Legislature(1999 - 2000)
09/22/1999 06:14 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT MEETING
HOUSE RESOURCES STANDING COMMITTEE
HOUSE JUDICIARY STANDING COMMITTEE
September 22, 1999
6:14 p.m.
HOUSE RESOURCES COMMITTEE MEMBERS PRESENT
Representative Scott Ogan, Co-Chair
Representative Jerry Sanders, Co-Chair
Representative Beverly Masek, Vice Chair
Representative John Harris
Representative Carl Morgan
Representative Ramona Barnes
Representative Jim Whitaker
Representative Reggie Joule
Representative Mary Kapsner
HOUSE JUDICIARY COMMITTEE MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative John Cowdery
Representative John Coghill
Representative Hal Smalley
Representative Sharon Cissna
Representative John Davies
Representative Ethan Berkowitz
Representative Bill Hudson
Representative Alan Austerman
Representative Gail Phillips
Representative Eldon Mulder
Representative Con Bunde
SENATE MEMBERS PRESENT
Senator Rick Halford
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION NO. 201
Proposing an amendment to the Constitution of the State of Alaska
relating to subsistence use of renewable natural resources by
residents of the state; and providing for an effective date.
- HEARD AND HELD; RECESSED TO CALL OF CHAIR
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 201
SHORT TITLE: CONST.AM: RURAL SUBSISTENCE PRIORITY
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
9/22/99 (H) JUD AT 6:00 PM HOUSE FINANCE 519
9/22/99 (H) RES AT 6:00 PM HOUSE FINANCE 519
[JOINT WITH HOUSE JUDICIARY]
9/22/99 1812 (H) READ THE FIRST TIME - REFERRAL(S)
9/22/99 1813 (H) RES, JUD, FIN
9/22/99 1813 (H) 2 FISCAL NOTES (GOV, F&G)
9/22/99 1813 (H) GOVERNOR'S TRANSMITTAL LETTER
WITNESS REGISTER
BRUCE M. BOTELHO, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-2133
POSITION STATEMENT: Testified on HJR 201.
FRANK RUE, Commissioner
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802
Telephone: (907) 465-6141
POSITION STATEMENT: Testified on HJR 201.
GEORGE UTERMOHLE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions relating to HJR 201.
STEPHEN WHITE, Assistant Attorney General
Natural Resources Section
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Answered questions relating to HJR 201.
MARY PETE, Director
Division of Subsistence
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4147
POSITION STATEMENT: Answered questions relating to HJR 201.
EDDIE GRASSER, Legislative Assistant
to Representative Beverly Masek
Alaska State Legislature
Capitol Building, Room 432
Juneau, Alaska 99801
Telephone: (907) 465-3306
POSITION STATEMENT: During discussion of HJR 201, answered
questions relating to Tier II applications.
ACTION NARRATIVE
TAPE 99-38 (RESOURCES), SIDE A
Number 0001
CO-CHAIR SCOTT OGAN of the House Resources Standing Committee
called the joint meeting of the House Resources Standing Committee
and the House Judiciary Standing Committee to order at 6:14 p.m.
House Resources Standing Committee members present at the call to
order were Representatives Ogan, Sanders, Masek, Harris, Barnes,
Whitaker, Joule and Kapsner; Representative Morgan arrived at 6:22
p.m. House Judiciary Standing Committee members present at the
call to order were Representatives Kott (Chairman), Green,
Rokeberg, James, Murkowski, Croft, and Kerttula. Other House
members present during the meeting were Representatives Cowdery,
Coghill, Smalley, Cissna, Davies, Berkowitz, Hudson, Austerman,
Phillips, Mulder and Bunde. Present from the Senate was Senator
Halford.
HJR 201 - CONST.AM: RURAL SUBSISTENCE PRIORITY
[NOTE: Although this was a Joint House Resources Standing Committee
and House Judiciary Standing Committee meeting, HJR 201 was
technically only before the House Resources Standing Committee for
action. Throughout, the original version of HJR 201 was referred
to as the Governor's proposal or Governor's amendment.]
Number 0101
CO-CHAIR OGAN announced the first order of business as House Joint
Resolution No. 201, Proposing an amendment to the Constitution of
the State of Alaska relating to subsistence use of renewable
natural resources by residents of the state; and providing for an
effective date.
CHAIRMAN KOTT explained that the House Judiciary Standing Committee
was at the meeting to listen to testimony and ask questions.
Number 0202
REPRESENTATIVE BARNES made a motion to adopt the proposed committee
substitute (CS) for HJR 201, version 1-GH1071\D, Utermohle, 9/22/99
(Version D), as a work draft.
REPRESENTATIVE JOULE objected. He explained that the legislation
from the Governor is clear and concise, and it passes muster with
the Secretary of the Interior, who ultimately needs to sign off on
this. He believes putting the proposed CS before the committee is
premature, especially knowing that the resolution introduced by the
Governor keeps the state in compliance with the Alaska National
Interest Lands Conservation Act (ANILCA).
Number 0354
REPRESENTATIVE BARNES submitted that the proposed CS is just as
assured of being in compliance with ANILCA as the one proposed by
the Governor. She said she didn't believe they should spend a
great deal of time trying to figure out which one is in compliance
with the Secretary of the Interior's wishes, but should find the
one that would work without discriminating against a total body of
people in Alaska.
REPRESENTATIVE OGAN commented that they had debated whether they
should have the hearing on the Governor's resolution, and there is
support in the committee to at least discuss the proposed CS. He
suggested people could comment on whether they liked the proposed
CS or the Governor's version better. It is not the final action of
the committee, he added.
A roll call vote was taken. Representatives Barnes, Whitaker,
Masek, Harris and Ogan voted in favor of accepting the proposed CS
as the work draft. Representatives Morgan, Joule, Kapsner and
Sanders voted against it. Therefore, the proposed CS (Version D)
was before them for discussion purposes.
The committee took a brief at-ease from 6:25 p.m. to 6:26 p.m.
Number 0723
BRUCE BOTELHO, Attorney General, Department of Law, came forward to
testify. He also introduced Frank Rue, Commissioner of the Alaska
Department of Fish and Game (ADF&G). He noted that this is an
historic occasion, recognizing that in eight days, if no action is
taken, the federal government will formally and legally assume
management of fish and game for subsistence purposes on all
navigable waters in Alaska, which is unprecedented since statehood.
The one law that stops that from happening right now is the
amendment that United States Senator Ted Stevens achieved last
year, he explained, which places on hold final adoption of
regulations dealing with subsistence, if the Secretary of the
Interior certifies before October 1, 1999, that a resolution has
been passed by the Alaska State Legislature to amend the
Constitution of the State of Alaska; that amendment, if approved by
the electorate, would enable implementation of state laws of
general applicability consistent with, and which provide for, the
definitions, preference and participation specified in sections
803, 804 and 805 of ANILCA.
ATTORNEY GENERAL BOTELHO noted that this sets the test - of both
the resolution proposed by the Governor and the proposed CS - of
whether the Secretary of the Interior can certify that the proposed
constitutional amendment will enable implementation of statutes to
provide for the definitions, preference and participation. In
terms of preference, Attorney General Botelho specified that he
means a rural preference in the taking of fish, game and other
renewable natural resources for subsistence purposes. The
Governor's resolution is very straightforward, he said, simple and
short. It reads:
The legislature may, consistent with the sustained yield
principle, provide a priority to and among rural
residents for the taking of fish and wildlife and other
renewable natural resources for subsistence.
ATTORNEY GENERAL BOTELHO pointed out that this language will
satisfy the Secretary of the Interior when he determines whether
the state legislature has enacted enabling amendments that would
provide for the preference. He urged the committee to give that
serious consideration.
Number 0940
ATTORNEY GENERAL BOTELHO told members he hadn't come prepared to
specifically review the proposed CS but would make some remarks.
He informed members that he has met several times with
Representative Barnes on earlier drafts, and the Administration
recognizes this as a good-faith attempt to pass a constitutional
amendment that would enable the preference. There are continuing
concerns, however.
