Legislature(2001 - 2002)
05/15/2002 05:30 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
May 15, 2002
5:30 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
Representative Beth Kerttula
Representative Mary Kapsner
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Fred Dyson
Representative Vic Kohring
Representative Jim Whitaker
Senator Jerry Ward
COMMITTEE CALENDAR
WORK GROUP RE: SUBSISTENCE ISSUES [including HJR 41]
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
BRUCE M. BOTELHO, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: During work session, discussed HJR 41 and
answered questions.
CHARLES E. COLE
406 Cushman Street
Fairbanks, Alaska 99701
POSITION STATEMENT: During work session, discussed HJR 41 and
answered questions.
ACTION NARRATIVE
TAPE 02-45, SIDE A
Number 0001
[The first 30 seconds of tape is blank, but nothing substantive
is missing.]
CO-CHAIR BEVERLY MASEK called the House Resources Standing
Committee meeting to order at 5:30 p.m. Representatives Masek,
Scalzi, Fate, McGuire, Green, Chenault, Stevens, and Kapsner
were present at the call to order. Representative Kerttula
arrived shortly thereafter.
WORK GROUP RE: SUBSISTENCE ISSUES [including HJR 41]
CO-CHAIR MASEK began the work group session on subsistence
issues by announcing that the committee would discuss HJR 41;
she requested that Attorney General Botelho provide an update.
She pointed out that members had been provided a new handout
["Subsistence Questions and Answers"] put together by the Alaska
Department of Fish & Game (ADF&G). [Additional documents had
also been provided by ADF&G and others.]
Number 0140
BRUCE M. BOTELHO, Attorney General, Department of Law, reminded
members that the genesis of HJR 41 was a subsistence summit
convened by the governor in August, consisting of 40-some
individuals from around the state representing various
community, religious, business, and commercial interests, as
well as governmental interests including, in particular, tribal
governmental interests. The summit called upon the governor and
the legislature to work towards a constitutional amendment that
would have a twofold effect: provide for a rural subsistence
priority in the taking of fish and game and other renewable
resources, and return management of fish and game to the state
in a unitary management system, rather than the current dual
management system. The governor had then appointed an 11-member
committee to draft a constitutional amendment, HJR 41, which
contains three parts.
ATTORNEY GENERAL BOTELHO explained [subsection (a) of HJR 41]:
The first is a declaration of purpose or policy of the
state. And I think, in short, one should see it as a
declaration to honor the subsistence traditions of
Alaska's First Nations. The commentary that we
provided reflects our view that this is to be seen as
a statement of policy but not an enforceable right.
It is simply a recognition of what prompts the overall
discussion of a subsistence priority in the first
instance, that it was triggered by and initiated as a
way of protecting Alaska's indigenous cultures.
Number 0350
ATTORNEY GENERAL BOTELHO discussed subsection (b):
Subsection (b) is really the heart of the proposal
that would ... allow the state to come into conformity
with federal law. Title VIII of ANILCA [Alaska
National Interest Lands Conservation Act] basically
says that the federal government will manage for
subsistence uses on federal lands in the state, and
that that management will be for the benefit of rural
residents, ... who will have a priority in the taking
of fish and game and other renewable resources, and,
second, that under that management there must be
significant, meaningful, local participation in the
formulation of those regulations that ... are to guide
the priority.
But the law also goes on to say that if the State of
Alaska wishes to assume that management, not only with
respect to its own lands but on federal lands, it must
adopt a law of general applicability that provides for
the same priority and the same level of participation
[and] uses the same definitions that the federal law
provides for.
As I know most or all of you are aware, the state
legislature ultimately enacted just such laws of
general applicability; they were certified by the
Secretary of the Interior in 1986. We had had
previous regulations that had provided for that
priority; those were struck down by the Alaska Supreme
Court as being beyond the authority of just the boards
of fish and game, which is what triggered legislative
action. But for most of the period ... late 1980
through 1989, in one form or another, we did have a
rural subsistence priority in the state.
On the last day of September 1989, the Alaska Supreme
Court issued its decision in McDowell v. State, which
declared that the legislature was without ...
constitutional authority to enact legislation that
provided for a rural priority - that is, one that
would bar, conclusively, persons living in urban
Alaska from participating in subsistence hunting and
fishing. And that really is what triggers the now
almost 12 years of debate over a constitutional
amendment to allow the state to pass the very laws
which ANILCA would authorize, the transfer of
authority from the federal government to the state.
Number 0585
ATTORNEY GENERAL BOTELHO continued:
Subsection (b) ... would actually direct the
legislature to provide such a priority ... under the
sustained yield principle. That is to say, one must
first satisfy that requirement before there can be any
harvest of the resource, but that persons ... residing
in the ... rural area of the state would have first
priority on the resource.
And let me underscore the use of the term "area",
because what we contemplated as a drafting committee
was something that might loosely be described as a
local priority. Our view was - remains - that
[persons], merely by being rural, should not be given
the right to hunt in an area of the state that they've
not traditionally hunted or fished ..., so that we
avoid the situation where there's a claim that a
Barrow resident can fly to Angoon ... and participate
in a subsistence deer hunt, for example.
Number 0758
The second part of subsection (b) - first you have the
priority to residents of a rural area, or rural
residents of an area - ... is to satisfy and basically
overturn a second Alaska Supreme Court decision,
involving the Kenaitzes, and that has to do with what
we generally know as Tier II. What do you do when
there's not enough fish and game ... population to
meet all the needs of residents of the area? How do
you decide who should have access when there's not
enough to go around?
ANILCA set up the basic formulation: you look first
of all, in deciding who gets it, [at] the degree of
dependence on that resource; the availability of other
resources; and the third element has been, in essence,
proximity to the resource. And Alaska law provided
for exactly the same three-part test for Tier II.
The Alaska Supreme Court in Kenaitze v. State struck
down the proximity criterion - that is, that could not
be a factor in determining, when resources are so
scarce that you can't satisfy all subsistence user
needs, who should get a priority. And, again, in our
discussions virtually everyone we've talked to ... was
of the view that proximity to the resource makes sense
and, as a consequence, should be part of our
amendment, basically to have the effect of reversing
the Alaska Supreme Court's decision in the Kenaitze
case.
Number 0940
ATTORNEY GENERAL BOTELHO discussed subsection (c):
Subsection (c) is not a requirement at all of ANILCA;
it will not have an effect, one way or another, in
terms of bringing us closer to compliance. But it was
intended to reach a concern that many persons across
the political spectrum have raised with us, and that
is to say that there are people outside rural Alaska
who have a legitimate claim to say that they have a
subsistence tradition or custom and should have some
priority and access to the resource.
