Legislature(1997 - 1998)
02/17/1998 01:05 PM House RES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
February 17, 1998
1:05 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Joe Green
Representative William K. (Bill) Williams
MEMBERS ABSENT
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Fred Dyson
Representative Reggie Joule
Representative Irene Nicholia
COMMITTEE CALENDAR
* HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 406
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
02/12/98 2312 (HB) READ THE FIRST TIME - REFERRAL(S)
02/12/98 2312 (HB) RESOURCES, JUDICIARY, FINANCE
02/17/98 (HB) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
LANCE NELSON, Assistant Attorney General
Natural Resources Section
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Answered questions of the committee members.
RON SOMERVILLE, Contractor
to House and Senate Majority
4506 Robbie Road
Juneau, Alaska 99801
Telephone: (907) 463-3830
POSITION STATEMENT: Answered questions of the committee members.
GERON BRUCE, Legislative Liaison
Office of the Commissioner
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-6143
POSITION STATEMENT: Answered questions of the committee members.
ACTION NARRATIVE
TAPE 98-12, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:05 p.m. Members present at the
call to order were Representatives Ogan. Co-Chairman Hudson
arrived at 1:09 p.m. Representatives Green and Williams arrived at
1:08 p.m. and 1:11 p.m., respectively.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
CO-CHAIRMAN OGAN explained there is not a quorum yet so he will
talk about the Alaska Statehood Act under "special orders of the
chairman."
Number 0031
CO-CHAIRMAN OGAN referred to the Alaska Statehood Act and read the
following section:
"Section 3. The constitution of the State of Alaska
shall always be republican in form and shall not be
repugnant to the Constitution of the United States and
the principles of the Declaration of Independence."
CO-CHAIRMAN OGAN explained his favorite part of the Declaration of
Independence is "we hold these truths to be self evident that all
men are created equal, endowed by their creator with certain
inalienable rights to life, liberty and the pursuit of happiness."
The declaration is followed with a duty to change the government
and even overthrow it, if necessary. "Now don't get me wrong on
that. I'm not advocating secession or overthrowing the
government." It is just interesting to note that part of the
Alaska Statehood Act indicates nothing shall be repugnant in the
state constitution. He believes in working within the system to
change it.
CO-CHAIRMAN OGAN further stated when Alaska became a state, it
became a state on equal footing with the rights, responsibilities,
and privileges as all the rest of the states. The other states
have the right to manage their fish and game. He believes it was
not the intent of Congress to create a different "species" of
states with Alaska. In addition, the Tenth Amendment of the
Constitution of the United States says powers not delegated to the
federal government are reserved to the states and people. The
states empowered the federal government to exist, not the other way
around.
Number 0233
CO-CHAIRMAN OGAN stated he would also like to talk about the
termination of federal functions in Alaska and explained fish and
game in Alaska were such a unique situation the United States
Secretary of Interior had to certify that Alaska had an appropriate
management scenario in place before he would relinquish the right
of the state to manage them. When he certified it, he relinquished
the full right.
Number 0300
CO-CHAIRMAN OGAN announced the arrival of Representative Green and
explained that Representative Barnes will not be here today because
her plane is late due to inclement weather.
CO-CHAIRMAN OGAN cited Executive Order 10857 - termination of
federal functions in Alaska - and read the following provision:
"it provides that the administration and management of
fish and wildlife resources of Alaska shall be
transferred to the state of Alaska on the first day of
the first calendar year following the expiration of the
90 calendar days after the Secretary of Interior
certifies to the Congress that the Alaska State
Legislature has made adequate provision for the
administration, management and conservation of such
resources in a broad national interest."
CO-CHAIRMAN OGAN explained the executive order was signed by
President Dwight D. Eisenhower. He gave, without a doubt, the
right of the state of Alaska to manage its fish and game.
CO-CHAIRMAN OGAN announced the arrival of Co-Chairman Hudson.
