03/03/1998 01:16 PM House RES
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
March 3, 1998
1:16 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 (via teleconference)
MEMBERS ABSENT
All members present.
OTHER HOUSE MEMBERS PRESENT
Representative Jeannette James
COMMITTEE CALENDAR
HOUSE BILL NO. 28
"An Act repealing the Alaska Coastal Management Program and the
Alaska Coastal Policy Council, and making conforming amendments
because of those repeals."
- MOVED CSHB 28(RES) OUT OF COMMITTEE
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 28
SHORT TITLE: REPEAL COASTAL ZONE MGMT PROGRAM
SPONSOR(S): REPRESENTATIVES(S) THERRIAULT, Kelly
Jrn-Date Jrn-Page Action
01/13/97 34 (H) PREFILE RELEASED 1/3/97
01/13/97 35 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 35 (H) RESOURCES, FINANCE
02/13/97 (H) RES AT 1:00 PM CAPITOL 124
02/13/97 (H) MINUTE(RES)
02/20/97 (H) RES AT 1:00 PM CAPITOL 124
02/20/97 (H) MINUTE(RES)
02/22/97 (H) RES AT 1:00 PM CAPITOL 124
02/22/97 (H) MINUTE(RES)
02/25/97 (H) RES AT 1:00 PM CAPITOL 124
02/25/97 (H) MINUTE(RES)
04/23/97 (H) RES AT 4:30 PM CAPITOL 120
04/23/97 (H) MINUTE(RES)
04/24/97 (H) RES AT 1:00 PM CAPITOL 124
04/24/97 (H) MINUTE(RES)
02/19/98 (H) RES AT 1:00 PM CAPITOL 124
02/19/98 (H) MINUTE(RES)
02/26/98 (H) RES AT 1:00 PM CAPITOL 124
02/26/98 (H) MINUTE(RES)
03/03/98 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 406
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
02/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S)
02/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE
02/17/98 (H) RES AT 1:00 PM CAPITOL 124
02/17/98 (H) MINUTE(RES)
02/21/98 (H) RES AT 1:00 PM CAPITOL 124
02/21/98 (H) MINUTE(RES)
02/24/98 (H) RES AT 1:00 PM CAPITOL 124
02/24/98 (H) MINUTE(RES)
02/28/98 (H) RES AT 9:00 AM CAPITOL 124
02/28/98 (H) MINUTE(RES)
03/03/98 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE GENE THERRIAULT
Alaska State Legislature
Capitol Building, Room 511
Juneau, Alaska 99801
Telephone: (907) 465-4797
POSITION STATEMENT: Sponsor of HB 28.
DIANE MAYER, Director
Division of Governmental Coordination (Juneau)
Office of Management and Budget
Office of the Governor
P.O. Box 110030
Juneau, Alaska 99811-0030
Telephone: (907) 465-3562
POSITION STATEMENT: Provided information on HB 28.
GABRIELLE LaROCHE, Coastal Program
Division of Governmental Coordination (Juneau)
Office of Management and Budget
Office of the Governor
P.O. Box 110030
Juneau, Alaska 99811-0030
Telephone: (907) 465-3562
POSITION STATEMENT: Provided information on the fiscal notes for
HB 28.
BYRON MALLOTT, Executive Director
Alaska Permanent Fund Corporation
P.O. Box 25500
Juneau, Alaska 99802-5500
Telephone: (907) 465-2047
POSITION STATEMENT: Provided testimony on HB 406 and answered
questions of the committee members.
ACTION NARRATIVE
TAPE 98-24, SIDE A
Number 0001
CO-CHAIRMAN BILL HUDSON called the House Resources Standing
Committee meeting to order at 1:16 p.m. Members present at the
call to order were Representatives Hudson, Ogan, Masek, Dyson,
Green and Joule (via teleconference). Representatives William,
Nicholia, and Barnes arrived at 1:18 p.m., 1:22 p.m., and 1:26
p.m., respectively.
HB 28 - REPEAL COASTAL ZONE MGMT PROGRAM
CO-CHAIRMAN HUDSON announced the first order of business was House
Bill No. 28, "An Act repealing the Alaska Coastal Management
Program and the Alaska Coastal Policy Council, and making
conforming amendments because of those repeals."
CO-CHAIRMAN HUDSON explained the committee would be taking up CSHB
28(RES), version 0-LS0189\B, Glover, 2/20/98, and called on the
sponsor, Representative Gene Therriault.
Number 0140
REPRESENTATIVE GENE THERRIAULT, Alaska State Legislature, sponsor
of HB 28, explained because of concern last week in regards to the
short period of time for looking at scaling back the boundaries of
the coastal zones, there is an amendment (Amendment 1) that would
double the time from 180 days to 1 year. It reads as follows:
TO: CSHB 28(RES), Draft Version "B"
Page 4, line 19:
Delete "180 days"
Insert "one year"
REPRESENTATIVE THERRIAULT further stated he hopes that the
amendment would help to alleviate some of the fiscal impact that
would be driven by the shortness in the length of time. He would
expect, whatever version is passed out of the House Resources
committee, that the agencies would have an opportunity to draft new
fiscal notes to be considered in the House Finance committee before
taking any action.
Number 0265
REPRESENTATIVE BILL WILLIAMS stated he is still concerned about
Representative Therriault's views on the upper rivers and how the
fish would be taken care of. The proposed committee substitute
would take away a lot of protections of the fisheries. He asked
Representative Therriault to reassure him that the fishing industry
would not be hurt.