ATTORNEY GENERAL BOTELHO explained why the Administration had
proposed the language they had. The history goes back to the 1989
Alaska Supreme Court decision known as McDowell, which declared the
statutory scheme unconstitutional; up to that point, the state had
been found to be in compliance. That court determined that the
state constitution, as written then, would not permit the state to
manage a program consistent with ANILCA that provided for a rural
preference, because the constitution would not allow an
irrebuttable conclusion that urban residents could not participate
- and that rural residents could - in the taking of subsistence
resources. The Governor's current proposed amendment specifically
authorizes a distinction, providing for the rural preference, which
would satisfy the preference in ANILCA and therefore be certified
by the Secretary of the Interior.
ATTORNEY GENERAL BOTELHO questioned whether the proposed CS
(Version D) accomplishes the same thing. He said he believes the
language is not clear; as a lawyer, it might be difficult for him
to see the development of "proximity" as equivalent to "rural" or
to "place of residence." Words would be litigated for years to
come, from his experience with other constitutional amendments.
For example, what do "sound resource management practices" and
"reasonable opportunity for residents" mean? He questioned their
appropriateness in a constitutional amendment, rather than being
issues to be defined in statute. He added that his primary purpose
was to offer the Governor's amendment, not to focus on the proposed
CS, which the Secretary of the Interior had been asked to comment
upon; the Secretary's opinion should help guide the body's
deliberations, he added.
Number 1216
REPRESENTATIVE BARNES asked Attorney General Botelho if he could
swear that the Governor's amendment would withstand the challenge
in the court of other provisions of the constitution, specifically,
that being equal treatment under the law.
ATTORNEY GENERAL BOTELHO responded that, to the best of his ability
and knowledge, he would swear that he believes this amendment will
satisfy the requirements of ANILCA and would not be found
inconsistent with any other part of the constitution.
REPRESENTATIVE BARNES expressed surprise, stating her belief that
the equal rights provision of the constitution cannot stand the
challenge with the rural preference in there.
ATTORNEY GENERAL BOTELHO emphasized that he wasn't being facetious
when he said the Alaska Supreme Court has confronted this issue in
another forum, in Article VIII of the Alaska State Constitution,
when the people of Alaska amended the constitution to provide for
limited entry. After that amendment passed, there was a challenge
brought to its constitutionality; the specific argument was made
that this violated the equal protection clauses in another part of
the constitution. The supreme court concluded, however, that it
was not inconsistent and that the people of Alaska, in amending
this constitution, could provide for exactly that type of limited
entry, which meant that some people would be able to participate in
fisheries and some would not, as a means of protecting the
resource.
ATTORNEY GENERAL BOTELHO continued, saying while that was not
entirely the same issue, it certainly dealt with the following:
resource management; the recognition that there are limited
resources and that there must be tools available to the state to
make choices when there is scarcity; and who may or may not
participate in that resource. In general terms, that is the issue
presented in subsistence as well. He believes the Alaska Supreme
Court would uphold a statute providing for a rural preference if
the Governor's constitutional amendment passed. He indicated that
the amendment would be consistent with federal law.
REPRESENTATIVE BARNES referred to the Bess decision and said she
believes the test of time would prove him wrong.
Number 1405
CO-CHAIR SANDERS asked Attorney General Botelho if he was saying
that the legislature has free will to do anything it wants about
subsistence, so long as it meets the approval of one man
[Secretary of the Interior Babbitt].
Number 1428
ATTORNEY GENERAL BOTELHO pointed out that this body is free to do
anything, including nothing. The consequence of doing nothing is
simply that the federal government will manage for subsistence
purposes on federal lands, which - because of a Ninth Circuit Court
of Appeals decision that the U.S. Supreme Court refused to hear -
will also extend to navigable waters of the state. The consequence
is the choice about whether the state will acquiesce in that
federal management or take steps to prevent federal takeover. That
power resides first with the legislature and second with the people
of Alaska.
CO-CHAIR SANDERS asked how one could tell Natives in Juneau, for
example, that they are a separate, second class apart from rural
Natives. He has to explain this to his wife, he said, who is an
Eskimo from Nome.
Number 1503
ATTORNEY GENERAL BOTELHO answered that the preference does not
absolutely exclude others from subsistence. In fact, the proposals
advanced by the Administration would specifically provide for
opportunities for urban residents to participate in subsistence
gathering activities, hunting or fishing, either through proxy
participation or through educational permits, which exist today to
allow urban Natives to participate in fisheries activities.
CO-CHAIR OGAN suggested that the Governor's amendment would affect
equal protection, due process, the common use clause, no exclusive
right to a fishery, and uniform application. No one can speculate
what the supreme court will do, he said, but if they are
consistent, they will also rule that it is a revision of the
constitution and thus thrust the possibility of a constitutional
convention on this question. He asked Attorney General Botelho if
it does affect those areas of the constitution.
Number 1609
ATTORNEY GENERAL BOTELHO referred members to the Bess v. Ulmer
decision, indicating that it is largely based on a California
Supreme Court decision regarding prisoner rights. The approach
taken by the California Supreme Court, and adopted by the Alaska
Supreme Court, was to distinguish between amendments and revisions.
Amendments generally focus on fairly discrete topics, while
revisions focus on broader topics. The court also talks about both
quantitative and qualitative broadness. For example, does the
amendment impact several sections of the constitution explicitly?
Is it spread beyond one article? The California Supreme Court
concluded that that was a form of revision because essentially it
had stripped the California judiciary of the power to independently
interpret its own constitution as to the rights of prisoners.
Attorney General Botelho said he had referenced that because the
Alaska Supreme Court did as well. He mentioned getting a sense of
what is qualitatively the level that rises to a revision.
ATTORNEY GENERAL BOTELHO indicated that if one looks at not only
subsistence but also other issues that the Alaska Supreme Court
considered, the court was willing to conclude that the amendments
dealing with reapportionment - which provided for a fairly basic
realignment of powers in terms of who decides to reapportion - did
not rise to a level of a revision. He explained that the decision
with regard to reapportionment was partly because the amendments
were confined to one article, there was not a wholesale shifting of
powers. In his view, a constitutional amendment dealing with
subsistence is discrete and very much akin to the supreme court
decision regarding limited entry. It is clearly quantitatively
confined to one article, Article VIII, dealing with natural
resources.
ATTORNEY GENERAL BOTELHO recognized that many legislators disagree.
Ultimately, he pointed out, there is a way to find out - pass a
constitutional amendment. There is no dearth of people available
and willing to find out whether it is a revision, Furthermore, the
supreme court, by its actions this last year, has proven itself
willing to make that decision. To those who would argue that it
shouldn't be considered if it is possibly unconstitutional, he
submitted that the legislature makes judgments all the time about
what is in the public interest; although some are found
unconstitutional, most are not. He expressed confidence that the
court would rule on such an issue well before the November 2000
election.
Number 1836
REPRESENTATIVE MASEK mentioned that if the state is not in
compliance with ANILCA at any time, the federal government can come
in and make sure the state complies; federal court oversight will
continue. In addition, the Katie John issue hasn't really been
resolved, and it stretches out to the state's navigable waters and
public lands, while currently game management just applies to
federal lands. Although the Governor's proposal is simple and easy
to understand, she said, it doesn't get back true state management.
She believes the proposed CS [Version D] is a stepping stone giving
Alaskans equal rights to hunt and fish, and allowing rural
residents to continue their lifestyles. Having grown up in the
Bush, she knows people who hunt and fish and will continue to do so
regardless of what happens here. Alaska is the only state without
control over its fish and game, she said, and the federal
government has a third of Alaska "locked up." She questioned
whether that simple amendment would address these issues.
Indicating the need to revisit ANILCA, she indicated that until
there are both a new President and a new Secretary of the Interior,
there won't truly be state management. She asked Attorney General
Botelho to comment on the two versions of the resolution, federal
oversight, and the Katie John issue.
