-CHAIRMAN OGAN: Mr. Co-Chair, you had some comments.
CO-CHAIRMAN HUDSON: I would simply say the same thing - is that
we're talking about the dependency and the (indisc.) preferences
available to individual residents who reside and who are
determined. And I think that reads correctly, and I think
Representative Green is accurate in making this forward.
CO-CHAIRMAN OGAN: Mr. White, you concur with that analysis?
MR. WHITE: Mr. Chairman, yah, one of the issues that I saw at
first glance was that is being corrected here, that "area" doesn't
have customarily, traditionally, and should be a resident. So, I
think you've addressed it with this amendment.
CO-CHAIRMAN OGAN: We getting any equal protection problems at all
with that?
MR. WHITE: I don't perceive any equal protection problems with
that.
CO-CHAIRMAN OGAN: I didn't quite hear you sir, I'm sorry.
MR. WHITE: No, I don't perceive any at this point.
Number 1528
CO-CHAIRMAN OGAN: Thank you. It's like a (indisc.) record. I'll
remove my objection, is there any other discussion? Is there any
other objection? Hearing no objection, that amendment carries.
CO-CHAIRMAN HUDSON: Mr. Chairman.
CO-CHAIRMAN OGAN: Mr. Co-Chair.
Number 1545
CO-CHAIRMAN HUDSON: On page 2, line 27, after the word over,
following waives federal jurisdiction over, insert management of
fish, forests, wildlife, grasslands, and all other replenish able
resources on, and then, state and private lands and waters in the
state. And the reason that this is made, Mr. Chairman, is to
comport with the existing language in Section 4, sustained yield.
And it's been brought to my attention that this should have the
whole litany on there, and so, I offer that. Perhaps others may
want to discuss, or....
REPRESENTATIVE BARNES: I have no objection.
CO-CHAIRMAN HUDSON: And that would be Amendment number 6.
REPRESENTATIVE BARNES: I have no objection to the amendment.
Number 1704
CO-CHAIRMAN OGAN: There's no objection. Did you move the
amendment?
CO-CHAIRMAN HUDSON: I move the amendment.
REPRESENTATIVE MASEK: Unanimous consent.
CO-CHAIRMAN HUDSON: And ask unanimous consent. I don't know if
you want to try to get some response from our....
CO-CHAIRMAN OGAN: We understand what a -- Mr. Co-Chair, if you
could speak to your amendment a little bit so I fully understand
it. I don't know if I was here during the testimony about this
and, when we had the joint meeting, and maybe you could just,
instead of me trying to interpret, explain what the concern was and
exactly what -- other than conforming to Article VIII, Section 4,
kind of point out...
Number 1753
CO-CHAIRMAN HUDSON: It comports with lines 6 to 8, on page 1, and
also comports to ANILCA [Alaska National Interest Lands
Conservation Act] -- is not just fish and wildlife, it is
essentially all these other things. So, it does comport with
ANILCA.
CO-CHAIRMAN OGAN: Maybe someone could give me what exactly --
could someone put on the record for me, explain to me exactly what
federal jurisdiction -- what all does that encompass? I mean we're
talking this -- laws of Congress, federal courts. I mean I'd like
to have it on the record for my information. Mr. White.
Number 1834
MR. WHITE: Mr. Chairman, yes, excuse me, I was talking with
Commissioner Rue. One of the issues that we saw -- there are a lot
of federal wildlife laws that apply to state game activities,
Endangered Species Act, Marine Mammal Protection Act, the Migratory
Bird Act, -- right, so, by the intent here, do you want all those
federal authorities to be waived or only the implementation of
subsistence by the late authorities on -- over state lands?
REPRESENTATIVE BARNES: Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Barnes.
REPRESENTATIVE BARNES: This resolution was specifically to Title
VIII of ANILCA. We're asking, in these sections, that the sections
of Title VIII of ANILCA that caused this action....
CO-CHAIRMAN OGAN: Right.
REPRESENTATIVE BARNES: Be amended.
CO-CHAIRMAN OGAN: Okay, I see that.
Number 1940
CO-CHAIRMAN HUDSON: Mr. Chairman, following the line of Mr. White,
I don't believe that it is the intention of this legislation to try
to upset or disrupt the Marine Mammal Protection Act, and the
Migratory Bird Act, and things of that nature. I think we were
looking to essentially comport with sustained yield and I'm
certainly open to suggestions or applications for discussion
purposes.
CO-CHAIRMAN OGAN: It seems to me (indisc.) has been established
pretty clearly that this federal jurisdiction issues are only on
subsection 4(b), 4(c), and 4(d) of Article VIII of ANILCA. Is that
correct? Representative Barnes.
REPRESENTATIVE BARNES: That, and it specifically -- each one of
these sections that are laid out -- though it's real clear, that
each one of these fall under Title VIII of ANILCA, and we're not
getting to the Endangered Species Act, or Clean Water Act, or any
of those other things.
MR. WHITE: Well, it's good to have that on the record, such that
if that ever becomes an issue, I can look back and see if that's
been a discussion here on the committee, and should clarify it.
Number 2110
REPRESENTATIVE WILLIAMS: Mr. Chairman, so the management of this -
migratory birds that we're talking about, wouldn't be affected by
this? Are we talking about managing the resource in Title VIII?
CO-CHAIRMAN OGAN: Representative Williams, the way I see it, we're
simply saying, "on state and private lands and waters," and I would
assume that includes navigable waters because state waters are
three miles out. That Title VIII of ANILCA -- we're asking the
feds to waive jurisdiction on Title VIII of ANILCA on state lands
and waters and private lands. Is that correct Mr. Hudson?
REPRESENTATIVE WILLIAMS: I'm sure that this will be looked at in
Judiciary.
CO-CHAIRMAN HUDSON: Mr. Chairman, if it's necessary, this
committee is the Resources Committee, I would suggest that maybe
the legal eye could be put on this, and if there does need to be
some statement that this does not apply to...
REPRESENTATIVE BARNES: Mr. Chairman, could we have Mr. Popely to
come up here, please.