Number 0318
REPRESENTATIVE THERRIAULT replied it is important to keep in mind
that since the Alaska Coastal Management Program (ACMP) went into
being, other state statutes have grown up that offer protection -
the Forest Practices Act, Clean Air Act, Clean Water Act, and Title
46. The bill would not diminish any of the permit requirements
before an agency issues an individual permit.
Number 0365
REPRESENTATIVE WILLIAMS stated he could see where the Forest
Practices Act would protect the fish streams in Southeast, but what
about the Northwest region, for example. He wondered how the other
acts would protect the other regions.
Number 0396
REPRESENTATIVE THERRIAULT agreed up north it would not be a forest
type of activity. It would probably be a permit for water
discharge of a river's bank requiring a water permit from the
Department of Environmental Conservation (DEC), for example. The
proposed committee substitute would not impact that permitting
process within the agency and the right of the public to provide
meaningful input on that independent permitting process.
Number 0460
REPRESENTATIVE WILLIAMS replied he still does not see how it would
be protected.
Number 0508
CO-CHAIRMAN HUDSON explained the committee members have a packet of
fiscal notes provided by a number of different agencies.
CO-CHAIRMAN HUDSON entertained a motion to adopt Amendment 1.
Number 0573
REPRESENTATIVE WILLIAMS made a motion to adopt Amendment 1. There
being no objection, it was so adopted.
Number 0638
CO-CHAIRMAN HUDSON called on Diane Mayer from the Division of
Governmental Coordination (Juneau) to explain the fiscal notes.
Number 0701
DIANE MAYER, Director, Division of Governmental Coordination (DGC)
(Juneau), Office of Management and Budget, Office of the Governor,
stated the division's primary responsibility is to implement
Alaska's Coastal Management Program. She called on Gabrielle
LaRoche also from the division to explain the fiscal notes.
CO-CHAIRMAN HUDSON announced, for the record, that Representatives
Nicholia and Barnes joined the meeting some time ago.
Representative Joule has also joined the meeting via
teleconference.
Number 0781
GABRIELLE LaROCHE, Coastal Program, Division of Governmental
Coordination (Juneau), Office of Management and Budget, Office of
the Governor, explained the division tried to break the issue down
into tasks. The first task deals with the cumulative effect of the
bill - re-approval from the federal government and the development
of an environmental impact statement (EIS). The development of an
EIS would require three-quarters of her time and other senior staff
over a two-year period. It would also require hiring two full-time
temporary employees to help keep the office functioning while the
others were engaged in the re-approval of the program. It would
also include travel to Washington, D.C. for negotiations. The
travel figure would drop in the out-years because once the EIS is
prepared the division would be in a negotiation mode and the
additional temporary personnel would not be needed to offset the
existing work line.
MS. LaROCHE further stated the big deal would be the boundaries.
The division normally has about four plans in various stages of
approval. It takes about two years to get a plan through.
Although, if things run exactly on time it could be accomplished in
180 days, but local governments usually drive the schedule by
working with consultants. It takes about 20 weeks, .38 of a full-
time employee's time, negotiating agreements, discussing various
stages with the interagencies, responding to comments from the
district, consolidating state comments, and etc. In-order-to
accomplish all that in 180 days, it would take .74 of a full-time
employee's time, the reason for the additional full-time temporary
personnel.
MS. LaROCHE stated the amendment, unfortunately, would not help the
division very much because it would still need to bring on
temporary personnel. In addition, the biggest item in the fiscal
note is money going to the districts for consultants, mapping,
printing, distribution, and mailing. It would not change at all
with the amendment.
Number 1046
MS. LaROCHE explained the agencies that submitted a zero fiscal
note thought the money would come from federal grant dollars
through a reimbursable service agreement. The agencies thought
they would get the additional money from DGC to do the work,
therefore, they did not reflect a figure in the "Personal Services"
line item. It has been explained to them, however, that there
would not be any more federal money available and that it would
have to come from the general fund.
Number 1114
CO-CHAIRMAN HUDSON asked Ms. LaRoche whether the zero fiscal note
from the Department of Community and Regional Affairs, for example,
was because the agency assumed that the money would come from the
federal program and not the general fund.
Number 1134
MS. LaROCHE replied there would continue to be federal funding for
the program, but there would not be any additional federal money.
A certain portion of the work could be absorbed with existing
federal funds and that is reflected in the division's fiscal note.
A small portion could be absorbed by money going to the agencies,
but there would not be any additional federal funding to support
this type of work.
CO-CHAIRMAN HUDSON stated he assumes the fiscal notes will be
corrected and forthcoming. They will be a major concern for the
House Finance committee.
Number 1203
MS. MAYER explained the division has been in contact with the
agencies as recently as yesterday in regards to the discrepancy,
and yes he could expect to see revisions.
Number 1229
CO-CHAIRMAN HUDSON stated the committee has now heard from the
prime sponsor; the public along the coast line; and the director of
the division, Diane Mayer. He wondered at this point how the
committee members felt in terms of proceeding forward.
Number 1269
REPRESENTATIVE IRENE NICHOLIA asked Ms. Mayer, in terms of reducing
the size of the boundaries, what type of fiscal impact would there
be to the districts.
Number 1303
MS. MAYER replied it would mean initially working with the local
communities, and state agencies, as well as internally with the DGC
for mapping and revisions. The revisions would have to be reviewed
with the agencies and approved by the Alaska Coastal Policy Council
then forwarded to the state's federal funding agency for approval.
