Legislature(1999 - 2000)
09/24/1999 08:05 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
[Technically a continuation of the joint meeting with
House Judiciary Standing Committee, but scheduled and held as a
House Resources Standing Committee meeting only]
September 24, 1999
8:50 a.m.
MEMBERS PRESENT
Representative Scott Ogan, Co-Chair
Representative Jerry Sanders, Co-Chair
Representative Beverly Masek, Vice Chair
Representative John Harris
Representative Carl Morgan
Representative Jim Whitaker
Representative Reggie Joule
Representative Mary Kapsner
MEMBERS ABSENT
Representative Ramona Barnes
OTHER HOUSE MEMBERS PRESENT
Representative Pete Kott
Representative Joe Green
Representative Jeannette James
Representative Lisa Murkowski
Representative Beth Kerttula
Representative John Coghill
Representative Vic Kohring
Representative Con Bunde
Representative Gail Phillips
Representative Andrew Halcro
SENATE MEMBERS PRESENT
Senator Jerry Ward
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 Text (H) JUD AT 6:00 PM HOUSE FINANCE 519
9/22/99 Text (H) RES AT 6:00 PM HOUSE FINANCE 519
9/22/99 Text (H) <JOINT WITH HOUSE JUDICIARY>
<HEARD AND HELD; RECESSED TO CALL OF
CHAIR>
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
9/22/99 1813 (H) REFERRED TO RES
9/23/99 Text (H) JUD AT 10:00 AM HOUSE FINANCE 519
9/23/99 Text (H) RES AT 10:00 AM HOUSE FINANCE 519
9/23/99 Text (H) <JOINT WITH HOUSE JUDICIARY>
<HEARD AND HELD; RECESSED TO CALL OF
CHAIR>
9/23/99 Text (H) JUD AT 1:30 PM CAPITOL 118
<PENDING REFERRAL>
9/23/99 Text (H) FIN AT 3:00 PM HOUSE FINANCE 519
9/23/99 Text (H) <PENDING REFERRAL>
9/24/99 Text (H) RES AT 8:00 AM HOUSE FINANCE 519
WITNESS REGISTER
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.
THEODORE POPELY, Legal Counsel
for the Senate and House Majority
Alaska State Legislature
Capitol Building, Room 116
Juneau, Alaska 99801
Telephone: (907) 465-3439
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.
ACTION NARRATIVE
TAPE 99-45, SIDE A
Number 0001
CO-CHAIR SCOTT OGAN called the House Resources Standing Committee
meeting to order at 8:50 a.m. Members present at the call to order
were Representatives Ogan, Sanders, Masek, Harris, Morgan and
Whitaker. Also present were Representatives Kott and Coghill.
Co-Chair Ogan announced that the meeting would be recessed until
one-half hour after either the Joint Special Committee on Mergers
or the joint session, whichever was later. The House Resources
Standing Committee meeting was recessed at 8:51 a.m.
CO-CHAIR OGAN called the House Resources Standing Committee meeting
back to order at 2:45 p.m. Members present at the call back to
order were Representatives Ogan, Sanders, Masek, Harris, Morgan,
Whitaker and Kapsner; Representative Joule returned shortly
thereafter, and Representative Barnes was excused. Also in
attendance during the meeting were Representatives Kott, Green,
James, Murkowski and Kerttula of the House Judiciary Standing
Committee; Representatives Coghill, Kohring, Bunde, Phillips and
Halcro; and Senator Ward.
HJR 201 - CONST.AM: RURAL SUBSISTENCE PRIORITY
CO-CHAIR OGAN again brought before the committee 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. He noted that Version K had been adopted for
discussion the previous day, and language problems now had been
cleaned up. [Subsequent motions relating to Version "K.2" were in
error and are not included here.]
Number 0312
CO-CHAIR SANDERS made a motion to adopt a new proposed committee
substitute (CS), version 1-GH1071\S, Utermohle, 9/24/99 (Version
S), as a work draft. There being no objection, Version S was
before the committee.
CO-CHAIR OGAN asked the drafter, George Utermohle, to provide an
overview. He stated his own belief that if the constitution were
to be amended, people should know exactly what areas of the
constitution it would affect.
Number 0411
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, told members that Version S
incorporates rewritten language from Version K. Specifically,
amendment "K.2" [not formally provided to the committee] is
incorporated into Section 4 of Version S. Because establishment of
a subsistence preference under Article VIII, Section 4, of the
constitution affects the equal access provisions, a number of other
provisions are implicitly affected. As learned in the McDowell
decision, particularly, the equal access provisions under "common
use," "no exclusive right of fishery," and "uniform application" in
the constitution are implicated by preferences granted to subsets
of the Alaska population; it was those three provisions that caused
the rural preference to be struck down in McDowell.
