Legislature(2001 - 2002)
04/05/2002 01:10 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
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 5, 2002
1:10 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Mike Chenault
Representative Mary Kapsner
Representative Beth Kerttula
MEMBERS ABSENT
Representative Joe Green
Representative Lesil McGuire
Representative Gary Stevens
OTHER LEGISLATORS PRESENT
Representative John Davies
Representative Brian Porter
Representative Bill Hudson
Representative Fred Dyson
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 41
Proposing an amendment to the Constitution of the State of
Alaska relating to providing for priorities for and among
subsistence uses in the allocation of fish, wildlife, and other
renewable resources.
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 29
Proposing an amendment to the Constitution of the State of
Alaska relating to subsistence uses of fish and wildlife.
- SCHEDULED BUT NOT HEARD
HOUSE JOINT RESOLUTION NO. 11
Proposing amendments to the Constitution of the State of Alaska
relating to subsistence use of wild food resources and to the
harvest of fish and wildlife.
- SCHEDULED BUT NOT HEARD
HOUSE JOINT RESOLUTION NO. 4
Proposing amendments to the Constitution of the State of Alaska
authorizing a priority for subsistence users of replenishable
natural resources; and providing for an effective date.
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 14
"An Act relating to subsistence use of fish and game, to fish
and game advisory committees, and to permits for historic or
traditional uses of fish and game and harvest practices;
amending the definition of 'domicile' for purposes of the Fish
and Game Code; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HJR 41
SHORT TITLE:CONST. AM: PRIORITY FOR SUBSISTENCE USES
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/15/02 2279 (H) READ THE FIRST TIME -
REFERRALS
02/15/02 2279 (H) RES, JUD, FIN
02/15/02 2279 (H) FN1: (GOV)
02/15/02 2279 (H) GOVERNOR'S TRANSMITTAL LETTER
02/15/02 2279 (H) REFERRED TO RESOURCES
03/27/02 (H) RES AT 1:00 PM CAPITOL 124
03/27/02 (H) -- Meeting Postponed to
4/5/02 --
04/05/02 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
BRUCE M. BOTELHO, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Presented HJR 41 and answered questions.
RON SOMERVILLE, Consultant
to the House and Senate Majority
Alaska State Legislature
Capitol Building
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified on HJR 41.
ROBERT B. STILES, President
DRven Corporation and
Resource Development Council for Alaska, Inc.
121 West Fireweed Lane, Suite 250
Anchorage, Alaska 99503
POSITION STATEMENT: Assisted in presentation of HJR 41;
expressed strong support.
CARL ROSIER
Territorial Sportsmen, Inc.
P.O. Box 20761
Juneau, Alaska 99802
POSITION STATEMENT: Testified in strong opposition to HJR 41.
AVRUM GROSS, Partner
Gross & Burke, PC
424 North Franklin Street
Juneau, Alaska 99801
POSITION STATEMENT: Provided reasoning behind the formulation
of HJR 41 by the drafting committee; answered questions.
GEORGE YASKA
Tanana Chiefs Conference, Inc. (TCC)
122 First Avenue, Suite 600
Fairbanks, Alaska 99701
POSITION STATEMENT: Testified on HJR 41; conveyed TCC's
opposition to subsection (b) with regard to providing a priority
only when necessary; offered appreciation that subsection (a)
provides a priority; requested clarification about
subsection (c).
DICK BISHOP
Alaska Outdoor Council (AOC)
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified in opposition to HJR 41 "and
similar proposals"; also commented on HJR 11 and HJR 29.
AUSTIN AHMASUK
P.O. Box 1292
Nome, Alaska 99762
POSITION STATEMENT: Testified on HJR 41.
LARRY MERCULIEFF
Rural Alaska Community Action Program (RurAL CAP)
731 East 8th Avenue
Anchorage, Alaska
POSITION STATEMENT: Spoke about issues that have a direct
bearing on subsistence legislation, and asked committee to move
HJR 41.
ROD ARNO
P.O. Box 871410
Wasilla, Alaska 99687
POSITION STATEMENT: Testified in opposition to HJR 41.
ROSE ATUK-FOSDICK
P.O. Box 1485
Nome, Alaska 99762
POSITION STATEMENT: Testified in support of HJR 41.
TERRY MARQUETTE
3032 Supercub Lane
North Pole, Alaska 99705
POSITION STATEMENT: Testified in opposition to HJR 41.
MARY BISHOP
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified in opposition to HJR 41; asked
the committee to take the approach of HJR 11 and HJR 29.
ARLISS STURGULEWSKI
3201 C Street, Number 405
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of HJR 41.
WAYNE HEIMER
1098 Chena Pump Road
Fairbanks, Alaska 99709
POSITION STATEMENT: Urged committee to take no action on
HJR 41.
CHIP WAGONER
Alaska Catholic Conference
3294 Pioneer Avenue
Juneau, Alaska 99801
POSITION STATEMENT: During hearing on HJR 41, presented and
read testimony of Bishop Michael W. Warfel that urged members to
work towards a solution that keeps in mind not just the rights
of individuals, but also the common good of all Alaskans.
ACTION NARRATIVE
TAPE 02-24, SIDE A
Number 0001
CO-CHAIR BEVERLY MASEK called the House Resources Standing
Committee meeting to order at 1:10 p.m. Representatives Masek,
Scalzi, Fate, Chenault, and Kapsner were present at the call to
order. Representative Kerttula arrived as the meeting was in
progress.
HJR 41-CONST. AM: PRIORITY FOR SUBSISTENCE USES
[Contains brief discussion of HJR 11 and HJR 29 during Dick
Bishop's and Mary Bishop's testimony, as well as reference to
HJR 4 during Mr. Bishop's testimony]
CO-CHAIR MASEK announced that the committee would consider HOUSE
JOINT RESOLUTION NO. 41, Proposing an amendment to the
Constitution of the State of Alaska relating to providing for
priorities for and among subsistence uses in the allocation of
fish, wildlife, and other renewable resources. She noted the
presence of Representative Davies and welcomed him. [HJR 41 was
sponsored by the House Rules Standing Committee by request of
the governor.]
Number 0132
CO-CHAIR MASEK expressed appreciation for the hard work that has
gone into a [proposed constitutional] amendment. She said this
committee is open to new ideas, although she acknowledged the
difficulty of coming to agreement. She said [HJR 41] isn't tied
to any changes in ANILCA [Alaska National Interest Lands
Conservation Act], and doesn't address some "traditional problem
areas" such as federal court oversight, commercial sale of
subsistence resources, or the issue of times of shortage.
CO-CHAIR MASEK suggested the committee's goal should be looking
at reducing the pool of subsistence users, because a lot of
competition exists for the state's limited resources; she said
support for a subsistence preference must be for those who truly
need it. She conveyed her belief that subsistence proposals
have been too broad, with too many potential users. She said
although she supports subsistence, she also supports state
management.
CO-CHAIR MASEK offered her belief that there had been a chance
to resolve this issue in court, an avenue the governor chose not
to pursue; she mentioned the Katie John and Babbitt cases, and
said the legislative body is therefore taking action. She
mentioned the federal takeover of fisheries [management, which
occurred after a previous legislature voted down a proposed
amendment intended to bring the state constitution into
compliance with Title VIII of ANILCA]. She suggested the clash
is not so much urban-rural, but is a contest among user groups.
CO-CHAIR MASEK related her understanding that only 4 percent of
the fish go to subsistence users, whereas 1 percent or more go
to sport catch and the other 95 percent to commercial
operations; she anticipated testimony that some groups want to
operate commercially under the subsistence title, but that
others don't. She expressed hope that this meeting would
provide more knowledge for members about management issues and
what is already in regulation. Mentioning a recent advisory
vote in Anchorage, she remarked, "They're saying that
subsistence uses should be allowed to occur before sport uses,
and we are already doing that; that's how the system works
currently."
Number 0545
BRUCE M. BOTELHO, Attorney General, Department of Law, came
forward to present HJR 41, expressing appreciation for Co-Chair
Masek's opening remarks with regard to the importance of
discussing this issue openly. He also conveyed appreciation on
behalf of the governor that this hearing is occurring. Although
a solution has eluded [the state] for some time, he suggested
the very act of debating and discussing the issue is of great
significance.
ATTORNEY GENERAL BOTELHO pointed out that neither lawsuit
mentioned by Co-Chair Masek would have resolved the issue of the
constitutionality of ANILCA itself. With respect to Babbitt,
the dropped portion simply dealt with whether Secretary of the
Interior [Babbitt] had authority to adopt regulations to manage
subsistence on federal lands; in the final analysis, Attorney
General Botelho said, there probably wasn't much room for debate
about the Secretary's authority to manage lands, especially
having been empowered by Congress to do so.
ATTORNEY GENERAL BOTELHO, with respect to Katie John, said the
dispute focused not on whether Congress had the authority to
extend ANILCA to navigable waters, but on whether Congress in
fact did so. He told members that a clear majority of the 9th
Circuit [Court of Appeals] en banc panel concluded that it at
least extended to the navigable waters identified originally,
and that three justices or judges of the panel would have
actually extended it to all waters of Alaska. He said the
underlying point, however, is that litigation wasn't going to
resolve the dilemma of bringing the state back into management
of fish and game resources throughout Alaska.
Number 0753
ATTORNEY GENERAL BOTELHO noted that many Alaskans see this
dilemma as a divide between urban and rural Alaska, as Co-Chair
Masek had alluded to, whereas others see it as a question of
federal encroachment on state authority to manage fish and
wildlife throughout Alaska. He suggested both viewpoints have
legitimacy, but said he might put it in simpler terms: "How
should we fairly allocate fish and game resources to those who
most depend upon them for sustenance?" He told members the real
consequence of failure to resolve this dilemma has been in the
creation, existence, and expansion of a dual management system -
one by the federal government, one by the state - in which the
two systems unfortunately are growing increasingly apart. He
said the state is in this position for one reason: state laws
are not consistent with Title VIII of ANILCA, a fairly
straightforward law passed by Congress that says rural residents
have a subsistence priority for the taking - the use - of fish
and wildlife on the public lands of Alaska; he specified that
"public lands" means "the federal lands of the state."
ATTORNEY GENERAL BOTELHO, noting that this particular mandate is
to be carried out by the Secretary of the Interior, said:
But Section 805 of the Act says that notwithstanding
this directive to the Secretary of Interior, if Alaska
passes laws that are consistent with the purpose of
ANILCA, provides for the definitions - that priority -
and for the participation that is called for in the
Act in terms of the development ... of regulations,
then the State of Alaska can manage on those same
federal lands. And it really is the gravamen of ...
what needs to be focused on. If we want to regain
management throughout the state of all fish and
wildlife resources, we have a very easy way to do that
- ... easy in the sense that it requires us to enact
laws of general applicability.