It would be the division's key focus for the next year, after
approval of the amendment and the proposed committee substitute.
It would cost local communities in the neighborhood of $700,000.
The division would also need to hire additional staff to support
the planning efforts and to work with state agencies to come up
with their corollary personnel needs. "What we would have are
coastal districts with amended boundaries and in the out-years,
having made the amendments and having done that effort, I think,
there would be very little effect one way or another. The result
in terms of subsequent project reviews. The affect it would have
on the development community would be--there would be a minimal
change. They would essentially be....Because coastal districts can
make an argument for reviewing projects under the coastal program,
if they think that project could affect their coastal districts.
The boundary change that they will make will be a reduction in the
boundary, but they will still argue those areas are still of high
interest to them and they would like to any project reviews under
the same administrative system. So, the net effect of making the
change is questionable. I think it is probably minimal." The
division is concerned that it would spend a lot of time and effort
making the changes when the long-term effect on developers would be
minimal. In addition, it would detract program resources from
meeting the goals that were identified during a recent assessment
of the ACMP. In other words, the cost for shrinking the boundaries
would exceed the benefits.
Number 1490
REPRESENTATIVE NICHOLIA wondered the real reason for introducing
the bill. It does not make sense when there is a management plan
in place and working. It does not make sense to reduce the
boundaries and to put the additional cost on the municipalities,
communities in the zones, the state, and the federal monies coming
into the state.
Number 1532
REPRESENTATIVE REGGIE JOULE asked Co-Chairman Hudson what is his
latitude with regards to motions, objections, and voting in terms
of him participating via teleconference. He wondered whether he
could object to a motion and vote on the objection.
Number 1581
CO-CHAIRMAN HUDSON replied legally he could not vote, but he could
object to any activity for the record.
REPRESENTATIVE JOULE stated he is opposed to HB 28 because the
current coastal zones were set up to be pro-development and pro-
community involvement. They are working because of development,
access to the resources, and the local communities (indisc.--
coughing). He hoped that the House Resources committee would hang
on to the bill.
Number 1668
REPRESENTATIVE WILLIAMS wondered whether the committee has heard
from the mining community.
CO-CHAIRMAN HUDSON replied there is testimony on record from a
number of different developmental entities. It is important to
recognize that the House Resources committee has engaged in a good
give-and-take through the questioning of professional witnesses.
From a policy point of view, the committee members have been
presented with a good expression of what it is confronted with.
The next question is the fiscal implication to the legislature and
the communities, but it is under the purview of the next committee
of referral - House Finance.
Number 1743
REPRESENTATIVE WILLIAMS stated he is concerned because a large
percentage of the coastal communities object to the bill. The
House Resources committee should be looking at their concerns and
how it can make them feel a little bit more comfortable. He
wondered whether the committee has done that yet.
Number 1771
CO-CHAIRMAN HUDSON replied the record is very well established in
terms of how the coastal communities feel, including his own
community. "If you don't like the bill, there's an expression as
to where you can indicate that it should not pass."
CO-CHAIRMAN HUDSON stated he is not convinced that any further
subcommittee work would alter, appreciably, the intentions of the
bill. He entertained a motion to move it out of the committee.
Number 1805
REPRESENTATIVE RAMONA BARNES made a motion to move the proposed
committee substitute for HB 28, version 0-LS0189\B, Glover,
2/20/98, as amended, from the committee with individual
recommendations and the attached fiscal notes.
Number 1814
REPRESENTATIVE NICHOLIA objected. A roll call vote was taken.
Representatives Barnes, Dyson, Green, Masek, Williams, Ogan, and
Hudson voted in favor of moving the bill. Representatives Joule
(for the record) and Nicholia voted against moving the bill. The
CSHB 28(RES), as amended, moved from the House Resources Standing
Committee.
CO-CHAIRMAN HUDSON handed the gavel over to Co-Chairman Ogan.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
CO-CHAIRMAN SCOTT OGAN announced the next order of business was
House Bill No. 406, "An Act relating to subsistence uses of fish
and game."
CO-CHAIRMAN OGAN announced members from the Administration are here
today to testify on HB 406. He called on Byron Mallott, a member
of Governor Knowles' Subsistence Task Force, to address the
committee.
Number 1910
BYRON MALLOTT, Executive Director, Alaska Permanent Fund
Corporation, explained for clarification he is not a member of the
Administration. He is hear at the request of Co-Chairman Ogan
based on a conversation they had yesterday.
MR. MALLOTT stated the notion in HB 406, as well as the notion in
several of the more recent subsistence draft bills, contains a
process that is very important to the success of subsistence as the
state moves forward to build a management system responsive to the
needs - empowering people at the local and regional levels. The
notion exists in a broad range of governmental and institutional
activities that take place throughout Alaska, not just rural
Alaska. The notion of a regional system to allow folks at the
local and regional levels to have an impact on the resource
management decisions that affect their lives is a step forward in
fish and game administration, not just subsistence. He recognizes
the importance of the tradition of management in Alaska and that it
must make sense on a statewide basis. Therefore, he applauds the
effort to include in that framework the notion that people at the
local and regional levels can impact the decisions that affect
their lives.
Number 2050
REPRESENTATIVE BARNES commented under the state constitution, as it
exists today, only the legislature has the power to regulate the
taking of fish and game. The legislature delegates some of that
power to the Boards of Fisheries and Game and confirms their
membership. She asked Mr. Mallott whether he feels that the
legislature has any way to delegate more than advisory authority to
the regional boards and the recommendations that they would make to
the boards.