CO-CHAIRMAN OGAN explained while he was back in his district
recently a Native elder commented she prays for him because she
believes he is against subsistence. He said, "I don't know one
person in this legislature that's against subsistence. There's a
perception that we are. And, I would like just to state, here and
for the record, and every chance I get, that we are trying to work
out an equitable system of management that....I'm merely against
discriminating or creating different groups of people - the haves
and have nots. And, I don't think that solves the problem." In
addition, the division between rural-urban and whites-Natives will
not go away with a rural priority. There needs to be healing in
the state and the House Resources Standing Committee is the place
to start.
Number 0566
REPRESENTATIVE JOE GREEN agreed with Co-Chairman Ogan that a lot of
people in Alaska are not aware. There, probably, is not anyone in
the legislature opposed to a subsistence preference. In addition,
reasonable people should be able to work it out.
Number 0629
CO-CHAIRMAN OGAN stated the legislature has the constitutional
authority to go in the direction of the sustained yield principle -
Article VIII, Section 4 - that reads as follows:
"Fish, forests, wildlife, grasslands, and all other
replenishable resources belonging to the State shall be
utilized, developed, and maintained on the sustained
yield principle, subject to preferences among beneficial
uses."
CO-CHAIRMAN OGAN explained preferences can not be given to "users"
or people because of their protected constitutional rights, but
animals do not have constitutional rights. Therefore, he would
like the committee members to look at "uses" to come up with a
system of preference that would accommodate the needs of rural
Alaskans and that would not discriminate against any particular
group of people.
Number 0763
CO-CHAIRMAN OGAN announced that Representative Masek is excused
from today's meeting.
CO-CHAIRMAN OGAN announced he would discuss House Bill No. 406 now,
"An Act relating to subsistence uses of fish and game."
Number 0791
CO-CHAIRMAN OGAN explained HB 406 only contains, at this point,
findings and intent language. He read the following from the bill:
"Section 1. FINDINGS AND INTENT. (a) The Alaska State
Legislature finds that
(1) the ability to harvest fish and game for
personal and family use for sustenance is a
fundamental right under the Constitution of the
State of Alaska;"
CO-CHAIRMAN OGAN noted that the Alaska Federation of Natives (AFN)
in its guiding principles talks about subsistence as a "basic human
right." Therefore, subsection (1) is a good place to start because
recognizing the ability to obtain food for existence is a right
declared in the Declaration of Independence - "life," liberty, and
the pursuit of happiness.
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:
"(2) the common use clause of the Constitution of
the State of Alaska imposes on the state a trust
duty to manage the fish, game, and water resources
of the state for the benefit of all the people;"
CO-CHAIRMAN OGAN explained there will be a briefing by Gregory
Frank Cook, a noted public trust attorney, on Tuesday, February 24,
1998. He will explain the trust-responsibilities of the state to
manage its fish and game to benefit all of the people. The people
in the state are unique because everyone owns the resources in
common. The people own the oil, timber, and minerals, for example.
The people receive dividends from the oil revenues - the permanent
fund dividend. The dividend represents the earnings of the shares
held in trust. The United States Supreme Court has ruled that the
state can not discriminate against a person's right to a dividend
based on his or her length of residency. He said, "I believe, just
as we cannot discriminate based on how long someone has lived in
the state with the permanent fund, I believe the U.S. Supreme Court
would probably rule that we cannot discriminate with another public
trust, resource of fish and game, based on where a person lives."
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:
"(3) the harvest of fish and game for personal and
family use for sustenance is the highest and best
use of fish and game;
"(4) the fish and game resources of Alaska have
adequate biological and reproductive capacity to
provide an abundance of fish and game for all
users."
CO-CHAIRMAN OGAN stated, if directives were given to the Department
of Fish and Game and boards to manage for consumption and
abundance, it would go a long way towards reducing the "allocative"
conflict.
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:
"(b) It is the intent of the Alaska State Legislature to
provide
"(1) for a preference for personal and family use
of fish and game for sustenance that parallels the
Congressional intent underlying the subsistence
preference under Title VIII of the Alaska National
Interest Lands Conservation Act but does not
violate the fundamental constitutional rights of
Alaskans to subsistence, equal protection, and
common use of fish and game under the Constitution
of the State of Alaska;"
CO-CHAIRMAN OGAN stated the provision is a tall order because it
would not conform with the rural priority in federal law. But,
there is more than one way to look at it. There is agreement with
some members of the Alaskan congressional delegation to do it, if
the needs can be met.