Number 0972
ATTORNEY GENERAL BOTELHO said the foregoing is what is presented
today in the form of HJR 41, an effort by a group of private
citizens concerned about the twin issues of the fundamental
importance of subsistence to a way of life in Alaska and also
the concern about management under a unitary system run by the
State of Alaska. He told members, "We do not provide you with
changes to ANILCA. Our focus here really is what the
legislature can do. And what the legislature can do is put a
resolution in front of ... the voters."
ATTORNEY GENERAL BOTELHO explained that first, the product is a
result of a summit held last August at which 42 Alaskans from
all regions of the state and many different walks of life came
together in a two-day period to look at this issue and examine
the underlying values; he offered his belief that this was the
first time "we expressly looked, as a state, at the values
underlying the issue." That led to appointment of an 11-member
drafting committee that met over the course of eight meetings
and several months to come up with [HJR 41]. He said the
meetings were long and difficult, but people were able to come
up with language they thought would truly meet the twin
objectives he'd mentioned.
Number 1129
ATTORNEY GENERAL BOTELHO pointed out that committee packets
contained recommendations to look at regulatory changes that, if
implemented, would provide for regaining management from the
federal government. He emphasized that mere passage of a
constitutional amendment wouldn't bring Alaska into compliance
[with ANILCA]; the law requires that laws of general
applicability be enacted and implemented. The constitutional
amendment simply provides the framework from which those laws of
general applicability could be enacted.
ATTORNEY GENERAL BOTELHO noted the presence of the following
people: Frank Rue, Commissioner, Alaska Department of Fish and
Game (ADF&G); Robert Bosworth, Deputy Commissioner, ADF&G; and
from his own staff, Stephen White, Assistant Attorney General,
Department of Law, who has "worked for years in the fish and
game realm, and specifically on subsistence." He then
introduced two members of the drafting committee who would offer
comments: Bob Stiles, president of both DRven [Corporation], a
coal-development company, and of the Resource Development
Council (RDC); and Avrum Gross, "one of Alaska's most prominent
attorneys," who was attorney general under [former Governor] Jay
Hammond. He requested that Mr. Stiles be allowed to join him at
the witness table.
Number 1255
CO-CHAIR MASEK first asked to hear Attorney General Botelho's
take on [HJR 41]. She referred to a document in packets titled
"Comparison of Subsistence Resolutions" [addressing HJR 41, HJR
11, HJR 29, and HJR 4], put together by Stephen White of the
Department of Law. She asked about compliance [with Title VIII
of ANILCA].
ATTORNEY GENERAL BOTELHO reiterated that the test for any
proposed constitutional amendment ultimately will boil down to
this: "If enacted by the people of Alaska, will it provide the
framework for laws to be enacted that are consistent ... with
ANILCA?" He said the real test is not that it provides, in
itself, for definitions, participation, and the priority, but
that there has to be a law that will do that; however, until now
there hasn't been the ability to pass such a law that is
consistent with the Alaska constitution - hence the [proposed
constitutional] amendment. As to whether [HJR 41] provides the
opportunity to bring the state into compliance, he said:
I think there is no question about that; my view is
that it does. It authorizes, specifically, a priority
for rural residents. It has the effect of overturning
the ... McDowell [v. State] decision, which in 1989
struck down the rural priority then in existence in
Alaska. And it also would authorize a Tier II
priority, also based on proximity to the resource,
which was separately struck down by the Alaska Supreme
Court in State v. Kenaitze. So the effect of this
resolution, if ultimately adopted by the people of
Alaska, would authorize the legislature to enact laws
that would bring us into compliance with ANILCA.
Number 1421
CO-CHAIR MASEK inquired about "the issue in ANILCA 807(c), the
judicial oversight." She offered her understanding:
If the state has management, then the federal
government has that judicial oversight. And [if] they
find us out of compliance, then they will ultimately
step back into the picture. And so ... I'd say, as
far as having the state manage the resource, we'd be
having more like a dual management. And even if we
accepted and passed this amendment to change our
constitution, I think we still don't get that true
state management back.
ATTORNEY GENERAL BOTELHO agreed that even if a constitutional
amendment were enacted, ANILCA would still provide for federal
court oversight. He said, however:
I think it's important to put that in perspective.
Number one, it is a federal law; one would expect
federal courts to be at least one of the bodies that
would be reviewing actions under that federal law.
But more importantly, I think, one frequently loses
sight over the limited nature of that court oversight.
It provides a mechanism for persons who ... believe
they are aggrieved by state action to demonstrate to a
court that the actions taken by that agency are
arbitrary or capricious. It's a standard that we have
in our own court system. And, frankly, none of us
should shy away from the idea that people should have
recourse to the courts when they believe government
has acted in excess of their power, or in an arbitrary
way. And the question of whether it's the federal
courts or the state courts really should be of no
moment.
Number 1551
What's the consequence, though, if a federal court
were to find that we have, as a government, been
arbitrary? It's actually very limited. The provision
doesn't throw out the system. It doesn't revert to
federal management. The effect of it is to overturn a
specific ruling, regulation by the board, or
implementation for a period of a year. So "the focus
of federal court oversight is some grand intrusion on
state rights or state prerogatives," I think, actually
is overblown. My preference would be to see actions,
in terms of state government conduct, reviewed by ...
state courts. But, again, in a more global sense, the
idea of judicial review of the conduct of government
is one that is intrinsic to our system, and one that
we shouldn't be troubled by. I do not equate federal
courts' intervention in this sense as being in any way
equivalent to federal management.
Number 1640
CO-CHAIR MASEK asked Ron Somerville to join Attorney General
Botelho at the witness table. Noting that Mr. Somerville has
been working on this issue for some time, she asked that he
provide his opinion on HJR 41.
Number 1669
RON SOMERVILLE, Consultant to the House and Senate Majority,
Alaska State Legislature, pointed out that he isn't an attorney,
so any speculation about legal aspects would be better addressed
by someone with a legal background. Suggesting that there are
major changes in this proposal from what the governor has
presented previously, he referred to [page 1, line 8, which read
in part, "recognize the subsistence tradition of the indigenous
peoples of Alaska"]. He said, "It refers to indigenous
inhabitants. There's ... been a couple of instances where that
has been reviewed, and one of the questions was whether or not
that creates a racially structured proposal, which is new to the
process. We have not had that before. I don't think that was
even in the intent in ANILCA, although that was originally
proposed back when ... the bill first was started."
MR. SOMERVILLE continued, saying the provision for "a second-
tier priority" is new as well, and was referenced by Attorney
General Botelho; Mr. Somerville offered his understanding, from
unspecified attorneys, that there is some question regarding
whether that is in compliance with ANILCA. He said there is
also a big question with regard to whether this would be a
revision, rather than an amendment, to the constitution; he
offered his belief that [counsel from Legislative Legal and
Research Services] had said this type of [constitutional]
amendment would "probably fall under a revision concept, rather
than qualifying as an amendment." He added, "I'm just giving
you some of the other sides of the issue." He pointed out that
he hadn't participated in the summit in Anchorage; he therefore
indicated he had little knowledge about it.
CO-CHAIR MASEK recognized the presence of Representative Dyson
and welcomed him.
Number 1785
REPRESENTATIVE KAPSNER referred to Mr. Somerville's mention of a
second-tier priority and asked Attorney General Botelho, "Don't
we already have a Tier II priority?"
ATTORNEY GENERAL BOTELHO answered that Alaska does have a Tier
II priority. It largely mirrored the federal requirements:
dependence on the resource, proximity to the resource, and
availability of alternative resources. However, the Kenaitze
case in state court was a challenge to use of the proximity
criterion; the Alaska Supreme Court concluded that proximity
wasn't a constitutional criterion that could be used in
implementing Tier II in Alaska. He pointed out that those three
criteria are imbedded in ANILCA itself "in terms of how the
federal government would implement." He said:
Hence one of the steps that this proposed
constitutional amendment attempts to do is to make
sure the legislature can fully implement, by laws of
general applicability, that same Tier II priority -
that is, to include proximity to the resources, one of
the criteria in determining who should have a priority
when resources are so scarce that they're not
available to all.
Number 1878
REPRESENTATIVE KAPSNER offered her understanding that "proximity
to resource" would also include the concern that perhaps someone
from Sitka, for example, could go to Barrow and claim the right
to take a whale, although it wasn't a traditional harvest [for
that person].
ATTORNEY GENERAL BOTELHO replied:
That concept is imbedded here as well, although
probably less in the context of Tier II than -- as we
have formulated it, we ... talk about subsistence in a
rural area. And the concept expressed by the drafting
committee was to look at a more localized use of
subsistence. We certainly intended - and I think were
quite clear about it - not to permit someone [from]
... Barrow being able to come to Angoon to hunt deer
unless one can demonstrate that there was a customary
and traditional pattern and practice to do so. And no
one has ever offered that that was the case.
What happens, though, in the situation where you have
defined a smaller area, ... and everyone in that area
- local, that rural resident - would qualify for
subsistence, but there are not enough resources even
then to go through and satisfy all the needs? How do
you decide among those residents which ones should
have the priority? And this is where the Tier II
comes into play, again, looking at the dependence on
that resource, looking at the availability of
alternative resources, and then the one that is posed
here is, "Should ... the law permit the agency to look
at proximity to that resource as well, as one of the
criteria in deciding who gets first crack at the
resource?"
Number 1996
MR. SOMERVILLE offered that the Tier II process, as now
structured in both state and federal law, affords the ability to
discriminate among subsistence users.
ATTORNEY GENERAL BOTELHO concurred.
MR. SOMERVILLE contrasted that with what is proposed in HJR 41,
"whereby you have a subsistence user with a high priority; then
you have another tier above that, between that and whoever is
the rest of the residents of the state - it would have some sort
of qualification." He added:
If you look at federal law as it's structured right
now in the ... regulation, you find a hodgepodge of
the sort of thing that I think Representative Kapsner
and the attorney general were referring to, and that
is, where you have a subsistence priority. And
proximity is used to some extent, although ... if you
have a large enough ... population [such as a caribou
herd], people from long distances could qualify, is
all I'm saying.
Proximity has had kind of a strange application under
federal law. And so, to do what the attorney
general's saying, you have to probably further narrow
that down to make it really a local preference. I
mean, right now, the way it's being applied under
federal law, it's not really a local preference; it's
very broadly applied. [In] some cases, it's limited
to residents of the unit in which a particular
subsistence use occurs.
Number 2073
ATTORNEY GENERAL BOTELHO said he needed to correct one thing Mr.
Somerville had said. He agreed that a provision in the third
subsection [subsection (c) of HJR 41] would authorize, but not
require, the legislature to create a subsidiary tier of
subsistence use. He pointed out, however, that "this is
distinct from our attempt to deal with Tier II, which is really
found in subsection (b); so there are two distinct concepts."
