Legislature(1997 - 1998)
04/25/1998 05:15 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 25, 1998
5:15 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Johnny Ellis
MEMBERS ABSENT
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
OTHER MEMBERS PRESENT
Senator Jerry Ward
Senator John Torgerson
Representative Joe Ryan
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 406(FIN) am(efd fld)
"An Act authorizing the Board of Fisheries and the Board of Game to
identify fish and game that are taken for subsistence and to
identify subsistence and nonsubsistence areas; relating to the
establishment of preferences for and to regulation of subsistence
fishing and hunting; relating to advisory committees."
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
No previous action to report.
WITNESS REGISTER
Ms. Mary Nordale
100 Cushman, suite 311
Fairbanks, Ak 99701
POSITION STATEMENT: Commented on HB 406
Mr. Ralph Seekins
Alaska Wilderness Conservation Association
11625 Old Steese Hwy.
Fairbanks, Ak 99701
POSITION STATEMENT: Commented on HB 406
Mr. Gabe Sam
Tanana Chiefs Council
122 First Avenue
Fairbanks, Ak 99701
POSITION STATEMENT: Commented on HB 406
Mr. Harold Gillam
104 2nd Avenue
Fairbanks, Ak 99701
POSITION STATEMENT: Commented on HB 406
Mr. Jerry Booth
2941 Capstan Drive
Fairbanks, Ak 99516
POSITION STATEMENT: Commented on HB 406
Mr. Bob Penney
3620 Penland Parkway
Fairbanks, Ak 99508
POSITION STATEMENT: Commented on HB 406
Mr. Charles Derrick
891 Seldom Seen Rd.
Fairbanks, Ak 99712
POSITION STATEMENT: Commented on HB 406
Ms. Mary Bishop
1555 Gus's Grind
Fairbanks, Ak 99709
POSITION STATEMENT: Commented on HB 406
Mr. Johne Binkley
5325 Chena Small Tracts Road
Fairbanks, Ak 99709
POSITION STATEMENT: Commented on HB 406
ACTION NARRATIVE
TAPE 98-41, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 5:10 p.m.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
MARY NORDALE testified to her dismay with HB 406 and said it will
not solve our state's problem. MS. NORDALE said on December 1, 1998
Alaska will lose control of fish and game management on federal
land and the federal authorities may expand this control to cover
habitats, spilling their jurisdiction over onto state and native
lands. MS. NORDALE expressed her hope that the Senate will adopt a
resolution calling for a constitutional amendment to bring the
state into compliance with ANILCA and allow the voters of the state
to make the determination if they want the state to return to
territorial status or to move forward. A decision must be made by
the people. MS. NORDALE suggested the failure to put this question
to the vote could wreak havoc on the State and the people should be
allowed to decide this issue. She again urged the committee to pass
out a resolution for a constitutional amendment in compliance with
ANILCA. MS. NORDALE said she does not like HB 406 since it does not
meet ANILCA requirements for a rural preference. Though she does
not object to the principle of the bill, MS. NORDALE maintained it
will not work and would not allow Alaska to retain control of fish
and game resources.
Number 128
SENATOR LEMAN asked if the law explicitly requires a rural
preference or only the acknowledgment of importance of fish and
game harvesting to rural residents.
MS. NORDALE replied the authority given to the fish and game boards
was broad, and it was true that the fish and game board adopted
regulations to this effect, making it state law. She said the
management scheme at the time ANILCA was adopted granted a rural
preference
CHAIRMAN TAYLOR announced Senator Lincoln was also on line.
Number 167
MR. RALPH SEEKINS, representing the Alaska Wildlife Conservation
Association, said subsistence is an important subject which demands
the utmost respect and they should ensure that whatever is done
regarding this issue is legal. MR. SEEKINS indicated his group has
looked at several important documents leading up to the statehood
of Alaska, including the Statehood Act, Alaska Omnibus Act and
Executive Order #10897 which says federal management of fish and
game is terminated. MR. SEEKINS' group also looked at the Equal
Footing Doctrine and the Public Trust doctrine as well as the
Dinkum Sands case where it was decided submerged land control is
essential to sovereignty. In this decision, Justice Sandra O'Connor
said Alaska owns its navigable waters and all the resources
therein.