The people who are described variously could be what
we've called the "surrounded villages": Eklutna is a
good example, [as are] the Kenaitzes in the Kenai, of
persons [for whom] the traditions ... were always
rural in nature, that there was a way of life and,
through no fault of their own, [they] had been
basically surrounded - brought into the most urban
areas of the state. Should they have an opportunity
to continue to practice their traditional way? There
has been concern about Alaskans who have spent major
portions of their lives in rural Alaska and continue
to have some ... direct contacts with rural Alaska,
but now find themselves in urban Alaska. Should they
have an opportunity to participate?
On the other hand, we have heard from those who have
said ..., "Well, if you provide for these kinds of
priorities, what you're doing is diluting the
availability of these natural resources, because
there'll be more people qualifying, and that means
there'll be less to go around ... for everyone, so
whatever you do, ... don't consider this." ... Where
we fell on this was to say the legislature should be
authorized to grant a lower subsistence priority that
would still trump personal use [or sport] or
commercial uses. But it would be left to the
legislature to make the decision in its own discretion
about whether that's good policy or not, or to
experiment with it or not. And we wanted to make sure
that the legislature believed it had the flexibility
to do so.
So those are the three elements of the proposal that
we've put together.
Number 1115
CO-CHAIR MASEK noted the presence of Representatives Dyson and
Kohring, [ADF&G] Commissioner Rue, and former attorney general
Charles Cole.
ATTORNEY GENERAL BOTELHO requested that Mr. Cole be allowed to
join him at the witness table, since he was one of the drafters.
Number 1200
REPRESENTATIVE STEVENS asked how proximity would affect people
who perhaps grew up in a Native village but are now living in an
urban area.
ATTORNEY GENERAL BOTELHO responded that [HJR 41] doesn't answer
that question except to the extent the legislature could decide
to grant some access by urban Alaskans to participate in a
subsistence harvest. For example, practices have been adopted
by regulation by ADF&G that allow for proxy hunting and fishing:
if an adult child of a village family lives in Fairbanks but has
parents who cannot take part in a harvest, that son or daughter
could travel to the village and harvest on behalf of the
parents; that is true today. He said, "I don't think this
amendment would particularly change ... that kind of
arrangement." He added, however, that the express authorization
in [HJR 41] would allow [the legislature] to expand that. He
suggested there is a good argument that the subsection probably
isn't even a requirement, and that [the legislature] has that
authority, "whether we confer it or not."
Number 1344
CHARLES E. COLE added:
We had a big debate over this section because, as
General Botelho said, to the extent that you grant a
lower-tier priority - but a priority above the sports
fisherman or sports hunter - you are really depriving
those people of the rights that they have now. And
also, to the extent that you grant these priorities,
to some degree you really put more pressure on the
resource in rural areas and, therefore, you run the
risk of depriving the true subsistence user of
resources which may be necessary even to ... preclude
a Tier II function. So ... that's the reason we left
that to the legislature....
MR. COLE pointed out that [if HJR 41 passes and is adopted by
the people] presumably it will be in the constitution for
decades. Therefore, [the drafters] had wanted the legislature
to deal with those problems as they arise, and to have
flexibility as Alaska's demographics change.
Number 1451
ATTORNEY GENERAL BOTELHO, in response to Co-Chair Scalzi,
explained that [if HJR 41 passes the legislature] a summary,
rather than the actual resolution wording, to his recollection,
would appear [on the ballot] as a yes-or-no question.
CO-CHAIR SCALZI requested that members receive the language that
is subject to going on a ballot, in order to have better
dialogue in the deliberations in the next couple of days. With
regard to subsection (b), he characterized it as having one tier
that is "personal use, commercial, et cetera," another tier that
is "primary subsistence," and then "other categories of
subsistence users, to be defined, I assume, by direct dependence
[on] the resource [as the] mainstay of livelihood and proximity
to [the] resource." He asked whether he was interpreting that
correctly.
ATTORNEY GENERAL BOTELHO replied, "Not entirely." He explained
that before any harvest can take place, there must be a
harvestable surplus. There is a constitutional requirement to
satisfy the sustained yield principle, and it is just good
management as well; there must be enough escapement of fish, for
example, to make sure the species will survive. At the point
where harvest is allowed, then, there is a general
categorization. He explained:
At the top of that pyramid, if there [aren't] enough
resources to satisfy ... all uses in the harvest,
subsistence would have the highest claim on the
resource. Generally speaking, the second category in
our state is sport harvest, and finally, commercial
harvest. And we have another category, and you
mentioned it, which is personal use; that is really an
urban, ... nonsubsistence area - read "urban" -
category that ... is almost a proxy for subsistence.
It's not quite, but it is the urban, and we call it
equivalent. It has a call before sport and commercial
use.
Subsistence itself is broken down into basically two
categories. [In] the federal scheme, all rural
residents have an entitlement for subsistence purposes
on federal lands. But if, again, there isn't enough
to satisfy those needs, we hit what is called Tier II,
and that is where ... the test, applied individually,
comes into play. We look at the customary and direct
dependence on the resource; we look at their proximity
- where they live - to the resource, and whether there
are alternative resources available to them.
Number 1793
ATTORNEY GENERAL BOTELHO, in response to Co-Chair Scalzi,
clarified that a person must go through the "general subsistence
door" before reaching Tier II.
CO-CHAIR SCALZI suggested the state's regaining control of its
resources is the main impetus for most Alaskans [to have a
constitutional amendment.] He then offered his understanding
that Section 807 of [ANILCA] provides the ability for an
aggrieved party to go directly to federal court, rather than
going through the state courts. He asked, "Is this anticipated
to be altered, changed, or accepted? And if it is accepted,
have we essentially gotten our state management back?"
Number 1870
ATTORNEY GENERAL BOTELHO answered:
Our proposed amendment does not in any way ... rely on
modification or elimination of that provision. I
think it's fair to say that there are members of the
drafting committee who would support some change to
that provision. I think it's also fair to say that no
member of the drafting committee would envision a
situation where the federal courts will not have some
role to play.
It is a federal law. People have a right to seek
redress of federal laws in federal courts. The
question that I think most arises is, "Well, to what
extent are we surrendering management ... by having
the possibility of federal court oversight?" And ...
in my view, there's not a great threat to the overall
management regime. And I'll explain. And first of
all, a fundamental premise: a governmental action is
virtually always going to be subject to court review.
So it will either be state court or federal court. So
the first question is judicial oversight generally.
Actions of government are going to be subject to
judicial oversight. I assume theoretically there can
be concern about it being a federal court versus a
state court.