Number 2245
CO-CHAIRMAN OGAN: In response to your comment, Mr. Co-Chair, yah,
that it is a legal issue but we are talking about the management of
fish and wildlife in state lands and waters, so that it's
appropriate that we know exactly what this amendment does.
REPRESENTATIVE BARNES: Mr. Chairman, could you please direct the
question to Mr. Popely that....
CO-CHAIRMAN OGAN: Mr. Popely.
REPRESENTATIVE BARNES: Is the language that we're discussing, in
this amendment, and how do we reach the fact that it's just Title
VIII of ANILCA.
CO-CHAIRMAN OGAN: You heard the question, would you (indisc.).
Okay, the amendment that we're -- are you aware of the amendment
we're talking about on page 2, line 27, waives federal
jurisdiction, then we add language after "over", "fish and wildlife
allocation and use." I didn't write it down -- read my own
writing. Could you repeat that please?
Number 2338
CO-CHAIRMAN HUDSON: Yes, on page 2, line 27, after "over",
following "jurisdiction", insert, "management of fish, forest,
wildlife, grasslands, and all other replenishable resources on
state and private lands and waters in the state." That's a
recommended amendment to insert those in there in order to comply
with essentially the language on sustained yield on page 1, Section
4.
CO-CHAIRMAN OGAN: I see this is as asserting our sovereign rights
as a state to manage the resources that are traditionally managed
by states within the boundaries of the state. It doesn't deal with
federal lands, but we're saying, "Hey, the lines drawn here, this
is state land, this is state water. Title VIII doesn't have
jurisdiction on state lands and state waters on those resources."
Is that the way you interpret it?
Number 2443
THEODORE POPELY, LEGISLATIVE ASSISTANT TO THE HOUSE AND SENATE
MAJORITY, ALASKA STATE LEGISLATURE: Representative Hudson, I
didn't catch the entire amendment, but it sounds to me to go even
a bit further than this additional section that was added above.
My understanding is, the way I read the resolution, line 27, number
(2), is clear that the management -- that the federal jurisdiction,
that is being discussed there, refers back to lines 20 through 24
where it says, "federal law governing subsistence uses of fish and
wildlife on federal public lands in the state waives federal
jurisdiction over State and private lands and waters." To me the
connection is clear, if I were reading this for legal
interpretation, the jurisdiction that is implied here is only
federal law governing subsistence use of fish and wildlife on
federal lands. However, as I said earlier to Representative Croft,
if for clarification sake you wanted to insert -- reinsert there
before "jurisdiction", I don't think it changes the meaning of the
resolution as drafted, but the federal jurisdiction being discussed
is over fish and wildlife, subsistence management only. The
language that you just repeated to me does something different. In
my mind, it goes beyond what is drafted now, which says that this
federal law governing subsistence use of fish and wildlife. That
is the federal jurisdiction that is being referred to on number
(2), line 27. Now, if you want to go beyond that and put a
requirement in there that waives other federal jurisdictions on
state and private lands and waters, I think that's what you'll
probably doing and that's for you to decide. Do you want to repeat
the language that's referred to in Section 29, that the federal
jurisdiction you're talking about is fish and wildlife jurisdiction
for purposes of subsistence management, that's one thing. The
other language, quite frankly, I'm not clear what that would do to
federal jurisdiction.
CO-CHAIRMAN HUDSON: Mr. Chairman. It could, however...
CO-CHAIRMAN OGAN: Mr. Co-Chair.
Number 2656
CO-CHAIRMAN HUDSON: I'm glad you've been speaking about it because
I think it could -- in thinking about it, it could implicate a
couple of the other exclusions such as marine mammals and migratory
birds, where there not only on federal lands, there also on state
and private lands. Am I right?
MR. POPELY: Mr. Chairman, Representative Hudson, that is one
possible interpretation, a...
CO-CHAIRMAN HUDSON: It could be clouding the issue by putting all
of these other criteria on there.
MR. POPELY: Again, yes, I would repeat that I can't tell you right
now what that additional language would do to federal jurisdiction,
but the way it is drafted and the way the drafters intended that it
be drafted was to restrict federal jurisdiction for fish and
wildlife subsistence management purposes.
Number 2749
MR. WHITE: Mr. Chairman, could I make a suggestion which would
certainly satisfy my concerns here. After "jurisdiction", insert
the words, "established in that law", that law being the law that
you've described up here, the federal law governing subsistence
uses of fish and game. So clearly you're talking about the
jurisdiction in Title VIII of ANILCA -- no other jurisdiction or
fish and game established by any other law. It seems to me that
might well pinpoint it to what we're talking about here.
MR. POPELY: Mr. Chairman, one caveat though, I...
CO-CHAIRMAN OGAN: Mr. Popely.
Number 2826
MR. POPELY: There's been a lot of discussion yesterday between
Charlie and Bruce, Attorney General and former Attorney General,
about whether or not there is in fact federal jurisdiction over
state and private lands established in Title VIII and limited to
what's established. It could be interpreted as what is established
on the face of Title VIII, where in reality, I think this muddled
question of the extension of extra territorial jurisdiction through
the property clause is more read into Title VIII rather than
actually written in Title VIII, and that's been an issue in
litigation. I like the idea of what you're saying, but I'm afraid
the word "established" might limit it to what's actually on the
face of Title VIII, and there really isn't this clear distinction
that there's federal jurisdiction asserted on state and private
lands. It's more of a (indisc.) concept of the federal courts have
read into the law.
REPRESENTATIVE BARNES: Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Barnes.
REPRESENTATIVE BARNES: After having heard the discussion by our
staff counsel, I would recommend that that language not be
inserted, and that the motion to insert it be withdrawn.
Number 2945
CO-CHAIRMAN HUDSON: This is fun. Mr. Chairman, I would remove my
proposed amendment at this time.
CO-CHAIRMAN OGAN: I'll object for discussion purposes.
CO-CHAIRMAN HUDSON: Mr. Chairman, my follow on suggestion was that
this be an issue that we identify as the major is transferred to
the Judiciary Committee.