He concurred with Mr. Somerville's characterization of Tier II
as an effort to distinguish among subsistence users.
Number 2111
REPRESENTATIVE DYSON asked, "Why don't we look at the proximity
to resource as Tier I, and everything else as personal use?"
ATTORNEY GENERAL BOTELHO replied:
One of the fundamental questions ... is the extent to
which we wish to bring ourselves into conformity with
federal law as a means for us at least to achieve
unitary management in the state. And to do so, what's
really required is to ... make sure that we have laws
that would authorize the priority, which is for rural
residents on the public lands to have first call for
subsistence uses [on public lands]. ... The
definitions are a little more complex than that, but
that is really what we have to satisfy. ... And it's
not in any way to denigrate other approaches that may
be ways to deal with subsistence. They won't achieve
that objective if they don't provide for the rural-
resident priority.
Number 2206
REPRESENTATIVE FATE mentioned the necessity in any
constitutional amendment [intended to comply with ANILCA] of
having a description or determination of what is "rural." He
asked what, if any, procedures or mechanisms exist to take into
consideration changes in demographics or cultures, because what
is rural now might not be in the future.
ATTORNEY GENERAL BOTELHO said the resolution doesn't address the
issue, but suggested that either [the legislature] or the Board
of Fisheries and Board of Game - if the matter is delegated to
those boards, as has happened in the past - will determine what
constitutes rural and nonrural areas in the state. He surmised
that everyone appreciates that it will change over time, which
he suggested has been a concern in rural Alaska as well,
especially where there has been dramatic growth. He added, "I
guess the fundamental point is, the determination of what
constitutes 'rural' will first lie in your discretion as you
develop implementing legislation, but that it is not a static
thing; it is something that, as one casts out 20, 30, 40, 50
years and beyond, will be subject to change."
Number 2311
REPRESENTATIVE FATE requested confirmation that although
initially it would be the state's responsibility, there would be
[federal] judicial oversight, so that if the state decided to
change the description of one area from "rural" to "nonrural,"
that could be overridden.
ATTORNEY GENERAL BOTELHO replied:
That's correct if, based on the evidence presented to
the court, the action by the state agency ... seemed
to be arbitrary. Now, having said that, the cure is
to make sure that deliberations are fair [and] the
information that is collected is fairly weighed.
Courts do not go out of their way to overrule
agencies, whether it's in the federal system or the
state system. There is a great deal of deference that
is given to actions of governmental agencies.
The test, really, is ..., in one formulation or
another, whether government has been arbitrary. And
that suggests some disregard for the facts that are
before the agency, or whether there was any
consideration of facts before making a decision that
affects the public. And so, again, a determination
about a particular area being rural or nonrural will
be subject to review, but, again, a review that would
be looking at the reasonable basis of the agency
decision.
Number 2403
MR. SOMERVILLE responded:
I disagree a little bit with the attorney general
because I think the 9th Circuit Court [of Appeals]
said, in one of our cases, that they owed no deference
to the state. So unless something similar to [U.S.]
Senator Stevens's amendments [proposed to ANILCA] were
applied - which I think he required [that an]
"arbitrary and capricious" standard be applied, and
deference be given to the state - that unless that is
done, the state's kind of in a bad situation. And I
think the attorney general would also agree with me:
we haven't won one subsistence case in federal court
yet.
Number 2427
REPRESENTATIVE FATE said that was his reading on it. He
indicated the 9th Circuit Court of Appeals has had numerous
decisions overturned by the U.S. Supreme Court. He continued to
express uncertainty with regard to what will, in the future, be
rural or nonrural. He agreed with Attorney General Botelho that
dynamic change will occur; as an example, he noted that the
wilderness at Prudhoe Bay is no longer a wilderness.
ATTORNEY GENERAL BOTELHO suggested the system should provide for
that change, but pointed out that it rests in [the
legislature's] hands.
CO-CHAIR MASEK announced the presence of Representative Hudson
and welcomed him. She called on Representative Davies.
Number 2473
REPRESENTATIVE DAVIES mentioned Tier II and offered his
understanding:
It seems to me that what's required in the
constitutional amendment is, minimally, a permissive
statement that allows the state legislature to adopt a
law of general applicability that would be consistent
with ANILCA. And if the constitutional amendment
allows for other considerations in addition to that,
that are not inconsistent with those laws - the
ability to [adopt] those laws - then the
constitutional amendment would be, in that sense,
consistent with ANILCA.
ATTORNEY GENERAL BOTELHO affirmed the foregoing.
Number 2525
REPRESENTATIVE FATE inquired about the possibility that the
changes [proposed in HJR 41] would be considered a revision and
therefore require a constitutional convention.
ATTORNEY GENERAL BOTELHO responded:
The issue of "revision versus amendment" is an
important one to raise here. ... I would be glad to
furnish you with a copy of an opinion done by my
office that concludes that this is in the nature of an
amendment, and not in the nature of a revision. And,
again, the fundamental test that the Alaska Supreme
Court has looked at is both quantitative and
qualitative, that is, both looking at the number of
places physically - really, you would look at ...
changes that would have to be incorporated in the
constitution - and also to look at the breadth of the
amendment qualitatively, in terms of its impacts. ...
Again, in our view, the ... discrete area that we're
talking about, subsistence hunting and fishing, is a
relatively limited area. It is certainly confined to
Article VIII of the state constitution, the natural
resources article. It is not in any way remotely
similar to, actually, the case relied upon by the
Alaska Supreme Court in looking at a parallel
provision in the California constitution; the
California case involved something in the neighborhood
of 180 different changes.
Having said that, I understand that people could
differ on whether it is in the nature of an amendment
or a revision. There's one sure way to find out, and
that is for this legislature to act, putting a
constitutional amendment on the ballot and allowing
any citizen to challenge. The supreme court did not
hesitate to act, ... and it actually split on that
issue with respect to various propositions put before
them. But that is the surest way to get this question
resolved. ... I have my views; I think they're fairly
informed, and my conclusion is that it is in the
nature of an amendment. But the final arbiter of that
issue is the Alaska Supreme Court; the way to get the
matter to the supreme court is to take action.
Number 2691
MR. SOMERVILLE agreed that the way to get something to the
supreme court is to "put something in front of them, which we've
done on a number of other cases."
REPRESENTATIVE FATE said he would appreciate a copy of the brief
that Attorney General Botelho had written on that subject.
CO-CHAIR MASEK, hearing no further questions, announced that the
committee would take public testimony, limited to three minutes
per person.
ATTORNEY GENERAL BOTELHO informed Co-Chair Masek that he'd
intended to have the governor's presentation spread among three
speakers. Although he'd covered some topics, he expressed hope
that both Mr. Stiles and Mr. Gross would be given an opportunity
to complement his own presentation.
CO-CHAIR MASEK acknowledged that they had signed up. She
announced the intention of hearing from people who were present
in Juneau as well as those on teleconference. She invited Mr.
Stiles to testify.
Number 2776
ROBERT B. STILES, President, DRven Corporation and Resource
Development Council for Alaska, Inc. (RDC), came forward, noting
that he was a member of the drafting committee for HJR 41. He
expressed strong support for HJR 41 and highlighted the
importance of the subsistence issue. He explained that he'd
gotten involved in the drafting committee for two reasons:
first, he was asked; second, it was an issue he'd given a lot of
thought to, in part because of his involvement in the settlement
of the mental health land trust issues. He told members:
The majority of all activities related to exploration,
development, production, and even transport to market
of Alaskans' resources occur in rural areas. So what
goes on in rural areas, and the issues ... that are of
concern to rural areas, are extremely important to
anybody in the resource development business.
Now, subsistence ... is predominantly a rural issue.
And it makes Alaska somewhat unique, ... which is
important to preserve. The inability of Alaska to
come to grips with how to handle these unique
characteristics also makes ... Alaska unique, and
that's bad ... in the sense that it creates
uncertainty on the part of folks that might be looking
at making an investment in some development project in
Alaska.
Number 2880
Now, ... is the uncertainty so great as to make
somebody walk away from a really good deal? Probably
not, but there aren't very many really good deals out
there that stand up and stand a test to where they
just blow everybody else ... out of the water. So
anytime someone sitting in some office distant from
Alaska looks at an array of investment opportunities
in front of them, they're going to weigh the risks
versus the rewards for that investment. And the ...
inability of this state to come to grips with this
subsistence issue creates uncertainty; that causes
risk. And I can't prove to you that something didn't
happen because of it - because it's very difficult to
prove something didn't happen - but I can assure you
that that is cranked into folks' decision-making
process when they're making a decision to make an
investment in Alaska versus an investment in Indonesia
or South America or someplace else. ...
Does that mean everybody's going to pull their money
out of the state? No. Does that mean that there
won't be any additional investment ... in Alaska in
the resource development area in the absence of
[resolving the issue]? Probably no. [Will it] be the
maximum amount that we might be able to see? No; that
one is clear.
MR. STILES called dual management - no matter what is being
managed - a "prescription for disaster," especially when the
dual managers' prioritizations of management principles differ.
TAPE 02-24, SIDE B
Number 2959
REPRESENTATIVE FATE mentioned "risk capital" and asked whether
Mr. Stiles was speaking of the deleterious effect that dual
management has on business.
MR. STILES answered, "Not necessarily. Dual management is a
prescription for disaster whether you're talking about managing
money or managing caribou."
REPRESENTATIVE FATE offered his understanding that Mr. Stiles
was saying it is a disincentive for business. He requested
clarification about whether Mr. Stiles' discussion related to
risk capital, retail, or the general business climate in Alaska.
MR. STILES replied that he was speaking predominantly of risk
capital.
Number 2901
REPRESENTATIVE FATE observed that some [for-profit] Native
corporations, in particular, have evolved into large
corporations that many Outside venture capitalists are combining
with for certain projects. He asked Mr. Stiles how this affects
other [venture capitalists] who don't choose to partner with the
Native corporations; for example, does this force them to go to
Indonesia or somewhere else? He also asked whether Mr. Stiles
had any figures or substantiation with regard to whether it is,
in fact, a deterrent to risk capital.
MR. STILES first explained that when venture-capital enterprises
are joining with the Native corporations in investments, those
investments generally aren't in Alaska, although some are; he
questioned whether that relates to what is being discussed here.
Second, he reiterated that it isn't possible to prove that
something didn't happen for a particular reason; however, he
offered his experience - with national and international
business deals and investments in resource development - that
this clearly is a risk factor in the overall evaluation of how a
deal in Alaska compares with a deal someplace else. He cited an
example and explained the difficulty of doing business when
there are unresolved problems; he suggested a potential investor
will expect those problems to be resolved before going forward,
and that companies from other countries will be waiting in line.
He continued:
You've got the same sort of circumstances - somewhat
different, but similar - with regard to subsistence,
only it's on the front end of the deal as opposed to
the back end of the deal. It's not when you're trying
to sell the product; it's ... when you're trying to
sell the deal, when you're trying to raise money to
invest in some sort of a deal here. ...