Number 1969
Second, the language in 807 is rather restrictive in
... these ways: First of all, there has to be ...
exhaustion of administrative remedies; ... if there's
a review process within the state administrative
system, ... a person cannot go to federal court until
that has been exhausted. We have, by the way, a
parallel requirement in state law in terms of
administrative (indisc.). Second, the remedies that
the court is able to implement in 807 [are] also
limited. The focus is not an overall invalidation of
whether we're in compliance or not, but whether the
specific action being ... challenged somehow violates
the priority that's required. And the court's
authority is that it can only direct the agency to
bring or write a regulation that is in conformity with
the priority, and, second, that it only lasts for the
term of the regulation - and in fish and game terms,
that is virtually always an annual kind of cycle. So
the remedies that the federal court can provide are
very limited.
There is a provision that prevailing parties are able
to get their costs and attorney's fees. ... If this
were another state, that might be a big issue, but in
Alaska, which has the so-called English rule, parties
who win are already entitled to reasonable costs and
attorney's fees. So, again, I don't think that this
is some major, revolutionary concept.
Number 2075
ATTORNEY GENERAL BOTELHO, in response to Co-Chair Scalzi with
regard to state remedies, said it would be, "the state, the
boards themselves" at the administrative level; beyond that, it
would be the court system. He said there isn't an ability of
the federal courts to oversee the Alaska state courts on this
issue; it is a separate judicial path.
CO-CHAIR SCALZI reiterated, "But it says that they can go right
to the federal courts."
ATTORNEY GENERAL BOTELHO referred to Section 807 and mentioned
administrative remedies.
CO-CHAIR SCALZI offered his understanding, then, that there is
no state court in between.
ATTORNEY GENERAL BOTELHO confirmed that.
Number 2128
MR. COLE concurred with Attorney General Botelho's testimony in
its entirety. He then emphasized two points. First, he knows
of no federal statute in which the federal courts aren't
empowered to enforce or to interpret, he said, adding, "That's
just the general jurisdiction of federal courts. So it seems to
me, in my view, there's no way we will ever get around that,
given the way it's now written." Second, one of the
"battlegrounds" of discussion is whether the state
administrative agencies' decisions would be given deference by
the federal courts. He said:
The courts by and large, with some exceptions, give
deference to the actions of administrative agencies
when they are dealing with their field of expertise.
And ... it's been our view, from the state's
perspective, that ... when the federal courts come
into play in this area, as you've just mentioned, that
they should be required to give deference to the
actions of the state administrative agencies - fish
and game. That would give us another level of
protection, and we should firmly insist on that.
Number 2213
CO-CHAIR SCALZI remarked, "We do talk about due deference a lot
in management." He asked whether that language would be
necessary as part of any change to Section 807 of ANILCA or a
constitutional amendment.
ATTORNEY GENERAL BOTELHO replied that in his view, if that
language were to be inserted, it should be in the federal law,
not the state constitution.
Number 2244
REPRESENTATIVE GREEN said it seems that anytime there is a bag
limit, it would fall into the category of "shortage" because
people couldn't take all they wanted. Therefore, a subsistence
[priority] would be triggered, which he suggested could be
statewide because the shortages are everywhere.
ATTORNEY GENERAL BOTELHO concurred with respect to the first
point, that the very existence of bag limits indicates some
shortage. He said, however, that with fish stock populations,
in particular, subsistence is not viewed on a "macro, statewide
basis." Rather, it is looked at in terms of areas. When people
talk about the Nelchina caribou herd, he noted, they aren't
talking about every caribou herd in the state. He added,
"That's why our view has been that subsistence, for all
practical intents and purposes, is always in place."
Number 2340
MR. COLE added:
That's why we provided, in this language, when it's
necessary under ... the sustained yield principle to
impose any restrictions on the taking of fish,
wildlife, or other renewable resources - whenever
there are restrictions, i.e., a bag limit, then ...
subsistence is (indisc.).
REPRESENTATIVE GREEN responded, "So we're already there, in
everything," adding that he doesn't know of anywhere in the
state that there isn't a limit.
MR. COLE replied:
That language comes right out of ANILCA. ... We
weren't crafting anything when we did this; we just
looked at ANILCA, and that's what it plain says, and
those are the words that come out of there. So we
weren't tinkering with anything or being creative in
any way.
REPRESENTATIVE remarked, "That doesn't win any points with me
just because it came out of ANILCA." On a different point, he
posed a scenario in which one person lives at the headwaters of
a river and another lives where that river meets the sea. If
the first person had a subsistence preference, then the person
closer to the ocean would be precluded from taking fish needed
to fulfill that priority. Representative Green asked whether
that will be addressed in [HJR 41] or whether it makes it clear
enough that there won't be a problem.
Number 2438
MR. COLE responded:
You see, that points up the danger which I think the
state is facing with the federal administration,
because if the person at Fort Yukon [is] entitled to
this priority which you've just mentioned, now, the
federal subsistence board is going - and is required
as a matter of law - to enforce that principle under
ANILCA. So the question then becomes, "How does the
board do that?" And to the extent that fishermen down
below are taking salmon in state waters, ... my
concern has always been that the federal subsistence
board is soon - soon - going to assume management of
all of these waters ... so that it's not just ...
enforcing this fishing in federal waters, but is going
to be enforcing these priorities and restrictions on
state waters. So that's how this territorial effect
is going to eventually come into play. ...
I took a day and I researched it just exhaustively.
... And it's just clear that the federal government
has that power. It starts in Kleppe [v. New Mexico].
There's a case in the Minnesota waters, the Canoe
Lakes (ph) or someplace up there; ... that was very
clear - they said we're going to resolve an issue
that wasn't resolved in Kleppe. Then there's an Idaho
case on it there.
And as you look through, you find cases throughout
virtually all the circuits in which that principle
that the federal government, ... to the extent that
it's necessary to achieve a federal end on federal
lands, can take action ... to achieve that end on
state land. And that seems to be the settled law. So
I just point that out, that when you talk about where
we're really heading in this area, I'm fearful that's
where we're heading, and we should head it off, to use
a pun.
Number 2567
ATTORNEY GENERAL BOTELHO added:
Whether or not this amendment is adopted, we're faced
with that issue today, and the state does have a
subsistence priority now; it's not based on place of
residence. We struggle with that issue virtually
every year. ... My sense is, ... with respect to
subsistence harvesting on the "upriver versus
downriver," that there is a great appreciation in
rural Alaska about that very conundrum, and that
people do share resources and satisfy those basic
subsistence needs, even if ... it has, in many
instances, meant the full curtailment of commercial
fishing, for example, but that to the extent there
isn't enough to satisfy all subsistence users, there
is also - and part of the culture has really been -
the sharing of those resources up and downriver.