MR. UTERMOHLE advised members that Version S also incorporates
changes to two other provisions of the constitution found in
Article I: Section 1, the inherent rights provision, which is
where the state's generic equal rights provision is contained; and
Section 7, the state's due process provision. These are included
in this resolution also because back in the Ostrosky case - the
challenge to the state limited entry program that established a
closed class of citizens able to participate in the state's
commercial fisheries - provisions under that constitutional
amendment were challenged under equal protection and due process.
In that case, the court found there was no violation of those
provisions; although they were implicated and affected by the
amendment, the amendment had the effect of creating an exemption
from those provisions for purposes of establishing a limited entry
program.
Number 0604
CO-CHAIR OGAN asked whether Version S changes anything in concept
that the committee had looked at the previous day, other than the
minor language change on page 2, between lines 15 and 21.
MR. UTERMOHLE specified that it changes the approach, by expressly
going into each other provision of the constitution that was
implicitly affected by the single amendment being considered the
previous day, and by expressly creating a direct exception to those
provisions. It is a stronger situation than the single amendment
to Article VIII, Section 4, he said, although the court would
probably find that these other provisions were implicitly amended
to the extent necessary to provide for the preference that the
amendment adopts.
Number 0721
CO-CHAIR OGAN asked for confirmation that legally Version S doesn't
do anything different other than expose the areas being affected by
the implied change to Article VIII, Section 4.
MR. UTERMOHLE answered that in his mind, setting it out has to have
more effect; however, he couldn't say whether there is a
quantitatively measurable difference.
Number 0808
REPRESENTATIVE JOULE asked whether, as Version S is written, it
could bring the state into compliance with ANILCA.
MR. UTERMOHLE noted that Version S is a rewritten version of what
was before the committee the previous evening [Version K], with a
change of style to make it easier to read, rather than an attempt
to effect a substantive change. He believes Version S would
provide an opportunity for the state to come into compliance with
ANILCA, with the proviso, however, that the ultimate determination
of whether this language is sufficient lies solely in the
discretion of the Secretary of Interior.
Number 0911
REPRESENTATIVE JOULE asked about changes on page 2, lines 15
through 21, noting that there are at least two issues here: "local
residence" and "reasonable opportunity." He referred to the
memorandum dated September 23, 1999, from the Regional Solicitor
for the United States Department of the Interior, copies of which
the committee had received in response to Version D of HJR 201; he
said that seemed to be fairly clear.
Number 0998
REPRESENTATIVE KAPSNER asked whether this provides any kind of Tier
I protection or is only a Tier II approach. Specifically, does it
provide subsistence protection at all times, or only under a Tier
II scenario?
MR. UTERMOHLE replied that Section 4 of Version S, which amends
Article [VIII], Section 4, of the state constitution, does not
provide for a 24-hour-a-day, 7-day-a-week subsistence preference.
Rather, it provides for what is euphemistically called an "in times
of shortage" preference.
Number 1063
REPRESENTATIVE WHITAKER asked whether this "in times of shortage"
provision complies with ANILCA.
MR. UTERMOHLE answered that there is no provision in ANILCA for an
"in times of shortage" preference. The basic Tier I preference in
ANILCA is in place at all times.
REPRESENTATIVE WHITAKER asked whether this complies with ANILCA.
MR. UTERMOHLE replied that the conditions put on the preference,
such as the "only in times of shortage" concept, may be a
significant constraint on the ability to come into compliance with
ANILCA. Particularly in light of the memoranda from the Regional
Solicitor of the Department of the Interior, it is quite possible
that the Secretary of Interior will not find this language
sufficient to bring the state into compliance.
Number 1130
REPRESENTATIVE JAMES commented that "in times of shortage" is
troubling to her, because she has heard U.S. Senator Stevens, when
talking about subsistence, say it is only in times of shortage.
[that the preference would occur]. She has heard subsistence
users statewide say the same thing. Noting that she cannot find
that language in ANILCA, she asked whether it is implicit in
ANILCA, to Mr. Utermohle's understanding.
MR. UTERMOHLE said he can't see anything that suggests it might be
implicit in ANILCA, other than perhaps his understanding of how
resources are allocated. He noted that this is based on his
understanding of the opinions issued by the Regional Solicitor, the
Department of the Interior, and perhaps elements of those federal
court cases, to the effect that the preference is not only in times
of shortage but at all times.