Number 2091
MR. MALLOTT replied, generally, in order to delegate decision
making beyond the level of a state board would require legislative
confirmation to empower it. If people are going to respect
decisions affecting things that are important to them, they want
and expect their input to be considered. There is no question that
society is evolving today to the degree that decisions can be made
at a level closest to the citizenry affected. The top-down kinds of
management systems are changing fast. And this is very, very
important to rural Alaska and the decisions that affect the people
in rural Alaska.
Number 2192
REPRESENTATIVE BARNES stated there are local advisory "boards"
around the state and many of them are very, very active. She asked
Mr. Mallott whether he feels that the local advisory "boards" do
not have enough input today or whether their proposals to the state
boards are not being heard.
Number 2210
MR. MALLOTT replied there is a sense that they are more ad hoc.
The local advisory "boards" have the ability to be captured or
influenced by a particular interest or range of issues. It would
probably be more appropriate to have a more broad-based view of
issues before such a committee. The local advisory system has
worked, and it is raising more and more questions in the minds of
local folks as to why they can only give advise and not make
decisions. There is an evolution taking place that needs to be
responded to.
Number 2264
CO-CHAIRMAN OGAN explained, for the record, that they are local
advisory "committees" not "boards."
Number 2273
REPRESENTATIVE WILLIAMS stated, if the advisory "boards" are
working, why is the state going to court all of the time.
Number 2279
MR. MALLOTT replied he does not know what local advisory decisions
have spawned litigation. He said, in general, they are working.
The evolution of resource management statute's, in the context of
subsistence and the notion of taking decision making as much as
possible to the local level, is hugely important to the success of
the state's resource management system. If people at the local
level do not feel that they have been responsibly involved, it is
more difficult to make the whole system work.
Number 2353
REPRESENTATIVE NICHOLIA explained she is a former member of the
Tanana Fish and Game Advisory Council. The council is only allowed
one trip to a Board of Fisheries or Board of Game meeting as a
result of the budget cuts to the Department of Fish and Game. The
department could probably speak better to that, but it does lower
the council's input level.
Number 2387
CO-CHAIRMAN OGAN referred the committee members to page 4, line 5,
and read, "In a time of shortage of fish or game resources, the
appropriate board may adopt a regional preference among beneficial
uses of fish and game by requiring that the flesh or meat of the
game be consumed within the region where the fish or game was
taken." The language is followed by criteria of who would be
eligible. There is also criteria to determine the sustenance and
preferred use areas by shifting the priority to Alaskans first and
to ensure that the people in a region, in a time of shortage, have
a leg up. The Department of Law will testify that the approach is
unconstitutional. Article VIII, Section 4, "sustained yield" says
"subject to preferences among beneficial uses."
TAPE 98-24, SIDE B
Number 0000
CO-CHAIRMAN OGAN continued. It seems that the legislature already
has the authority under the state constitution to give a preference
of use (sport, commercial, personal, and subsistence). A regional
preference, in his opinion, takes care of those that have a need in
a time of shortage. If the Alaska National Interest Lands
Conservation Act (ANILCA) can be amended to say a "regional
preference" rather than a "rural priority" then the state is pretty
much on the way to operating within its constitution, and in a very
real way protecting those that need the resource the most in a time
of shortage. The proposed committee substitute would delegate more
authority to a regional board whose members are appointed by the
governor and confirmed by the legislature. It would give authority
to the main boards to delegate to the regional boards. He asked
Mr. Mallott, in reference to equal protection, whether a regional
preference as sustenance as the highest and best use would satisfy
the real need - practically - of those who truly depend on the
resource in a time of shortage.
Number 0072
MR. MALLOTT replied using the word "practical" in the context of
subsistence is an oxymoron. There is a federal statute that the
Alaskan congressional delegation has said they can not change
anymore. Most of the efforts involving subsistence have dealt with
a system within the context of the federal priority. He has read
HB 406, but not with enough detail to comment with any authority
upon any aspect of it. But, in reference to the uses, in general,
the times are changing in Alaska, and making consumption a use
makes sense to him, intuitively. There has been a long-term effort
to uncouple resource use with consumption - the notion of catch-
and-release, for example. Whether or not a case needs to be made
in order to protect ourselves down the line, he is not prepared to
comment on that today, but intuitively it makes him wonder.
Shifting the focus of subsistence management away from the
traditional mechanism, and to uncouple it from the constitutional
framework that has operated since statehood, would be a very
daunting task.
Number 0187
REPRESENTATIVE BARNES stated Title VIII of ANILCA says that
subsistence is a "customary and direct dependence as a mainstay of
one's livelihood." When it is coupled with the term "rural" there
is a problem. She asked Mr. Mallott if a way is found, under the
sustained yield and equal protection clauses of the state
constitution, to manage subsistence for the customary and direct
dependence as a mainstay of one's livelihood without dividing the
people and maintaining that consumption is the highest and best
use, would the Native community support it.