CO-CHAIRMAN OGAN: Okay.
REPRESENTATIVE BARNES: Mr. Chairman, I'm not willing to have the
Judiciary Committee to do our work.
REPRESENTATIVE ALAN AUSTERMAN: Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Austerman has a comment.
Number 3024
REPRESENTATIVE AUSTERMAN: In my first blush with this resolution
-- to me the simplest thing for the whole thing would be to have
Section B, which defines it and then number (4) which says it's all
consistent. Putting these other, (1), (2) and (3), in here -- I
understand what you're doing and why you're doing it, and so I
don't have a problem so much then. But I agree with counsel and
Representative Barnes that the more you complicate it the more you
caught it, the bigger the issue becomes. The simplification of it
is it's going to be a lot better I think in the long term.
CO-CHAIRMAN HUDSON: Mr. Chairman...
CO-CHAIRMAN OGAN: You have comments.
CO-CHAIRMAN HUDSON: Again, just for the record, I have withdrawn
the amendment, so...
CO-CHAIRMAN OGAN: I object to that, I haven't withdrawn my
objection yet.
CO-CHAIRMAN HUDSON: Oh, okay.
Number 3117
REPRESENTATIVE WILLIAMS: Call for the question.
CO-CHAIRMAN OGAN: Hearing no comments, I'll withdraw my objection.
Do you have another amendment Mr. Co-Chair?
REPRESENTATIVE BARNES: The amendment was adopted.
CO-CHAIRMAN OGAN: No it's not. He withdrew it. I withdrew my
objection. We're onto the next amendment.
REPRESENTATIVE BARNES: I'm really confused here now. Excuse me.
CO-CHAIRMAN OGAN: That's amazing.
REPRESENTATIVE WILLIAMS: That concludes the amendments that I had
prepared to offer, maybe somebody else has some.
REPRESENTATIVE GREEN: Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Green.
Number 3141
REPRESENTATIVE GREEN: Mr. Chairman, earlier there was a pass-out,
it called Amendment 1, actually that should be number 7 now. And
I would move the second line of that which is page 2, line 24, to
insert after "state", the words, "substantially complies with the
following:".
REPRESENTATIVE WILLIAMS: Do you want an explanation?
CO-CHAIRMAN OGAN: I'd like a copy of it, I don't seem to have it.
REPRESENTATIVE GREEN: It should have been...
CO-CHAIRMAN OGAN: I probably have it, but... Thank you, do you
want to share that one.
CO-CHAIRMAN HUDSON: I was just talking about this one here, not
this one.
Number 3224
REPRESENTATIVE BARNES: Mr. Chairman, if I understand correctly,
what Representative Green is moving -- it would say, "public lands
in the state substantially complies with the following"?
REPRESENTATIVE GREEN: Yes, (1), (2), (3). And the reason for
that...
REPRESENTATIVE BARNES: I understand.
REPRESENTATIVE GREEN: Okay.
REPRESENTATIVE BARNES: I have no objection.
REPRESENTATIVE GREEN: I don't know whether the rest of the members
want to know why I'm doing that but...
CO-CHAIRMAN OGAN: Okay, you're only moving the second half of
that...
REPRESENTATIVE GREEN: Yes.
CO-CHAIRMAN OGAN: Original Amendment 1.
REPRESENTATIVE GREEN: Yes.
Number 3252
CO-CHAIRMAN OGAN: Okay, I think it's self-explanatory. We want to
give a little bit of wiggle room, I suppose. You don't get the
whole enchilada that we get 95 percent of it. We'd be able to
concur with that. Is there anybody -- that was a motion?
REPRESENTATIVE GREEN: That was a motion for...
CO-CHAIRMAN OGAN: Is there any objection to the motion?
CO-CHAIRMAN HUDSON: Mr. Chairman, could we get our legal people
just to...
CO-CHAIRMAN OGAN: Sure.
CO-CHAIRMAN HUDSON: See if there's any problems with that.
CO-CHAIRMAN OGAN: Mr. Popely, your comments.
Number 3322
MR. POPELY: Mr. Chairman, Representative Hudson, I was going to
move back up to the last amendment briefly, but I don't have any
comments. If you had questions about that, I'd be glad to answer
them. I did have one comment on the prior amendment when you're
through with this.
CO-CHAIRMAN HUDSON: The one that we withdrew?
MR. POPELY: Yah.
CO-CHAIRMAN OGAN: You're talking about the first half of this
amendment?
MR. POPELY: No.
CO-CHAIRMAN OGAN: Oh, okay.
REPRESENTATIVE BARNES: Let's go through this and then go back to
the other one.
CO-CHAIRMAN OGAN: Alright, well the question was, do you have any
comments on this -- substantially complies with the following.
What's your interpretation of what that means?
Number 3355
MR. POPELY: Mr. Chairman, the additional language...
CO-CHAIRMAN OGAN: Representative Barnes requested legal counsel do
it.
REPRESENTATIVE GREEN: I don't think she did.
CO-CHAIRMAN OGAN: Oh, okay, I'll withdraw the question then.
REPRESENTATIVE GREEN: She said she had no objection.
Number 3414
CO-CHAIRMAN OGAN: Okay. Is there any objection to that amendment?
CO-CHAIRMAN HUDSON: Mr. Chairman, I think I'm the one, I'm the
culprit. I simply wanted to see if there was any legal problems
identified by these two high-priced lawyers that we've go up here.
And then, I'm not adverse to the amendment at all. I just simply
wanted to put on the record if there were any problems, or any
comments that they might have.
Number 3440
MR. WHITE: I don't have any comments. "Substantial compliance" is
a legal term of art that is often used. It doesn't mean that
you've got to have every "T" and every (indisc.). You cross an "I"
dot it, but it means fundamentally you've accomplished something.
So it seems to me to be a reasonable and it's something that law
understands.
REPRESENTATIVE BARNES: Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Barnes.