REPRESENTATIVE JAMES replied that her rational sense of the need
for a preference would be because there wasn't enough [to go
around]. She said it seems unreasonable to believe that there is
always "not enough." She asked whether that is a good evaluation
of why there is a need for a preference, "or is it just because we
want to give everything to them?"
MR. UTERMOHLE said he couldn't answer that question.
CO-CHAIR OGAN noted that present from the ADF&G, and able to
address policy questions, were Robert Bosworth, Deputy
Commissioner, and Mary Pete, Director of the Division of
Subsistence. Also present was Stephen White of the Department of
Law.
Number 1279
CO-CHAIR OGAN called a brief at-ease from 3:04 p.m. to 3:05 p.m.
He then referred to a memorandum from the Department of the
Interior, Office of the Solicitor, dated April 1995, discussing
Bobby v. State, 718 F. Supp. 764 (D. Alaska 1989) [only page 2 was
provided]. He read from the second paragraph of page 2, which
stated in part:
Under ANILCA section 804, codified at 16 U.S.C. 3114,
non-subsistence uses must be eliminated before
subsistence uses may be restricted.
He then read from the Bobby decision, as quoted at the bottom of
the same paragraph, which stated:
With regard to any portion of a wildlife population ...
the taking of which must be restricted for conservation
purposes, all other uses must be reduced or proscribed
before subsistence use is restricted. ... An established
subsistence use of a particular wildlife population must
be afforded its statutory preference, and such use may be
curtailed or proscribed only as a last resort ....
CO-CHAIR OGAN noted that he has said all along that if the state
adopts the federal system of management into statute and the
constitution, it will incorporate all the case law and federal
management. He has concerns that need to be addressed before he is
even remotely comfortable with any of this, he added, that all
other uses are restricted, reduced or proscribed before subsistence
use is restricted.
Number 1398
CO-CHAIR OGAN called an at-ease at 3:07 p.m. and called the meeting
back to order at 3:15 p.m. He asked Ted Popely and Stephen White
to address the question of whether the state would inherit the
Bobby decision, as well as other case law and federal law, in the
proposed constitutional amendment. He noted that this particular
ruling has been applied not only on federal lands, but also on
state lands and navigable waters.
Number 1545
THEODORE POPELY, Legal Counsel for the Senate and House Majority,
Alaska State Legislature, replied yes, it is reasonable to presume
that in complying with Title VIII of ANILCA, all accompanying
federal case law that has interpreted the statute would follow as
well. Referring to discussion of Bobby in a previous hearing, he
said yes, the federal subsistence regime is generally designed to
provide a subsistence preference for rural residents; that is the
priority, and that is what the subsistence board and the department
are charged with protecting, first and foremost. "They don't have
a co-equal management duty for other uses within the state, like
sport and commercial," he added.
Number 1601
STEPHEN WHITE, Assistant Attorney General, Natural Resources
Section, Civil Division (Juneau), Department of Law, pointed out
the necessity of putting the Bobby decision in context. First of
all, Bobby was the attempt of the federal district court to
interpret state subsistence law, he said, so it isn't really an
interpretation of ANILCA.
CO-CHAIR OGAN interjected, then again read the Solicitor's own
language from the memorandum: "Under ANILCA section 804, codified
at 16 U.S.C. 3114, non-subsistence uses must be eliminated before
subsistence uses may be restricted." He suggested the Department
of the Interior's interpretation of the policy directly contradicts
Mr. White's statement.
MR. WHITE requested that he be allowed to explain the rest of the
historic context of Bobby. He said he believes unfortunately that
this provision out of Bobby has been read out of context, and he
believes it was an unfortunate choice of words by Judge Holland.
Referring to the language that says all other uses must be reduced
or proscribed before "subsistence use" is restricted, he suggested
it would have been true had it said, instead, before "reasonable
opportunity" is restricted. Mr. White explained:
The reason I know that that's an unfortunate use of words
is because in a later case, in Katie John, which I argued
before Judge Holland, the same argument was raised for
Katie John. The argument was, "We cannot restrict Katie
John's subsistence opportunities ... unless we eliminate
all commercial and personal use fisheries on the Copper
River." Judge Holland rejected that argument. In fact,
when we restricted Katie John to seasons and bag limits,
the rest of the other uses continued. So, that's one
....