Number 2019
ATTORNEY GENERAL BOTELHO acknowledged that Representative Masek is
right, in large part, in describing how ANILCA will work. However,
he noted that he would characterize it differently. No matter who
manages the resource - federal agencies or the Alaska Department of
Fish and Game (ADF&G), along with the Board of Fisheries and the
Board of Game - there is no doubt it would be subject to federal
court oversight. For instance, a citizen could go into federal
court, after having exhausted administrative remedies, to challenge
whether the agency had somehow arbitrarily and/or capriciously
denied his/her subsistence opportunity. It also shouldn't be a
surprise that a federal law would provide for federal court
enforcement of that law. He emphasized that although thousands of
management decisions are made in any given period of time about
fish and game, he could probably count on both hands the number of
lawsuits filed in federal court challenging particular management
practices.
ATTORNEY GENERAL BOTELHO reminded members of the distinct
difference between federal management on the ground by federal
agencies - in particular, the federal subsistence board - and that
by the ADF&G; he indicated the desirability of having the
overwhelming majority of decisions being made by the state, as
opposed to the federal government. He also indicated that the
on-the-ground management should work from the assumption that
ANILCA is not going to be changed, again emphasizing that under
those circumstances, the state wants to be making those first
decisions, the overwhelming number of which will never be
challenged. He suggested having Commissioner Rue characterize
possible differences between state and federal management under
those circumstances.
REPRESENTATIVE BARNES referred to the issue raised by Attorney
General Botelho about access to the courts for people who felt
their subsistence needs were not being granted. She asked whether,
under the Governor's proposed amendment, there are no criteria
other than being rural residents. She emphasized that federal
management has a history of not managing for sustained yield.
Noting that the proposed CS goes beyond just saying "sustained
yield" as it lays out resource management practices, she submitted
that under the Governor's amendment, there is a greater likelihood
of losing in court repeatedly.
Number 2211
ATTORNEY GENERAL BOTELHO commented that while ANILCA doesn't use
the words "sustained yield principle," it is replete with
references about nonwasteful uses and it talks about protecting the
continued viability of all renewable resources in Alaska. Although
Title VIII of ANILCA does not have the keywords that the
constitutional framers provided, he believes they will find that
those principles are there. He does not dispute Representative
Barnes' characterization of earlier federal practices in this state
and territory, he said. He believes the statutory scheme,
reflected both at the federal and state levels, says the highest
obligation of resource managers is sustained yield, and it yields
to nothing.
CO-CHAIR OGAN noted that they have a good case study with the
beluga whale situation. Evidence indicates it is basically a
subsistence overharvest that has threatened the species. The
circuit breaker is the Endangered Species Act, under which the
species has been nominated by the National Marine Fisheries Service
(NMFS) as threatened. That is a good example of federal management
and the system in place.
ATTORNEY GENERAL BOTELHO said that is why the state doesn't need
federal management.
CO-CHAIR OGAN responded that the problem is that if the state
amends the constitution to conform with federal law, then the
federal management system has been amended into the constitution
and there is no state management. Therefore, there be a federal
allocation program and nothing can be done until the Endangered
Species Act kicks in.
Number 2300
FRANK RUE, Commissioner, Alaska Department of Fish and Game
(ADF&G), came forward and disagreed. He stated that ANILCA does
contain principles. For instance, the Secretary of the Interior
cannot approve any recommendation from a regional council that
violates recognized principles of fish and wildlife conservation.
He expressed his disbelief that the state, if in compliance with a
statute that is based on sustained yield, would lose in court and
be forced to violate the sustained yield principle. He believed
that a system with a Board of Game and a Board of Fisheries that
has multiple constituents (subsistence, commercial and sport users)
will have a different approach and will work differently with users
than would a federal board which is only concerned about federal
subsistence users. He noted the ADF&G's management capabilities
regarding commercial and sport fisheries.
TAPE 99-38, SIDE B
Number 0001
[Begins mid-speech.]
COMMISSIONER RUE mentioned discussions with an official in
Washington State, where the tribes get half of the fisheries
resource and management requires negotiating with some 20 tribes.
He emphasized that a rural priority is a far better way to deal
with the subsistence needs of rural Alaskans than would be
alternatives tried in other parts of the United States.
Number 0053
REPRESENTATIVE MASEK commented that there are reservations in
Washington State, and she doesn't believe residents there were
asked to amend their constitution for access to the resource.
Alaska is different from other states because it doesn't have
reservations, save one.
ATTORNEY GENERAL BOTELHO stated that he wasn't sure he had
addressed Representative Masek's question about the Katie John
decision. He summarized that the Katie John case was a challenge
by certain subsistence fishers on the Copper River against the
federal government. Initially, the case was based on the federal
government's refusal to allow a subsistence fishery on a tributary
[of the Copper River]. He noted that the state had joined [the
federal government] in that case. Judge Holland, at the district
court level, concluded that the federal government wrongly denied
Ms. John and others the opportunity to engage in subsistence
fishing. Upon appeal, the state stayed with it, but the federal
government switched sides. The Ninth Circuit then concluded that,
based on a so-called reserved water right, the federal government
would be obligated to provide subsistence fisheries anywhere the
waters were pertinent to public lands, which would stretch to the
navigable waters of this state. Without a determination as to
which navigable waters or what part of them, this matter could well
mean litigation in thousands of areas of the state. Therfore, the
court concluded that the subsistence issue cried out for a
legislative solution rather than a judicial one.
ATTORNEY GENERAL BOTELHO informed members there is a lot of
misunderstanding about what Katie John stood for, or the state's
position. The state definitely took that appeal, and certiorari to
the U.S. Supreme Court was denied. The Katie John case perhaps has
caused even more concern and tension to the subsistence takeover
because of its implications for fisheries around the state. The
Katie John decision is a very broad decision, implicating the
concept of extra-territoriality. He explained that
extra-territoriality is the ability of the federal government, in
providing for the priority, to reach well beyond public lands. In
the state's view, it poses a risk, when dealing with migratory
species, to regulate off public lands - in particular, all the
navigable waters of this state. That theory of law would also
apply to game.
Number 0379
REPRESENTATIVE JOULE referred to the unfortunate decline of beluga
whales, noting that there hasn't been recognition of the many
successful instances where the opposite is true. He pointed out
that much has been gained through the Eskimo Walrus Commission and
the Alaska Eskimo Whaling Commission. In other parts of the state,
the Alaska Beluga Whale Commission has done well, and so have those
populations. He also mentioned the Migratory Bird Treaty Act of
1918. It is remiss, he said, to bring up an instance where failure
is highlighted without recognizing the great strides made
elsewhere, where Native hunters are allowed to hunt under the
Marine Mammal Protection Act or other treaties. Alaskan Natives
have real concern over the healthy stocks, he emphasized, which has
been shown time and time again.
Number 0536
CO-CHAIR OGAN agreed that there are success stories out there.
However, when it doesn't work, the federal government falls back on
the Endangered Species Act. The Endangered Species Act has
affected resource development in other areas and has shut down
drilling in Cook Inlet on the latest areawide lease sale. He
referred to ANILCA, Sections 13 and 14(a). He asked Attorney
General Botelho if he is aware that it says nothing in this Act is
intended to enlarge or diminish responsibility of the authority of
the State of Alaska for the management of fish and wildlife on
public lands, except that may be provided for in Title VIII of
ANILCA of this Act. Suggesting this is the savings clause, he
said, it seems nothing is intended to diminish the state's
responsibility. However, if the state doesn't capitulate to the
federal demands to amend the constitution that responsibility will
be diminished. He asked whether Attorney General Botelho agreed.
Number 0601
ATTORNEY GENERAL BOTELHO commented that is assuming the state has
that responsibility [to amend the constitution] now. Again, ANILCA
provides that the state may manage if it provides - through
statutes of general application - the preference, definitions and
priority. This approach does not mandate the state to do anything
at all; it is a choice. It is one that the supreme court has
upheld as the kind of conditions that the federal system will
authorize Congress to employ. He agreed that describing it as a
savings clause is an appropriate characterization, and that it is
simply to reflect - not expand or diminish - whatever power is
there. It is also a recognition that the overriding power, in
terms of management on federal lands, is a federal prerogative. It
is by the sufferance of the federal government [Congress] that any
state is able to manage on public lands ["federal lands"] in any
given state.