Number 0254
MR. MALLOTT replied he has not found a lack of desire on the part
of the Native community to want to make subsistence work. However,
it is a profound cultural issue. Rural people feel it is more than
just consumption; it is more than just food on the table. They
believe very strongly that it has to be classless. He sometimes
compares subsistence and what it should be to what the permanent
fund dividend has become to Alaskans. The wealthiest Alaskan takes
the dividend with the same sense of value as an Alaskan on welfare,
the notion of sharing in the collective ownership of the natural
resources of the state. The sharing neither diminishes nor gives
a greater sense of participation of one person over another, the
same desire of Alaskan Natives. They do not want to be separate,
but they also have a very powerful cultural attachment to virtually
every aspect of life in Alaska. As much as he has been involved in
the issue, he has not been able to sever that Gordian knot, but it
is a fundamental reality that deserves response in a sensitive
manner. He explained he participated on the Governor's subsistence
task force to reinstate a framework that would hold together
reasonably when working on the issues internally.
Number 0426
REPRESENTATIVE BARNES replied the problem is that not just rural
Alaskans feel a cultural attachment to the land. There are urban
Alaskans - white, Native, black, pink, or yellow - that live off
of the land as well. She grew up in a hunting family from the
South. Her children have all grown up in a hunting and fishing
family. It is their culture too. Not one group of people have a
hold on a cultural tradition to the land, and therein lays the
problem that needs to be fixed.
Number 0474
REPRESENTATIVE FRED DYSON stated he is also in a dilemma because he
represents the largest Native community in the Anchorage area -
Eklutna. It was originally a fish camp from Copper Center, but it
would be excluded from the process in the Governor's task force
proposal. He referred to the "eat it where you get it" proposed in
Representative Ogan's bill, and asked Mr. Mallott whether the idea
was discussed in the task force.
Number 0526
MR. MALLOTT replied, "Yes." At the outset the task force members
recognized that it was going to be a very difficult task,
therefore, two goals were established: to bring the state back
into compliance to assume full state management over all fish and
game resource on all lands, and to recognize the importance to
Alaskans. There was a conscious decision to not even change words
because every word in statutes and regulations assumes a very
significant meaning over time. Therefore, there was not an attempt
to do anything radical or new. The concern of Representative Dyson
was addressed through the expansion of the proxy hunt by allowing
people from Eklutna to have access to their traditional and
community areas by saying that the "majority" of fish or game taken
had to remain in a subsistence area - the notion of "use it where
you take it."
Number 0663
REPRESENTATIVE WILLIAMS stated he has been trying to deal with the
subsistence issue for quite some time. He certainly does not want
the state divided. He does not want the rural or Native
communities to look like they have a leg up on anybody. The Alaska
Native Claims Settlement Act (ANCSA) started in about 1962 when the
state started selecting lands. The selection stopped due to a
freeze as a result of a lawsuit. In 1967, there was a bill in
Congress that stated there would be a lands claim settlement act
passed, but it did not pass until 1969 when oil was found on the
North Slope. The push to settle ANCSA was oil. According to his
research, during the negotiations land, money, and subsistence were
always at the forefront. And granted it was only a statement in
the conference report in 1971 that the subsistence lifestyle of the
Alaskan Natives would be taken care of by the Secretary of Interior
and the state of Alaska. He said, "We got our money, we got our
land, and we're working on subsistence. In 1975, I believe, the
state tried to settle this subsistence issue, but it could not at
that time because it didn't live up to the constitution like where
we are today." Then, there was ANILCA that addressed a subsistence
lifestyle for rural communities, but he wondered about the
traditional and customary uses being carried forward.
Nevertheless, after talking to people in Ketchikan, they do not
want to amend the constitution and suggest amending ANILCA for
Natives only. He asked Mr. Mallott to expand on the history of
where subsistence came from, and what he thinks of the Native only
issue.
Number 0885
MR. MALLOTT replied, having been involved back then and although
the Native community was involved in the development of ANCSA, at
critical times we were not in the room. At virtually every point
at which critical decisions were made, they were made behind closed
doors. That is not to say that the Native community did not have
input, but the ultimate mix and decisions were made with Alaska's
Natives out of the room even though it was a settlement process.
Subsistence is addressed and recognized in the conference report,
not because it was important to be in the bill itself, but because
it was determined that there was sufficient public policy authority
and obligation implied in the responsibility of the Secretary of
the Interior for Native affairs. There was not a need for new
legislative or statutory authority. The Secretary has sufficient
authority and defined responsibilities to be responsive to and meet
the subsistence needs of Alaska's Natives. There was also a
general recognition that within the framework of Alaska's
constitution there was a responsibility to be responsive to the
subsistence needs of Alaska's people. Those were the reasons that
subsistence was not addressed in ANCSA. The report also indicated
that there was an affirmative obligation on the part of both the
state and Secretary to be responsive to the subsistence needs.
Subsistence became a part of ANILCA as a result of Congress
responding to recommendations on how certain other lands in Alaska
would be dealt with. He was president of the Alaska Federation of
Natives (AFN) when they went back to Washington, D.C. at the start
of ANILCA, and specifically asked to include Native subsistence as
a preferred use on federal lands. There was strong objection from
the state of Alaska, therefore, the language was modified to a
rural priority on all lands, should the state meet the requirements
of the federal statute to allow management on state lands.
Number 1139
MR. MALLOTT further stated, without question, Congress has the
authority to enact a Native preference on federal lands should it
desire. But Congress chose not to in 1980 because the state
objected for many of the reasons being discussed today. If he
recalls correctly, the rural preference came from the state of
Alaska under the notion of devising a system of subsistence
management to meet the needs of all Alaskans, as well as meeting
the federal mandate. Eighteen years later the state is living with
the consequence of that notion. He reiterated it was a series of
decisions that intimately involved the state of Alaska, as well as
the federal government that put us where we are today. It was all
based on the fundamental notion that the federal government has an
obligation to Alaska's Native people to protect their subsistence
needs embodied by the Secretary of Interior and carried out on
federal lands.