Number 1672
CO-CHAIR OGAN responded that there was enough fish in the Copper
River to make sure that Katie John got hers, and everybody else
could get theirs. He emphasized the large number of fish in that
river, saying it is a little different situation from not having
enough to go around and other uses having to be eliminated. "It's
their own policy," he restated.
MR. WHITE replied:
Other uses have to be eliminated if subsistence isn't
getting its reasonable opportunity. ... If subsistence is
getting its reasonable opportunity, subsistence can be
limited, in seasons and bag limits and other
restrictions, while other opportunities are allowed,
other uses are allowed to continue. And, in fact, if you
look at the federal subsistence [regulations], that's
exactly what happens here. Subsistence isn't given a
complete, free rein here; there are seasons and bag
limits on subsistence. It is restricted at the same time
commercial and sport harvests are being allowed. So, if
this was the policy, these regulations couldn't go into
effect at all. These regulations dispel that theory
right there.
Number 1721
MR. POPELY added:
There's no question about it, that the federal boards
have ... generally not completely eliminated all
competing uses in order to provide an absolute, limitless
preference for subsistence. Steve [White] is right. But
there's no question, also, that under federal case law
... the potential exists for a substantial reduction in
competing uses. Whether it's an entire elimination or
not, the potential is there, the precedent is there. And
we've heard from the Attorney General and representatives
from the Department of Interior that their mandate is to
manage, for fish, for subsistence use. That, I think, is
the point I think you're trying to get at, and there's no
question about that. If you're going to comply with
ANILCA under federal law, as written and interpreted by
the courts, the priority for federal managers is to
protect subsistence, first and foremost.
Number 1775
CO-CHAIR OGAN called an at-ease at 3:24 p.m., then almost
immediately brought the meeting back to order. He read further
from page 2 of the Solicitor's memorandum, which stated:
In addition, the court cautioned that any implementation
of the portion of Alaska's second subsistence law that
requires a "reasonable opportunity to satisfy subsistence
uses" must not adversely impact the subsistence priority
guaranteed by section 804 of ANILCA. Id. at 781. We
agree with the district court's analysis of the plain
language of the statute.
CO-CHAIR OGAN said he is getting mixed signals, but if he takes
this at the Solicitor's word, he has serious reservations.
MR. WHITE, acknowledging the importance of that point to many
people, suggested asking the Solicitor, or the Department of the
Interior, if that is their policy; he noted their willingness to
give opinions on other proposals, and he pointed out that it would
settle, once and for all, their opinion. He again said he believes
the regulations answer it, but urged getting a direct opinion.
CO-CHAIR OGAN replied, "I think we have one," then suggested that
if the Department of the Interior were interested in settling this,
a representative would show up at these hearings. Next, he brought
the committee's attention to Version S, page 2, line 16, which
would add language about reasonable opportunity to the state
constitution. He asked if that would in any way bind the federal
constitution, laws and regulations. When clarification was
requested, he asked whether the state could be ruled out of
compliance for giving reasonable opportunity and not eliminating
all other uses.
MR. POPELY replied that it is a term that hasn't been applied under
Title VIII of ANILCA. He suggested the Department of Law would
probably agree that it runs a risk of being a term that could be
found out of compliance under Title VIII.
CO-CHAIR OGAN proposed that although it sounds good, and the state
would like to do it that way, it is essentially meaningless.
Number 1897
MR. POPELY responded that it is difficult to say, then explained:
Really, if you want to be in compliance with Title VIII
of ANILCA, there has been a substantial amount of
discussion about that, and we've seen several versions of
this. And you're not going to get a straight answer from
any of the lawyers in the room about whether or not this
is going to be viewed as complying with ANILCA. There
are some terms in here that are more foreign than others
to federal law. And ultimately there is a certification
procedure by the Secretary of Interior, and that is
ultimately going to determine whether or not compliance
has been met.
If you really want to comply, ... you more or less have
to mirror the laws of general applicability of ANILCA.
And if you don't want to comply, ... this committee has
put in terms, in here, that arguably could be found by
the Secretary to fall out of compliance. "Reasonable
opportunity" is one of them. The addition of phrases
like "indigenous subsistence resources," "harvestable
surplus" and "local residence," the Tier II issue that
you discussed with George Utermohle earlier, are all
questionable areas where reasonable minds could disagree
about whether or not those would be viewed as complying
with ANILCA.
And secondly, ultimately, this is merely the enabling
language. What ultimately will be judged, as to whether
or not it is in full compliance with ANILCA, is the
statute that would have to be passed, affording ... a
preference scheme and laws of general applicability. We
don't have that yet. So the real question is: Would
this language allow you to pass a law that is in full
compliance with ANILCA?