REPRESENTATIVE BARNES: I would like to - we only had one high-
priced lawyer. I'll tell you, Ted doesn't make much money.
MR. POPELY: Mr. Chairman, that's all (indisc.).
CO-CHAIRMAN OGAN: Mr. Popely, for the record, how much money do
you make?
UNIDENTIFIED SPEAKER(S): No, no, no.
CO-CHAIRMAN HUDSON: I would withdraw any objections I might have.
Number 3524
CO-CHAIRMAN OGAN: Alright. Is there any objection to that
amendment? Hearing none, it's moved. I would like to discuss the
previous half of that -- of that earlier amendment.
REPRESENTATIVE GREEN: (Indisc.) if I might Mr. Chairman.
CO-CHAIRMAN OGAN: Okay.
Number 3536
REPRESENTATIVE GREEN: The first line of that -- what would now, I
guess, be Amendment 8, is a suggestion. And there have been some
pros and cons on whether or not we move from the Governor making
this determination to the legislature by concurrent resolution. I
personally like this. It may in fact, however, cause some problem
with us trying to get to get the Governor to accept this. But my
suggestion would be then that we would also amend line 22, of page
2, as shown on the same sheet of amendments.
CO-CHAIRMAN OGAN: Is that a motion?
REPRESENTATIVE GREEN: It is a motion.
Number 3620
CO-CHAIRMAN OGAN: I would amend the amendment to include the
Governor and the legislature -- conceptually.
UNIDENTIFIED SPEAKER: How do you do that?
REPRESENTATIVE BARNES: Mr. Chairman, I'm going to object to this,
inserting legislature by concurrent resolution. That's what you're
doing?
CO-CHAIRMAN OGAN: No, what I'm -- Representative Green's amendment
was to insert, "legislature by concurrent resolution." I amended
the amendment to not delete the Governor and -- as a conceptual
amendment to include the Governor and the legislature so we get a
consensus position that we substantially -- the Governor says,
"Yah, okay, we substantially complied." The legislature says,
"Yah, okay, we substantially complied." And everybody's at the
table.
CO-CHAIRMAN HUDSON: Mr. Chairman.
CO-CHAIRMAN OGAN: Mr. Co-Chair.
Number 3710
CO-CHAIRMAN HUDSON: Mr. Chairman, we're talking about an effective
date, and it seems difficult for me to believe that we can get the
Governor and the legislature to both come up with a common
effective date. You're going to have trouble with this thing. I
think we need to either select one or the other. And personally I
agree with the prime sponsor of this resolution, and I guess I'm
open to this, but I believe that the Governor is the one that's
here 12 months out of the year and has the resources and should be
able to make that certification. We can always interact during the
next session, or the following session, go by the Leg. Council in
the interim, but I just feel pretty good about that.
REPRESENTATIVE GREEN: No, this is a constitutional amendment, we
won't be able to change it.
CO-CHAIRMAN OGAN: Representative Green, I think he's talking about
when we would -- at the timing of when we would be able to concur.
REPRESENTATIVE GREEN: I understand. But he also said that we
could always change it later. And that's not true. It's a
constitutional amendment.
CO-CHAIRMAN HUDSON: Absolutely right, we can't, can't change the
effective date.
Number 3825
CO-CHAIRMAN OGAN: Well, on that point, I would suggest that the
effective date would be the time that the Governor and the
legislature -- speaking of my amendment to the amendment, when the
Governor and the legislature both agree with substantially
complied, that's when the effective date would be. And I don't
think it's too difficult. Representative Barnes.
REPRESENTATIVE BARNES: Mr. Chairman, I believe that we. the
legislative branch, has to have something certified to us by the
Governor. We're asking the Governor to certify to us that
substantially the following has taken place. And I don't think any
Governor, in his right mind, would lie about something like this
because we'd find him out in a hurry -- because we've got the
things listed in here.
CO-CHAIRMAN OGAN: So you're speaking in favor of my amendment to
the amendment.
REPRESENTATIVE BARNES: No I'm not. I'm speaking in favor of
leaving it as it is.
CO-CHAIRMAN HUDSON: Chair, I'd call for the question.
Number 3929
CO-CHAIRMAN OGAN: Okay. The question before us is the amendment
to the amendment, that both the Governor -- and somewhat conceptual
here -- the drafter, we'll trust the drafter to listen to the
record and figure out what the intent was -- that both the Governor
and the legislature would have to agree, and that the legislature,
by concurrent resolution. But my amendment was to keep the
Governor in the loop. And also if that happens, then we'll take
action on the following, the amendment as amended. If not, we'll
take it -- anyway, the question before us is, the amendment before
the amendment. Would -- there's objection still?
CO-CHAIRMAN HUDSON: Object.
REPRESENTATIVE GREEN: I'm not sure I followed all of what you
said. I know what we're supposed to be doing, but I thought you
said something different.
Number 4015
CO-CHAIRMAN OGAN: Okay. My amendment to the amendment was to --
you're amendment is to delete, "Governor", insert, "legislature by
concurrent resolution." I would like to -- I move to amend the
amendment to include the Governor as well as the legislature by
concurrent resolution. That simple enough?
REPRESENTATIVE GREEN: Yes, that's what you said earlier.
CO-CHAIRMAN OGAN: Representative Barnes.
REPRESENTATIVE BARNES: Mr. Chairman, I don't have a problem with
the Governor certifying, and the legislature passing a concurrent
resolution. But I don't think -- if you do it this way, because
the Governor would certify to the legislature, the legislature
would accept the certification by the Governor by adopting the
concurrent resolution, I think that's awfully cumbersome and I
think you should just leave it like it is. I'm speaking in
opposition to both of you.
CO-CHAIRMAN OGAN: On that point, Representative Green.
Number 4130
REPRESENTATIVE GREEN: I'm wondering if it would read better, if
this is the will to have the Governor stay in the loop, that we
would leave it as it says, "following the date that the Governor
certifies and the legislature by concurrent resolution confirms
that the federal", and so on.