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:
"(2) a greater role for local fish and game
advisory committees and regional fish and game
councils in the review and approval of regulations
governing the use of fish and game resources;"
CO-CHAIRMAN OGAN explained one of the biggest roots of the problem
is that rural people feel disenfranchised of the process. It was
heard at the hearings during the interim that rural people want
federal management because the federal government listens to them
and does a better job of meeting their needs. The Natives have a
legal trust-relationship with the United States Department of
Interior. Therefore, the state needs to start building a trust-
relationship in spirit first with rural Alaskans then legally.
Rural Alaskans need to trust their state government. And, the way
is to set up a regional management to give them more of a say and
authority.
CO-CHAIRMAN OGAN continued reading the findings and intent of HB
406 as follows:
"(3) for a greater abundance of fish and game
resources to serve as a source of food for persons
who depend on those resources for personal and
family use for sustenance."
CO-CHAIRMAN OGAN explained he intended to introduce a committee
substitute that would add a new section today - Section 2. But,
there is not a quorum to adopt it. The new section needs to be
expanded. It is fairly extensive and the bill drafter could not
get it done in time. Hopefully, it will be done by Saturday.
Number 1194
REPRESENTATIVE GREEN asked Co-Chairman Ogan whether the bill will
be heard again on Thursday as well as Saturday with the changes.
CO-CHAIRMAN OGAN replied, "No." Other bills are scheduled for
Thursday.
REPRESENTATIVE GREEN asked Co-Chairman Ogan whether Section 2 of
the committee substitute will be discussed on Saturday even if
there is not a quorum.
CO-CHAIRMAN replied, "Right."
Number 1246
CO-CHAIRMAN OGAN called for a brief at ease at 1:20 p.m. Co-
Chairman Ogan called the meeting back to order at 1:29 p.m.
Number 1267
CO-CHAIRMAN OGAN explained there still is not a quorum so action
can not be taken on the bill.
CO-CHAIRMAN OGAN announced he intends to have Saturday meetings
starting at 9:00 a.m. Saturdays will be a good time to take public
testimony.
Number 1304
REPRESENTATIVE GREEN asked Co-Chairman Ogan whether he will have an
expanded version of the committee substitute by Saturday and take
public testimony.
CO-CHAIRMAN OGAN replied he is not sure if the bill drafter will be
able to get it done by Saturday.
REPRESENTATIVE GREEN explained he is concerned about the
Legislative Information Offices getting the committee substitute in
time to the people who want to testify.
CO-CHAIRMAN OGAN replied it will depend on the bill drafter. It
might mean limiting public testimony on Saturday. The findings and
intent language are enough to discuss, nonetheless.
CO-CHAIRMAN OGAN explained he would like to move the bill out of
the committee by the end of the month, if possible. He would like
to see most of the work done in the Resources before sending it to
the next committees of referral - Judiciary and Finance.
Number 1384
CO-CHAIRMAN OGAN stated there has been a lot of discussion about
"uses" and "users." An amendment to the state constitution to
allow for a "user" preference, as proposed by the Governor's
subsistence task force, would require amending Article I, Section
1; Article VIII, Section 14; Article VIII, Section 16; and,
possibly, Article VIII, Section 17.
Number 1469
CO-CHAIRMAN BILL HUDSON wondered whether Co-Chairman Ogan is also
looking at the constitutionality of whatever is being developed.
Number 1491
CO-CHAIRMAN OGAN stated he has been discussing the constitution.
He announced Lance Nelson from the Department of Law is listening
in Anchorage as well.
Number 1524
CO-CHAIRMAN HUDSON stated, according to state and federal courts,
a rural preference is unconstitutional. The Governor's subsistence
task force, the congressional delegation, and the Administration
are moving towards an application of rural by modifying the state
constitution. It seems to be unworkable primarily because Juneau
would not be considered rural while Sitka would be considered
rural, for example. The proposal by Co-Chairman Ogan is to
predicate subsistence on "use" versus "users." He wondered where
"use" is expressed in the state constitution as a right. He also
wondered, if it is not expressed in the state constitution, how
could it be expressed in the least damageable way in terms of the
common use, equal rights, and no exclusive rights of harvest
provisions.