It doesn't make sense to try to sell a deal into an
area where you know that there's going to be this
unquantifiable risk factor up there that you're not
going to be able to explain to the guy, and he's
certainly not going to be able to understand it. And,
clearly, if we who live here can't solve the thing,
it's not particularly reasonable to expect that
somebody else is going to be able to figure the way
through, too.
Number 2717
REPRESENTATIVE HUDSON asked Mr. Stiles whether it is discord
among Alaskans that creates the problem with regard to decisions
about whether to invest in Alaska.
MR. STILES indicated that isn't a significant factor. Rather,
it is uncertainty about issues relating to "management of
resources that move from federal land to state land," as well as
dual management. He said:
Is it so severe that I would walk away from a really
good deal? Well, it might be, because it depends on
the deals I'm comparing it against. All of ... the
development in Alaska ... is not operated in a vacuum.
It has to compete against other investments in other
parts of the country, as well as other parts of the
world.
Number 2617
CARL ROSIER, Territorial Sportsmen, Inc. (TSI), came forward to
testify, noting that TSI has about 1,400 members, primarily in
the Juneau area but some in other Southeast Alaska communities;
first formed in 1945, TSI has been continuously active in fish
and game issues since then. He told the committee:
As an organization, TSI has in the past and continues
to support subsistence use of fish and game resources
as a high priority for residents of the state. We do
not, however, support the division of our state into
rural and urban populations, or predicating the
allocation of these resources based on whether you
live in the right zip code.
We strongly oppose HJR 41. This bill does nothing to
resolve the issue among Alaskans except commit us to
the divisive and unconstitutional provisions of ANILCA
in exchange for a change in the state's constitution
that classifies 80 percent of Alaskans as second-class
citizens in terms of access and common use of fish and
game.
Passage of a bill such as HJR 41 does not bring back
state management - something we all want and support -
but rather ensures the continuing erosion of state
management under the federal provisions of Title VIII
of ANILCA. Why we would want to vote to assure
additional federal control that HJR 41 provides for us
is ... beyond all reason.
State management is not state management when you have
federal court oversight of what's going on out there;
it just simply isn't, and, as I said before, ... we'll
continue to see, over time, erosion of the state's
role in that management program, to the detriment of
the resource.
Number 2518
MR. ROSIER continued:
This bill begins the "slippery slope" process of
allocating resources based on race, something that we
do not do in any other part of our state constitution.
Under this bill, any restriction on the taking of fish
and game or other natural resources would trigger the
rural subsistence priority. Resource shortage is not
the standard, but simply regulation. Virtually every
fishery and hunt in Alaska currently has regulations,
so all [users] except rural subsistence users start
off as at least second-class citizens, and perhaps
even lower, ... in that it appears provisions of HJR
41 establish a second tier of urban subsistence users
that would have priority, again, over the majority of
Alaskans.
While we agree with the state supreme court that there
are urban individuals that qualify as subsistence
users, they should be accorded access based on
criteria that [are] fair and equitable to all. The
blanket standard of "customary and traditional use,"
so long as it doesn't conflict with rural users, sets
up a confusing, expensive, and impossible enforcement
scenario that will ... indeed threaten Alaska's
resources.
HJR 41 was, in our view, fatally flawed from the
beginning. After failure of more special sessions
than I care to remember, we end up with the same
approach that has failed so many times before, as
developed by the administration, starting with the
subsistence summit by bringing together a hundred
people for a two-day conference to solve the nagging
subsistence issue that had previously been worked on
by others - other administrations - for months and
even years; it was the height of political arrogance
in terms of, quote, "developing an Alaskan solution."
Number 2427
MR. ROSIER continued:
There were some well-meaning people that were part of
the subsistence summit, but through careful selection,
the outcome was preordained to be the vote on the
rural priority. The drafting or working group
followed the summit, minus any input from ... those
that might disagree or help in providing understanding
of the concerns for the second-class citizens they
were creating; [they] fell right in line. And you
have the same - no, a lesser - plan before you than
previously considered. This is because there is no
mention of the hideous provisions of ANILCA ... that
have led us into this dilemma that has divided us so
badly since 1978.
No fair and equitable solution is possible without
significant changes to ANILCA. If a constitutional
vote is determined to be necessary by the legislature,
that vote must be ... coupled with the effective dates
of ANILCA changes. Prior to putting the issue out for
a public vote, voters must be given the real
information on what they are voting for. We are not
voting to give Katie John fish; we are voting on what
our future Alaskans will be able to enjoy, in terms of
our resources, on an equal footing with their
neighbor, and whether the state or the federal
government will manage our navigable waters.
Number 2361
REPRESENTATIVE HUDSON referred to equal access, equal rights,
and common use, which all are embodied in the state
constitution, "making us all equal citizens." He asked Mr.
Rosier whether he or his group foresee any associated loss
relating to those provisions if the constitution is amended as
proposed [in HJR 41]. He recalled hearing concerns that this
resolution would open the door and could lead to [inequality]
with regard to rights for individuals.
MR. ROSIER replied:
Anybody can speculate on ... what somebody's going to
do in the future on this. But ... the racial
connotations alone that are associated with [the
language "indigenous people" in] the introductory
paragraph of this particular bill, I think, puts us on
a slippery slope. I think ... that begins to bring in
... the idea that ... race ... is an element that has
to be considered. And under our constitution, I find
that to be very obnoxious and quite irresponsible to,
in fact, be putting that forth. ...
MR. ROSIER also expressed concern that because it says "may" in
that particular paragraph, he foresees "the lawyer profession,
again, getting rich ... off of defending those particular issues
down the road."
Number 2234
REPRESENTATIVE KERTTULA expressed admiration for Mr. Rosier's
work, especially when he was commissioner of ADF&G, and said she
has enjoyed working with him. With regard to the issue of court
oversight, she recalled cases on other issues, when Mr. Rosier
was commissioner, where the court had stepped in. She asked
whether it isn't true that in any agency there is always the
court, in one way or the other, overseeing [the agency], because
someone always has the right to go to court. She added, "We're
bringing it as one of our major points here, but, in reality, it
could become a point, really, in any situation. Wouldn't you
agree that really you run that risk - almost any agency - with
resource issues?"
MR. ROSIER replied:
With resource issues, you certainly do. I think that
... it's the double-jeopardy part of this ... that I
object to ... so vehemently on this. And by simply
passing the state constitutional amendment on this, we
don't get out from under the double jeopardy. We
still have the state courts involved, ... and in
addition we get the federal courts involved. ... What
have we in fact gained by ... giving up, under the
constitution, that right ... in order to just comply
... with the provisions of ANILCA? Courts are there
... to be used, but the double-jeopardy thing as far
as the state is concerned ... is a bad deal for
Alaskans, in my book.
CO-CHAIR MASEK recognized the presence of Representative Porter,
Speaker of the House, and welcomed him.
Number 2125
REPRESENTATIVE FATE referred to the suggestion that a
constitutional amendment might not remove the federal government
from management of fish and game [in Alaska]. He asked, "Is
that based on your experience as a commissioner or former
commissioner, or is that based on a legal opinion?"
MR. ROSIER answered:
That's based on my previous experience, because we
went through this same chain of events - as the feds
came in on the subsistence priority under ANILCA - on
game. And ... they were glad to see us around the
first year that they had assumed responsibility.
There was money that came to the department, but that
was quickly phased out. ... As we made the feds
smarter on the various issues on this thing, the money
began ... to diminish, and ... you have the situation
that you have today in which the feds are involved in
all of the game decisions. ... They're just getting
started on fish at the present time, Representative
Fate.
Number 2062
REPRESENTATIVE KAPSNER turned to the issue of racial
implications. Referring to page 1, line 8, she noted that it
mentions indigenous peoples; she also referred to page 1, line
14, and read from subsection (b), beginning at line 11. She
then said:
The way that it reads, it just seems like the first
reference to indigenous people was more of a nod, and
it could almost be substituted to read, ... the
"Territorial Sportsmen." It's not necessarily
allocating a resource to the Territorial Sportsmen or
to the indigenous people. It's more of, I think, a
recognition of the compromises that have been made,
... and their tradition of hunting and fishing.
MR. ROSIER responded:
My feeling on that particular paragraph, of course,
was: Do we have to put "indigenous" at all?
Subsistence is important to all Alaskans. ... That
paragraph could just as well have read, ... "We
recognize the importance of subsistence to all
residents of the state."
Number 1939
CO-CHAIR SCALZI asked Attorney General Botelho whether [HJR 41]
is "a de facto local option."
ATTORNEY GENERAL BOTELHO answered:
To the extent that it talks about rural areas, I think
the answer is yes. It's not local in the sense that
it is intended ... to cover all of Alaska. We ...
would expect to maintain the distinction between rural
and nonrural areas of the state, unlike some concepts
that would allow for subsistence takings, uses, in
urban areas as well, presumably, because there is not
a similar limitation.
CO-CHAIR SCALZI asked whether it is essentially a local option
in one sense.
ATTORNEY GENERAL BOTELHO replied, "We envision that ... rural
Alaska would be, in essence - by, ... presumably, the boards of
fish and game, again - divided into subsistence areas that would
be reflective of the customary and traditional uses and
patterns, species by species."
Number 1834
REPRESENTATIVE DYSON said to Attorney General Botelho:
My understanding is, we got into this dilemma because
the federal government passed a law that required a
kind of discrimination amongst users that was not
constitutional under our constitution. ... If that's
true, it seems to me that it ought to be very
disturbing to anyone who feels like equal rights,
equal access, and equal protection are important; it
ought to be really disturbing to want to give away a
portion of that because we've got this federal-
management gun aimed at our heads. And I know enough
of you and your record to know that equal treatment
[and] equal rights ... have been very important to
you. ... How do you rationalize that, or how do you
deal with that apparently, to me, ... profound
philosophical dilemma that we are faced with?
ATTORNEY GENERAL BOTELHO responded:
I don't see that kind of dilemma. I start first from
the recognition that it may be the infirmity of being
a lawyer that puts me here, but recognizing that our
constitutional system, in many respects - certainly,
at one point - [is] unique: a federalist system that
tries to apportion power between the federal
government, the central government, and the states,
provided that the constitutional laws of the ...
central government would reign supreme, and that those
would have priority ... in the land.
When we look at ANILCA itself - one example of a
federal law - ... I don't think there are many lawyers
who would dispute the power of Congress to provide for
a rural subsistence priority on federal lands.
(Indisc.) start with that proposition. One might
challenge it; people have tried, I think,
unsuccessfully because Congress also - and if one
looks at the findings ... in Title VIII - went through
a very rational process in terms of trying to address
what they saw as needs of both rural Alaskans and
Alaska Natives, and fashioned this particular remedy,
to basically say it is federal policy that, in this
rough class we call "rural," those people should have
the first call on resources for subsistence uses.