CO-CHAIRMAN OGAN: That would be good language for the amendment to
the amendment. I would accept that as language to the amendment to
the amendment.
REPRESENTATIVE BARNES: What if you both just withdraw your
amendments and start over with a new amendment.
CO-CHAIRMAN OGAN: You're cruel.
CO-CHAIRMAN OGAN: I think everybody understands. We'll vote on
the amendment to the amendment.
REPRESENTATIVE BARNES: I'm not going to object.
Number 4211
CO-CHAIRMAN OGAN: Is there any other objection? By hearing none,
the amendment to the amendment passes. Now the amendment will be
as Representative Green so eloquently stated, and I won't repeat
it. So, we're voting on now, is there an objection to, it will be
Amendment 8.
REPRESENTATIVE DYSON: I object.
REPRESENTATIVE GREEN: Seven, I think.
CO-CHAIRMAN OGAN: No, we did 7.
REPRESENTATIVE GREEN: Oh, your right, 8. I'm sorry.
CO-CHAIRMAN OGAN: There's objection by Representative Dyson.
Would you speak to your objection Representative Dyson.
REPRESENTATIVE DYSON: It's been said.
CO-CHAIRMAN OGAN: Just felt like objecting. Okay, roll call vote.
Number 4250
COMMITTEE SECRETARY: Representative Barnes.
REPRESENTATIVE BARNES: Yes.
COMMITTEE SECRETARY: Representative Dyson.
REPRESENTATIVE DYSON: No.
COMMITTEE SECRETARY: Representative Green.
REPRESENTATIVE GREEN: Yes.
COMMITTEE SECRETARY: Representative Masek.
REPRESENTATIVE MASEK: Yes.
COMMITTEE SECRETARY: Representative Williams.
REPRESENTATIVE WILLIAMS: No.
COMMITTEE SECRETARY: Co-Chairman Hudson
CO-CHAIRMAN HUDSON: No.
COMMITTEE SECRETARY: Co-Chairman Ogan.
CO-CHAIRMAN OGAN: Yes.
CO-CHAIRMAN OGAN: I wasn't counting.
COMMITTEE SECRETARY: Passed 4 to 3.
CO-CHAIRMAN OGAN: Okay, the amendment passed 4 to 3. Had a little
controversy in here. Anything else?
REPRESENTATIVE BARNES: Mr. Chairman, I would like the privilege of
moving it from the committee.
Number 4333
CO-CHAIRMAN OGAN: I think we should have public testimony.
REPRESENTATIVE BARNES: Why?
CO-CHAIRMAN OGAN: Because we're making a major constitutional
amendment and I think we have an obligation to the public to have
public testimony.
REPRESENTATIVE BARNES: Excuse me, I am very sorry. You are
absolutely correct.
CO-CHAIRMAN OGAN: Thank you, I'd note that for the record.
UNIDENTIFIED SPEAKER: But she's sorry you're correct [laughter].
CO-CHAIRMAN OGAN: She's sorry that I'm correct, whew. Hey, I'm
sorry Representative Barnes, we're just... Okay, we would like to
open public testimony, is there -- do we have a sign-up sheet, can
we get a sign-up sheet. Let's do it simple, is there anybody in
the audience who wishes to testify?
REPRESENTATIVE WILLIAMS: Mr. Chairman.
CO-CHAIRMAN OGAN: Representative Williams.
REPRESENTATIVE WILLIAMS: Can we have an at-ease for a minute?
CO-CHAIRMAN OGAN: Let's have an at-ease [6:36 p.m. - 6:41 p.m.].
Number 4423
CO-CHAIRMAN OGAN: Call the House Resources Committee back to
order. We'd like to hear from -- four people would like to
testify, I'd like to start with Theo Matthews. Are you still here?
Oh, yes.
Number 4503
THEO MATTHEWS, PRESIDENT, UNITED FISHERMEN OF ALASKA: Thank you,
Mr. Chairman. My name is Theo Matthews. I reside in Kasilof,
Alaska. I'm speaking today as president of United Fishermen of
Alaska. I've tried as best I could to follow your amendments, and
I appreciate the shortness of times. But I was a little confused
with the amendments, I'm sure you'll clarify me. The primary
comment we would to make is that this is a constitutional amendment
that would, I feel, confound the ANILCA compliance problem. By
merely -- because ANILCA requires a rural preference, this would
sort of just set up a second level of users outside of rural areas,
what I've always called the rural plus concept. That if it is put
on the equal basis with rural residents, at that point you're
automatically out of compliance with ANILCA; i.e., if the
additional people, or have the same priority that would at some
time limit the priority of rural users, prior to when they
otherwise would have. Then you're out of compliance and it will
not comply. That could be done, that same concept, in my opinion,
can be done in statutes. But I think if you put it into the
constitutional amendment, then you have a fundamental conflict with
ANILCA.
CO-CHAIRMAN OGAN: Excuse me Mr. Matthews, thank you for that
observation. With all due respect, we know it doesn't comply with
ANILCA. I'm going to have to limit the testimony to five minutes
per person. We're going to be on the floor at 7:00 p.m.
Number 4658
MR. MATTHEWS: Well, there's that. I think the concept of the
rural plus can be done in statute, I think it could be done
consistent with an amendment. I think you don't need to do it
here. The ANILCA amendments that are requested, are probably not
going to pass.
TAPE 98-56, SIDE B
Number 0001
REPRESENTATIVE BARNES: ....should have some basis and effect,
that's probably not going to pass. Mr. Matthews, the few changes
that we asked for in ANILCA -- in that legislation that is before
you -- a few compared to the pages that we had around here
yesterday -- is there nothing positive you have to say about this
legislation?
CO-CHAIRMAN OGAN: Representative Barnes, it seems (indisc.) is...