MR. SEEKINS said they also examined the issue of public trust. He
asserted that when the U.S. holds lands, it does so in a trust, and
the U.S. Congress is the trustee of that trust for all Americans.
MR. SEEKINS explained that a basic principle of a trust
relationship is that a trustee cannot discriminate against one
trustee for another. Applying this same doctrine to the state
level, MR. SEEKINS makes legislators the trustees for the land and
resources and concludes they cannot discriminate against one class
of Alaskans over another. He argued that no matter what comes
forward, we will come under scrutiny of the court. MR. SEEKINS
declared that ANILCA violates the U.S. Constitution and indicated
the bill needs more work and should go to the Supreme Court,
otherwise the issue will continue being litigated in the courts for
years to come. MR. SEEKINS suggested all legislators as well as the
Governor and the Congressional Delegation should sign onto the
Legislative Council's lawsuit and ask the court for injunctive
relief in order for this to come to adjudication as soon as
possible.
CHAIRMAN TAYLOR asked if MR. SEEKINS had lawyers review this
position and MR. SEEKINS said he had. He cited a similar case, the
Kleppe case, involving wild burros in the Southwest. MR. SEEKINS
said the case decided the U.S. Congress could enact laws to protect
and regulate protected animals. However, the Kleppe case also
concluded, "unquestionably, the states have broad trustee and
police power over wild animals within their jurisdictions. No doubt
it is true but as between the state and its inhabitants the state
may regulate the killing of wildlife," and the allocation demanded
by ANILCA is an intrusion into state's rights. CHAIRMAN TAYLOR
asked if MR. SEEKINS had found any case in which the state had
given up sovereignty so the federal government could come up with
an allocation. MR. SEEKINS said every case makes allocation the
state's responsibility. MR. SEEKINS remarked it seems like there
are two constitutions - one that applies to federal land and one
that applies to non-federal land. MR. SEEKINS said this is not
actually the case and the property clause has never allowed
allocation to be in the hands of the people of the state. He said
regulation powers are reserved for the states even on federal
lands.
MR. SEEKINS continued, saying the property clause could not
override the trustee relationship no matter what. He said when
Alaska became a state, all resources became a state trust as an
essential element of sovereignty and as demanded by the U.S.
Constitution. MR. SEEKINS suggested ANILCA may have no teeth and
may not even be a rightful exercise of power by the U.S. Congress.
MR. SEEKINS thinks Congress may be constrained when it comes to the
application of the property clause in this case and quoted Thomas
Paine to illustrate his point.
MR. SEEKINS continued, saying the Supreme Court ruled Congress is
only the trustee for the United States and may not appropriate
anything for one person to the exclusion of any other. MR. SEEKINS
said the property clause must not create a privilege for one class
over another, and he repeated that he thinks is it important to
adjudicate this issue for a final resolution.
CHAIRMAN TAYLOR said people are desperate to resolve this issue and
since the Administration has done nothing to protect the state's
rights, CHAIRMAN TAYLOR asked what we can do to reassure people
they have these rights and they are worth fighting for.
MR. SEEKINS said the Dinkum Sands case decided that the State of
Alaska controls fishing in state waters, and MR. SEEKINS maintained
we should be asserting this right now. He remarked that there are
three ways to appeal an issue, through the administration, through
the legislature, or through the courts. MR. SEEKINS said it is
right for the legislature to pursue their lawsuit as the trustees
for the state.
MR. SEEKINS clarified that he is neither a lawyer nor a judge, but
he thinks that the Administration has done a grave disservice by
not bringing the Dinkum Sands decision up in this case. Conversely,
he believes the Legislature is on the right track, as trustees of
Alaska's land, and urged them to try to get the Congressional
delegation and the full House and the Senate to seek injunctive
relief until this issue can be brought to the court. MR. SEEKINS
concluded that his research is solid and we should consider
amending the U.S. Constitution before we work to change ours.
SENATOR LEMAN asked MR. SEEKINS his feelings on the bill and MR.