Number 1652
CO-CHAIRMAN OGAN explained he is basing it on Article VIII, Section
4, the sustained yield principle. In order to get to the sustained
yield principle, the state needs to manage for abundance, not just
to sustain it. The state is allowed to give preference amongst
beneficial uses. It does it now with seasons and bag limits. For
example, in regulation, there are areas where a hunter can shoot a
certain amount of caribou, but only take a few out of the area.
Number 1716
REPRESENTATIVE BILL WILLIAMS explained Representative Nicholia has
some communities that are not tied in with the Legislative
Information Offices. The committee substitute needs to be faxed to
them.
Number 1756
REPRESENTATIVE WILLIAMS stated, in regards to a constitutional
amendment, he hopes that a piece of legislation will be drafted
considering where subsistence comes from. Subsistence was a
negotiated issue in the Alaska Native Claims Settlement Act
(ANCSA). It was part of a negotiated agreement. He said, "What
I'm afraid of, Mr. Chairman, is that we're going to get up here and
hold the Alaska constitution up and say we protected the Alaska
constitution but we're not in control of our resources. We don't
want that to happen." So, let's continue to remember that the
state of Alaska paid $500 million to the Alaskan Natives so that
they could have their lands, money, and subsistence way of life,
even if it would mean a constitutional amendment. Past testimony
has indicated that a rural priority will hurt Alaska because its
rural communities are growing in population. He said, "We have to
make this Alaska Native Claims Settlement Act a better piece of
legislation so that we can have a subsistence lifestyle of the
Alaskan Natives. I think that's a question that we should all
answer ourselves also. Do we want to have Alaska Natives to have
those subsistence lifestyles? Do we want them to continue on with
a culture? If we don't, then let's say that; let's not try to get
around it. And, if we do, let's say it, so that we can craft this
piece of legislation to that." He suggested looking at former
Governor Hickel's regional proposal. He reiterated he does not
want to get bogged down in trying to protect the state
constitution.
Number 1975
CO-CHAIRMAN OGAN replied he is glad to hear representative Williams
mention a rural preference will not take care of the issue. A
rural preference will not protect many Natives in several of the
voting districts of the committee members. In addition, a rural
priority would give up some equal protections that might never be
returned.
Number 2011
REPRESENTATIVE WILLIAMS reiterated it is important to remember what
was negotiated in 1971 - a subsistence lifestyle for Alaskan
Natives.
Number 2021
CO-CHAIRMAN OGAN replied the conference report, similar to intent
language of a bill, assumed that the state and federal governments
would take care of the subsistence needs of Native Alaskans.
However, the conference report does not have the force of law, and
the law (ANCSA) said aboriginal hunting, fishing, and property
rights were extinguished in exchange for forty-four million acres
of land and a billion dollars. Therefore, the only way to take
care of the intent language of the conference report would be to
give a Native preference, and to remove the extinguishing language
from ANCSA, which is not going to happen.
Number 2094
REPRESENTATIVE WILLIAMS stated that is not what he is asking. The
Alaska Native Claims Settlement Act should be remembered as a
promise. He said, "And you and I know what happens at the end of
a session, when there are things to be done. We have made
promises. We just did this year on the concealed gun bill. We
promised the Governor and the people of the state of Alaska that we
were going to fix it and we aren't today." In 1971, it was
promised that subsistence would be taken care of for the Alaskan
Natives. He is not asking to go back to it. He is asking the
promise be kept in mind all of the time. It was part of a deal.
REPRESENTATIVE WILLIAMS further explained that the oil companies
and the lobbyists pushed for the settlement in order to get to the
oil in Prudhoe Bay and for the pipeline. It was not a push to take
care of Alaskan Natives, otherwise it would not be an issue today.