Number 0031
MR. MATTHEWS: Representative Barnes, Mr. Chairman --
Representative Barnes, I'm trying to say that we feel that the
concept of rural plus has been around a long time, it has been
discussed. If it's put in the constitutional amendment we're
afraid that it will collapse. We think we can get to this same
place a different way. In terms of the technical drafting, we're
rather confused about the consistency with lines 12 through 14, on
page 1, that talks about "shall." And then line 1, page 2, it
talks about, "the state may in times of shortage". It seems to us
that the amendment you made, with nonsubsistence areas, perhaps
takes care of that concern. And I'll try and draft some language
and get that to you. We're also concerned a little bit with the
insertion of the language, "customarily and traditionally
dependent," lines 4 and 5, whereas, ANILCA uses the term "uses," as
opposed to "dependence." Perhaps the definition of what you mean
by that would help here. And the Section D, on page 2, probably
undermines the preference in ANILCA for subsistence, at least the
way I read it. I didn't see that you made any amendments on that
one. I think you were trying to address the issue of other
renewable resources. But this would basically say they have a
preference, but not if they conflict with these other uses. I
think that could -- some words, I think could help there. Those
are the things, Mr. Chairman, that I have been able to identify
listening to the amendments. And I appreciate the opportunity to
comment.
CO-CHAIRMAN OGAN: Thank you. Any questions of the witness.
Hearing none. Also Representative Nicholia and Joule have joined
us. Thank you.
MR. MATTHEWS: Thank you Mr. Chairman.
CO-CHAIRMAN OGAN: Thank you very much. We have Dick Bishop and we
have....
DICK BISHOP: Thank you Mr. Chairman.
CO-CHAIRMAN OGAN: My watch says quarter till -- ten till.
Number 0310
MR. BISHOP, VICE PRESIDENT, ALASKA OUTDOOR COUNCIL: Thank you, Mr.
Chairman, for that warning. I'll do my best to adhere to it, I
don't think it will be any problem. First of all, I'm Dick Bishop.
I'm the vice president of the Alaska Outdoor Council for whom I'm
testifying. Let me start by saying I appreciate the work you've
done and the amendments that you have made. I think you've made
substantial improvement already on this proposed resolution. I do
think that there are a couple things that are important to point
out. One is that we do have a continuing concern that the
provisions of this resolution may in fact expand the numbers of
people who are qualified under the subsistence priority and that is
of concern with regard to the balance between the resources
available, the number of qualified users, and the potential impact
on other uses of those resources. So we would like to annunciate
that concern. We understand that the way it's written, it's not
intended to work that way. But I would just point out that, in
practice, our prediction is that the Boards of Fish and Game would
have a very difficult time of restricting the areas of dependence
to anything less, or significantly less than what presently is
considered subsistence areas as we know it today. So I think that
is an issue that needs to be addressed and I don't have a specific
recommendation on how that will be done. With regard to -- let me
just go down the page -- I appreciate it, on page 2, your
amendments to the language on lines 4 and 5. I point out that it
might be helpful to say, in addition to what you have changed where
it talks about the residents are determined to be customarily and
traditionally dependent -- there was a question about the meaning
of that term, and if you turned it around to say, "the residents
are dependent on customary and traditional uses of particular fish
or wildlife resources," that might remove an undefined term, since
customary and traditional use is defined, and remove a level of
some degree of uncertainty in that regard. And on the end of line
5, where it says, "who has", it probably should say, "who have",
for correctness. Going down to line 27, number (2), under Section
29, you did have some discussion about that, and let me point out
a couple considerations there. It talks about waives federal
jurisdiction, and it may be prudent to say, at that point after
jurisdiction, "if any", since that is a question of the degree of
federal jurisdiction over state lands, and so on -- state and
private lands and waters. So if it were amended to read, "waives
federal jurisdiction if any over," -- and then I would like to go
back to the issue you discussed earlier, whether to include more
than just fish and wildlife in this terminology. And we really
strongly recommend that you do because Title VIII of ANILCA says
that there shall be a priority on the subsistence for the use -- a
subsistence priority on the uses of all wild renewable resources.
And if the point of ensuring that the federal jurisdiction has been
determined not to apply, then I think it's absolutely critical that
it be inclusive of all that -- which it does apply under Title VIII
of ANILCA. And again, under Title VIII of ANILCA, it says, "all
wild renewable resources." And so I think that there should be
comparable language in this number (2), under Section 29. Even
though -- and you may have to change something ahead of that, but
to ensure that if the federal law is changed, I think that it
should be changed to ensure that there is not some lingering
federal authority over other wild renewable resources in addition
to fish and game. So I'd strongly urge that - attention to that
amendment. And I guess beyond that, we don't have any further
specific amendments. We would really appreciate if the committee
and the legislature would address the issue of a potentially
expanded participation -- qualified participation in subsistence
uses under the priority as it's described here because we do feel
that that would be a significant difficulty. Thank you very much.
CO-CHAIRMAN OGAN: Thank you very much. Representative Barnes.
Number 0817
REPRESENTATIVE BARNES: Thank you Mr. Chairman. I don't have a
question, but I do have a comment. Mr. Bishop, one of the things
that we have constantly said through the years about the
subsistence problem was that it was totally discriminatory and it
violated the equal protection clause of the constitution, and I've
always had a serious, serious, problem with that. In the crafting
of this legislation, we number one tried to see that the rural
areas that depend on the resources for their livelihood was
protected, but that because of the equal protection problem, that
we allow the people in the urban areas of the state, such as the
representative sitting here beside me, the senator in the other
body, and other people that have had a traditional dependence upon
this resource, to be able to continue to participate. So, it seems
to me, you can't have it both ways. You can't have it on one hand,
but you have a equal protection problem, and on the other hand, the
people that have lived a customary and traditional lifestyle, that
they should have some access to the resource because of the very
fact that they've had that customarily and traditional dependence.
I don't believe it's a tremendous expansion. I believe that
perhaps it would be some expansion, but I don't believe at any time
a commercial harvest should come before subsistence for the people.
I've always felt that, that feeding one's family was the highest
and best use of the resource and I believe that that's the attempt
here, for feeding of the family, for nutritional protein needs.
And I don't think you can have it two ways. You either have a
problem with the equal protection, or you have an exclusive
management scheme in which I wouldn't have any part of.