SEEKINS encouraged him to look at the idea that the Legislature
will be subject to a breach of trust lawsuit for allowing benefits
to one class of person over another. He stressed the need for the
abundance of fish and game, especially game, and said this would
provide a solution to the problem. MR. SEEKINS again concluded that
the Legislature might be guilty of violating the trustee
relationship if they establish a rural preference.
SENATOR LINCOLN asked MR. SEEKINS what made him think that this
Legislature is different from others. She said they have been told
to deal with it for more than twenty years and the topic is not new
to the Legislature nor the Administration. She asked if he would
object to a vote on a constitutional amendment. MR. SEEKINS replied
that two recent Supreme Court cases have changed things and served
as a wake up call. He thinks ANILCA has always been a slap in the
face to the sovereignty of the State of Alaska and whatever happens
now must be done with a valid legal basis and not out of fear that,
"the feds are coming." MR. SEEKINS thinks it is impossible to
legally amend our constitution as it would result in one
beneficiary being given rights over another, violating the trustee
relationship and resulting in breach of trust and fraud. MR.
SEEKINS said the Alaskan people will share with one another, but
the trustees cannot give one person's share to another. MR. SEEKINS
also said that not all the beneficiaries (i.e., those under 18,
those not yet born) can vote on this and this would present another
legal problem.
Number 564
MR. GABE SAM, representing Tanana Chiefs Conference, reported that
the people in his organization do not support HB 406, as it does
not comply with ANILCA nor establish a rural preference. MR. SAM
thinks the federal government is moving in for a takeover as was
warned by Interior Secretary Bruce Babbitt.
MR. SAM illustrated the fact that subsistence hunting in rural
Alaska is expensive and does not always result in a kill.
TAPE 98-41, Side B
Number 590
MR. SAM indicated a rural preference is necessary and this has
never been a native vs. non native issue. He called for the
inclusion of a constitutional amendment establishing a rural
preference on the November ballot. MR. SAM commented that this and
other anti-rural legislation coming out of this legislature is
divisive, and he stressed the idea that rural Alaska is not an
urban playground.
CHAIRMAN TAYLOR asked where exactly ANILCA says it provides for
rural preference in times of shortage. GABE SAM did not know
exactly where it appeared but said "it's in there."
CHAIRMAN TAYLOR asked MR. SAM if he was referring to SB 36 when he
mentioned anti-rural legislation. MR. SAM replied yes, and said
this was only one of many bills targeted toward rural Alaska. MR.
SAM asked how people will get an education without the necessary
resources or supplies.
Number 669
REPRESENTATIVE VEZEY asked how "shortage" would be defined. MR.
SAM replied controlled use areas are a good tool to manage predator
population and he doesn't want to see this tool taken away. He
thinks this would result in many problems, including poaching.
CHAIRMAN TAYLOR commented that four more years of Tony hugging
wolves will not help, the only wolves that will die will be those
that die on the operating table while getting neutered.
CHAIRMAN TAYLOR asked if MR. SAM thought a game management system
allowing more local control would be preferable. MR. SAM agreed it
would.
Number 740
MR. HAROLD GILLAM testified that parts of HB 406 are good and
parts are bad but he wanted to speak on the general issue of
subsistence. MR. GILLAM said subsistence is a phony issue. He said
ANILCA does not ensure rural preference only during times of
shortage. He said in managing game, it is ridiculous to try and
control only one of the involved species - man. He said the whole
thing is a management problem, but he agrees with MR. SEEKINS that
ANILCA is an unconstitutional act and the only way to resolve this
question will be in court.
MR. GILLAM said the State of Alaska and its constitution opposes
discrimination. He recalled that after statehood, you no longer
saw signs that said, 'no natives'. MR. GILLAM suggested this was
because Alaska drafted a very strong anti-discrimination clause
into its constitution, and he would hate to see that changed.
CHAIRMAN TAYLOR said it was fascinating that all racial
discrimination incorporated into the laws in this state took place
under territorial rule. MR. GILLAM agreed and noted the U.S.
Supreme Court no longer tolerates anything done on a racial basis.
He added that the U.S. Fish and Wildlife service has mismanaged
Alaska resources before and history tends to repeat itself.