He said, "The oil lobbyists back in 1971 were pushing to get the
Alaska Native Claims Settlement Act so we could unfreeze the land
so that the state could select lands so that the pipeline could go
through. That was it. We wanted the oil up in Prudhoe Bay. The
push was there and what happened then is, okay, Alaskan Natives,
don't worry, we'll take care of you. We'll take care of you.
We'll mention it in the conference report. We won't put it in a
piece of legislation, but we expect the Secretary of Interior and
the state to take care of the subsistence needs of Alaskan
Natives."
Number 2195
CO-CHAIRMAN OGAN replied he will commit to keep it in mind, as long
as he understands that it is impossible to meet the needs for every
Alaskan Native.
REPRESENTATIVE WILLIAMS stated he is not asking for that. He is
asking to craft a piece of legislation that will come close to the
promise that was made in 1971.
CO-CHAIRMAN OGAN replied, he thinks, it can be done. When there is
an abundance of resource there is not a conflict. And, when there
is a shortage of resources, it is a matter of how to manage it in
an equitable way. He believes that every person in the capitol
building, the legislature, and the room believes that the people
who live the lifestyle should have the priority.
CO-CHAIRMAN OGAN further said, if a model of who would get the
priority in a time of shortage in a village could be determined, it
could be applied to the whole state. A regional board system could
make the determination. The people in the local areas know who
needs the resources. It would not require an amendment to the
state constitution. He wondered how powerful the state of Alaska
could be if it could start concentrating on managing its fish and
game instead of fighting over allocation.
Number 2343
REPRESENTATIVE GREEN called the issue divisive and suggested
crafting legislation that is agreeable to Natives, non-Natives,
rural inhabitants, and urban inhabitants. The House Resources
Standing Committee should be the committee that determines and
concentrates on what it really wants for Alaskans, it should not be
bound by any legal issues. The legal issues will be handled in the
Judiciary committee. And, the financial issues will be handled in
the Finance committee.
Number 2427
CO-CHAIRMAN OGAN stated he concurs wholeheartedly with
Representative Green.
Number 2432
CO-CHAIRMAN HUDSON stated the House Resources Standing Committee is
the committee to develop public policy. A bill will have to be
constitutional, otherwise it will be written off immediately by the
attorney general once it is signed into law. Thus, the first thing
that has to be done....
TAPE 98-12, SIDE B
Number 0000
CO-CHAIRMAN HUDSON continued. Thus, the first thing that has to be
done is determine whether it will work. Anytime something is
isolated to a village or region, the common use clause of the state
constitution is treaded on. The beneficial users concept was
written originally into the state constitution to make certain that
there was a separation between survival of the species, personal
use, sport, and commercial fishing. He referred to the concept of
"uses" rather than "users" and stated in some respect it are the
users that end up with the opportunity to use the resources making
it hard to separate. While, Representative Williams is suggesting
that the true subsistence guarantee is met as suggested by the
testimony during the interim. He is deeply concerned about the
practicality of managing whatever system is determined. He said,
"I personally favor true subsistence uses. I'd like to see a
constitutionally provided for a preference when harvests are low to
true users." It does not have to substitute for other beneficial
users, such as, commercial and guided sports. It would require
going to the constitution to identify where the state could limit
access by users when the harvest is low. He said, "I don't want to
see subsistence available all over the state of Alaska because
we're afraid of the constitution." In some areas, subsistence is
not a way of life, there are other uses such as, personal and sport
fishing. It would have to be as equitable as possible in order
that it would not violate the common use and equal rights clauses.
At this point, he would like to see a complete bill and to hear
from witnesses. He likes some of the concepts in the findings and
intent language in HB 406 and the sentiment of a consensus because
of the trust issue.
Number 0229
CO-CHAIRMAN OGAN stated there needs to be a commitment on the part
of the committee members as well. Today, there are only four
members present. Three are excused, but it can not be done without
the minority. They are here today, but, unfortunately, not at the
meeting. He does not want to be accused of not listening to the
Natives when their representatives are not at the meetings.