Number 1024
CO-CHAIRMAN OGAN: Thank you.
MR. BISHOP: If I may.
CO-CHAIRMAN OGAN: Very briefly please.
MR. BISHOP: I agree with you completely, Mr. Chairman,
Representative Barnes. The difficulty is that whereas, in previous
considerations of this issue, there is a rebuttable presumption
about those who did not actually depend on subsistence uses in
subsistence areas. And in that way, there was a measure where
there could be some constraint on that participation, that's the
point that I was getting at. I agree with you that it should be
based on individual criteria and any Alaskan resident should have
the same standing before the law to attempt to qualify for that
privilege. Thank you.
REPRESENTATIVE BARNES: Mr. Chairman. If I might.
CO-CHAIRMAN OGAN: Very briefly Representative Barnes.
REPRESENTATIVE BARNES: I'm being as brief as I could possibly be.
CO-CHAIRMAN OGAN: You're five minutes over on his time-spot.
Number 0109
REPRESENTATIVE BARNES: We're on my time now, my legislative time
can't be curtailed. I understand the rebuttable presumption that
was in the original 406 -- understand it really well, and the
problem that everybody attacked in that bill was a tremendous
burden on the Boards of Fish and the Board of Game, and the cost,
and that they felt that people who lived in rural areas would be
discriminated against if they had this rebuttable presumption in
the rural areas as well. So to overcome that, you take out the
rebuttable presumption for the rural areas, and you say that people
who live in the rural areas are presumed to qualify. That was my
intent. And certainly you're going to have someone out there --
lives out there, works out there, makes $80,000 to $100,000 a year,
and they're going to qualify too. But most of those people that
make $100,000 or $80,000 are going to be too lazy to go out and
hunt and fish anyway.
CO-CHAIRMAN OGAN: Thank you very much Mr. Bishop.
MR. BISHOP: Thank you.
CO-CHAIRMAN OGAN: We have two people left, Mary Bishop and Steven
White. For those that have joined us additionally, I asked people
that wanted to testify -- the people that testified, I closed the
list off at that time. I'm under serious time constraints. I know
this is a very serious issue and I'm not wishing to cut anyone off.
This will be heard tomorrow in Judiciary Committee, and I would
suggest those, that came in late, that wanted to testify -- at 9:00
a.m. Get up early and show up to Judiciary and get your
opportunity, so, my apologies for those that won't be able to
testify here today. You'll have your chance. Ms. Bishop.
Number 1313
MARY BISHOP, FAIRBANKS, ALASKA: Mary Bishop, Fairbanks, Alaska,
testifying for myself. I too -- I recognize this is out of
compliance, I don't believe the legislature has to do something
that's out of - that's in compliance with the current law. I am
also concerned about the potential for increasing the number of
people and I have a suggestion which might help. It's always --
it's frequently been said that the Boards of Fish and Game should
tend to the matters of regulating fish and game and should not be
in the business of determining who's in and who's out. This is
very difficult for a board to deal with that. Is it possible to
somehow or rather make it that the legislature themselves deals
with who's in and who's out? I don't' think it should be something
that you give to the boards to do, I think you should take the
responsibility for doing that yourself. It's just too heavy of a
burden for appointed people, and so if you can some how or another
amend this - the constitution to reflect that, I would be more
supportive of it, or do it by statute. I'm also -- okay, that's
enough, I just agree with other things that my husband, Dick, has
said. Don't forget that this is all wild renewable resources,
not....
CO-CHAIRMAN OGAN: Mr. Co-Chair.
Number 1456
CO-CHAIRMAN HUDSON: I don't believe anything in this resolution
precludes the legislature from establishing, through the statutory
regime, some higher control through the board process.
MS. BISHOP: No it doesn't preclude it, but I don't see it here.
CO-CHAIRMAN HUDSON: I don't think that's the kind of things, if I
might, Mr. Chairman, I don't think, Mary, that's the kind of thing
that we want to put in the constitution. That becomes, I think
part of the implementation of the policy and the dictates within
the constitution. What we have here now is the essentials that
will lead through the regulations and through the statutes to do
the job that maybe, at some point, you want to do.
MS. BISHOP: Yah, I just really feel uncomfortable because I do not
think it's the job of the Boards of Fish and Game to decide who's
in and who's out. And, all of Sitka's going to be in if -- and all
of a lot of all of these large communities are going to be in it.
It's up to the Board of Game and the Board of Fish, because they
just....
CO-CHAIRMAN HUDSON: Providing through statute, we don't preclude
that.
MS. BISHOP: Yes.
CO-CHAIRMAN HUDSON: Well, you are well noted. Thank you.
MS. BISHOP: Thank you.
CO-CHAIRMAN OGAN: Ms. Bishop, and I have to concur with my Co-
Chairman that the legislature delegates all -- whatever authority
that board has, as you well know, the legislature delegates it to
the board and if we choose to delegate that authority to them then
we can, if not, we will do it ourselves. We'll certainly take that
under advisement. And last, but not least, we have Mr. Steven
White from the Attorney General's Office.
Number 1643
MR. WHITE: Thank you Mr. Chairman, I'll make this very short. I
just thought it would be appropriate to speak on the behalf of the
Administration and give some comments. I cannot speak specifically
to parts of the bill because there are a lot of amendments that I
did not get and they happened before here, but I'm sure that, as
this process works on someone we'll talk about them in particular.
I think you've dealt with a lot of the problems, a lot of internal
inconsistencies. However, there's some major policy decisions, I
think, or policy options here that cause concern for the
Administration and you'll be hearing more about those in the
future. I guess I'll begin, and we go back to the four fundamental
principles that the task force used, and that any legislation
dealing with this issue -- necessary to address and they're right
there so, to the extent that you'll be receiving future comments
from anyone, the policy nature will be directed to whether this
legislation or any other legislation satisfies those policy
objectives. I was not here when there was discussion about whether
the constitutional amendment would be complying with the rural
priority in ANILCA and I think I've heard people testify that they
did not believe it would. So, unless there's some unique further
explanation about that, it's our impression it doesn't, we can
leave it at that. If you want further discussion, I'd be glad to
talk about it. But that's a good principle objectives of the
Administration and in present form the bill, because of the rural
plus feature, does not satisfy the rural resident...
