Legislature(1997 - 1998)
09/26/1997 01:00 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
Soldotna, AK
September 26, 1997
1:00 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Loren Leman
Senator Robin Taylor
Senator Georgianna Lincoln
Senator John Torgerson
MEMBERS ABSENT
Senator Lyda Green, Vice-Chairman
Senator Bert Sharp
ALSO IN ATTENDANCE
Representative Scott Ogan, Co-Chairman, House Resources Committee
Representative Bill Hudson, Co-Chairman, House Resources Committee
Representative Beverly Masek, Vice Chairman, House Resources
Committee
Representative Reggie Joule
Representative Bill Williams - Via Teleconference
COMMITTEE CALENDAR
Interim Hearing on Subsistence
WITNESS REGISTER
Commissioner Frank Rue
Department of Fish and Game
P.O. Box 25526
Juneau AK 99802-5526
POSITION STATEMENT: Presented the Governor's Task Force proposal
for subsistence.
Mr. Bob Penney
Cook Inlet Sportfishing Caucus (CISC)20
937 Keystone
Soldotna AK 99669
POSITION STATEMENT: Commented on the Task Force proposal.
Supported having people vote on constitutional amendment.
Mr. Jim Rearden
413 E. Lee Dr.
Homer AK 99603
POSITION STATEMENT: Commented on the subsistence issue.
Mr. Ronald Patterson
Kenaitze Tribe
1003 Crow Ct.
Kenai AK 99611
POSITION STATEMENT: Supported parts of the Task Force proposal.
Mr. Herman Fandel
702 Lawton Dr.
Kenai AK 99611
POSITION STATEMENT: Commented on the subsistence issue.
Ms. Becky Hultberg
35561-B Kenai Spur Hwy.
Soldotna AK 99669
POSITION STATEMENT: Opposed Task Force proposal.
Ms. Mary Ann Mills
Soldotna AK
POSITION STATEMENT: Commented on subsistence issues.
Mr. Dennis Randa
P.O. Box 3055
Juneau AK 99669
POSITION STATEMENT: Opposed a constitutional amendment and spoke
on citizens' rights.
Mr. Don Johnson
P.O. Box 876
Soldotna AK 99660
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Larry Lewis
P.O. Box 403
Kasilof AK 99610
POSITION STATEMENT: Opposed the Task Force proposal.
Ms. Mel Krogseng
P.O. Box 3913
Soldotna AK 99660
POSITION STATEMENT: Opposed the Task Force proposal. Supported
amending ANILCA.
Mr. Seymour Marvin Mills
P.O. Box 51
Sterling AK 99672
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Ron Dolchuk
P.O. Box 13
Kenai AK 99611
POSITION STATEMENT: Commented on subsistence issues.
Mr. W. T. Maner
322 N. Fireweed
Soldotna AK 99660
POSITION STATEMENT: Opposed the Task Force proposal.
Ms. Elaina Spraker, Chairman
Kenai Peninsula Outdoor Coalition
P.O.Box 3336
Soldotna AK 99660
POSITION STATEMENT: Goal is to remove federal subsistence priority
from the Kenai Peninsula, except in the villages of Nanwalek and
Port Graham. Opposed Task Force proposal.
Ms. Pepper Johansen
HC 1, Box 1513-10
Kenai AK 99611
POSITION STATEMENT: Commented on the subsistence issue.
Mr. Joe Cloud
POSITION STATEMENT: Opposed the Task Force proposal.
Mr. Ben Ellis, Executive Director
Kenai River Sportfishing Assoc.
P.O. Box 1228
Soldotna AK 99669
POSITION STATEMENT: Supported certain aspects of the Task Force
proposal.
Ms. Debra Horne
P.O. Box 592
Kasilof AK 99610
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Theo Matthews, President
United Fishermen of Alaska (UFA)
P.O. Box 69
Kasilof AK 99610
POSITION STATEMENT: Supported Task Force proposal as a starting
place.
Mr. Bob Krogseng
P.O. Box 3913
Soldotna AK 99660
POSITION STATEMENT: Opposed Task Force proposal.