CO-CHAIRMAN OGAN further stated that AFN held a subsistence summit
in the fall and he had to track down a copy of their wants. He
said, "We're used to kind of whipping ourselves up into a froth
amongst our groups, our own individual groups, and drawing lines in
the sand. It's time to set some of that aside and show up to the
table. They're welcome here. AFN is welcome here for their views.
The minority members are welcome here. We've got to hold it
together as a committee."
Number 0310
CO-CHAIRMAN OGAN asked Mr. Nelson whether he could give a briefing
on Article VIII, Section 4, "subject to preferences among
beneficial uses.", of the state constitution in regards to the
difference between "uses" and "users."
Number 0331
LANCE NELSON, Assistant Attorney General, Natural Resources
Section, Department of Law, explained the phrase "subject to
preferences among beneficial uses" has been quoted in quite a few
court cases, including McDowell, as the authority to make
allocation decisions between sport, commercial, personal and
subsistence users. The state supreme court has stated that the
legislature indeed has the ability to make allocation decisions
that prefer one use over another use. In McDowell, the state
supreme court qualifies it by stating that the authority does not
imply a power to limit admission to a user group. The legislature
does have the authority to prefer a particular use over other uses,
but not users over other users. In addition, the legislature does
not have the authority to discriminate amongst users that are
similarly situated in respect to a resource - McDowell and
Kenaitze.
Number 0441
CO-CHAIRMAN OGAN asked Mr. Nelson whether subsistence as a use
could be the highest priority.
Number 0451
MR. NELSON replied, "Yes." It could be the preferred use.
CO-CHAIRMAN OGAN asked Mr. Nelson whether there has been any other
past attempts by the legislature to do that.
Number 0474
MR. NELSON replied, "Yes." In 1986, an attempt was formalized
after the Madison decision. In 1992, legislation was amended to
keep a preference for subsistence uses. For the last 15 years or
so, there has been a legislative preference for subsistence uses.
Number 0529
CO-CHAIRMAN OGAN read from the committee substitute, "The harvest
of fish and game for personal or family use for sustenance by
residents is the highest and best use of fish and game," and asked
Mr. Nelson whether the provision is appropriate.
Number 0570
MR. NELSON replied, "Yes." It is within the legislature's power
and discretion. It is not required by the constitution, however.
Number 0587
CO-CHAIRMAN OGAN asked Mr. Nelson whether it would be appropriate
for the legislature to give direction to the Board of Fisheries,
Board of Game, and the Department of Fish and Game to adopt
regulations, policies, and management plans to implement a
preference for consumptive use of fish and game for personal or
family use for sustenance over other uses.
Number 0601
MR. NELSON replied the "appropriateness" would be up to
legislature. It would be within the authority of the legislature
and consistent with the spirit of past patterns set by the
legislature.
Number 0623
CO-CHAIRMAN OGAN explained subsistence use of fisheries constitutes
about 1 percent of the total take of fish. He said, "I'm
personally appalled that the Secretary of Interior is threatening
to take over 100 percent of the management of fisheries and
navigable waters for 1 percent of the fish." He wondered whether
the legislature could allocate subsistence use as the highest
priority of fish and asked Mr. Nelson whether it was a fair
statement.
Number 0665
MR. NELSON replied, "Yes." It is consistent with what he said
before.
Number 0676
CO-CHAIRMAN HUDSON stated there has never been any question that
the legislature, under the beneficial uses provision, can not
designate subsistence as the highest use.
CO-CHAIRMAN HUDSON further stated the federal law says there can be
a preference, but only for rural residents. Yet, testimony has
indicated that the definition of rural is too ill-defined. In
addition, the attorney general and others say a defined area or
defined group of people would be in violation of the state
constitution as currently written. He wondered, what is true.
Number 0733
MR. NELSON replied there would be a constitutional problem as it
stands right now, if it excluded somebody who is similarly situated
with somebody who gets to participate.
Number 0769
CO-CHAIRMAN OGAN called Mr. Somerville to the table.
Number 0814
CO-CHAIRMAN OGAN asked Mr. Somerville whether a person could still
take six caribou, but only take two out of the area, for example.