CO-CHAIR OGAN asked the following: was Alaska admitted to the
Union on an equal footing with the rest of the states; was Alaska
admitted on an equal footing under the Submerged Land Act of 1953;
was the Submerged Land Act of 1953 specifically mentioned in
Alaska's statehood compact; and does the right to control fishing,
as the U.S. Supreme Court has said in other case law, come with the
Submerged Land Act of 1953.
ATTORNEY GENERAL BOTELHO, to each question, answered in the
affirmative.
Number 0709
CO-CHAIR OGAN expressed confusion at the apparent inconsistency,
noting that it says "nothing in this Act is intended to diminish
the responsibility and authority of the State of Alaska," yet the
state is being told its authority will be diminished if it doesn't
capitulate to Title VIII or amend the constitution. He asked
Attorney General Botelho what he thinks was meant.
ATTORNEY GENERAL BOTELHO emphasized that the legislature doesn't
have to do anything, and the people of Alaska aren't directed to
vote in any particular manner. The preeminent authority to manage
federal lands and all activities on federal lands, anywhere in the
Union, is with the federal government; that is a matter of
constitutional law, fulfilled through acts of Congress. Congress
has made a choice, specifically with federal lands in Alaska, just
has it has done in other states. He referred to Kleppe v. New
Mexico as another example, regarding New Mexico's prospective
intrusion of the federal government in the management of wild
burros. Kleppe stands for the proposition that federal government
management can extend off federal lands, he said. However, it is
hornbook law.
ATTORNEY GENERAL BOTELHO expanded on earlier comments. The federal
government owns and manages federal lands and the activities that
happen on it, he said. It is by act of Congress that states are
given the prerogative to manage wild resources. The state's
ability to manage wildlife resources on federal lands is a matter
of sufferance, not of constitutional right; it is not a matter of
equal footing or the Submerged Land Act that grants the state the
ability to manage wild resources on federal lands. The state's
ability to manage wildlife resources on federal lands is by act of
Congress, and in this particular case it is Title VIII of ANILCA.
It doesn't require the state to do anything. It simply says the
State of Alaska may manage - just as other states manage - if
willing to follow three conditions of management: 1) to use
federal definitions; 2) to provide for the rural preference; and 3)
to allow for the degree of participation that Congress requires its
own federal agencies to follow. "Take it or leave it," he added.
CO-CHAIR OGAN emphasized that that is on federal lands, whereas
submerged lands are state lands.
ATTORNEY GENERAL BOTELHO concurred.
CO-CHAIR OGAN turned the gavel over to Chairman Kott, thanking the
House Judiciary Standing Committee members for their patience.
Number 0909
CHAIRMAN KOTT thanked the Administration for providing the
"Subsistence Handbook," dated September 1999. He asked
Commissioner Rue what preliminary activities or actions have
occurred between the federal government and the state, in preparing
for federal takeover if this legislature does not act.
Number 0944
COMMISSIONER RUE first said he assumes that is for fisheries, as
the federal government has been managing wildlife for a number of
years. He then replied that the state recommended, in its comments
on the federal regulations, if there is a dual management system,
that the federal government and the federal board establish a set
of regulations much like the North Pacific Fishery Management
Council (NPFMC) does in order to provide general guidance to the
state boards and/or the ADF&G, which would manage in-season to
deliver these general objectives. The ADF&G had suggested this
would maximize cooperation and minimize impacts to other users,
such as non-federally qualified subsistence users, et cetera. In
those discussions, the federal board has not been particularly
interested in using that paradigm of the NPFMC and the Board of
Fisheries, in which there is a general management plan and then the
state manages within those general parameters.
COMMISSIONER RUE informed members that ADF&G has had initial
conversations with the federal board in anticipation of federal
fisheries management. The response has been that the federal
government wants to manage it themselves. Although the state may
work on some cooperative research projects - which they do right
now, where the U.S. Fish and Wildlife Service or other agencies
might put in a weir to amplify the state's information on a
fishery, for example - there has not been much interest in seeing
the state delegate authority or responsibility to the state board
or the department.
Number 1065
REPRESENTATIVE GREEN asked Attorney General Botelho: If the state
adopts the Governor's proposal, would they still be able to
establish nonsubsistence areas?
ATTORNEY GENERAL BOTELHO replied yes, and noted that he doesn't
believe that is affected at all by identifying classes of users.
As he understands it, that is true for either the Governor's
proposal or the proposed CS. The focus of the amendment is on the
users, not where the use takes place.
REPRESENTATIVE GREEN asked whether, under the Governor's proposal,
that would revert to allow management of game as well as fish.
ATTORNEY GENERAL BOTELHO answered that ultimately, presuming the
legislature enacts statutes consistent with the amendment, it would
mean full resumption of management for game as well as fish.
However, he doesn't believe it is a matter of course. The first
step is passing the constitutional amendment, putting on hold the
federal takeover. Eventually - and it isn't clear from the
amendment itself whether it has to happen simultaneously, before,
or shortly thereafter - the next step is to actually enact those
laws of general applicability that provide for the definition,
preference and participation. Once that happens, there is full
relinquishment of the management role of the federal government to
the state.
Number 1187
REPRESENTATIVE GREEN asked: If we acquiesce and accept the
resolution, do we have an opportunity to wait until the vote in
November [2000], or is there a requirement that the accompanying
legislation be enacted as a precedent condition?
ATTORNEY GENERAL BOTELHO said he doesn't believe the amendment
addresses that issue, and there is no answer in black and white
that he can look to. His best judgment is there is a reasonable
transition period after enactment of the constitutional amendment
by the people, at which time the legislature would be expected to
have enacted a statutory scheme; failing that, the state would go
back again to the question of noncompliance.
REPRESENTATIVE GREEN suggested that if that were the case, the
legislation would have to come forth in two months because that is
the potential end of the tenure of the Secretary of the Interior.
He asked what would happen if the Secretary wasn't pleased with the
legislation, what if the Secretary believed it didn't seem to
follow what they had indicated, or what if it didn't get passed
until after the current Secretary had left office.
ATTORNEY GENERAL BOTELHO replied that he couldn't answer that. He
believes there is a rule of reason, absent any express language in
ANILCA or the amendment passed by U.S. Senator Stevens, that
directs by what time the statutes must be in place. His own
judgment is that a prudent person would allow the legislature
reasonable time; he interpreted that to mean by the conclusion of
the first session of the legislature's next meeting after the
constitutional amendment has been adopted by the people.
Number 1332
REPRESENTATIVE ROKEBERG noted that the Governor's amendment has the
term "other renewable resources" in it, whereas the proposed CS
does not specifically speak to other resources. He asked if there
would be a problem meeting the various sections of ANILCA that are
required under the current law.
ATTORNEY GENERAL BOTELHO answered that the reason for "other
renewable resources" is that it specifically ties back to ANILCA,
which provides for the preference for fish, game and other
renewable natural resources. It refers primarily to such things as
berries, roots and other edibles, and he doesn't believe that is a
dispute for anyone in terms of the ability of local people to
gather those resources. He is not in a position to say whether
that is a "swing issue" for the Secretary of the Interior. The
primary controversy in the state has always been reflected in fish
and game. In response to Representative Rokeberg's request,
Attorney General Botelho said he would get back to him on that
issue.
Number 1416
REPRESENTATIVE ROKEBERG noted that U.S. Senator Stevens, in
enacting the 1998 moratorium, had deleted a number of amendments
he'd made the previous year to ANILCA. He believed that many of
those amendments had the support of a vast majority of the people
of Alaska. He asked whether Attorney General Botelho had
considered, in making recommendations to the Governor or this
legislature, putting some provision in the constitutional amendment
that tie into some ANILCA changes.