Number 1635
ATTORNEY GENERAL BOTELHO continued with his response to
Representative Dyson:
The State of Alaska has its own constitution, as part
of this federal system, and it's able to enact laws
based on that constitution. It sets up a framework
...; as long as it's consistent with the rights
guaranteed in the federal constitution, [it's] free to
continue its own experiment.
In this particular case, we have a situation where a
federal law provides for this rural preference. It
does not require the state to administer it ...
anywhere, but if it chooses to do so, it may do so, as
long as it has laws that are appropriate. This
legislature enacted such a law in 1986; it was struck
down in 1989 as being [inconsistent] with our ...
Article VIII, as a matter of state constitutional law,
not as a matter of federal law - again, because, I
think, ... even though the complaint raised federal
law issues, the supreme court properly chose to make
its decision solely on the basis of state law.
Number 1559
I am not, number one, troubled by the idea that
certain Alaskans should get (indisc.) over other
Alaskans; it happens in a variety of contexts, whether
we're talking about age -- who may, for example, have
a driver's license, who may drink; we make those kinds
of distinctions all the time. We ... know that there
are 18-year-olds who can properly manage alcohol, but
we make a policy choice that, given our overall
experience, they shouldn't. And we make the same
decisions about judgment in terms of who may drive a
car; we know that there are a lot of 25-, 35-, and 55-
year-olds who probably shouldn't have that instrument,
but, as a matter of law, we've decided that we will
allow people to have the privilege to drive, starting
at 16, until proven otherwise.
So we make some rational decisions. We make some
gross generalizations about who should be in a class
and who shouldn't. And we look to see whether there's
a rough fit. And there is ..., in a constitutional
scheme, a sliding scale in terms of the higher the
level of the right, perhaps the more structured and
the more close the fit must be.
But in this particular area ... the right to hunt and
fish - and when - is not, in the constitutional scheme
of things, ... high on ... that ladder of rights that
citizens have. And in that respect I think Congress
has acted properly. I think it's appropriate for the
people of Alaska to look at making a cut that would
allow for that kind of rough justice - that is, to
provide a priority to rural Alaskans. The amendment
that we've proposed would, however, allow the
legislature, if it chose to do so, to ... cut it even
more broadly.
REPRESENTATIVE DYSON respectfully suggested that equating this
with the age limit for a driver's license trivializes the
argument. He added, "We just see the U.S. constitutional
protection - the equal rights and equal protection - very
differently. And your experience and credentials are far better
than mine."
Number 1393
REPRESENTATIVE FATE said:
Aside from the preferences, there's been, certainly,
the discussion - I don't think any legal opinions on
it - that ANILCA, ... Title VIII, may have some
federal constitutional problems. It's never been, I
don't think, tried, regardless of this. But we have
had a decision by the state supreme court. Why have
we not tried to solve this case? Even though the
Congress does have plenary powers over the Native
people, why have not we tried to get this resolved
early on, instead ... of letting it linger, in the
highest court of our land [and] get finality to it?
ATTORNEY GENERAL BOTELHO replied:
Again, because there has been ... no successful
challenge to the constitutionality of ANILCA itself.
Even the Alaska Supreme Court's pronouncements on
ANILCA have not gone to the constitutionality of the
Act itself; it has gone simply to ... what is the
physical reach of the Act within the state of Alaska.
And on that point it disagreed with the 9th Circuit,
but not over whether Congress had the power to enact
ANILCA or whether it had applicability to public lands
in the state.
No court has concluded that Congress didn't have the
authority, nor that it did not exercise the authority
to ... provide the priority on public lands in Alaska.
The debate has been what constitutes public lands, and
did Congress intend, in the case of navigable waters,
to include them in that definition or not. And the
Alaska Supreme Court said, "In our view, it didn't
include the navigable waters of the state," and the
9th Circuit [held] a contrary position. But it would
not have resolved the basic question of the dual
management in the state; there would have been dual
management - it continues to be, regardless of the
outcome. And we would not have resolved the question
of [the] constitutionality of the Act itself.
Number 1236
It's not been a question of the opportunities. There
have been attempts to challenge. Judge Holland, many
years ago, [in] 1993-1994, did rule that ANILCA was
constitutional. That matter was appealed to the 9th
Circuit; the 9th Circuit vacated that decision,
concluding that the parties didn't have standing to
raise the question. But the state - and not this
administration and not the last - [didn't] ever
challenge the actual constitutionality of ANILCA
itself, and that's because [there was] very little
question but that it was constitutional.
Number 1170
REPRESENTATIVE DAVIES offered his belief that putting this, or
another amendment with a rural preference, on the ballot
wouldn't be tantamount to repealing the equal access clause of
the constitution. He requested that Attorney General Botelho
comment on that, as well as on "the general proposition that
there are many clauses in our constitution that are at tension
with one another," and the balancing among those.
ATTORNEY GENERAL BOTELHO responded that he thought
Representative Davies' description was apt: there are obvious
tensions built in, and it is the role of the executive [branch]
and ultimately the courts - with the legislature playing a role
as well - to try to reconcile those. He cited limited entry as
an example dealing with resource and equal access issues where
the state discriminates. He pointed out that the legislature,
in dealing with that highly important allocation issue, had put
before the voters a constitutional amendment to provide for
limited entry as a means to protect the resource. It was
adopted, although it was challenged on the grounds that it
somehow violated other provisions of the natural resources
article. He explained, "The supreme court said they need to be
read in harmony - we try to harmonize. There's been a
limitation imposed by the people of Alaska on how that will be
exercised, but it's entirely proper." Thus not everyone has the
right to participate in certain fisheries; it is a
constitutional prerogative, authorized by the people of Alaska,
"much in the same way that an amendment to our constitution with
respect to subsistence might work - it will be harmonized," he
concluded.
CO-CHAIR MASEK invited Av Gross to testify. She indicated the
committee had information he'd provided.
Number 0949
AVRUM GROSS, Partner, Gross & Burke, PC, came forward to assist
in the presentation of HJR 41, noting that it was difficult to
take nine days of hard work [in formulating HJR 41] and provide
insights in the allotted time. He explained to members:
I served on the drafting committee that drafted the
constitutional amendment you have before you. I want
to stress that we drafted this constitutional
amendment establishing a rural priority for
subsistence rights not because we wanted to create any
second-class citizens in Alaska or create any racial
distinctions.
We drafted a subsistence preference, first of all,
because there is a valid federal law that says, on all
federal lands in Alaska, that people who live in rural
communities will have the first right to take fish and
game for subsistence purposes - before any other uses
are allowed - that that is the most important right,
that when fish and game is scarce and ... everybody
can't have what they want, the first right will be for
rural residents to take fish and game. And if the
state doesn't conform with that law, the federal
government will manage all the fish and game on
federal lands for subsistence purposes.
Now, for years this has been kind of an academic
struggle: will they or won't they, will they or won't
they; [U.S. Senator] Ted Stevens has held it off for
years. And then finally one day the feds arrived;
they are here now. ... They are managing subsistence
resources on federal lands, which is 40-50 percent of
Alaska. They are spilling over into other fisheries
and other management systems. It's creating serious,
serious problems. And unless and until the state
brings its law in conformity with federal law, they
will stay. So that was the first reason we drafted
this: so that the state would regain control over
fish and game management.
Number 0810
MR. GROSS continued:
And the second reason we established a rural priority
in constitutional legislation was because it made
sense. ... I have lived here for over 40 years. I
love to hunt and fish. It has been part of my life as
an Alaskan. And the fact of the matter is, most of my
friends hunt and fish. It's part of our lifestyles.
I don't know anybody who disagrees with the
proposition that if fish and game is scarce, the first
people who should get a crack at it are people who
live in rural, remote areas of the state, who depend
on it to live. ... We can argue ... what is rural and
what isn't rural, and you can give me a million
anecdotes about how rich lawyers in Bethel are hunting
and poor Natives in Anchorage are not. But the fact
of the matter is that, as a general matter, it makes
sense. ... And the 11 people on the drafting committee
all believed it made sense.
Number 0747
Now, it's not a racial thing. ... There was an effort
when ANILCA was passed to make it a racial thing, to
just give a Native preference in the Bush. And
Governor Jay Hammond went down there and testified and
pleaded with Congress not to do that. And ...
Congress eventually agreed that it would be a rural
priority. Sixty percent of the people who live in
rural Alaska are white. So this isn't a Native
priority. This is a rural priority for people who
live in small towns in ... rural Alaska. ...
The amendment we drafted, in its first paragraph,
recognizes Native people. The reason we did that was
because there was a bitter fight on the drafting
committee. ... The AFN [Alaska Federation of Natives]
and some of the representatives on the committee
wanted to have a tribal recognition for subsistence
rights. This was settled when ANILCA was argued in
the first instance, that it would not be tribal, would
not be Native, would be rural. So the compromise [in
drafting HJR 41] was to at least recognize that the
subsistence lifestyle in Alaska was fathered by the
Native peoples. We all use it now. We all depend on
it. But it was at least the history. It's tied up
with Native people, so we recognized that.
The second thing is, we drafted a constitutional
amendment which allows rural priorities in the areas
where they exist. In other words, just because you
live in Bethel doesn't mean you can go hunt in Kodiak.
You have to take the game in the area where you live,
where you have traditionally done it.
And third of all, because we believed subsistence was
an Alaskan problem - not a Native problem or a rural
problem - we've specifically recognized in the
constitutional amendment the right of the legislature
to recognize other subsistence rights, so long as they
were consistent with federal law, ... which required a
rural priority.
Number 0573
MR. GROSS concluded:
I urge this committee and the legislature to grapple
with this. What we did is not the "be all and the end
all," I'd be the first to recognize; I have criticisms
of it myself. It was a consensus position that we
tried to reach. And we did. The whole group signed
off on it.
It is very difficult. Issues of "shall" and "may,"
oversight, things like that, all have to be thought
out. It will be difficult. It was very difficult on
the committee. But ... we finally did it because we
recognized that the alternative was unthinkable. The
alternative was failure, ... which would leave Alaska
permanently divided into rural and urban, Native and
white, and would leave management of fish and game on
federal lands basically in federal hands. And we
didn't want to see that happen, so we kept working
toward it. And I urge ... the committee to stay with
it. It's tough. I'm the first one to know; I didn't
think it would be this tough, but it is. But good
luck with it.
Number 0490
REPRESENTATIVE DYSON, noting that Bethel, Dillingham, and Barrow
are on the verge of becoming urban under the federal
definitions, asked whether [the drafting committee] had
considered that. He also said [former Governor] Hammond thinks
there is "a fair chance that the proximity designator, instead
of rural," would allow the Secretary of the Interior to certify
that proximity to the resource "meets the requirement ... and
spirit of the [ANILCA] Title VIII rural requirement." He
requested that Mr. Gross comment on both those issues.