And for its part, I think the state has also looked
... to see what other, alternative resources are
available ... to rural Alaskan in making that decision
as well. I think on the ground ... the villages of
rural Alaska have, on their own, without state
intervention, also tried ... to make sure that no one
goes hungry who depends on the resource.
Number 2652
REPRESENTATIVE GREEN said:
If Alaska was granted statehood on equal grounds with
others ... and then subsequent to that there is a
federal law that's passed specifically for this state,
as opposed to the other 49 states, I can remember that
last year you indicated that ... the state did have a
pretty good case, but that it was dropped. ... Do you
feel that if we don't modify our state constitution,
and that someone else can show damage because of
federal intervention, that that would justify a case
to raise again, and perhaps be heard ultimately by the
supreme court?
ATTORNEY GENERAL BOTELHO responded:
I probably need some refreshment because I'm not sure
on this particular point -- if it's the question of
the constitutionality of ANILCA, my view always has
been that Congress clearly has the power to enact
legislation that governs its lands, ... plenary
authority over its lands. ...
I think the companion part of it is a doctrine that
was fairly implicitly adopted during the Nixon
Administration, ... a form of federalism which allows
Congress ... to put stipulations on ... states; that
is to say, as in this instance, "State of Alaska, you
don't have to manage on our lands. You can continue
doing exactly what you're doing right now. We'll do
it our way here. But if you want it, and if it's
important enough to you, we'll let you have that
authority [under] these conditions. We're not
directing that you have to do this at all." That act
would be unconstitutional, ... or, I think, [it] makes
a good argument, at least, that that would be an
imposition directed to state officials that Congress
could not make.
But the fact [is] that Congress has simply said, "Here
it is; if you want it, you can get it only if you
satisfy these conditions." ... If Alaska wants to
manage throughout the state, including the public
lands of the state, it has to pass laws of general
applicability that comply with the same priority the
federal government exercises, and it must provide for
the same definitions and participation.
Number 2821
REPRESENTATIVE GREEN suggested Kleppe could affect state and
private lands as far as game is concerned. He also suggested
the state should have control of its waters, but acknowledged
that it is under debate. He mentioned the possible imposition
of federal restrictions on state lands.
TAPE 02-45, SIDE B
Number 2859
MR. COLE suggested it seems almost a given that if there is to
be a restriction on federal land with regard to caribou, for
example, then there should be one on state lands; the same is
true for salmon. He remarked, "My point is that we are going to
be faced year after year with encroaching federal power on state
lands and state, close quote, waters. And so ... we should ...
get that control back in the state as rapidly as we can, because
pretty soon the federal government, under ANILCA, is going to be
managing on all these state lands and waters." He acknowledged
that the foregoing might overstate the case a little.
REPRESENTATIVE GREEN said it seems ridiculous that the state
will have to do it the federal way in either case, by changing
the constitution to comply with ANILCA or else by maintaining it
but ending up doing it the federal way regardless. He suggested
it is paramount to go to the U.S. Supreme Court. "We're never
going to be able to agree," he said. "I can't possibly give up
my state's rights because the federal government is threatening
me with taking over my state's rights."
MR. COLE responded:
I'll put it in one word. As we live in these states,
... we must recognize - whether we ... like it or not,
in a way - that the federal law is the supreme law of
the land, ... constitutionally and by statutes. ... It
isn't as though we're plowing new ground here. ...
This has been the law for ... 200 and some years. And
... whether we like it or not, ... that's the way it
is. ... There's lots of federal laws that I personally
deplore, but I obey them because they're the supreme
law of the land. And ... I just think we in this
state must recognize that and get along with our
business, recognizing that principle.
CO-CHAIR MASEK acknowledged the presence of Representative
Whitaker.
Number 2712
REPRESENTATIVE FATE asked how the state can regain control if,
as suggested, the [federal] subsistence board supersedes [state]
management in allocation of fish in the rivers.
ATTORNEY GENERAL BOTELHO answered:
If the amendment passes and we pass the appropriate
implementing statutes, the federal subsistence board
ceases to exist. It will be the [state] boards of
fish and game that will be making the final decisions
in terms of ... not just allocation, but questions
about ... what is rural, what is ... in the particular
areas, those stocks and populations that are found to
be in need of restriction, identifying basically the
areas for each of those stocks and populations that
... would constitute the area for which the priority
would (indisc.). They basically will have the full
management role; there will be no federal management
role.
Number 2636
REPRESENTATIVE FATE asked what process exists to mitigate
problems that will arise as some rural areas cease to be rural
in the future.
MR. COLE said that is why he'd argued, unsuccessfully, that
subsection (b) should begin, "The legislature may provide",
rather than, "The legislature shall provide", to enable the
legislature to deal with the demographics over the coming
decades. He cited Washington State, admitted to the Union in
1889, as an example, and mentioned the Yakima Indian
Reservation; he also cited Arizona, which was admitted in 1912.
He suggested it might not be in the best interests of the Native
peoples to have "shall" because there already are problems in
Alaska in places like Eklutna where the demographics are
changing. He concluded, "So that's why I thought we should have
'may', to deal with what you say."
REPRESENTATIVE FATE asked why Mr. Cole's argument hadn't
prevailed [in formulating HJR 41].
MR. COLE said he was outvoted.
Number 2505
ATTORNEY GENERAL BOTELHO offered the following:
I think there are two points. First of all, whether
it's "may" or "shall", with regard to the demographics
that really isn't an issue. All of us recognize that
"rural" is not static and there will need to be
administrative, legislative decisions about what
constitutes rural, and it's going to change. Both the
federal and the state systems have always recognized
that there will be changes to what constitutes rural
in the state. And they're not going to be easy
choices anytime you get into a situation where you
have a transition area going from rural to nonrural.
But I think virtually everyone in the process
recognizes that's a possibility.
"Shall" versus "may", more specifically, and why, I
think, the strong majority believe that it should be
"shall", was a reflection in part, ... in varying
degrees, on the ease to distrust that if there were
simply an authorization to the legislature ... to
provide the priority, that the legislature might well
not choose to provide it, and, I think, a basic
concern that by making it simply permissive, the
legislature, for whatever reason, might conclude that
it would not try to meet the needs of its rural
residents, Alaska Native and non-Native. And so I
think that was a large part of ... the concern about
mandating it.
I will say at the same time that the test, in terms of
compliance with ANILCA, is not contingent on its being
"shall" or "may". The authorization needs to be
there. The test and what will be examined by the
Secretary of Interior to determine compliance are the
laws that come out of the constitutional amendment -
that is, the statutes you enact, and not the amendment
itself. The amendment by itself will not bring us
into compliance.