MR. JERRY BOOTH, a mining specialist from Anchorage, testified that
with the help of the legislature, there has recently been a major
escalation of mining which he has not seen under federal control
and he appreciates it. MR. BOOTH believes that increasing federal
rule is unwise. However, he indicated this process is dividing the
state and he asked why we could not provide a constitutional
amendment that allocates locally in times of shortage. MR. BOOTH
said unless this legislature wants to take responsibility for the
federal takeover they should allow the people to vote. His group,
Alaskans Together, wants to avoid a federal takeover at any cost
and believes people should vote on a constitutional amendment. He
urged the committee to provide legislation that would allow this.
CHAIRMAN TAYLOR asked what the difference between the federal and
the state law is and MR. BOOTH replied he is only asking for a
constitutional amendment to bring state law into compliance with
the existing federal law.
CHAIRMAN TAYLOR said only Congress can change the federal law, and
asked if MR. BOOTH wants Alaska to go along with the federal law at
any cost. MR. BOOTH replied the Secretary of the Interior and our
Congressional Delegation has told us that we have until Dec. 1 to
do this. CHAIRMAN TAYLOR again asked what we would be allowed to do
differently from federal law after surrendering to it. CHAIRMAN
TAYLOR remarked he has been told that some modifications and
changes could be made to ANILCA and then later Secretary Babbitt
said it would not be changed. CHAIRMAN TAYLOR asked if anyone at
the federal level had assured MR. BOOTH that Alaska would be able
to make any changes, ever-so-subtle, to ANILCA. MR. BOOTH said he
has not asked that question but Senator Murkowski said if this was
done in a timely manner, they would work on it.
Number 669
REPRESENTATIVE VEZEY asked what the difference between a federal
program administered by the federal government and a federal
program administered by the state would be. MR. BOOTH said he'd
much rather deal with state officials than federal officials.
CHAIRMAN TAYLOR commented that the relationship between EPA and DEC
would be a good analogy, and pointed out that DEC elevates
standards for water quality higher than those required by the EPA.
MR. BOOTH said if the feds are going to control all submerged
lands, he, and all other resource-based industries are out of
business. CHAIRMAN TAYLOR asked if MR. BOOTH really believed that
the state could enforce subsistence any differently than the basic
structure set up by ANILCA.
REPRESENTATIVE VEZEY restated his question about which would be
preferable: the state administering a federal program or the feds
doing it themselves. MR. BOOTH replied it is better for the state
to administer the allocation of fish and game resources. CHAIRMAN
TAYLOR said the state can never change ANILCA, only carry out
federal orders.
REPRESENTATIVE VEZEY commented we are only talking about the
difference in how we manage our fish as the federal government
already controls game; he asked how we can have a commercial
fishing industry. MR. BOOTH had no answer to this question.
MR. BOB PENNEY, co-chairman of Alaskans Together, said he would
like everyone to enjoy abundant resources. MR. PENNEY said
according to every poll their organization has conducted, people
want to vote on this amendment. MR. PENNEY said our Congressional
delegation, the Governor, the Attorney General and a former
Attorney General all have said we must vote on this issue. He
indicated the number of people wanting to vote on this is enormous
and a rural preference has always been the favored solution.
MR. PENNEY said, according to another poll conducted by Alaskans
Together, if the federal government took over fish and game
management 73 percent of Alaskans would feel angry at and betrayed
by their legislators. He said this will be the most innocuous
amendment to our Constitution yet, a Constitution which has already
been amended 26 times.
MR. PENNEY said rural Alaskans now already have a preference for
resources under state regulation and, according to six people he
talked to in the Department of Fish and Game (including the
Commissioner), if a rural preference is passed, things will be very
much the same. MR. PENNEY said he understands the legislative
process and respects the legislators who serve but he cannot
believe that the wishes of the public have been ignored for so
long.
CHAIRMAN TAYLOR was fascinated by the Commissioner saying there
would be practically no change in fishing under a management system
complying with ANILCA. He asked why federal management would, under
the same law, be so different from state management. BOB PENNEY
replied that the feds are only required to manage for subsistence,
not for sport or commercial purposes, while the state has to manage
for all four uses.