MR. GROSS answered that he honestly doesn't understand the
distinction. He explained:
If you have a rural community ... and you say they can
continue their subsistence uses in the area where they
have traditionally exercised those subsistence uses,
... which is in the area around the villages,
basically, that is proximity. ... It means that if
they're going to exercise a subsistence priority, they
must do it in Tuluksak instead of going down to Angoon
and loading up on deer for the year.
REPRESENTATIVE DYSON suggested that using "proximity" instead of
"rural" would protect Dillingham, Barrow, and Bethel from
disqualification because of becoming urban through population
growth. It also would allow the people of Eklutna, for example,
despite the encroachment of Anchorage, to fish in the camp they
have used for a thousand years,
Number 0323
MR. GROSS replied:
We couldn't solve that. ... We struggled with that.
We struggled with the surrounded villages, we
struggled with the issues created by them, and we
couldn't get there. And finally we came to the
conclusion that the best we could do was ... - to meet
the basic requirements of federal law, which was a
rural priority - to establish a local-proximity
concept in relationship to that rural concept, which
is, "They have to stay around where they were doing
it," and then authorize the legislature to grant other
kinds of subsistence rights, through its own wisdom
and its own debate in the future, because it would
grapple with communities like Eklutna and things like
that.
And the more we tried, the more complicated it got.
And we were trying to do the right thing. And finally
... we came to the conclusion that all we could really
do was to say, "Legislature, you have the power to do
this, so deal with this if you wish," without trying
to preclude them and write it into a constitutional
amendment, because ... who knows how it would come
out.
Number 0222
REPRESENTATIVE PORTER asked whether it is a fair statement that
the problem facing the three communities - Dillingham, Bethel,
and Barrow, which most would consider rural - can only be
resolved by federal law.
MR. GROSS answered:
As I understand it, ... "rural" is presently defined
on a federal administrative level, where they make
certain presumptions about size, ... and then certain
communities are, by definition, rural; certain
communities are in the middle; and certain communities
are outside of rural. This is one of the reasons, of
course, why ... I'm so strongly in favor of the state
doing this, because it seems to me that the state is
in a whole lot better position to make decisions on
what really is a rural community and what isn't.
Number 0113
REPRESENTATIVE PORTER asked whether passage of this
constitutional amendment would allow the state to overcome the
size designation that, to his understanding, is in regulation at
the federal level.
MR. GROSS replied:
Probably not. We would still have to deal with the
issue of defining rural, and the courts have ruled, at
least so far, that "rural" constitutes size of
community, rather than necessarily location, and that
if Bethel reaches a point -- you know, it was
interesting you raised this, Mr. Speaker, because I
remember some of the Native representatives on the
drafting committee were seriously concerned about
this.
And I remember at one point, I think it was Byron
[Mallott] who sort of leaned back and said, "You know,
at some point ... these rural communities become
urban. ... There just isn't anything you can do about
it." ... They may have large Native populations, they
may have one thing or another, but ... when they reach
a certain size, you can't call them rural anymore. ...
You can create subsistence rights for them, which is
the second thing we tried to do, to authorize the
legislature to deal with communities that become urban
... [ends midspeech because of tape change].
TAPE 02-25, SIDE A
Number 0001
MR. GROSS continued:
... which is something it seems to me you can do,
first of all, through the state defining what is rural
- which is not written into federal law; it's an
administrative decision - by the state making that
decision, and, second of all, by the legislature
providing secondary priorities for subsistence which
don't conflict because they're in the area of Bethel
and Dillingham and places like that; they don't
conflict with other areas, so they don't invade the
rural priority, but they make sure that that becomes
the first use. That's ... the best we could do with
it, I think.
CO-CHAIR MASEK asked how [HJR 41] proposes to determine the
history of use of the resource.
MR. GROSS answered:
There's nothing written in the constitutional
amendment ... that describes that. It talks about
customary and traditional use of a resource. And
there is in state law right now a lengthy definition
of customary and traditional use, which is in
regulation, which has to do with generational use of
the resource, the fact that people have depended on
it. ... You wouldn't want me to read it, believe me;
it's a very long one. ...
One of the debates we had on the commission, for
instance, was amending ANILCA; ... that went back and
forth on the commission. And there were people who
feel that part of this solution to this problem is to
amend ANILCA to bring the definitions of ANILCA, of
customary and traditional use, for instance, to be
consistent with the ones in state law. ... Other
people feel that since the Secretary of Interior must
certify that the state is in compliance, that if the
state adopts these definitions and then the Secretary
certifies that we're in compliance, that that's enough
- that you don't have to actually go and amend ANILCA,
because what the Secretary is doing is saying, "Your
definitions conform with ANILCA." But ... that's part
of the overall solution, and we were just trying to do
the constitutional amendment to help you ... and do
some of this work for you.
Number 0242
CO-CHAIR MASEK remarked, "Well, I think on part of the
resolution itself ... it's only taking into account for the
lower priority."
MR. GROSS responded, "Customary and traditional subsistence use,
and then later ..."
CO-CHAIR MASEK interjected, "Rural comes first, then."
MR. GROSS replied, "Yes, it does. Rural must come first."
Number 0318
GEORGE YASKA, Tanana Chiefs Conference, Inc. (TCC), testified
via teleconference, specifying that his comments would reflect
the position of TCC. He told committee members:
The Tanana Chiefs Conference is a consortium of 37
tribes in the Interior of Alaska. It covers a very
large area, from the Kuskokwim River and the Yukon
River. And the primary subsistence issues in this
region center around moose and the taking of moose, so
it's ... a fairly hot issue. We work towards and
strive towards sound management of sustained yield so
that we may never have to go towards Tier II or a
subsistence shortage. We're always managing and
attempting to manage with fish and game for bounty and
a bountiful resource.
However, things don't always go our way. And
sometimes we do need to go to a Tier II system. And
our constituents or tribes developed a position last
month, at the annual meeting of Tanana Chiefs, that
did not support HJR 41 in its present form; they did
pledge, though, to continue working through the
process.
Number 0496
MR. YASKA continued:
We will probably always attempt to seek a tribal
preference; it's always been rather our preference to
look for that, and we certainly favor a tribal
preference or Native preference. Some would call it a
racial preference; I guess we see it slightly
different, having a longstanding relationship with
Congress and the United States government.
But that said, we speak to the specific issues found
in HJR 41. And we're dismayed to find that we step
away from a full-time priority as we find today in
current state law. HJR 41 steps away from that, and
would only provide it during times of shortages. And
so we see ourselves, I suppose, heading in the wrong
direction. Our tribal folks are dismayed,
disappointed by this. We've been asked to support
this by the hardworking people on the committee.
MR. YASKA reiterated concern about going in the wrong direction
and concluded, "So we'd like to work with you to improve the
language."
Number 0634
MR. YASKA, in response to Co-Chair Masek with regard to what
sections TCC doesn't support, cited [subsection] (b), which only
provides a priority when necessary. He explained, "We prefer
the priority as it is now, I believe, in state law: a full-time
priority."
CO-CHAIR MASEK asked Mr. Yaska whether there are other areas TCC
isn't happy with.
MR. YASKA replied:
Well, we certainly appreciate [subsection] (a) that
would require the legislature to produce a priority
for subsistence. And we just aren't very clear on
[subsection] (c) about what that means, when this
would authorize the legislature to grant lower
preferences for subsistence uses. We aren't sure
exactly what that means on the ground in terms of
regulation and rules. ... It's a bit ambiguous there,
so we're not sure what to make of that.
Number 0861
DICK BISHOP, Alaska Outdoor Council (AOC), testified via
teleconference, noting that AOC has always supported personal
and family consumptive use, "including that which is perceived
commonly as subsistence uses." He told members:
But we maintain that, for those people who rely on
personal and family consumptive use for a large part
of their livelihood, those people who live off the
land can be properly and adequately accommodated
without a constitutional amendment that benefits a
particular class or category of Alaskans. Therefore,
the council opposes HJR 41 and similar proposals.
We maintain, in fact, that a constitutional amendment
isn't needed at all to provide for people who live off
the land. It has been done, and it continues to be
done under existing law and constitutional provisions.
However, the subsistence issue has been exploited by
rural-priority advocates as a means to achieving
broader political goals. As part of this strategy,
the legislature is routinely criticized for not
enabling irrevocable protection of subsistence uses.
The [AOC] understands that the legislature may wish to
put that criticism to rest, even though it is not
necessary to ensure the continued opportunities for
subsistence uses and lifestyles. [If] the legislature
chooses, it can take the lead on this issue. We've
pointed out in the past that the best alternative is
for the legislature to clearly demonstrate that
subsistence uses of fish and game for personal and
family consumption are provided for under Alaska's
constitution without resorting to discriminatory
criteria such as rural residency, specific culture, or
ethnicity.
Having done so, the criticism referred to earlier -
that of not providing that protection - would be
rendered baseless, and then the legislature could
assist our congressional delegation with ANILCA
amendments that remove the taint of discrimination,
ensure sound management, and restore Alaska's equal
footing with other states in the management of its
fish, wildlife, and waters. But conforming to the
current Title VIII of ANILCA will not accomplish any
of those goals. ...
Number 1045
MR. BISHOP told members that of the proposed constitutional
amendments [originally scheduled to be heard that day], only
HJR 11 and HJR 29 offer the possibility of providing for
subsistence uses without compromising the equal protection and
common use provisions of Alaska's constitution.; the rest would
enshrine discrimination and divisiveness, rather than eliminate
them. He offered his belief that nothing would contribute more
to the so-called urban-rural divide than "institutionalizing it
in the language of our constitution." He continued:
There are a number of provisions that, if the
legislature chooses to take the lead on this, ... need
to be addressed. They include the same standard for
any Alaskan who wishes to qualify for a priority use;
allocation based on an actual resource shortage,
rather than all the time; priority use applies only to
fish and game ..., not to all wild renewable resources
-- let me point out that the governor's proposed
amendment, HJR 41, applies not just to fish and game,
but to all wild renewable resources, the same
terminology as in ANILCA, and that's a [problem].
So, just to wrap up, let me point out that the
legislature is duty-bound to uphold the trust
responsibility, as the Alaska Supreme Court has said:
the duty to manage the fish, wildlife, and water
resources of the state for the benefit of all the
people. And we urge the legislature to resist the
tempting illusion that if you approve a discriminatory
rural-priority amendment, the conflict and
divisiveness will end. Please do not patronize
special interests that, solely for their own benefit,
would willingly have the federal courts dictate the
management of fish, wildlife, and other wild renewable
resources in the whole state.
[Co-Chair Masek called upon Jim Adams, but was informed by the
Nome Legislative Information Office (LIO) that he'd had to
leave.]