Number 2372
MR. COLE expressed confidence in the ability of the legislature
and said that to the extent the legislature doesn't provide that
priority, ANILCA kicks in and becomes effective. He said he'd
thought that saying "may" [in subsection (b)] would allow the
Natives peoples to be protected regardless, because they still
would be protected by ANILCA.
REPRESENTATIVE FATE brought attention to the definition of
"subsistence" and said:
I sometimes have a problem with that, not in trying to
delineate whether they truly subsist anymore or
whether they did 50 years ago or whether it's
supplemental or what. But ... one of the recognized
parts of that definition is it depends on fish and
wildlife where the dependence is quite high. Am I
mistaken in that? And if I'm not mistaken, I'd just
like to go on a little bit further with that. ...
There are some areas in the state, even as we speak,
where that dependence is not based on economics, but
is based on more a traditional lifestyle, where they
can go to the stores because the income is high, where
they do not really depend on that, but ... only
through the traditions - that I think are important,
incidentally - ... do they still maintain that
lifestyle, but truly they don't have to. How is that
going to be dealt with? Or is it going to be dealt
with as ... we, for example, may have gas in the
Interior, on the river systems, that the state
develops? You're going to see not just demographic
changes; you're going to see economic changes. Is
that going to be dealt with at all?
Number 2229
ATTORNEY GENERAL BOTELHO responded:
In terms of what constitutes subsistence uses, the
place I start is just looking at what it was that
Congress itself intended when it enacted Title VIII
[of ANILCA]. And it simply described it as customary
and traditional uses by rural Alaskans of wild,
renewable resources for direct personal or family
consumption as food, shelter, fuel, clothing, tools,
or transportation, for the making of and selling of
[handcrafted] articles, or barter or sharing for
personal or family consumption, and for customary
trade.
The focus is first on customary and traditional uses
by rural Alaskans, and then, again, for personal
consumption and use. The other two are perhaps more
subsidiary - that is, the making and selling of
articles and barter. It's not clear to me,
Representative Fate, whether you're focusing on the
traditional means, which, of course, itself changes
over time: the snowmobile as opposed to the sled [or]
the use of bow and arrow as opposed to a rifle. The
focus here is on the uses.
And clearly there [is] some focus on methods and means
as well, ... but that's something we've basically
delegated to the experts that we have in fish and game
to make - and ultimately to our boards - in
determining [what] is the appropriate gear that may be
used. What are the appropriate species that have been
harvested customarily and traditionally - not every
species currently in the state has that tradition. I
don't see this as so much an issue, again, at the
constitutional level as (indisc.--papers shuffling)
the administrative level, which has, I think, pretty
great flexibility but also has the expertise that one
could not expect either from the people voting on a
constitutional amendment to include or, for that
matter, the legislature (indisc.) necessarily.
Number 2085
REPRESENTATIVE FATE indicated he has some fears about it because
the titles, including that for the proposed constitutional
amendment, relate to subsistence. He said that is why he wanted
clarification about the definition of subsistence. He added,
"It wasn't just what you mentioned, and I appreciate that, but
it's also the very fact that their economics change ... in these
rural areas, and whether or not that will have an impact on the
title 'subsistence' as it is ... referred to in the amendment
itself of the constitution does, I think, affect that change,
and it certainly - at least psychologically, I think - will
affect the decision of some people."
Number 2045
CO-CHAIR MASEK offered her understanding that under ANILCA the
federal government has definitions for customary and traditional
uses, customary trade, and rural resident, but that the state
doesn't have those definitions. She requested confirmation.
ATTORNEY GENERAL BOTELHO responded, "Or regulations. And we do
have some of our own; ... there are some areas where we have
definitions that have no corresponding federal definitions, and
vice versa."
CO-CHAIR MASEK mentioned ANILCA and the terms "noncommercial,
long-term taking, use of fish and wildlife, to a specific area,
and it has to be an established use, and then the customary
trade means limited noncommercial exchange for money, and rural
resident is rural community or area substantially dependent on
wildlife." She added, "But as the attorney general said, we
don't have any, really, definition in statute, though, that
defines what is customary and traditional; it's probably done
under regulation, but it's not in statute."
ATTORNEY GENERAL BOTELHO replied, "That's right - it is done in
regulation." He offered to check further.
MR. COLE told Representative Fate:
But Congress has dealt with that ... by federal
statute; it's dealt with what subsistence means and
what subsistence is; ... there again, we're stuck with
it. I think that's ... how I would answer your
question, "What are we going to do about these
things?" Well, until Congress changes ANILCA, then
those definitions of subsistence [are] in ANILCA;
that's what we're faced with.
Number 1894
REPRESENTATIVE McGUIRE agreed with Mr. Cole about the argument
regarding "may" and "shall". She questioned the logic in having
subsection (b) say "shall", when subsection (c) - which also
recognizes subsistence use, but on a lower level - says "may".
ATTORNEY GENERAL BOTELHO, noting that he'd already addressed the
"shall" portion, said the "may" was a reflection "that we could
see strong, competing arguments about whether the legislature
should or should not have the ability to grant lower subsistence
priorities, that there were different groups of people who
believe they should have entitlement; others were of the view
that any subsidiary subsistence priorities would seriously ...
damage the core group that we were trying to reach." He
elaborated:
I don't think we were being crassly political, but I
think we were trying to find a formulation that we
thought would garner additional votes [for the
proposed amendment]. And part of the message that we
heard, in talking with legislators and hearing their
pronouncements about concern that "if it's just a
rural priority, we're not buying it," we tried to find
an avenue that would try and address a spectrum of
concerns: on the one hand, concerns about urban
Natives who would otherwise have no ability - or some
subset, in particular, the situation described by the
Eklutnas and the Kenaitzes - and on the other hand,
certain urban hunters and fishers who would claim that
they had a subsistence tradition and way of life that
should be recognized. We wanted to empower the
legislature to be able to deal with that if it would
make a difference. And so ... it's a whole range of
potential groups that could benefit.
As [Mr. Cole] indicated, this was one of the most
hotly debated parts of our proposed amendment. That's
part of the reason it is not mandatory, as we
recognized there were these competing interests, some
who said, "Forget the idea altogether," others who
said, "Why, this is actually moving us in the right
direction." And we wanted to, I guess, signal
directly that we saw this as an option. And as I
commented before, I think most of us agree that the
legislature probably has the authority ... to do what
we proposed here without a constitutional amendment.
But this certainly would remove that legal argument.