ATTORNEY GENERAL BOTELHO answered that, generally, they'd had great
concerns in the last special session, when the other body had
developed a "laundry list" of conditions that would be precedent to
the actual effective date of the constitutional amendment. He said
there is no reason to change their view about that. If the
overriding goal is certification by the Secretary of the Interior,
quite apart from the merits, his own strong concern is that it
would not pass muster because alone it doesn't lead to the clear
enactment of laws of general applicability. He acknowledged that
arguments could be made to the contrary. However, the concern is
having a clean, unambiguous constitutional amendment, and removing
any doubt about the Secretary of the Interior's ability in good
faith to certify it.
REPRESENTATIVE ROKEBERG suggested that one of the House's duties is
to get the votes in the Senate.
Number 1552
REPRESENTATIVE CROFT pointed out that he hadn't commented on the
Resources Committee's adoption of the proposed CS because it is not
his committee. However, they are dealing with something that most
of them only saw 15 minutes ago.
ATTORNEY GENERAL BOTELHO said he himself had seen earlier versions
and had an opportunity to discuss them with Representative Barnes.
REPRESENTATIVE CROFT noted that many testifiers were prepared to
talk about the original version, but they now had to address the
proposed CS, which he believes is poor treatment of the people as
well as a poor process. The two key questions are whether the CS
complies with ANILCA and how it affects commercial fisheries. He
commented that he and other members of the Judiciary Committee care
deeply whether this regains state management. All the
constitutional amendment would do is enable the legislature to
write a statute that would comply with ANILCA. He doesn't see how
the proposed CS (Version D) allows a statute that could comply.
ATTORNEY GENERAL BOTELHO indicated his desire to make sure he had
not misunderstood Representative Barnes. He takes it from her
comments about the Governor's amendment that if they are to discern
from the proposed CS that a rural preference could not be granted,
then it cannot comply with ANILCA.
REPRESENTATIVE CROFT said that was his reading of it as well, on
the legal analysis. On the practical analysis, he expressed
concern that the proposed CS, by talking about the proximity of
residents to the resource as a primary factor - and by not limiting
it to rural areas - would mean that any fisheries resource that
goes proximate to a large urban center could have a dramatic effect
on commercial fisheries. He asked Commissioner Rue to comment.
Number 1753
COMMISSIONER RUE answered that if proximity is the only criterion
and there are no nonsubsistence areas, then he agrees with
Representative Croft's conclusion. If proximity is the priority,
then he assumes Anchorage would get all the resources next to
Anchorage.
REPRESENTATIVE CROFT asked what that does to Cook Inlet commercial
fishing.
COMMISSIONER RUE answered that it does significant damage to it.
Then again, federal management also may [do significant damage].
REPRESENTATIVE CROFT noted that under the proposed CS, there would
be both.
COMMISSIONER RUE indicated he hadn't seen the proposed CS for long,
so it is hard to discern exactly what the implications are.
CHAIRMAN KOTT reminded Representative Croft that while he thinks
this is a poor process, it is the process. The Resources Committee
earlier had indicated that in order to even discuss the proposed
CS, they would have to adopt it and bring it before the committee.
Whether it is the final outcome of the legislature in this special
session remains to be seen. It would have been entirely
disingenuous if the Resources Committee had not adopted this, had
passed out the Governor's version, and in a later committee the
proposed CS were adopted. The public would not have had any
opportunity to participate in the discussion.
CHAIRMAN KOTT reminded members of the three problems they are
addressing internally as they deal with the subsistence dilemma:
the legislature only has eight days to accomplish what has not been
accomplished in the previous decade; there must be 41 votes; and
then there must be voter approval on whatever the legislature
passes. The only one the legislature can do something about is
getting the 41 votes.
REPRESENTATIVE BARNES asked Attorney General Botelho if the state
has a Tier II system recognized under the law today, and if this
proposed constitutional amendment goes directly to the scheme
presently used in Tier II.
Number 1917
ATTORNEY GENERAL BOTELHO agreed that "proximity" reaches Tier II.
There may be situations, after eliminating all other beneficial
users - commercial, sport and personal use - when there are still
not enough resources for all subsistence users. In which case, the
state needs to decide who among subsistence users gets the
resource; that is Tier II. The legislature before had identified
three criteria in sorting out who gets it and who doesn't:
customary and traditional dependence on a resource, the
availability or lack of it of other resources, and proximity to the
resource. In a separate decision after McDowell, the Alaska
Supreme Court struck down the proximity criterion, saying that it
is an unconstitutional basis for determining who should have the
Tier II access. The language representing proximity is appropriate
language in terms of reinstating that criterion for Tier II.
REPRESENTATIVE MURKOWSKI asked how much latitude both the
legislature and the Secretary of the Interior have.
Number 2052
ATTORNEY GENERAL BOTELHO answered that the choice is not between
the proposed CS and the Governor's resolution; the latter has the
known advantage of passing the Secretary of the Interior's muster.
Although the Governor's resolution is not the only formulation,
time is the limiting factor in the legislature's deliberations. He
believes the Secretary of the Interior's discretion is very broad,
and the legislation leaves it in the sole discretion of the
Secretary to make the certification. It is true not only in the
context of U.S. Senator Stevens' amendment, but it was also the
case from the inception of ANILCA, which provided for the Secretary
to certify that the state had laws of general applicability.
Attorney General Botelho said that the Secretary has been given
plenary authority to make that decision; short of its being
arbitrary or capricious, with no basis in law, it will stand. It
is a call that Congress has invested in the Secretary to make.
Number 2126
REPRESENTATIVE MURKOWSKI understood that if the legislature passes
something out of both houses, without the Secretary's blessing, the
Secretary could determine that the state is out of compliance. If
that situation occurred after October 1, the [legislature] would be
"dead in the water" and there would be federal management.
ATTORNEY GENERAL BOTELHO said that is correct.
Number 2150
REPRESENTATIVE KERTTULA clarified that just having Tier II, as the
proposed CS apparently tries to do, isn't going to solve their
problem with takeover because "proximity" doesn't equal "rural."
ATTORNEY GENERAL BOTELHO concurred, specifying that it solves a
state supreme court decision called Kenaitze; however, it doesn't
satisfy the participation requirement of ANILCA, which is having a
constitutional amendment that will enable a rural preference. He
informed the committee of his understanding, which is largely
derived from Representative Barnes' comments about the Governor's
proposal and its clash with equal protection, is that
Representative Barnes' proposed CS would not permit the legislature
to reach that result. If he is wrong, in terms of his
interpretation, it is important to make sure the proposed CS is
clarified in that realm. The crucial issue that the Secretary will
look at, as he reviews the language, is whether the language
enables this legislature to enact statutes that provide for a rural
preference.
REPRESENTATIVE BARNES commented that he is wrong.
REPRESENTATIVE KERTTULA questioned why the "proximity" language is
being used, if the attempt is to comply with ANILCA, the proposed
CS does not do it.
CHAIRMAN KOTT suggested she would get that clarification as time
moves on.
Number 2254
REPRESENTATIVE JAMES said there are people in her district who are
just as rural as those in Bethel, but who don't qualify because
they don't live in the right place. To her, that is wrong. She
emphasized that she would never deny anyone the right of
subsistence for the use of fish and game for their survival. The
issue is not to satisfy the Secretary, but to satisfy the people
who benefit from the rural priority. She expressed concerned that
if the state continues into the future with a flawed law, the
current conflict will continue and get worse.
TAPE 99-39, SIDE A
Number 0001
REPRESENTATIVE JAMES commented that although they have been
operating with seasons and bag limits, there is no such
requirement. She questioned whether seasons and bag limits would
apply in a real shortage.
COMMISSIONER RUE replied that he doesn't believe there is any
prohibition of seasons and bag limits, which he believes the
principles in ANILCA would confirm. They cannot be arbitrary or
capricious, however, and must have some basis in reason or fact.