Number 1270
AUSTIN AHMASUK testified via teleconference. He informed the
committee that he approves of most of the body of HJR 41,
recognizing it as an attempt to place subsistence within the
constitution, and to address some longstanding and difficult
issues [by establishing a subsistence priority] that he believes
should be provided to rural people. He said he doesn't believe
[HJR 41's] permissive nature addresses his concerns, however.
He explained:
I feel that an exclusive amendment addresses concerns
that I have regarding subsistence. Very simply, when
we eat our foods such as aged walrus liver, or when we
eat moose meat and seal oil, or when we make akutaq
from moose fat or caribou fat, those are foods that
... I have lived with all of my life. ... We eat them;
that's exclusive. We were born with them. ... As a
previous speaker said regarding the establishment of
those utilizations of food, we started them. We're
still using them. We want to have them. ...
I want to see exclusive use of those resources,
because, frankly, having a permissive constitutional
amendment leads to problems that we experienced in
this region regarding ... low populations. People
speak of sustained yield. Under ... current
permissive laws such as Alaska Statute 16.05.258, the
subsistence priority, we still have problems in our
region regarding moose, regarding fish. We have the
only Tier II fishery ... in the whole state of Alaska
here, because of permissiveness. It needs to be
exclusive.
Number 1448
LARRY MERCULIEFF, Rural Alaska Community Action Program (RurAL
CAP), testified via teleconference, noting that he would speak
not about specific sections of HJR 41, but in the general sense
about "these issues that have a direct bearing on the
disposition of HJR 41, ... or any of the subsistence bills, for
that matter." He told members:
The best thing that could happen with regard to
subsistence would be for Congress to repeal the
section of the Alaska Native Claims Settlement Act
[ANCSA] that extinguished Alaska Natives' aboriginal
hunting and fishing rights. Everything in federal and
state law today is based on the false premise that
subsistence hunting and fishing activities by rural
Alaskan residents were the focus of Congress's concern
in enacting Title VIII of ANILCA. In fact, the true
focus of congressional concern was to protect the
cultural integrity of Alaska Natives.
Madame Chairman, the controversy over subsistence in
Alaska is not about an urban-rural divide; it's not
about zip codes; it's not about where Alaskans hunt,
fish, or gather food; and it is not about race. This
issue is about the right of Alaska's indigenous
peoples to support themselves, their families, [and]
their communities as they have for thousands of years.
Management of subsistence hunting and fishing on the
60 percent of Alaska that is in federal ownership has
now been in federal hands for 30 months. Alaska
Natives are asking this question: What is so bad
about federal subsistence management anyway? The
opponents of state subsistence-protection [laws] have
sharply criticized the federal bureaus that are
responsible for implementing the federal subsistence
protections.
The rallying cry is that Alaska's fish and game should
not be managed by outsiders or from far away in D.C.
And I'd like to remind everyone that the great
majority of people who do the day-to-day, hands-on
work in the federal subsistence-management arena are
Alaskan people. The longer the federal management has
continued, the more you hear Alaska Native people
asking another question: What is so great about ...
state subsistence management anyway?
Number 1579
MR. MERCULIEFF continued:
Finally, ... I want to address the subsistence issue
in the same terms as longtime opponents of the state
law granting a priority for subsistence uses over all
others. Alaska Natives have often been accused of
seeking special rights to hunt fish and gather food in
our customary and traditional ways. Why is it that
these, quote, unquote, special rights are proper for
others ... to possess, but not Alaska Natives? And I
speak here, for example, of the right of oil companies
... to bid on mineral leasing tracts in certain areas
of Alaska; the right of limited entry permit holders,
and only such permit holders, to fish in certain
waters of Alaska; [and] the right of certain factory
processors, and only these processors, to take
bottomfish off Alaskan waters. Now, these examples
beg the question about ... what is wrong with these
kind of rights anyway. There are practical and
political reasons for them.
All such things aside, as a final comment, it is the
human right of all people to partake in what has
always sustained them socially, economically,
spiritually, culturally, and nutritionally. It is a
human right not to have a people's dignity and
cultural foundation destroyed. Failure to protect the
subsistence rights of Alaska Natives will destroy the
basis for the diversity and vitality of our culture
and our communities, and it's time for the legislature
to recognize and protect that right in the
constitution and supportable implementing legislation,
beginning with moving HJR 41.
Number 1700
ROD ARNO testified via teleconference. He prefaced his
testimony by saying he had missed the governor's subsistence
summit because of his work as a hunting guide-outfitter during
the autumn. He told members:
I oppose the passage of HJR 41 for two reasons. One
is, it won't fix the problem. Why should the state
amend its constitution to become more restrictive? In
line 8, words like "indigenous people" - I mean,
that's a nod that would take a fair amount of time for
the courts to decipher that one.
Line 14, adding rural residents as the priority, all
that does is add another class system. In Alaska
today, we discriminate between three groups of
hunters: there's the nonresidents - those are the
nonsubsistence uses, the first to go; there's Alaskan
residents, all; and then, third, there's local Alaska
residents. HJR 41 would add a new group, which would
be the nonlocal Alaskan residents who can show a "C
and T" [customary and traditional] determination for
that resource.
Currently, in state law, we already have provisions
that would be laws of general applicability and
implementation. Under AAC 92.072, we have community
subsistence harvest area and permit conditions; these
are actions that the board has taken in the past to
say people living in a specific area have a priority
to a specific species within that area. The board
already has this authority, and it has implemented it
three times now.
As far as returning the state management back with a
constitutional amendment, Bruce Botelho's comment ...
that this is an overblown concern has not been the
case for the industry that I've participated in for
the last 35 years. In ... Bobby v. [Alaska], the
district court said the taking of game is restricted
for conservation purposes whenever that occurs; all
other uses must be reduced or proscribed before
subsistence use is restricted. Therefore, the
solicitor saying in '95 on that case, having to do
with (indisc.) village management area, that they
agreed with the district [court] analysis (indisc.) in
statute, ... that excluded all nonresident moose
hunters from that area.
Number 1860
MR. ARNO continued:
From that time on, the state has continued, ...
through the board process, ... excluding nonresidents
in the entire GMU [Game Management Unit] 13, in 16B on
the Koyukuk, on the river corridors in GMU 19A - that
it's a reality to the resource development of the
guide industry that under the current administration
of ANILCA that we see through the judicial oversight
that our industry cannot continue.
The second point is: Does Alaska need to wait for
[an] Alaska Supreme Court decision on the federal
takeover [of management]? We've already got one, ...
contrary to what Bruce Botelho says, that in the
Totemoff v. State case the decision by the Alaska
Supreme Court is ... that nothing in Title VIII
discloses a clear and manifest purpose ... to prohibit
all state regulations of subsistence harvest, that the
Alaska Supreme Court doesn't have to listen to anybody
else but the U.S. Supreme Court on this issue - and if
it's a matter of pushing it, that's the direction I'd
like to see the legislature go.
Number 1960
ROSE ATUK-FOSDICK testified via teleconference. Noting that she
was raised in Nome and that her parents are from Wales, Alaska,
she said she supports HJR 41 for the following reasons:
Rural residents who are primarily indigenous people
will have priority, which is only right. I and my
family are part of that group in being rural residents
and indigenous to this area and Alaska. You should
realize that survival as a distinct people depends on
being able to continue to do subsistence activities.
Our ... ways of life are very different from other
people, and it's mainly because of our knowledge, our
experience, and how we are able to survive on natural
resources. We have experience in being stewards of
the resources in our area.
You should also realize that doing subsistence is
important to our economy ... and as a food source.
The rural residents in this part of the state have
very few opportunities to develop a monetary income.
The rate of unemployment is very high. The average
annual income of residents in this area is very low.
For example, part-time, temporary workers make perhaps
$3,000 per year. Seasonal truck drivers may make
about $8,000 per year.
People in Alaska are already divided into rural and
urban in many aspects, including remoteness from
services [and] differences in costs of food. In rural
areas around this part of the state, food costs are
100 percent higher than in urban areas; the cost of
services such as electricity is as high as 54 cents
per kilowatt-hour ... in Teller, as opposed to 11
cents per kilowatt-hour in urban areas. Yet we will
probably not all move into urban areas to save money,
because our history, our culture, our resources are
here in what we call "rural" and what we call home.
Number 2083
TERRY MARQUETTE testified via teleconference. A 32-year
resident of Alaska, he told members he firmly stands against any
legislation calling for a constitutional amendment "creating
subsistence." He explained under the constitution there is
equality for all citizens and equal access to the state's
resources; any change would create discrimination, hardship for
many Alaskans, and resentment, and any subsistence law to grant
priorities would, by its nature, be based on "zip code and
race." For people living in urban areas, this would cause a
cultural hardship. He told members, "This would deny me the
opportunity to raise my children with an appreciation of
harvesting the resources of the state, and I consider that
cultural aspect of my life just as important as the Native
people in rural Alaska consider their cultural characteristics."
MR. MARQUETTE referred to Attorney General Botelho's testimony
and offered his personal belief that neither the
constitutionality of ANILCA nor the concept of subsistence has
been challenged; he suggested that before the legislature
pursues a change to the state constitution, it ought to pursue
"this particular challenge." He also said he'd like to
introduce himself to Mr. Gross as one Alaskan who doesn't
necessarily believe that the rural people should have first
access to the resources in their particular area. He added, "I
think we all should work under the law, and we all have equal
access to the same resource."
Number 2220
MARY BISHOP testified via teleconference, noting that she is a
resident of Fairbanks. She explained her opposition to HJR 41:
It potentially enlarges the pool of those who get the
priority use. And that's the last thing we need to
do. If we're going to have a priority, then we need
to reduce the number who get the priority, not enlarge
it. The larger it gets, the greater impact it has on
those people who do not have the priority. ...
Another reason I oppose it is because it ... provides
a priority on all renewable resources, not just fish
and game, which, again, (indisc.) the federal law. ...
I can't quite figure out how Av Gross can come out
with this statement that it's only in times of
shortage. Unless you believe that ... there's
shortage all the time because there's regulations all
the time, that just doesn't make any sense. And I
think it's very deceptive when people say the priority
is triggered by a shortage. It's not. It's there
whenever there are regulations, and ... it's quite
clear - that's the way the ... federal subsistence
board works.
Number 2350
The Western caribou herd certainly is not in any
condition of shortage, and still there's a priority
there. The federal subsistence board doesn't look at
whether or not there's a shortage; what they look at
is whether or not the people can be provided customary
and traditional use, and the Bobby case made that very
clear. And anybody that works on this issue should
understand what the Bobby case said. It says it's not
based on shortage; it's not based on need. It's
[that] the priority for customary and traditional use
exists all the time.