Number 0827
RON SOMERVILLE, Contractor to House and Senate Majority, replied a
regulation has been in effect for quite a while for the western
Arctic caribou herd. He suggested asking Geron Bruce from the
Department of Fish and Game for further information.
Number 0840
CO-CHAIRMAN OGAN asked Mr. Bruce whether the regulations is still
in effect.
Number 0851
GERON BRUCE, Legislative Liaison, Office of the Commissioner,
Department of Fish and Game, replied he could not answer the
question off the top-of-his-head. He would get back to him with an
answer.
Number 0875
CO-CHAIRMAN HUDSON asked Mr. Nelson, if the legislature were to
pass a bill that established the harvest of fish and game for
personal and family use for sustenance as the highest and best use
and gave the boards a protocol, would they be able to restrict it
by regions, areas, or proximity of domicile, without changing
Article VIII of the state constitution.
Number 0931
MR. NELSON replied a large part would depend on the particular
limitations that the boards would come up with. Generally, a
limitation of a fish or hunt to local residents is a problem under
the current constitution. There are practical things boards could
do so that local residents would have a more "convenient access" to
the resources. The state constitution does not require equality in
terms of convenience of access, but the boards can not limit any
participation or admission into a user group.
Number 1070
CO-CHAIRMAN HUDSON referred to Article VIII, Section 3 and 17, and
asked Mr. Nelson whether they were the two provisions that
principally applied to the courts striking down a preference or
restriction to people in one area over people in another area.
Number 1128
MR. NELSON replied, generally, Section 3 and 17, state people can
not be treated unfairly and they have to be given access, if they
are similarly situated to others who are given access - the basis
for the McDowell and Kenaitze decisions.
Number 1161
CO-CHAIRMAN HUDSON referred to Article VIII, Section 15, and asked
Mr. Nelson whether it was added later to allow for limited entry.
Number 1180
MR. NELSON replied Section 15 was a concern because of the economic
situation at the time the state constitution was framed - fish
traps and other grants of monopoly to fishing interests. Section
15 was amended later to allow for limitations in the commercial
fishing user groups under certain conditions authorizing limited
entry.
Number 1223
CO-CHAIRMAN HUDSON asked Mr. Nelson whether there is anything
outstanding in the courts in regards to Section 15.
Number 1241
MR. NELSON replied not to his knowledge. It has held up in the
courts. It was held up in Ostrosky and has withstood a
constitutional challenge since. There have been provisions of the
Limited Entry Act that have been changed after court rulings, but
the concept of limited entry into a commercial fishery when certain
conditions are present has withstood the challenge.
Number 1275
CO-CHAIRMAN HUDSON asked Mr. Nelson whether the justification for
limited entry was for resource conservation to prevent economic
distress among fishermen and those dependent upon them.
Number 1324
MR. NELSON replied, "Correct."
Number 1330
CO-CHAIRMAN HUDSON asked Mr. Nelson why the provision, "to promote
the efficient development of aquaculture in the State.", is in
Section 15.
Number 1344
MR. NELSON replied, according to his understanding, it is to allow
the establishment of hatcheries to take fish when others might not
be able to in order to fund their development.
CO-CHAIRMAN HUDSON stated people who live in rural Alaska view
subsistence as an absolute essential need, yet they do not want the
legislature to designate it on a needs-basis. People who live in
urban Alaska feel they might be giving up equity for the use of the
resources. He asked Mr. Nelson whether he has taken a look at the
findings and intent language of HB 406.
Number 1440
MR. NELSON replied, "Yes."
CO-CHAIRMAN HUDSON further asked Mr. Nelson whether there is
anything in the findings and intent language that strikes him as
problematic with the constitution.
Number 1450
MR. NELSON replied the only obvious issue to a lawyer is in Section
1 (a)(1) - "fundamental right." There are grave implications in
defining a fundamental right because it can be restricted under a
compelling state interest. It might create a lot of management
issues for the Department of Fish and Game down the road as well.
Number 1539
CO-CHAIRMAN HUDSON asked Mr. Nelson whether the provision could
shut down commercial fishing to sustenance, unless it was clearly
identified.