Number 1690
REPRESENTATIVE McGUIRE again lauded the argument put forth by
Mr. Cole, saying that in her mind, it can only be political to
use "shall". If the legislature doesn't do it through statutes,
then ANILCA will kick in. She said:
I would argue just the opposite should be made as a
political statement: the word "may" ... should be
there. And I think that part of that should be that
if this does go through, and if we do end up reaching
some consensus, if it happens to be this version, that
there ought to be some steps made toward creating some
trust between the legislature and the parties and
interests here. I think the downside is nothing,
because certainly with "may" there ... the results are
going to be the same anyway, and the upside ... is
good in the sense that it may build some trust.
ATTORNEY GENERAL BOTELHO responded:
And I subscribe to your view. I think the very act of
the deliberations we're going through now, the
seriousness with which you're taking it, is ... one of
those steps in terms of rebuilding that confidence
that we'd like all Alaskans to have towards ... our
elected [officials].
Number 1605
REPRESENTATIVE McGUIRE interjected and said her questions relate
to the definitions, which are in three distinct portions:
customary and traditional use, mentioned in the first section;
customary and direct dependence as the mainstay of livelihood;
and, in subsection (c), customary and traditional use. She
said:
The statement was made that it's already in federal
law and we're stuck with it, so to speak ... or we're
going to live with it. ... Is it your opinion, ...
should a constitutional amendment like this, if it
were in this form, pass, that the legislature would
have the authority and ability to go back in and
reexamine those definitions on some level, at each of
those different levels, to define what those things
mean?
Number 1532
ATTORNEY GENERAL BOTELHO replied that he thinks there is a
degree of discretion to do that, first, to the extent federal
law isn't in direct conflict over definitions. "And I think
customary and traditional is an area that has some flexibility,"
he said, indicating [the legislature] has already acted once in
terms of defining customary and traditional; he acknowledged
that there is a point at which a definition might be considered
so unreasonable "that it would be outside your discretion."
ATTORNEY GENERAL BOTELHO said ultimately there will be two
tests. The first, probably the most serious, is review by the
Secretary of the Interior of the entire regulatory scheme that
Alaska establishes, less the constitutional amendment than the
specific statutes put into place and whether they provide, in
[the Secretary's] view, the requisite priority, definitions, and
participation. He suggested the state is "generally in a
position to implement once that ... sign-off has taken place."
He said the second possible check would be some challenge in
court about whether [the state's] definition either itself
conflicted with ANILCA or was being applied in a way that
conflicted with ANILCA. He added, "I don't think the remedy
there is to completely invalidate the program, but to ... push
for some form of more limited change in state law."
Number 1398
REPRESENTATIVE McGUIRE said at its core she supports the idea
that people ought to be able to live off the land, and that
"those peoples who have been doing it the longest ought to be
able to continue that use." She suggested it starts to get
complicated in this precise definition area, however, which sets
up "pyramids" and thereby narrows availability of the resource.
If customary and traditional use is defined so broadly that too
much of the resource is used up, and there is an inability to go
to the next step, she said that is where she starts "to have
some tension." She elaborated:
And what I'm talking about here is living off the
land, the second part, where you say "as a mainstay of
livelihood," living off the land, ... eating it,
consuming it, bartering it to the extent that you need
for energy costs or things like that; that's fine.
But we have seen some examples in Canada, for example,
with First Nations, ... where the pendulum has swung
too far, and you have situations where you have such a
high degree of commercial, if you will, subsistence
use, but really more commercial use of a resource,
that you ... deplete the resource to the point that
other users then don't have any meaningful or fair
opportunity to participate at all - granted, on a
lower level, but at all.
And so that's my concern, and that's where I want ...,
as we continue these debates, to really focus on. Is
it a monetary amount? I don't know; maybe that's one
way to go. I don't know what would ... satisfy
ANILCA. ... I want people to be able to have those
traditional and customary uses, but I want them to
really be those things, and not ... so much more. ...
When I say that, it doesn't mean that I am suspect,
because I know that [for] Native people, by their very
culture, ... it is inherent to preserve and respect
the culture. ... But there's always that potential
that if you expand it so broadly, ... we're going to
enter into that crises period where there just isn't
enough room for those on the lower level, and I'd hate
to see that. ...
I live in South Anchorage. I have neighbors that ...
truly fill up their freezers every winter - my husband
and I do too - with fish and meat, and live off it.
Granted, we have a grocery store just around the
corner, and I recognize that. But there are people
that do truly enjoy and live upon the fish and game
that are here in Alaska, and I'd just ... hate to see
that happen. So we'll continue to talk.
Number 1196
ATTORNEY GENERAL BOTELHO noted that those points reflect
discussion over the years in terms of the statutory framework.
He said although there hasn't been widespread abuse, instances
have caused people to wonder what noncommercial barter is, for
example, or limited kinds of sales. He offered his sense that
there has been fairly universal recognition of the need to deal
with the issue in order for people to be comfortable on all
sides about the importance of subsistence, and that it not be a
guise for commercial activities. He said there are some good
ideas that could be addressed, and a great opportunity to deal
with these issues during the next several days.
Number 1072
REPRESENTATIVE STEVENS suggested that when restrictions are
necessary, and only then, will there be a priority, because [HJR
41] doesn't say there will be a priority when there is an
abundance. He mentioned ANILCA and federal law and asked, "Is
that next step part of ANILCA?" He referred to a comment by
Nelson Angapak at a previous hearing [April 5] that "priority
must be given to subsistence harvest patterns and practices even
when there is an abundance of the resource." He inquired about
the necessity of that.
Number 1004
ATTORNEY GENERAL BOTELHO replied:
This is almost in the nature of a theological debate,
and I say that only half facetiously. And that is
because if there is an abundance, by its very
definition or nature, every need is satisfied,
including the subsistence need; it would be the first
need, but it would mean all the other needs are
satisfied. ... I can say, "Well, subsistence is always
in effect because when there's an abundance all these
needs are taken care of," and ... there are others who
say, "Well, no, we don't have subsistence, in essence,
when there is an abundance because everybody's needs
are satisfied, and it only kicks in when there is a
shortage."
I think it really is a nonsensical distinction; I
haven't been persuaded otherwise. ... If there is an
abundance of the resource, every need, by definition,
is satisfied, most importantly, the subsistence need.
And when there's a shortage, subsistence kicks in.
Number 0886
MR. COLE added that he doesn't know what abundance means,
because there is never so much that everybody gets to take as
much as he or she wants. And subsistence users don't get to
take as much as they want either; there are established rules
and regulations with regard to amounts and allocation. He
suggested Commissioner Rue could better explain and said, "It
works, really, pretty well out there, as a matter of practice."
He gave hypothetical examples of allocations, noting that the
sustained yield principle limits the amount of harvest.
Number 0770
REPRESENTATIVE STEVENS asked whether ANILCA speaks to that
issue.