MR. PENNEY said CHAIRMAN TAYLOR has never seen a conflict like he
would see under dual state and federal management. He said the
federal government has rights surpassing the state's, like it or
not, and fish and game on federal land falls under federal purview
and we Alaskans can only manage it while they allow it.
CHAIRMAN TAYLOR said he hears MR. PENNEY saying the federal
government has the right to take back their fish and their game.
MR. PENNEY responded, saying they can take back fish management as
they already have with game. CHAIRMAN TAYLOR asked if he thought
the legislature should first determine if the law is how SEEKINS
says it is or how MR. PENNEY sees it. MR. PENNEY remarked the
legislature should have made that argument years ago and after
waiting 18 years it is now too late.
TAPE 98-42, Side A
Number 001
CHAIRMAN TAYLOR asked if the legislature should have taken a vote
on the question of Venetie. MR. PENNEY replied he did not
particularly like the Governor's plan, but the feds will take over
control if we do not reach a compromise and the task force plan is
a compromise. CHAIRMAN TAYLOR noted that even with all the changes
to the Constitution, the equal protection clause has never been
amended. CHAIRMAN TAYLOR asked if MR. PENNEY had ever worked as a
trustee, and said some of the legislators believe they are the
trustees of this land and he does not believe the feds can give
the state land and then take it back at will. CHAIRMAN TAYLOR also
said he has not wasted time, he blamed the Governor and the fact
that he dropped the Babbitt suit. CHAIRMAN TAYLOR indicated he
would like to know whose interpretation of the law is correct, and
not just turn the decision over to the mob.
CHAIRMAN TAYLOR asked if he has any power to shape the language of
the proposition that will appear on the ballot. MR. PENNEY believed
he did. CHAIRMAN TAYLOR asked if an elected sheriff should follow
the instructions of a mob because they are the electorate. MR.
PENNEY said there are 28 days left to enact this plan and they are
running out of time. He said Senator Murkowski has said he would
explore some changes in ANILCA but MR. PENNEY does not think he'd
be so willing to do so now. CHAIRMAN TAYLOR said it is difficult to
create a bill that will pass both the Legislature and the Governor,
especially the Governor, who for political reasons dismissed the
Babbitt suit, according to CHAIRMAN TAYLOR.
MR. PENNEY asked why the Republican leadership had not worked on
their own proposal. CHAIRMAN TAYLOR said they had and they got
scads of testimony against a vote for a rural preference. SENATOR
LINCOLN interjected that none of these hearings (except one) were
held in rural areas. SENATOR LINCOLN also said she does not view
her constituents as a mob and would like to see them able to vote
on this issue. She commented she did not know how the issue would
turn out. CHAIRMAN TAYLOR said he was specifically talking about
the testimony from Soldotna where he remembered the vast majority
of people were against the ballot measure. CHAIRMAN TAYLOR remarked
he could not imagine a ballot initiative that would mandate
discrimination against people in certain areas of the state, in
fact, he did not think the legislature could legally enact such a
measure.
CHAIRMAN TAYLOR asked how the equal protection clause of the Alaska
constitution could be amended without violating the 14th amendment
of the federal constitution. BOB PENNEY replied, "do what you want
to . . . just keep management . . . out of the hands of the feds."
MR. CHARLES DERRICK, from Fairbanks, commented that the initiative
should read 'state management under federal judicial review', as
the federal courts have the final say anyway. He said the people of
Alaska do not have all the facts and hunters will not be able to
compete with the Native Corporations who will throw millions of
dollars at this issue in order to see it resolved it in their
favor. MR. DERRICK said he would like to see commercial fishing
addressed along with this issue and ANILCA dictates to us and gives
us no opportunity for compromise. MR. DERRICK indicated this plan
will not only apply to fish and game but all renewable resources.
He declared he would like to see the state wait for the Legislative
Council lawsuit to be decided and he does not think the feds have
the authority to take over management. He stated that ANILCA is
what is preventing a compromise MR. DERRICK additionally commented
that the Administration not only dropped the Babbitt case, but also
forced Alaska citizens to document their RS 2477s before the
moratorium.