CO-CHAIRMAN OGAN: I think everyone on the committee is cognizant
of how it aligns with ANILCA. And also, I have been negligent in
recognizing Representative Ryan and our Rules Chairman,
Representative Kott, and my apologies. Representative Ryan, do you
have a question?
Number 1847
REPRESENTATIVE JOE RYAN: Well, Mr. Chairman, more or less a
statement -- I read the principles here, and it seemed to me, to
accomplish those goals, that perhaps the Administration should join
in Leg. Council's law suit because it looks like the only way it's
possible to accomplish those goals within the (indisc.) -- what we
have to work with now.
CO-CHAIRMAN OGAN: Well, I've had his boss, Mr. Botelho, in my
office earlier this year and I extend that invitation to him. So,
I hope they do. Mr. White, did you have any comments or any other
questions?
Number 1920
MR. WHITE: The only other comment that I have is, besides
particulars with the bill which I, for lack of comment on, I won't
go into. I think there's fundamental policy problems with the
proposed ANILCA amendments, not only practical ones, but also
policy ones. I'm not going to talk about the policy ones because
there's better people that are more articulate than I am on that
issue. The practical ones is, if this going to -- the effective
date is dependent on at least getting adopted, obviously they have
to have to have a vehicle, they have to have the will of Congress,
and you're in a better position than we are -- or at least I am to
determine that. But it seems to me that a lot of miracles have to
happen before we can accomplish a principle goal which is to stop
federal take over by December 1.
CO-CHAIRMAN OGAN: See out of my peripheral vision caught Co-
Chairman Hudson first.
CO-CHAIRMAN HUDSON: Thank you.
CO-CHAIRMAN OGAN: And Representative Barnes.
Number 2013
CO-CHAIRMAN HUDSON: I think it's pertinent at this time to state
that, this afternoon after the good lady introduced and provided a
copy of the resolution to me, I took the advantage of transferring
it to Senator Murkowski -- was in Anchorage -- right at this
moment. And five minutes ago, maybe ten, I talked to the Senator
and he says he believes that there is good possibility that the
changes in ANILCA can be made. He believes that if the
Administration comes along and works with us here, that we are on
the right track to a solution here. Now that just came from
Senator Murkowski. Now obviously, you know this is his idea of
what he thinks can happen there. But I was really encouraged and
I shared that with the chairman of Judiciary there. So I would
hope, at any rate, that the Administration will look at this as a
constructive, a positive way of trying not necessarily to say
"rural," but in all instance to define "rural" and to satisfy the
intent of rural. And at the same time, to establish a rebuttable
presumption for others in Alaska, Native or non-Native, who might
reside outside of the -- or in the nonsubsistence areas. I want to
put this on the record now because it sounded to me, at any rate.
a little bit like the Administration was sort of backing away and
feeling that the -- now obviously the Governor is going to have to
come on board and work with us in this instance. But I thought
that it was really pertinent, Mr. Chairman, to put that on the
record now because I think we're on the right track and it's about
time we had a little positive news on this subject.
CO-CHAIRMAN OGAN: Well-done Mr. Co-Chair. Representative Barnes.
Will you top that?
Number 2207
REPRESENTATIVE BARNES: I absolutely cannot top it, and I do thank
the Co-Chairman of Resources for giving us that word. I feel it is
very encouraging. And this, Mr. White, is what I have to say to
you, you have your principles and bipartisan task force up there,
you have your four principles, you lost, Mr. White, in the
legislature. And we have now tried the resurrected way to get us
out of this mess, and I would suggest that you and the
Administration start working now in a positive vane, look at what
we come up with to try to solve this problem, because I'm not
willing to step any further over the cliff. This is a huge step
for me - a huge step. And a huge step for a lot of my colleagues,
so remember that. Thank you Mr. Chairman.
CO-CHAIRMAN OGAN: Thank you, and I won't try to top either one of
those, but I would like to associate myself very admirably with
both those comments. I believe it's time for the -- we've cut
enough bait as we're going to fatten. It's time to get some
serious fishing done here. Any other comments? We are due on the
floor at...
REPRESENTATIVE BARNES: Mr. Chairman, would you entertain a motion?
CO-CHAIRMAN OGAN: I will entertain a motion.
Number 2339
REPRESENTATIVE BARNES: Mr. Chairman, I would move the CS for House
Joint Resolution 2, as amended by the Resources Committee, Be moved
from the Resources Committee with individual recommendations.
REPRESENTATIVE IRENE NICHOLIA: Object.
CO-CHAIRMAN OGAN: There is objection. There is objection, is
there discussion? Hearing none, will the clerk please call the
roll.
COMMITTEE SECRETARY: Representative Dyson.
REPRESENTATIVE DYSON: Yes.
COMMITTEE SECRETARY: Representative Green.
REPRESENTATIVE GREEN: Yes.
COMMITTEE SECRETARY: Representative Joule.
REPRESENTATIVE JOULE: No.
COMMITTEE SECRETARY: Representative Masek.
REPRESENTATIVE MASEK: Yes.
COMMITTEE SECRETARY: Representative Nicholia.
REPRESENTATIVE NICHOLIA: No.
COMMITTEE SECRETARY: Representative Williams.
CO-CHAIRMAN OGAN: He's not here.
COMMITTEE SECRETARY: Representative Barnes.
REPRESENTATIVE BARNES: Yes.
COMMITTEE SECRETARY: Co-Chairman Hudson.
CO-CHAIRMAN HUDSON: Here, yes.
COMMITTEE SECRETARY: Co-Chairman Ogan.
CO-CHAIRMAN OGAN: Yes. The bill passes out of committee.
ADJOURNMENT
Number 2439
CO-CHAIRMAN OGAN: And this meeting is adjourned [7:08 p.m.].
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