REPRESENTATIVE JAMES referred to Lime Village and asked about the
decision in the Bobby case.
COMMISSIONER RUE stated his understanding that it required the
board to have a rationale for limiting participation in
subsistence. He pointed out that many subsistence activities under
state law, both for fish and wildlife, have seasons, bag limits or
other limitations. He sees no prohibition there, he added.
Number 0111
REPRESENTATIVE JAMES noted that although in Washington State the
Native tribes get half of the resources, as Representative Masek
had pointed out, Alaska doesn't have the same system or treaty.
She herself believes two types of people support the "rural"
subsistence priority: Natives in rural areas and/or people "scared
to death" of federal takeover. However, she has been told that
more than half of those living in rural areas, as defined by
federal law, are non-Native. She suggested the problem would be
simplified if the federal government changed the way it recognizes
rural people.
Number 0236
ATTORNEY GENERAL BOTELHO referred to the Boldt decision in
Washington State, saying it was more to illustrate the intrusion,
sometimes broad, of federal law in fish and game management in
discrete areas of the country, not just in Alaska. Rather than
being an example of a way it should be done, it illustrates the
over-arching rule and supremacy of federal law in terms of
activities dealing with fish and game in individual states.
Number 0299
REPRESENTATIVE JAMES asked which must be drafted first, the
constitutional amendment or the statutory language. While she
believes the intent of ANILCA could be met under the existing
constitution, she added, that is not the case if the specific
verbiage in ANILCA must be addressed. She asked about the ability
to decide which version of HJR 201 is preferable without knowing
what the statutory language would look like.
Number 0381
ATTORNEY GENERAL BOTELHO explained that the October 1 deadline is
tied to a constitutional amendment, which merely must authorize the
legislature to provide the priority in ANILCA; it suggests that the
statutory framework can happen later. The statutes themselves
ultimately either will or won't provide for the definitions of
preference and participation; if they don't, the state will again
face the question of federal management. He offered his view that
the legislature would focus now primarily on a constitutional
amendment.
ATTORNEY GENERAL BOTELHO noted that the McDowell decision had
foreclosed a simple state statutory "fix" to bring the state into
compliance with ANILCA. It said, under our constitution as it
exists today and after 1989, that the legislature cannot enact a
rural preference that would bar the participation of urban
residents. That was the specific issue before the court, and it
was what brought the state out of compliance. Attorney General
Botelho said that leads him to conclude that the hurdle to overcome
is the Alaska Supreme Court decision that says our basic law would
prohibit what the federal government says it will require if the
state wants to manage: a rural preference.
Number 0527
REPRESENTATIVE JAMES asked whether Attorney General Botelho
believes that the verbiage in ANILCA could be changed and still
meet the intent of ANILCA. When asked, she said she was referring
specifically to the rural priority.
ATTORNEY GENERAL BOTELHO replied that as he looks at the findings
of the Act itself, he believes the rural preference is integral to
what represents the deal - the compromise, the agreement - embodied
in ANILCA. He suggested there were some basic principles that may
not have had to rely on "rural." One, clearly considered, was a
Native preference. However, the agreement reflected in Title VIII
of ANILCA revolves around a rural preference, recognizing that it
will encompass both Native and non-Native values and participants.
He believes it is core to Title VIII as it was ultimately
constructed, although some other formulation might have served the
state well.
Number 0562
REPRESENTATIVE GREEN asked what the action of the Secretary of the
Interior would be if an amendment were put out to a vote that
failed, or if it were found to be unconstitutional.
ATTORNEY GENERAL BOTELHO said he believes the federal government
would move to take over.
Number 0687
REPRESENTATIVE GREEN inquired as to whether problems would arise if
the legislators tried to change the constitution against the will
of the majority of the people.
ATTORNEY GENERAL BOTELHO responded that he didn't believe so. One
fundamental element of almost any constitutional framework is the
right to amend based on circumstances and the judgment of
legislative bodies. That is not unique to the system in the United
States; in fact, in most parliamentary systems, the parliament
itself amends the constitution, without a vote of the people. He
doesn't believe it is inconsistent with legislative duties for
legislators to consider constitutional amendments that might fail
by a vote in a general election, nor is it a dereliction of duty or
violation of oath for legislators to pass a constitutional
amendment that is ultimately determined to be unconstitutional.
CHAIRMAN KOTT returned the gavel to Co-Chair Ogan.
Number 0854
REPRESENTATIVE BARNES referred to the proposed CS, page 1,
beginning at line 11, which read, "is not sufficient to provide a
reasonable opportunity for residents to take the resource for all
beneficial uses". She asked Attorney General Botelho what that
means to him.
ATTORNEY GENERAL BOTELHO said it means to him that if there isn't
enough to go around to some group of people - in this case,
residents - something would happen.
REPRESENTATIVE BARNES suggested Tier II would kick in, and there
would be an allocation decision then, such as through seasons and
bag limits; according to the proposed CS, the highest beneficial
use would be subsistence use.
ATTORNEY GENERAL BOTELHO said he wouldn't describe it as Tier II,
however, but Tier I.
REPRESENTATIVE BARNES responded, "Oh, not yet. But we're getting
there, right?" She then read from page 1, beginning at line 13,
which stated, "The legislature may establish criteria for
determining eligibility for a resident to take a resource for
subsistence use." She proposed an example where there isn't enough
caribou for all the different uses in Sleetmute. She asked
Attorney General Botelho whether, at that point, under the language
in the proposed CS, a determining factor for a Sleetmute resident,
whether rural or not, would be proximity to the resource.
ATTORNEY GENERAL BOTELHO said he believes that is right, and this
language provides for Tier II. He questioned, however, whether it
adequately deals with Tier I.
REPRESENTATIVE BARNES continued reading from page 1, beginning at
line 15: "Those criteria may include proximity of residence to the
resource as a primary factor for determining eligibility." She
noted that under ANILCA and the present scheme for addressing
subsistence in the state, there are other criteria, such as
availability of alternative resources, customary and traditional
use, and dependence upon the resource as a mainstay of one's
livelihood. She asked for confirmation that all of those would
kick in under this language.
ATTORNEY GENERAL BOTELHO affirmed that, saying that with respect to
Tier II, the language in the proposed CS that provides for
proximity as a primary factor is appropriate. However, the real
question is whether it authorizes a rural preference, the first
criterion under ANILCA. Specifically, does it authorize Tier I to
be based on rural residence?
Number 1154
REPRESENTATIVE BARNES referred back to the phrase, "is not
sufficient to provide a reasonable opportunity for residents to
take the resources for all beneficial uses". She again asked
whether that doesn't allow Tier I to kick in, with the proximity of
the people who live in that area being the determining factor,
along with the other three or four characteristics.
ATTORNEY GENERAL BOTELHO replied that he reads it not that way, but
as a laudable principle: If there isn't enough to satisfy all
uses, subsistence clearly is the highest beneficial use; all
others, including commercial, sports and personal use, would be
subordinate. He himself had heard no legislator in either house
say that subsistence shouldn't be the highest use, he added. The
fundamental issue now is how to distinguish between users; ANILCA
requires that distinction to be based on place of residence, and in
particular, that it be for rural residents. If the state wants to
manage, that is the scheme it must have in place. Attorney General
Botelho told members:
The state had a scheme that did that and went a step
further and said that even as among rural residents, if
there's not enough to go around, how do you decide,
again, who among these rural users ... gets the right?
And the committee substitute addresses that question. It
satisfies the Kenaitze decision, which threw out
proximity as a criterion. ... That's my dogfight here,
because we would like to see proximity reinserted for
Tier II. The question is: Does this language meet the
preference required by ANILCA at Tier I? Will it
authorize you, as a legislature, to enact a rural
preference? And my understanding, from comments made
tonight in this hearing, [is] that this amendment is not
intended to do that; it is intended to deal with
something more local, and that is proximity to any given
resource, not based on rural or place of residence in
that context, which is ultimately what you need to enact
if we want to avoid federal on-the-ground management.