Number 2000
CO-CHAIR OGAN asked which must be satisfied, Title VIII of ANILCA
or the Secretary of Interior. He further asked whether his
assumption is correct that the Secretary has been given absolute
authority under the latest extension of time, and that it is simply
an administrative decision as to whether the state is in
compliance.
MR. WHITE affirmed that it is the Secretary's interpretation of
ANILCA that will govern whether or not this passes muster.
Number 2029
REPRESENTATIVE JAMES referred to the September 23, 1999, memorandum
from the Department of the Interior regarding the issue of
"reasonable opportunity." She indicated the "reasonable
opportunity" approach to providing a subsistence priority was in
the amendments last year, which had expired. She noted that the
memorandum says that by focusing on criteria like these, which are
not in the federal law, the proposal risks creating new conflicts.
Representative James referred to both the Katie John case and the
Bobby case. She said it seems that managing fishing and hunting in
one fell swoop is difficult, and that different rules would be
needed for each. She asked Mr. White if that is his assumption as
well, and whether those would, then, be found in statute.
MR. WHITE agreed that the challenges of managing fish and game are
different. Although the state has a statutory scheme for doing
that, which speaks generally about sustained yield and so forth,
the boards enact the actual regulations, he added.
Number 2095
REPRESENTATIVE JAMES said her concern in drafting a constitutional
amendment is what it allows the state to do, rather than what it
says. If it contains "reasonable opportunity," which has been used
for game, on its face this constitutional amendment would seem to
allow the state to draw up a statute that would mirror the
opportunities of ANILCA. She asked Mr. White to comment.
MR. WHITE replied that the Department of the Interior memorandum
says there is a risk by putting unnecessary language in the
constitution, because unnecessary language always leads to disputes
and litigation. If it isn't necessary to include "reasonable
opportunity" to achieve the desired goal - the ability to comply
with ANILCA - then from a drafter's standpoint, and from a lawyer's
standpoint, it probably isn't the best thing to do.
Number 2145
REPRESENTATIVE JAMES responded that she doesn't call it superfluous
language. She suggested the state is assuming, by regulations "and
little things that have happened here and there and yon," that
reasonable opportunity is implicit in ANILCA. She also suggested
it would be imperative to include it here. "And if it's implicit
in ANILCA and it's specific in our constitution, it seems to me
like that's not a problem, unless a person wants to make a problem
out of it," she concluded.
MR. WHITE referred to the language from ANILCA contained at page 66
of the "Subsistence Handbook," dated September 1999, which had been
provided to members by the Administration at the beginning of the
special session. He noted that it talks about when it is necessary
to provide the subsistence priority for residents. It has no
trigger event, or standards, about when that is supposed to happen,
he pointed out, or at least it doesn't have one that speaks about
reasonable opportunity. He further explained:
When we went to implement our state law with a
subsistence priority, our legislature chose the term
"reasonable opportunity." And that's the thing that
triggers the priority of subsistence over other uses.
When there's not enough ... reasonable opportunity for
subsistence users, that's when the other uses have to be
diminished. ... It's a term that triggers the subsistence
priority in our statute. We could do that even though
"reasonable opportunity" was not in our constitution.
Number 2200
CO-CHAIR OGAN made the following announcement:
Ladies and gentlemen, I'm really troubled with the
process, because I think what we're doing here is simply
spinning our wheels, and the path that we're headed down
in a path that is like trying to suture up a deep wound
that's infected. And I believe the deep wound ... is the
heart of Alaska. And with these kind of provisions in
the federal law and a lack of willingness, I think, ...
to work on a resolution that both sides can agree with
it, I've really been searching my heart on this, and I
think what I would like to do would be to hand the gavel
over to my co-chairman.
I don't think I can continue to be ... part of a process
that I think will ultimately hurt the people of the
state, and I don't think I want to chair it anymore. And
I will pick up the gavel again when there is a heartfelt,
honest effort ... on the part of everybody that will come
to the table and earnestly work for a solution that both
sides can live with. With that, I'm going to hand the
gavel over to my co-chairman.
Number 2176
CO-CHAIR SANDERS recessed the meeting of the House Resources
Standing Committee at 3:38 p.m., indicating it was recessed to the
call of the chair. [There were no subsequent hearings on HJR 201
during this special session; a new resolution, HJR 202, was
introduced but was not referred to the House Resources Standing
Committee.]
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