Number 2350
MS. BISHOP offered her belief that basing this on need is the
only thing that will work without furthering the rural-urban
divide, which she said was basically instituted 22 years ago by
the federal government. She suggested people would accept that
[basis], and that it would probably be constitutional, "if you
read the McDowell decision, [which] says ... that what Congress
did, and what the state did when they were in compliance, was
extremely crude with regard to addressing ... the subsistence
needs." She asked that the committee "let HJR 41 peacefully die
and continue working on Representative Dyson's HJR 11 and [HJR]
29, the way that that addresses the issue." She also asked
members to consider the written testimony she'd submitted.
Number 2440
ARLISS STURGULEWSKI testified via teleconference on her own
behalf in support of HJR 41, noting that she was one of 42
people who served on the subsistence summit, debated the issue,
and issued a report that spoke to three things: the need in
Alaska for unity and diversity, the need to unify the management
of Alaska's common fish and wildlife resources, and the vital
role that subsistence plays in the lives in Alaskans.
MS. STURGULEWSKI [a former state Senator] said she is appalled
that the issue is still unresolved. She emphasized the need for
the legislature to bring this issue before the voters, saying
there are some real consequences of not taking action. She
encouraged looking closely at fish and game, and noted that
budgets are shrinking and that the federal government is taking
an increasingly larger role. She cautioned, "Frankly, we're
losing some of our top management. We also are having a real
problem in just the ... [duplication] in the management roles
within the state, and having two systems; that doesn't make
sense. ... The very basis of our constitution was over the
management of our resources for the people." She told members:
I think, more importantly, you're really driving a
wedge between the people of the state. Unresolved
issues often do that. Native leaders are ignoring the
state capital, and they're going directly to
Washington, D.C., to solve issues. I don't think that
speaks to building a strong, cohesive state.
Whether you intend it or not, failure to resolve this
issue increases ... racial and regional tensions by
impacting a whole lot of other issues, not just the
issue of subsistence. So I think it's far past the
time that we let the people ... of the state have this
issue [for a vote]. I was one of the 72 percent of
the people that voted in Anchorage recently to say,
"Bring it before us. You can't resolve the bloody
thing. Let us do it." So it's really time to take
action, and I hope you'll do that this session.
Number 2585
CO-CHAIR MASEK noted that members had been provided copies of
written testimony from Nelson Angapak, Vice President, Alaska
Federation of Natives (AFN).
Number 2609
REPRESENTATIVE FATE referred to Ms. Sturgulewski's statement
that Natives are bypassing state government and going directly
to Washington, D.C. He offered his understanding that this
isn't related just to subsistence, but has been the case since
at least five years before ANCSA.
MS. STURGULEWSKI replied:
I spent a lot of years down there, and ... I learned a
lot of lessons from some very strong Native
legislators. And I honestly believe that our ability
to communicate - discuss issues ... that go across a
broad range of health and social and education issues
- was much stronger and, in a sense, productive in
some of the years past. I really think ... it has
deteriorated. ... You can tell from the passion in my
voice. I've sat through ... many, many hours of
testimony on this and other issues, and I can only
bring my judgment and what I have seen. I feel that
those relationships have deteriorated.
[Co-Chair Masek called upon Paul Barrett, but was informed by
the Fairbanks LIO that he'd had to leave.]
Number 2705
WAYNE HEIMER testified via teleconference, saying he was
testified on his own behalf "as a reluctant student of ANILCA
and subsistence history." He told members:
I urge the committee to take no action on [HJR] 41
before you. I am pleased that you're finally facing
the issue of race, because subsistence has always
been, and remains, an issue of race. I'd like to give
you just a little history to tell you why we're here
and how it got that way. Subsistence arose as a race-
preference issue in the House version of ANILCA, where
it passed along with federal takeover language to
enforce racial discrimination. When this version got
to the [U.S.] Senate, Senator Stevens and others
amended out race preference and the federal takeover
provisions, and tried to make discrimination more
palatable by substituting "rural" for a racial
preference.
Next, the federal government used rural preference as
a crude litmus test of whether they should take over
management or not. That has forced us to face the
issue of discrimination as it comes to us now. That
issue, discrimination, should have been addressed by
the courts, who are the check on the power of
legislatures and Congress and the executive branches.
Attempts to test the basic social issue, equality,
that was raised in ANILCA failed because of
"lawyering" on the fine points of who should manage
and where they should manage.
These approaches might have solved the problems if
political and personal expedience on the part of the
governor had not resulted in their arbitrary
withdrawal from the judicial process. Given that
things were well along when the governor dropped the
Babbitt and John suits, we might have found those
problems decorously decided long ago ... if that
hadn't happened. And now we're here today being asked
to amend the Alaska constitution to enshrine the shaky
interpretation of a single federal judge in laws - the
very basis of Alaskan social policy.
Number 2676
MR. HEIMER continued:
This is a bad idea for many reasons. In addition to
the equality question, we have the semantic ...
confusion about subsistence itself. If you read
ANILCA, you'll find the issue is clearly food.
However, subsistence isn't just about food anymore.
First, it meant Native tradition. Then it grew to
Native culture, then to Native spirituality, and
finally to Native religion. ... What it should be is
... not clearly understood by everyone. Yet folks are
asking us to discriminate against other Alaskans and
our fellows without understanding exactly where we're
going.
I could go on for well more than three minutes with
illustrations of the inconsistencies or maybe the
negative social consequences of institutionalizing
preference, which means institutionalizing
discrimination. Both are illegal by the constitution
and are morally reprehensible in all issues except
this one, where the language is so convoluted it's
virtually impossible to understand or decipher what
any given term means. This means Alaska has a choice:
we can either embrace all the confusion and strife
associated with an illegal and unjust preference - we
can bow to the venial demands of those seeking to
control the lives of others as though it were somehow
their right because their ancestors were here before
others - or we can simply take the high road and go
for equality - equal treatment - for all Alaskans, as
affirmed by our law.
REPRESENTATIVE KAPSNER said she took offense at a lot of the
things she believed Mr. Heimer was implying in his testimony.
REPRESENTATIVE KERTTULA concurred.
[Co-Chair Masek called upon Joseph Strunka and Corina Collins,
but was informed by the Fairbanks LIO that they had left.]
Number 2874
CHIP WAGONER, Alaska Catholic Conference, came forward to
testify on behalf of Bishop Michael W. Warfel. Mr. Wagoner
noted that he would provide written testimony and also had a
brochure further explaining what the Alaska Catholic Conference
is; he said there are more than 55,000 Catholics in Alaska. Mr.
Wagoner said he himself represents the Alaska Catholic
Conference, which is the vehicle that the Roman Catholic bishops
of Alaska use to speak on public policy matters that relate to
the teachings of the church, and on moral issues. He explained
that Bishop Warfel, who couldn't be present at this hearing, is
the bishop for the Diocese for Juneau and all of Southeast
Alaska, and also currently serves as the administrator for the
Diocese of Fairbanks. He read from Bishop Warfel's written
testimony:
For some years now, there has been serious
disagreement on how best to allocate fish and wildlife
resources in Alaska. The determination of who should
have access, particularly when limitations need to be
placed on a resource, has been a serious source of
division in our state. Obviously, a satisfactory
solution has yet to be found. I come before you today
to urge you to work for a solution that is both just
and truly equitable, one that will serve the common
good of Alaskans. In particular, I refer to HJR 41,
but also address some general notions surrounding the
subsistence debate.
At the heart of the discussion is the notion of "equal
access" and the opportunity for all Alaskans to
subsist on fish and wildlife. As we know, in 1980 the
Alaska National Interest Lands Conservation Act, using
race-neutral language, provided that those engaged in
a subsistence lifestyle could maintain that lifestyle.
As a result, rural Alaskans were to be given a
priority. When resources are healthy, no limit would
be necessary. As we also know, the Alaska Supreme
court ruled that, based on the Alaska constitution and
its equal access clause, the state could not provide
for a subsistence priority. As a result, the State of
Alaska lost oversight of the fish and wildlife
resources on federal lands.
In considering a solution, it is important to note
that equal access, in the sense of every resident
being able to do the same thing, in itself does not
offer a just resolution. From an ethical perspective,
justice does not require nor demand a [mathematical
kind of equality. In fact, insisting on a
mathematical kind of equality can sometimes actually
be a cause of injustice.] [This last bracketed portion
isn't on tape, but was taken from the written
testimony.]
TAPE 02-25, SIDE B
Number 2990
MR. WAGONER continued reading Bishop Warfel's testimony
[bracketed portion taken from written testimony]:
[A true equality, in regards to available resources,]
must be understood as a means toward sharing these
resources according to need. An overemphasis on the
term "equal" would cause us to fall prey to a level of
individualism in which there is such a
[disproportionate] emphasis on the individual that the
overall well-being of a society could be sacrificed.
Also important are the circumstances that surround
people, the context in which they live. Circumstances
make a difference and vary greatly. Policies are
regularly made that recognize circumstances within
society such as age - making it illegal to sell minors
alcohol or cigarettes; residency - establishing a
period of residency to get a PFD [permanent fund
dividend]; or sex - stating in law that marriage can
only be between a man and a woman. In other words,
there is a difference between unjust discrimination
and the recognition of necessary distinctions that
need to happen for the common good. As such, a policy
which allows subsistence opportunities for all
Alaskans, but which provides a priority for some
residents in time of limited resources, may achieve
greater justice than simply maintaining "equal
access."
In this debate, there seems to be a particular need to
be sensitive to those who would be most deeply
affected by it, the Alaska Natives who, as people,
have for more than 10,000 years depended upon
subsistence. First of all, there is the importance of
maintaining indigenous cultures in the state.
Subsistence among Native peoples has a spiritual value
that far surpasses any economic value that may be
placed on the resource. It is critical that society
protect and safeguard the right of Alaska Native
peoples to preserve their cultures. Protecting
subsistence rights is central to the health of their
culture, which in many ways is now vulnerable.
Number 2898
Secondly - again, Bishop Warfel speaking - I note a
principle of Catholic social teaching, that of the
preferential option for the poor and vulnerable. On
the average, Alaska Natives as a group are those most
affected by poverty in the state. Statewide, 20
percent of Alaska Natives live below the poverty line.
When limitations on fish and wildlife resources are
needed, as far as possible, those in greatest need
should have access to them. Recognizing that poverty
exists in urban areas, too, whenever possible the
urban and suburban needy who rely on fish and wildlife
should have access to these resources. Efforts to
guarantee subsistence opportunities for the poor and
vulnerable is a matter not of charity, but of justice.
The issue of subsistence is simply too important an
issue for the state not to agree upon a reasonable and
equitable solution. I urge you all to continue to
work for a solution that will keep in mind not just
the rights of individuals, but the common good of all
Alaskans. I ask you to remember the unique and
particular needs of Alaska Native peoples as well as
the common good of all Alaska residents - again,
Bishop Warfel's statement.
CO-CHAIR MASEK thanked participants and concluded the hearing.
[HJR 41 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:40 p.m.
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