Number 1347
REPRESENTATIVE BARNES stated her belief that the proposed CS is far
more reasonable than the Governor's version, and that it allows,
when there isn't enough to go around, going to the area where there
is a shortage. "And that is in a rural area of the state," she
said. "That's the proximity issue." She expressed concern that
using the word "rural" discriminates, adding that if that word was
included, she wouldn't vote to move it out of committee.
ATTORNEY GENERAL BOTELHO emphasized that the question that must be
confronted, though, is passing language that would authorize a
rural preference; that is what ANILCA provides for. If "proximity"
is a euphemism for "rural," it must be stated, because if it isn't
clear here, it certainly won't be clear to the Secretary of the
Interior or the state supreme court. He suggested the decision is
whether the state wants to manage under ANILCA or not, then added:
I'm not suggesting that the Governor's language is the
only language. It's convenient because it's the language
we know will pass muster; there are other alternatives
that have been floated in the past, and there may be
formulations ... yet to be considered by this body that
will do so, as well. But I suggest again that the test
has got to be that: Is it language which will lead to
statutory changes that can provide for the definition,
preference and participation that is found in ANILCA and
written today? It does or doesn't.
Number 1488
CO-CHAIR OGAN referred to McDowell and asked, "If proximity to a
resource was in the constitution, do you think that the supreme
court would have ruled the rural priority law unconstitutional?"
ATTORNEY GENERAL BOTELHO replied that he would have to reflect on
it. He added that although "proximity," if in the constitution,
may satisfy state law, the question is whether it would satisfy
federal law. There are two different "sieves" in terms of
management, and McDowell showed that the statutory scheme in place
didn't satisfy the "sieve" that is the constitution. He stated:
There's no doubt that if ... it had been in the
constitution, we would not have had a Kenaitze issue, but
I'm not sure we would have been certified. Again, I
don't know the answer to how the Secretary [of the
Interior] will rule on proximity. But I'm concerned that
... if the sponsor of the resolution does not see
proximity, or her amendment, as authorizing a specific
rural preference at a Tier I level, that it's going to
meet ANILCA. ... And we don't have a dispute over Tier
II. I'm in complete agreement with her that her language
would satisfy Tier II.
Number 1617
CO-CHAIR OGAN asked that Attorney General Botelho ponder the
question of whether McDowell would have, in his opinion, been
tossed out by the Alaska Supreme Court if proximity to [the
resource] had been in the constitution at the time.
ATTORNEY GENERAL BOTELHO agreed to provide an opinion.
REPRESENTATIVE BARNES asked him also to ponder whether it gives the
legislature authority to set up any scheme relating to a resident
in any particular rural area of the state where there is a
shortage. For example, if there were a shortage in Sleetmute,
wouldn't it allow legislative authority to set up that scheme for
a Sleetmute resident to take that caribou?
ATTORNEY GENERAL BOTELHO said he understood the "homework
assignment."
CO-CHAIR OGAN then asked George Utermohle's opinion on whether, if
"proximity to the resource" were in the constitution when McDowell
was decided, the supreme court would have ruled the rural priority
out of compliance with the constitution.
Number 1724
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, answered that he, too, would
have to ponder that. His first response, however, would be that a
rural subsistence preference is not a local subsistence preference,
and there is a chance the court may have come down the same as it
did in McDowell.
REPRESENTATIVE BARNES asked whether Mr. Utermohle believes the
Governor's version would stand the constitutional test under the
Bess decision.
MR. UTERMOHLE replied that he couldn't really say, although he had
read the preliminary order and decision in the Bess case, and the
supreme court decision. "Based on the standards they presented in
that case, and based on their handling of the issues before them -
the three amendments that they were considering - I can't really
tell you what standards they use or would use in the future," he
explained, noting that a proposed subsistence amendment such as the
Governor's implicates a number of provisions of the constitution
besides those in Article VIII. He stated:
There is indeed a risk that the Bess decision might come
into play, and it might be found to be a revision. It
will be largely in the eyes of the court, in their
subjective eyes, to make the determination as to how
important those rights being affected by the proposed
amendment are in regard to the number of provisions that
are being affected. The different decisions that the
supreme court came down, in regard to the amendment
dealing with prisoners' rights and the amendment dealing
with redistricting or ... reapportionment, heightens the
lack of certainty as to where they might come down on
this issue.
Number 1840
REPRESENTATIVE BARNES referred to a written opinion by Mr.
Utermohle that, to her recollection, indicated he believed this
amendment by the Governor affects 8 to 11 other provisions of the
constitution.
MR. UTERMOHLE said he would have to consult his prior memoranda.
He added that there certainly are the three equal access rights in
Article VIII, the equal rights provision under Article I, and due
process rights; conceivably, freedom of religion is an issue, and
there have been supreme court cases relating to the rights of
freedom to practice religion and subsistence practices; and there
may be some implication with the disclaimer of rights clause in
Article XII. It depends on the attorney making the case, he said.
CO-CHAIR OGAN mentioned "uniform application," to which Mr.
Utermohle agreed. Co-Chair Ogan also mentioned "no exclusive right
to fishery." He said he recalled the memorandum pretty well that
Mr. Utermohle had given him, which referenced five primary areas:
equal protection, due process, common use, no exclusive right to a
fishery, and uniform application. He added, "Then you said, 'And
other people could easily read more.'"
MR. UTERMOHLE said that sounds right, then agreed to provide those
opinions.
Number 1935
REPRESENTATIVE KERTTULA requested copies for the entire committee.
She then recalled that "we had Tier II under McDowell; the court
ruled on 'rural'; and then we went into Kenaitze, and that's when
Tier II proximity got struck." She asked if that is Mr.
Utermohle's recollection as well.
MR. UTERMOHLE replied that clearly the McDowell case struck down
the rural subsistence provision. In the decision, the court seemed
to leave open the possibility that proximity to the resource,
though not a significant factor to be used in determining
eligibility, in some part of the subsistence process might be
available, but not necessarily as the sole criteria. However, in
considering that issue in the Kenaitze Indian Tribe case, the court
determined that clearly, even under its decision in McDowell, a
"proximity to the resource" provision could not stand, either as a
single criterion or as one of many criteria.
Number 2037
CHAIRMAN KOTT asked whether, in some "mystical way," perhaps the
phrase "proximity of the residence to the resource" could be
construed to mean "rural," enabling a statutory scheme that would
fit that category.
MR. UTERMOHLE suggested it would require the legislature, in
formulating this amendment, to expressly say in the record that
"proximity" means "rural." Hopefully, the court would, in
interpreting such an amendment, go behind the words of the
amendment and look to what the legislature intended when it put
that issue before the voters; that is the only way he sees that the
court would buy it.
Number 2100
REPRESENTATIVE BARNES said each time the Administration had, in
discussions, asked her to put in the word "rural," they'd also
asked her to change "proximity" to "place of residence." She
inquired what the difference would be if they replaced "proximity"
with "place of residence."
MR. UTERMOHLE explained that "proximity" refers to the relationship
of the distance between the person and the resource, whereas "place
of residence" relates to where that person lives.
REPRESENTATIVE BARNES, using Sleetmute as an example, asked: If
the beneficial use had kicked in, with subsistence the highest use,
and proximity to that resource is one determining characteristic,
what is the difference between that and place of residence? She
added, "The only way you're going to get to the proximity of that
resource is to have your residence there, right?"
MR. UTERMOHLE said yes, but he believes the Attorney General's
concern is that a resident of downtown Anchorage has proximity to
certain resources; it would enable an urban resident to participate
in subsistence use of resources. "Residence" would give the
legislature the ability to discriminate between persons in rural
areas and those in urban areas, whereas "proximity" would allow a
statewide subsistence preference or access to a subsistence
resource, which is not consistent with complying with ANILCA, the
goal of the Attorney General. In answer to a question by
Representative Barnes, Mr. Utermohle clarified that an Anchorage
resident wouldn't necessarily have access to the particular caribou
in the village of Sleetmute, but would have access to resources in
the vicinity of Anchorage, on a subsistence basis.