ATTORNEY GENERAL BOTELHO responded, "Not in terms of abundance,
but it talks about the necessity of restriction." He read from
[Section 802 of Title VIII of ANILCA, the policy section], with
comments:
"... nonwasteful subsistence uses of fish and wildlife
and other renewable resources shall be the priority
consumptive uses of all such resources on the public
lands of Alaska" - and here is the operative language
- "when it is necessary to restrict taking in order to
assure the continued viability of a fish or wildlife
population or the continuation of subsistence uses of
such population...."
ATTORNEY GENERAL BOTELHO noted that it has the same basic
operative language, "when it is necessary to restrict".
CO-CHAIR SCALZI announced that the committee would continue with
questions and then take testimony the following morning.
Number 0636
REPRESENTATIVE KAPSNER expressed concern about the willingness
to go only so far as "may", rather than "shall", however good
the intentions are towards Native Alaskans. She said:
I want to preface what I'm going to say with a
comment: This is not a Native issue anymore. This is
largely a Native issue; Natives are concerned about
it. But when we talk about it in the state, it's
always characterized as a Native issue. This is a
rural issue. Many Native people wish that we could go
back and this was just a Native discussion, but we're
not there anymore, and we'll never go back to a Native
discussion. This is a rural - not versus - but a
rural issue in the state. Sixty or sixty-five percent
of rural Alaska is non-Native. This is not a Native
issue.
I think that entities in the state have a tendency to
... characterize us as being noncompromising: "Oh,
those Native people, they won't budge." And every
special session that we have not been successful [in]
getting a rural priority ... has been blamed, I think,
in some part on Native people. And I think that that
is unfair, first of all.
Secondly, I am concerned that there is a willingness
to only go so far as "may" and not go to "shall". ...
I've only been here [as a legislator] for four years,
but I have seen things that I ... never would have
expected statesmen from my own state to do - things
such as zeroing out the subsistence division of the
Department of Fish and Game. And there are members of
this committee who chose to do that. That gives me
very much alarm, because ... it's not like the
subsistence division promotes subsistence over any
other use. It's not like they teach people how to do
subsistence. ... It's really not even the division of
subsistence; it's the division of research. But I
think because it has that label of "subsistence," it's
an easy target.
I've sat in a legislature that has advocated to make
speaking any other language but English at meetings of
state agencies illegal. ... And so I don't have a lot
of confidence that this is a group of people who,
without "shall" or implementing language, is going to
give rural people ... their rights.
Number 0395
MR. COLE replied:
ANILCA is there regardless of whether it's may or
shall. ANILCA is your fundamental protection, and it
will last there, ... absolute in its terms, as long as
that statute is on the federal books. So the rural
people ... are totally protected, whether it's shall
or may, until Congress changes ANILCA. And that, in
my view, is not likely to happen in my lifetime or
yours either.
REPRESENTATIVE KAPSNER responded:
That's why rural people are quite content with federal
management. It used to be, ... in other subsistence
special sessions, you had rural people advocating the
hardest for ... the state regaining control, and that
sentiment isn't there anymore. We're ... quite
pleased with ... federal management....
MR. COLE said:
I'm surprised that the rural people, including the
Native people, have continued to support the state
constitutional amendment, and I applaud them for doing
it, because I think in the long run it's in their best
interest that they do, that we can solve these
problems ourselves in Alaska best, as we come together
to resolve [them]. And that's why I've supported this
for the last 12 years.
Number 0269
REPRESENTATIVE GREEN asked, "How can ANILCA be held to be
constitutional when it provides for special treatments, both by
states and by groups?"
ATTORNEY GENERAL BOTELHO noted that he and Mr. Cole had
discussed that just that day. He requested that Mr. Cole reply
first.
MR. COLE cited handicapped parking and federal progressive
income tax provisions as examples where there is inequality;
with regard to the first, he pointed out that legislators had
decided some people need that parking place more than he does,
and he called it a rational legislative enactment. He suggested
that in some ways equal protection is a public myth; he said
thousands of statutes have unequal provisions, but those are
within legitimate aims of this body and Congress. He indicated
the question is whether something is a reasonable provision to
achieve a legitimate end and doesn't impact fundamental
constitutional rights.
TAPE 02-46, SIDE A
Number 0001
MR. COLE pointed out that this legislature has passed many
statutes that don't provide equal protection.
REPRESENTATIVE GREEN noted that handicapped parking and
[federal] income tax aren't specific to one state or another.
However, [HJR 41] relates to where a person is located.
MR. COLE asked whether provisions for hunting in the Okefenokee
[National Wildlife Refuge in Georgia] are the same as for north
of the Brooks Range with respect to the taking of game, for
instance. He noted that they are federal preserves. He said
Congress is able to look at these particular tracts of land and
exercise its plenary power to deal with federal land. In this
case, [ANILCA] is to achieve the end of providing subsistence
for rural peoples who live off the land. He indicated the
question is whether it is a rational provision to achieve those
ends. He said that clearly it's a permissible end "to allow
rural people to need these resources historically and currently
... for their subsistence"; that's a rational objective. As to
whether the means Congress has chosen to achieve that end is
reasonable, he suggested that Representative Green would agree
it is. "End of question," he concluded.
Number 0236
ATTORNEY GENERAL BOTELHO added that it doesn't have to be a
perfect fit. For example, there will be some rural Alaskans who
have no need to subsistence hunt and fish, whereas some in urban
Alaska will be identified who have no other means. He said that
generally speaking, the courts won't require a perfect fit; it
has to be a rough fit. Although a more closely tailored fit
might be required depending on the right, he said that for an
issue dealing with the taking of fish and game, for example,
"it's a nice, rational shorthand - rural." He added, "If one
looks at ANILCA, Title VIII, Section 801, which really are the
congressional findings, there's no doubt ... [that] if they have
legitimate governmental objectives [and] they have found a
rational means to achieve those objectives, it's going to be
upheld by the courts - and so far, in fact, have been where ...
they've been tested."
MR. COLE recalled reading a case in Montana a number of years
ago in which the U.S. Supreme Court said hunting and fishing are
not among the highest federal protected rights or privileges
like freedom of religion, freedom of press, and so forth. Mr.
Cole said the right to hunt and fish falls way down on the scale
of protected rights. He clarified that he was just reporting on
what he believe the law is, rather than stating his personal
feelings. Noting that he has worked on this issue for 12 years,
he said, "I've come to what I think is the right conclusion, and
it's changed about 180 degrees.... I really think that we ought
to do it, and get it behind us, so we can get on to facing these
other great problems we have together in this state."