Number 1243
CO-CHAIRMAN OGAN acknowledged that there was congressional intent,
but the following language was passed into law, "any claim to
aboriginal title based on use and occupancy including submerged
lands beneath all water areas both inland and offshore and
including aboriginal hunting and fishing rights that may exist are
hereby extinguished." He is not a lawyer, but it is rather clear
that aboriginal claims were extinguished. He believes the state
has an obligation morally to the people to ensure that the
commitments made in the conference committee report are met and to
respect the culture, not just the sustenance needs. He said, "I
respect the cultural needs of the people that have it in their
heart to hunt and fish because I have that in my heart to hunt and
fish too. It's a very important part of what I look forward to and
what gets me through this mess every year is knowing that I've got
two weeks till my kids get out of school after session, and I get
in my boat and I go fishing. Boy, I feel better and I provide for
my family and all that, so it's very important. That's why this
issue is so passionate because it affects so many people
personally." But, there is the troublesome portion of the state
constitution - Article I, Section 1, "equal protection." It was
made for a reason. There is also the troublesome document called
the "Declaration of Independence" - the right to life, liberty, and
the pursuit of happiness. "I believe the right to life is probably
as much of an inalienable right, and the right to subsist is as
much of an inalienable right as life. If you can't eat, you can't
live. And there are some people that are literally in that
situation. In fact, our state law recognizes that. It says, if
you're in a situation where you're going to suffer bodily harm and
you don't have food that you can take it regardless of the season."
It boils down to recognizing the cultural needs of Alaskans within
the parameters of the constitution. "I honestly believe that if we
amend the constitution to give a rural priority, number one, we
don't get state management back. We have federal management with
a state name on it. We have to adopt ANILCA into our statutes and
constitution." In addition, the Secretary's authority would be
expanded. He cited, "In accordance with Title VIII of this Act,
the Secretary of Interior is required to manage fish and wildlife
for subsistence uses on all public lands in Alaska because of the
failure in state law to provide a rural preference." He asked
Senator Stevens why the state should amend its constitution when
the Secretary's authority would be expanded. Senator Stevens
replied the authority would go away, if the constitution was
amended. But, further language says, "subsection (b) shall be
repealed on such date if such laws have not been adopted."
Number 1504
MR. MALLOTT replied, with respect to the extinguished rights and
claims, they were extinguished as far as Natives are concerned.
But, the constitutional relationship between Native Americans and
the federal government was not severed. It extinguished Native
rights, but it did not extinguish any rights of the federal
government. In light of the recent Venetie decision, it is very
important to remember there is still Indian country in Alaska. His
wife has 160 acres of Indian country on the Yukon River. There are
federally recognized tribes in Alaska that have sovereign authority
under the federal constitution for certain purposes regarding their
members. The federal government has in the past and always will
exercise a special relationship with Alaska's Native people. That
is not to say, however, that the relationship should impinge upon
the rights of others or create a sense of special privilege amongst
any group of Alaskans. But, it is a factually and legally based
relationship. It is difficult to recognize the reality that the
state faces. Alaska's Natives do not want it. They are the last
people to want it because ultimately they are the most powerless to
enforce, influence or resolve it. In many ways, the folks in rural
Alaska are at the mercy of the legislators in recognizing their
tremendous obligations.
Number 1704
REPRESENTATIVE WILLIAMS stated, according to Senator Stevens, Bill
Horn (ph) and other attorneys, aboriginal fishing and hunting
rights are property rights. He agreed with bringing the house back
together again, but "how do we get around the problem that's before
us today. How do we get around a promise that was made back in
1971, a statement that was made in 1971. How do we get around it
without looking like we're breaking our promise." If we can get
around that then maybe the Natives from around the state would also
be trying for an Alaskan solution.
Number 1937
CO-CHAIRMAN OGAN stated he believes the state can take care of it
by managing for abundance.
REPRESENTATIVE WILLIAMS stated anytime somebody says, "I know
what's good for you. I know how to take care of you, you'd better
watch yourself."
Number 1968
CO-CHAIRMAN OGAN stated the bill is a stab at including the spirit
of honoring that understanding by managing for abundance and
figuring a fair way to determine who depends on the resource when
there is not enough to go around. The people who live in rural
areas depend on the resource.
Number 2010
CO-CHAIRMAN HUDSON stated the problem is that we are trying to
identify everything for everybody in a broad sense rather than
trying to identify subsistence in a narrow sense. The solution
lays in trying to find the cultural requirements of somebody from
urban Alaska. Ninety-nine percent of the time resources are taken
during normal seasons. The major goal is to identify subsistence
in its most limited, but necessary sense. With all due respect to
Representative Ogan's approach, it is expansive. It would provide
for a cultural taking under times of low harvest for everybody.
The issue needs to be turned around by limiting subsistence and
taking care of those people who truly have a traditional and
customary, and long standing historical use and need for the
resource when the harvest is really low. Beyond that, everybody
can take it when there is plenty to harvest. It may take some
permissive authority within the constitution.
Number 2374
CO-CHAIRMAN OGAN recognized the presence of Representative
Jeannette James.
CO-CHAIRMAN OGAN stated a regional preference of "eat it where you
shot it" is not expansive.