Ms. Victoria Hermansen
HC 3, Box 3151
Soldotna AK 99660
POSITION STATEMENT: Opposed amending the Constitution.
Mr. Randy Shumate, President
Local Chapter
Safari Club International
P.O. Box 443
Soldotna AK 99669
POSITION STATEMENT: Supported amending ANILCA.
Mr. Jim Ray, Sr.
P.O. Box 467
Sterling AK 99672
POSITION STATEMENT: Supported changing ANILCA.
Ms. Karen McGahan
Route I, Box 767
Kenai AK 99611
POSITION STATEMENT: Opposed Constitutional amendment.
Mr. Bob Bird
HC-1, Box 3531
Kenai AK 99611
POSITION STATEMENT: Opposed Constitutional amendment.
Mr. Karl Kircher, Executive Assistant
Kenai Peninsula Fishermen's Association
P.O. Box 95
Kasilof AK 99610
POSITION STATEMENT: Supported concept of Task Force proposal.
Mr. Sam McDowell
336 E. 23rd Ave.
Anchorage AK 99503
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Richard McGahn
Rt 1, Box 767
Nikiski AK 99635
POSITION STATEMENT: Opposed Task Force proposal.
ACTION NARRATIVE
TAPE 97-44, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting in
Soldotna, Alaska to order at 1:00 p.m. He announced they would
begin with a presentation from the administration on the Governor's
Task Force proposal. He noted that major amendments had been made
on September 23.
COMMISSIONER FRANK RUE, Department of Fish and Game, said the
primary goals of the proposal are to achieve effective State
authority over fish and game management on all lands and waters in
Alaska and to recognize the paramount importance of subsistence as
a way of life to Alaskans.
He said Alaskans may be reluctant to amend the Alaska Constitution
without knowing what changes will be made in the Alaska National
Interest Lands Conservation Act (ANILCA) and the State fish and
game statutes. The solution is a linked package of amendments to
ANILCA, the Alaska Constitution, and the Alaska statutes.
He emphasized that the effective date of the ANILCA amendments and
the State statutory amendments will be the date of the passage of
the constitutional amendment. Voters will know exactly what is in
the ANILCA amendments and the state statutory amendments when they
vote on the constitutional amendment. The package will include a
congressional determination that the State, upon passage of the
constitution amendment and implementation of the revised statutes,
is in compliance with ANILCA and may resume fish and game
management statewide.
CHAIRMAN HALFORD asked what if the constitutional amendment is
proposed and approved by the legislature to go on the ballot and no
changes are made to ANILCA or to the other statutes, but the
constitutional amendment passes, does the linkage work both ways.
COMMISSIONER RUE said it worked in a couple of ways. The voters
would go to the polls knowing there were no changes to statutes or
ANILCA and they could make their decision on the Constitution based
on that.
CHAIRMAN HALFORD asked if the Task Force expected him, a
legislator, to approve a constitutional amendment based on no
linkage guaranteeing change to ANILCA or change to statutes.
COMMISSIONER RUE explained that the constitutional amendment is
simply permissive; it doesn't require the legislature to do
anything.
REPRESENTATIVE OGAN said he thought the language was permissive,
but everyone knew it wasn't permissive because if they don't manage
according to rural priority the federal government will take over.
COMMISSIONER RUE agreed with that statement. He commented if you
don't amend the Constitution and don't have a rural priority,
you'll get dual management. If you amend the Constitution with a
permissive language and don't change the statutes, you may still be
out of compliance with ANILCA and you may still have federal
management. So you could end up with the same results.
REPRESENTATIVE OGAN said the permissive language in the
constitutional amendment is a smoke screen because, if we don't
amend our statutes, we still get federal management.
COMMISSIONER RUE explained the key is that they are all linked and
that ANILCA needs to be changed for consistency. One of the
proposed amendments to ANILCA basically says the State is in
compliance and may from the time of this amendment manage the
resources on all lands.
CHAIRMAN HALFORD asked if we had a linked package, wouldn't the
constitutional amendment say that this only takes affect if ANILCA
is amended in these specific ways.