Number 0513
REPRESENTATIVE GREEN noted that often there has been a list of
[conditions] brought up when there has been an issue of changing
the constitution, such as getting a compromise from the federal
government to change some provisions of ANILCA. Noting that
[HJR 41] doesn't require such a change, he asked, "Do you think
by acquiescing that there would be any chance to get compromise
after we change our constitution, or are we hoisted on our
petard and there ain't no way out of this?"
MR. COLE replied, "No."
REPRESENTATIVE GREEN asked, "On all three."
MR. COLE said he'd lost track.
REPRESENTATIVE GREEN strongly disagreed with Mr. Cole, but said
he understood.
MR. COLE responded, "You remember, [U.S.] Senator Stevens
enacted some definitions here, and they were generally concurred
[with] and seemed to be a step forward, and then they dropped
out by lapse of time, you know."
Number 0628
ATTORNEY GENERAL BOTELHO responded:
If I could distinguish myself from [Mr. Cole] on this
point, only to this extent: you're certainly right -
there have been proposed changes before, and clearly,
I think, they will be considered. But what we have
offered, though, does not provide for any ANILCA
changes and, again, it was a reflection that we were
unable to reach consensus on that point within the
drafting committee. A majority did not believe that
there was a need for ANILCA changes, and there was a
fairly large minority who did believe that it made
sense. ... But in terms of timing, I think it's also
fair to say that those who believe that changes should
take place did not believe they had to be a
prerequisite to the constitutional amendment.
Number 0699
REPRESENTATIVE KERTTULA said:
Intellectually, I understand what you're saying
between "may" and "shall", and I do understand about
ANILCA and the protections for Native Alaskans. But
if we put "may" in this and we send it to the voters
and adopt it and then the legislature doesn't act,
where does that leave us with our fisheries? What
happens to the other areas? ... Perhaps we have
protected the group under ANILCA, but by not adopting
[laws], if we don't do that, ultimately ... we're
right where we are now, are we?
MR. COLE replied, "Yes." He expressed confidence, however, that
the legislature will enact laws of general applicability
consistent with ANILCA because of the desire to regain control
over those resources.
Number 0812
ATTORNEY GENERAL BOTELHO added:
I don't agree with [Mr. Cole's] analysis, but it
brings me back to comments and a concern that
Representative Green flagged, and that is the state's
rights issue. ... I'm not motivated primarily because
I want to bring the state in compliance with federal
law. Over the years that I've been involved with ...
this issue, I think I've ... learned a lot. But my
sense is that most Alaskans would say, number one,
subsistence should be the top priority. I haven't met
a legislator who would disagree with that; I haven't
met a legislator who would disagree that most places
we would identify as Bush Alaska shouldn't have the
priority. ... I've found a sense of that culture,
where we can still see it vibrantly today.
A lot of the battleground is really over the edges, in
some respects. But the reason for looking at a
constitutional amendment and looking for "shall"
perhaps less than "may" has not much to do with ...
what role the federal government plays, but it's a
statement about ourselves and what we think ... is
important to Alaska, and that we stand on our own to
say, "We think subsistence is the most important
thing, and ... we - as the people of Alaska, not the
people under duress by the federal government - direct
our legislature to act," and with the ... assumption
that they will act.
Number 1025
And I'm not troubled if it's "may"; I'll be honest
with you ... there as well. But I think the primary
message is that we should be doing this not because of
some external reason, but because we think this is the
right thing to do for our state, and we want to make a
statement about what kind of state we live in, and
that we have pride in the fact that we have ... both
[a] Native and a rural way of life that we think is
part of who we are, and what we're proud of. And
that's the reason to act, ... and not focus that this
is the federal government trying to cram something
down our neck. ...
I'm not the biggest state's rights champion, but I
respect that there are lines that the federal
government should not cross. I think, on this one,
... this would be the right thing to do if ANILCA
didn't exist. There may well be a day when ANILCA
does not exist. And, of course, that's part of [Mr.
Cole's] view, as well, in terms of why it should be
"may". (Indisc.--coughing) still to have our basic
law declare the importance of subsistence to who we
are as a state, I think is really important.
Number 1077
REPRESENTATIVE FATE mentioned testimony that the Department of
the Interior would have to sign off on regulations or statutes
that flesh out any constitutional amendment. He characterized
ANILCA as a stopgap and offered his understanding that the
federal courts would have final jurisdiction. He asked:
Did it ever come up in your conversation at all ...
that perhaps a constitutional amendment wasn't needed,
that you could do this ... by statute law, providing
in that statute law that you had language that said
that perhaps, for example, that the Department of
Interior would have either concurrence or oversight on
these statutes, recognizing that one legislature can't
hold the other one hostage, but you still would have
all these protections, including language in the
statute itself. Was this ever discussed?
ATTORNEY GENERAL BOTELHO answered:
As you have formulated it, the answer is no. I'm not
sure that it could be achieved in any event. ... The
conundrum is this: The state does not get to manage
on federal lands if it doesn't have a law of ...
general applicability that provides for the rural
priority, but the Alaska Supreme Court says,
"Legislature, under the current constitution you don't
have the authority to enact just such a law." And so
... there isn't a paradigm I see that would bring us
to that unitary management by legislation alone. And
that really was ... the effort that Governor Hickel
undertook, and [Mr. Cole] was part of an intense
effort in Governor Hickel's first year ... to try and
see if there was a solution for it of a constitutional
amendment. And ... a lot of good was done that really
has been the basis for a lot that has followed. But
we're unable to find an answer.
Number 1260
MR. COLE said:
I think the answer to your question is "no" because
the McDowell case said that we couldn't do it. ... But
beyond that, ... we tried some innovative other view
and approaches, but we sort of, I think, at the end
concluded that they were just too complicated and just
wouldn't ...
Number 1306
CO-CHAIR SCALZI commented that his experience with federal law
is very limited, but said:
During the IFQ [individual fishery quota] debate that
we went through, I was one of the people that signed
on as a friend of the state. And when we were sued
because of the alliance against IFQs and took it all
the way through the federal courts. And the halibut
Act is one of those Acts that you talk about that's
very similar to ANILCA in that it provided, in 1923,
initially, federal sovereignty over halibut in our
waters. And even though we became a state and we have
a three-mile limit of state jurisdiction and control,
the halibut Act of 1923, and then reauthorized in
1953, I think, superseded that. So I found out that
there's two things that ... we can't regulate in the
state of Alaska in our waters, and one is halibut and
the other's fur seals, and it was because of those two
federal Acts that kind of go hand-in-hand with what
we're talking about here.
CO-CHAIR SCALZI and CO-CHAIR MASEK thanked Attorney General
Botelho and Mr. Cole for their participation. [End of
discussion of subsistence issues, including HJR 41.]
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 7:25 p.m.
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