Number 2408
REPRESENTATIVE JEANNETTE JAMES stated the most important thing that
we should be doing today is worrying about how to meet the
subsistence needs and how to build trust again between the Natives
and non-Natives in the state. The state has been told that there
is no other way than to amend the constitution to reflect a rural
priority.
TAPE 98-25, SIDE A
Number 0000
REPRESENTATIVE JAMES continued. She agreed that in the beginning
there was a promise made to the Natives to protect their
subsistence rights for their survival. But, Congress made an error
when it did not do it that way and replaced it with rural. "I have
taken Senator Stevens to task a number of times when he says in one
breath that we, the federal government, have a right to protect the
Natives. It is our chore and it is our obligation. And then, he
turns around in a next breath and says that 50 percent of the
people who qualify for subsistence under a rural priority are non-
Native. Now, you can't have it both ways. If he wants to protect
the Natives then protect the Natives and lets say it's a Native
preference. I have no problem with that. Had he done that in the
first place we wouldn't be here arguing today." As a result,
subsistence can not be defined without the help of the Natives and
the governor. In her heart she believes that the needs for
subsistence can be defined within the confines of the existing
state constitution. But, if it needs to be delineated to make it
perfectly clear, then it can be done. The reality is an amendment
for a rural priority is not going to happen. There are only a few
months left so lets work together for a solution. She asked Mr.
Mallott to respond to her comments.
Number 0216
MR. MALLOTT replied a rural priority was difficult for the Native
community to accept in 1980 because it was going to be difficult to
define and there were going to be inequities. The federal system
uses a geographical determination based on population that does not
stand up to time. Nevertheless, having said that, he wants to
continue to make it work over time.
Number 0356
MR. MALLOTT further stated that the Native community for the
longest time held on to ANILCA because they were concerned about
state management, not necessarily the legislature, but how
administrations over the years have managed, and how user-interests
have influenced and driven decision making to the point that a
subsistence priority could disappear. Recently, the Native
community was shaken when several members of the Alaskan
congressional delegation said ANILCA could be changed, maybe. In
general, if everybody could move forward at the same pace - the
legislature, administration and Native community - in a deliberate
process, then we could get where we want to be, but the longest
stage of the process would be in building trust.
Number 0533
REPRESENTATIVE NICHOLIA stated she lives at the confluence of the
Yukon and Tanana rivers. Every fall there are thousands of hunters
from Anchorage, Palmer, Kenai, and Fairbanks. She wonders about
the hunters who travel thousands of miles and spend hundreds of
dollars to hunt in the area she lives where gas and groceries are
not cheap. She wonders, therefore, if it is a cultural,
subsistence, or merely a sport activity when they spend hundreds of
dollars to get to where she is when they can buy their groceries
much cheaper.
Number 0645
MR. MALLOTT replied he has been a big game guide and an outfitter,
as well as a subsistence user. She is being charitable when she
says hundreds of dollars because it is probably thousands of
dollars. The activity is important to them, but there are ways to
bifurcate subsistence and sport seasons so that there is enough for
everybody. The conflict comes when there is a management system
that limits the take then katybars the door. In that case, the
people with the most capability would probably harvest the majority
of the resource. "When you discuss subsistence in a cultural
context in Alaska, the powerful differentiation, and it is an
overwhelmingly powerful differentiation, is that this was our land.
It literally was, all of Alaska. Every place that Alaskan Natives
exist was their land. They did not come here from anywhere else.
The sustenance, the value of that land, the spirituality, is as
strong today as it was, I'm sure, ten thousand years ago." There
is a different cultural context, and there are powerful feelings,
if there is competition for a resource and the local people feel
that they are at a disadvantage. Having said that, however, it has
to be dealt with. Public policy needs to be crafted so that it is
fair to all those involved. From a Native point of view, there is
absolutely no way to keep sport hunters out of areas that are
attractive without the wrath of the public. But, that creates just
as much of an obligation on the part of public policy makers to
make sure that it does not happen. When there are conflicts, it is
not "your fault, it is not my fault, it is the systems' fault." No
matter how difficult it is, the Native people have to continue to
pick themselves up, dust themselves off, and start all over again.
"As Alaska's Native people, we have no choice. There's no where
else for us to retreat." It becomes an imperative to make it work,
not just for the Natives, but for everybody.
Number 0913
REPRESENTATIVE BEVERLY MASEK asked Mr. Mallott how he feels about
subsistence being a right or privilege.
Number 0927
MR. MALLOTT replied the Alaska Native Subsistence Summit included
in its policy statement subsistence as a fundamental human right.
House Bill 406 posits that sustenance is similar to a fundamental
human right. Alaska's Native people who practice subsistence
believe its value goes beyond mere taking and use. Whether
something is a right or privilege is a matter of semantics because
in Alaska the reality is such that subsistence will be treated as
a right by everybody who feels strongly about it, a reality that
public policy needs to be responsive to.
Number 1016
REPRESENTATIVE MASEK explained she wants to know whether it is a
right or privilege to him, personally.
Number 1028
MR. MALLOTT replied, personally, when he lives in Juneau he
considers it a privilege. If he was invited home to harvest, while
still living in Juneau, the request would be considered a right.
If he was to live and immerse himself in the lifestyle again, it
would be a right that he would defend with every fiber in his being
until something better came along.
Number 1106
REPRESENTATIVE MASEK asked Mr. Mallott, based on all the comments
and hearings to this time, whether it is appropriate for the
legislature to pass legislation that would create a different
class.