MS. MARY BISHOP suggested subsistence has become a native and non
native issue and what she sees happening is similar to other areas
of the world in which different ethnic groups are tearing each
other apart. She said governments must treat all people equally.
MS. BISHOP also advised the committee that this decision will
affect all renewable resources in the state, not just fish and
game.
MS. BISHOP said the initial bill that gave subsistence priority to
all Alaskans was changed by Senator Stevens to apply to all
renewable resources. She said we are now drawing circles around
people and deciding what they can do. This had never been done
until it was forced by a court case in 1982. In 1989, Alaska was
handed down a ruling in the Bobby case that said customary and
traditional use, not need, was the standard the boards of fish and
game would have to use. The result was virtually year round hunting
of moose and caribou. MS. BISHOP said this is what we have with
ANILCA, opportunistic hunting by some all the time and leftovers
(if there are any) for others.
MS. BISHOP said there is a new effort going on to have ANILCA
become Indian Law and we are leaving ourselves open to one lawsuit
after another.
CHAIRMAN TAYLOR asked where "in times of shortage" appears in
ANILCA. MS. BISHOP replied she remembers meeting with Congressman
Don Young who said this applied only in times of shortage, but
could not find the language in ANILCA.
CHAIRMAN TAYLOR challenged anyone who could find that wording in
ANILCA to please bring it to him. He does not believe this applies
only in times of shortage and MS. BISHOP agreed.
CHAIRMAN TAYLOR announced that SENATOR HALFORD had joined the
meeting some time ago.
MR. JOHNE BINKLEY thanked the committee for allowing him to testify
and said he believed that prior to the McDowell decision there was
a management scheme in place which was acceptable to most Alaskans.
MR. BINKLEY thinks if this measure is voted on it will pass and we
will return to a management scheme acceptable to most Alaskans. MR.
BINKLEY agrees there will be court decisions shaping this
management but he thinks overall it will be better for Alaskans.
CHAIRMAN TAYLOR asked if MR. BINKLEY agreed that the court will
have to define the amendment. MR. BINKLEY believed there would be
many lawsuits filed either way. CHAIRMAN TAYLOR replied that the
only way this could be avoided would be through the Legislature's
suit. If it prevails, CHAIRMAN TAYLOR said we'd be back to true
state management. JOHN BINKLEY said we have had 18 years to go down
that road and suggested we could put something into the amendment
that said it wouldn't go into effect if the Legislative Council
prevailed in the court suit. CHAIRMAN TAYLOR said this would happen
anyway, since a decision in the court case would preempt a
constitutional amendment. MR. BINKLEY said this may take five
years and it would be best to retain state management in the
meantime. MR. BINKLEY maintained the prudent course is to allow
the people to vote and to try to prevent federal management.
Number 632
SENATOR HALFORD asked MR. BINKLEY how he understood federal
management. MR. BINKLEY said he had a concept of a federally
appointed board acting in the place of our state board. He supposed
the Department of the Interior would write regulations for
subsistence and, beyond that, commercial resource uses. SENATOR
HALFORD said the feds would have the authority only to manage for
subsistence and nothing else. He said the federal authorities would
be precluded from management of any other uses without a change to
federal law. SENATOR HALFORD said it is important that people
understand exactly what federal management would mean. MR. BINKLEY
commented that he is certain there would be much litigation
defining this. He also said without a constitutional amendment the
development of other resources would be negatively impacted. MR.
BINKLEY concluded it's such a gamble, it's just not worth the risk.
SENATOR HALFORD said subsistence is a fundamental human right and
we cannot discriminate on the basis of race regarding this issue.
SENATOR WARD asked MR. BINKLEY what we should do if we put this on
the ballot and it fails. MR. BINKLEY said he guessed we could then
attempt to get other changes to ANILCA knowing we tried. SENATOR
WARD said if this happened we'd just be back to HB 406, and we
should just stick to talking about it, as it is a reasonable
position that we might arrive back at later.
Having failed to achieve a quorum, CHAIRMAN TAYLOR called this
meeting a work session, thanked everyone for coming and adjourned
at 7:52.
| Document Name | Date/Time | Subjects |
|---|