Number 1582
MR. NELSON replied he is not sure of the potential issues that
might arise at this time. But, it is the kind of thing that would
need to be thought about before adopting that type of language.
The state supreme court has called subsistence an "important
right," deemed lower in priority to a fundamental right. The
language, therefore, would elevate it higher than what the state
supreme court has found so far. It is conceivable that there could
be unforseen consequences, unless it is clearly defined in the
following sections of the bill.
Number 1642
CO-CHAIRMAN OGAN asked Mr. Nelson if the language was changed to
"important right" from "fundamental right" would it coincide with
the state supreme court findings to date.
Number 1660
MR. NELSON replied, "Yes." It would be more consistent with the
findings of the state supreme court so far.
Number 1685
CO-CHAIRMAN OGAN said, "Here we are finally agreeing with AFN on
something and our own attorneys are shooting us down here."
CO-CHAIRMAN OGAN asked Mr. Nelson to explain the purpose of
findings and intent language in a bill.
Number 1704
MR. NELSON replied findings and intent language is to formally
declare the intent of how the rest of the bill is to be interpreted
and treated.
Number 1745
CO-CHAIRMAN OGAN asked Mr. Nelson whether the courts would rule on
the side of a statute or the findings and intent language in the
event of ambiguity.
Number 1763
MR. NELSON replied the courts would, generally, go by the language
of the statute, unless there was ambiguity that could be further
clarified by the intent language.
CO-CHAIRMAN OGAN asked Mr. Nelson to brief the committee members on
Article VIII, Section 17, in reference to the language "similarly
situated."
Number 1822
MR. NELSON replied it is a very good question. It gets right to
the crux of things. There is some idea how the courts would
interpret the language because of McDowell and Kenaitze. In
McDowell, some of the permissible criteria are a demonstrated
dependence, reliance, or participation in a hunt or fishery. The
location of residence is not an acceptable criterion to determine
whether someone is similarly situated with respect to a resource.
Number 1884
CO-CHAIRMAN OGAN wondered whether a customary and tradition
determination or a history of use based on number of years would be
acceptable under the state constitution in the event of a shortage.
Number 1952
MR. NELSON replied in McDowell the court indicated that an
individual qualification system would be acceptable for a
preference. In Kenaitze, the court indicated that an individual
qualification based on need, dependence, and reliance in relation
to alternative resources available would be acceptable for a
preference.
Number 2035
CO-CHAIRMAN OGAN stated, in the event of a shortage, people in a
particular region would have more of an advantage as long as others
were not excluded from other areas. He asked Mr. Nelson whether
that is tier two of the state system.
MR. NELSON replied, "Correct."
CO-CHAIRMAN OGAN expressed his appreciation to Mr. Nelson for his
willingness to answer questions when he was unprepared.
Number 2100
CO-CHAIRMAN OGAN explained the caribou regulation limiting the
number taken south of the Yukon River was declared unconstitutional
by the attorney's general office. He asked Mr. Nelson whether he
was aware of that decision.
Number 2113
MR. NELSON replied he was not involved in that decision. He
understood that the regulation was repealed by the Board of Game on
the advise of the attorney's general office.
CO-CHAIRMAN OGAN asked Mr. Nelson whether it has ever been
litigated.
MR. NELSON replied, to his knowledge, it has never been litigated.
Number 2193
CO-CHAIRMAN HUDSON asked Co-Chairman Ogan when the committee
members should expect to see the rest of the bill.
CO-CHAIRMAN OGAN replied he will get on the phone with the bell
drafter after the meeting.
CO-CHAIRMAN HUDSON wondered whether it will be available by
Saturday.
CO-CHAIRMAN OGAN replied, hopefully, it will be available by
Saturday. He would, at least, like to have the issue of delegating
authority to the advisory committee systems and a regional approach
on the table for discussion.
Number 2280
REPRESENTATIVE GREEN stated he is concerned about the public having
the additions to the bill before testifying.
CO-CHAIRMAN OGAN agreed with Representative Green and announced it
will be a hearing-only meeting on Saturday.
ADJOURNMENT
Number 2349
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 2:43 p.m.
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