Number 1185
MR. MALLOTT replied it is necessary to recognize that the words
used have, unfortunately, driven us apart as opposed to bringing us
together. They have different meanings to all of us, and those
meanings become very powerful in our use of them. There is no
subsistence statute or regulation that gives Natives a priority.
There never has been and whether or not there will be would require
an act of the United States Congress. The rural preference was an
effort in federal statute in a federal management scheme on federal
lands in Alaska to recognize the obligation of the federal
government to Native American peoples' subsistence needs. The
Alaska National Interest Lands Conservation Act also gave the
state, as a result of negotiations, the opportunity to manage all
lands in Alaska, if it were to adopt the federal priority. Thus
far, we have a range of subsistence management activity that is
fundamentally classless and that does not differentiate amongst
people on a racial or economic basis. The issue became very value
laden at the time of the McDowell decision for the state. The
federal government's role has been largely ministerially, until
several years ago when there was a series of rural challenges.
Until such time, it has been very reluctant to assume its
management responsibilities. It took legal action and court
direction to compel the federal government to get where it is
today. But, we can all agree that it has taken on momentum and a
life of its own. If the federal government was to exercise its
right under the federal constitution to enact a Native priority for
subsistence uses on federal lands, it would work fine for some
places, but not for places where there are no federal lands or not
enough resources to meet subsistence requirements. Including the
system on state lands, there would be two completely different
value structures involved within the state. He has not heard
anybody say that they want it that way, not even the Natives. He
tries to continue to look at the issue in a practical way, as
opposed to a value-laden and rhetorical way.
Number 1470
REPRESENTATIVE BARNES stated, to clarify the record, rural did not
appear in state statutes until 1986. It appeared first in ANILCA
in 1980. It did not come out of state law. Furthermore, in
regards to hunting costing money in the context of a rural
preference, how could we justify a federal or state employee who
lives in a rural area and makes in excess of $100,000 a year
qualifying for a rural subsistence priority when he or she could
access good through services such as Costco. In addition, in
regards to urban sportsmen spending a lot of money to hunt, rural
Natives use snowmobiles and 4-wheelers, the modern conveniences
that urban sportsmen would use to hunt and fish. She wondered how
a scenario could be set up so that somebody in urban Alaskan who
really needs the resource for sustenance would not qualify, but a
federal or state employee in rural Alaska that makes more money
than somebody in urban Alaska would qualify.
Number 1610
MR. MALLOTT replied, he spent a considerable amount of time in
Washington, D.C. during that time and it was made very clear to
him, as president of AFN, that there would not be an ANILCA
resolution without the active support of Alaska. He can recall
very clearly, although the state might not have put forth the rural
language, without the agreement of the state the language would not
be in ANILCA today.
Number 1683
REPRESENTATIVE BARNES stated there was a resolution, the only
official document anywhere, passed by the legislature with 25 or 27
cosponsors. It contained seven points of the only things that the
legislature would accept as a state in federal legislation. Even
former Governor Jay Hammond's administration clearly said that
there should not be any federal legislation because it did not
contain the seven points.
Number 1747
MR. MALLOTT replied much of the state's focus on ANILCA at the time
had to do with the land withdrawals and the overall impact on the
state of which subsistence was just a part. If the state had been
in active opposition to a rural priority, it would have been
difficult for Congress to pass it. Furthermore, it does not make
sense for someone with a substantial income to take advantage of a
subsistence priority simply because of where he or she lives. The
implications of a needs-based system, however, would tear apart the
fabric of a community. Practically, it seems to make more sense if
the impact on the resource is able to be accommodated, if the
community can be held together, and if some fall through the mesh,
it is a small price to pay to have the system work in the best way
possible for the people involved. With respect to urban dwellers
availing themselves to subsistence resources, the state has made
some effort with the proxy hunting rules.
MR. MALLOTT further stated a fair management system needs to be
built. If there are concerns of co-management, a system should be
created to allow for cooperative management by giving the
appropriate agencies the authorization to enter into such an
agreement with legislative or board oversight, if necessary. Lets
walk through a process that would ultimately allow us all to be
comfortable with it. Otherwise, we just stand on the outside and
throw rocks at each other. Cooperative management almost is anti-
American to some folks, while it is a very benign way to allow
local people to be involved in decision making to other folks.
But, when dealing on the basis of a cooperative management, the
issues can be resolved because all of the parties would have a
stake in the issue so that hopefully there could be an agreement.
Number 1987
REPRESENTATIVE NICHOLIA stated, for the record, she is not anti-
urban hunting. She welcomes urban hunters to the Tanana area under
the general hunting regulations. The people from her area become
very worried that they are not getting their share of moose in
times of shortages, however. Moose play an important part in their
culture in terms of their spirituality and daily lives. She
reiterated she does not have a problem with hunters coming from
Anchorage, Fairbanks, Palmer, or even the Lower Forty-Eight. She
has spent time talking to them and they usually are there for a
piece of mind.
Number 2057
CO-CHAIRMAN OGAN thanked Mr. Mallott for coming today. According
to his comments, the idea of regionalism is moving in the right
direction to help with the trust issue by empowering the local
people. This might not be the exact perfect way, but it is a step
in the right direction.
Number 2099
CO-CHAIRMAN OGAN announced on Thursday, March 5, 1998 he intends to
introduce a draft committee substitute. He welcomes any input from
the committee members. It is not perfect yet. We are getting
really close to moving a piece of legislation out of the committee.
ADJOURNMENT
Number 2145
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 3:30 p.m.
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