REPRESENTATIVE BARNES said this goes back to the present management
scheme of subsistence and nonsubsistence use areas, with the latter
being Anchorage, Fairbanks, Juneau, Ketchikan, and so forth. She
asked, "How in the world do you reach in there and pull Anchorage
out of the hat?"
MR. UTERMOHLE referred to the proposed CS, paraphrasing that it
provides in a time of shortage.
REPRESENTATIVE BARNES interjected, "We took that out."
MR. UTERMOHLE acknowledged that, saying it was replaced with a
longer phrase that is similar; when that situation exists, there is
a preference, statewide, for subsistence use of that resource.
Number 2320
CO-CHAIR OGAN called upon Mary Pete and Stephen White, asking
whether, as part of Tier II, there isn't already a "proximity to
resource" criterion.
STEPHEN WHITE, Assistant Attorney General, Natural Resources
Section, Civil Division (Juneau), Department of Law, answered that
in 1995 the supreme court struck that down as a permissible
criterion for Tier II, and the state can no longer ask people about
their proximity in order to get Tier II permits.
MARY PETE, Director, Division of Subsistence, Alaska Department of
Fish and Game (ADF&G), affirmed that; all questions relating to
proximity to the resource in Tier II applications have been purged.
TAPE 99-39, SIDE B
Number 0001
EDDIE GRASSER, Legislative Assistant to Representative Beverly
Masek, Alaska State Legislature, came forward. In answer to
questions by Co-Chair Ogan, he said he had filled out a Tier II
permit application for Nelchina caribou that year. One part of the
form asks where the applicant lives, and the form states that part
of the point system is based on where the person lives.
CO-CHAIR OGAN requested that someone from the ADF&G bring in an
application, as his understanding is that a person receives
increasingly more points the closer he or she lives to the
resource.
Number 0102
MS. PETE explained that the questions about where one lives relate
to points for lack of alternative resources, which certainly will
differ for Wasilla and Sleetmute residents. They are not designed
to measure how close one is to the resource.
REPRESENTATIVE BARNES responded that there is a way in the ADF&G
point system, then, to reach the guy that lives in Sleetmute, and
to discriminate against the one who lives in Anchorage.
MS. PETE agreed, emphasizing that it has to do with dependence on
that particular resource, not on proximity to it. In response to
a question from Representative Rokeberg, she explained that Tier I
is all residents who qualify for subsistence; if there is enough
for all subsistence users, that is Tier I.
Number 0241
CO-CHAIR OGAN asked Ms. Pete, for the record: What percentage is
the subsistence take of Alaska's total fish harvest?
MS. PETE answered that for fish and game, it ranges from 2 to 4
percent; that depends on the size of the commercial harvest of
salmon, in particular.
CO-CHAIR OGAN inquired about areas that don't receive enough for
subsistence, predominantly the upper Yukon-Kuskokwim and maybe some
areas near Nome. He further asked whether the commercial harvest
there has been cut back to accommodate subsistence.
MS. PETE replied, "Our understanding, from monitoring projects that
we have every year - this year, the subsistence harvest needs were
met in the Yukon and Kuskokwim, by and large. The Nome subdistrict
never opened for any sort of fishery: Tier II subsistence,
commercial, sport. Their return was so low that all fisheries were
closed in the Nome subdistrict for salmon. So, no needs were met."
CO-CHAIR OGAN asked whether every other subsistence need was met in
the state, for the most part.
MS. PETE said yes, for salmon, according to preliminary
information.
Number 0361
REPRESENTATIVE MORGAN, speaking about his own region, where there
has been a disaster for the last three years, noted that this year
was the worst on record for escapement on the Kuskokwim River.
There was one commercial opening. For a person from Aniak to get
subsistence needs met, a person had to spend more money and do
twice as much work; he knows because he did it. He asked why it is
only hitting a local area, and he emphasized that it is being
managed by the state.
MS. PETE replied that the chum returns to Western Alaska north of
Bristol Bay all were very poor; escapements weren't met in parts of
the Yukon River, the Kuskokwim River, and certainly Norton Sound.
In reply to Representative Morgan's question about why it is local,
not hurting Bristol Bay, Cook Inlet or Southeast Alaska, Ms. Pete
said it is a good question; however, the ADF&G doesn't know.
Number 0490
CO-CHAIR OGAN referred Ms. Pete to page 1, line 13, of the proposed
CS (Version D). He mentioned deleting all the wording in
subsection (b) after "is subsistence use," leaving it to read:
"When the amount of an indigenous species of a fish or wildlife
resource available to be taken for beneficial uses, consistent with
the sustained yield principle and sound resource management
practices, is not sufficient to provide a reasonable opportunity
for residents to take the resource for all beneficial uses, the
highest beneficial use of the resource is subsistence use." He
asked Ms. Pete, hypothetically, the following: If such a
constitutional amendment passed, would there be an allocation
scenario mandated by the constitution, enforceable in the Alaska
Supreme Court, that people on the Kuskokwim River could shut down
Area M, the commercial intercept fishery, to ensure adequate
escapement to meet subsistence needs, the highest priority?
MS. PETE answered that the Board of Fisheries did establish a
management plan whereby conservation concerns in Western Alaska
would trigger certain harvest thresholds in the Area M fishery.
More directly, the ADF&G implemented the subsistence priority law
this year, as they have every year. As soon as they saw that there
was, or could be, a problem with escapement, they curtailed
commercial fishing. There was one very short commercial period for
chum salmon and one for coho salmon, and they preserved the
remainder of the harvestable surplus for subsistence. There were
no restrictions on subsistence. There was a closure on commercial
and sport fishing, to allow the priority to be realized.
Number 0656
CO-CHAIR OGAN asked Mr. White about a hypothetical situation where
subsistence is protected as the highest use in this scenario, which
equates to times of shortage or if there is not enough to go around
for reasonable opportunity for residents to take the resource [for
all beneficial uses]. He asked: Would subsistence use be the
highest preference, and would Representative Morgan or his
neighbors be able to go and court and say, "My subsistence needs
aren't being met, and the constitution guarantees that subsistence
is the highest use," and the courts would force the board to make
sure that escapement was there for subsistence?
MR. WHITE stated his belief that the subsistence statute provides
exactly this, that subsistence is the highest use. It cuts off
other uses once subsistence [users] don't have reasonable
opportunity. Whether in the constitution or the statute, as it is,
he isn't sure the result would be any different, he said, because
the cause and effect between interceptions in fish back to a
localized area in some instances hasn't been shown. So, even
though there is a statutory or constitutional subsistence priority,
one would have to find that those intercept fisheries actually are
harming that opportunity for subsistence before a court would
change the picture.
Number 0790
REPRESENTATIVE GREEN commented that there is presently a federal
court interpretation that customary trade in Title VIII includes
commercial sale of subsistence-caught resources. He asked: If the
Governor's amendment were approved, in order to be in compliance
with ANILCA, would it apply to state land as well as federal land
that subsistence-caught fish could be commercialized?
CO-CHAIR OGAN said he believes that is the Peratrovich case.
MR. WHITE replied that he doesn't know the answer; however, he
knows that under state law it would be prohibited. It is hard to
say whether the state would have to broaden its law to allow
commercial sales. He noted that one of the technical amendments
that United States Senator Stevens had proposed would have brought
the two systems together. Mr. White agreed to look into it, then
suggested Ms. Pete might have an answer.
Number 0927
MS. PETE explained that under state management now, customary trade
is prohibited unless provided for in regulation; in contrast,
customary trade is allowed under federal management unless
prohibited. As she recalls, U.S. Senator Stevens' amendments would
have made the process the same as the state process.
Number 0984
CO-CHAIR OGAN asked if any testifier couldn't come back the next
day, emphasizing that public testimony would be taken the next
morning beginning at 10 a.m., when the meeting resumed. He then
recessed the joint meeting of the House Resources Standing
Committee and the House Judiciary Standing Committee at 8:51 p.m.
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