COMMISSIONER RUE answered that might need exploration in the
committee to be absolutely sure.
SENATOR TAYLOR said he thought Representative Ogan was trying to
ask if we pass all of the package, and the people of Alaska vote to
amend their constitution, and at some point after that a federal
court judge decides (maybe five-years from now) that we are not in
compliance with ANILCA, federal management takes over period; no
matter what congress did or we did with our Constitution.
Everything we have done is irrelevant and we haven't taken away any
federal oversite.
COMMISSIONER RUE responded that it may happen that the State will
fall out of compliance again, if they don't manage for rural
priority.
SENATOR TAYLOR said he thought the law would be challenged in the
federal courts as we move along as a State. He thought they were
assuming we would win on all those challenges in court, but our
batting record in federal courts on ANILCA cases is not very good
as a State.
COMMISSIONER RUE said the package does not remove federal oversite
on federal lands and obviously does not get rid of ANILCA. It does
define some of the key terms in ANILCA that have caused problems
like rural, customary and traditional, and customary trade. It
also says the federal courts will give the State managers deference
and can only overturn their decisions if they are arbitrary or
capricious. It tries to define the federal court's latitude in
overturning the decision. This is the intent.
COMMISSIONER RUE said simultaneously with the constitutional
amendment, State statutes would be amended to create a rural
subsistence priority. Those statutes and the ANILCA amendments
would become effective only if the constitutional amendment is
passed.
The proposed State statutory amendments grant the rural priority.
Communities outside the current non-subsistence areas, as defined
in the State statute, will be defined as rural on the day the state
regains management. The Boards of Fisheries and Game acting
jointly through regulation will have the power to change community
classifications (add or delete) in the future as communities
change.
The State statutes will also be amended to: a. improve the proxy
hunting and fishing provisions; b. provide for educational hunting
and fishing permits; c. clarify the definitions of "rural,"
"customary trade, " and customary and traditional;" d. make clear
that the subsistence priority is a reasonable opportunity to take,
not a guarantee of taking; and e. refine the subsistence management
system, including adding a State Regional Subsistence Council
system.
COMMISSIONER RUE said the ANILCA amendments fall roughly into four
categories focusing on definitions.
REPRESENTATIVE HUDSON asked where the definition of rural
preference was to satisfy ANILCA.
COMMISSIONER RUE responded that the key for the State to get back
into compliance on federal lands is to have the word "rural" in our
statutes. The constitutional amendment simply authorizes the
legislature to use that term in our statutes. Once our statute
says that, we will be able to manage on federal lands.
REPRESENTATIVE HUDSON said he thought the change to the
Constitution was ambiguous.
COMMISSIONER RUE answered that he thought it allows the legislature
to use the word "rural" or "place of residence" as a way to provide
for a subsistence priority. Currently the Constitution
distinguishes between uses. He explained that currently our
statutes have a subsistence priority, but we have to use a Tier II
system with an individual scoring system to provide a priority.
This would allow them to use rural instead of a Tier II process to
give a priority.
SENATOR TAYLOR asked what section of our Constitution is changed or
amended by adopting this Constitutional amendment.
COMMISSIONER RUE answered Section 1, Article 8.
SENATOR TAYLOR stated in fact it is the equal protection clause of
our Constitution that gets amended and thought the amendment allows
the legislature to discriminate between users.
COMMISSIONER RUE said that was correct as he reads it. He said now
we discriminate between users through a Tier II system or a drawing
permit, etc.
SENATOR TAYLOR said the 14th amendment of the U.S. Constitution
which was used to approve our Constitution, demands that we treat
all people equally. He said there was a lot of confusion about
what happens to a person if his house is in the wrong town.
COMMISSIONER RUE responded that in the situation in which someone
lives in a non-rural area and wants to go to a community that's
designated rural, one of the things that could happen would be if
there's enough resources for everyone, he could go out and get fish
under personal use and the State could establish that as is in
Chitna. Under the federal management you wouldn't be allowed to do
that because the subsistence "rural" user might have a priority.
Under a system where all lands are managed by one entity you may
have multiple fisheries going on.
SENATOR TAYLOR said the real issue is if the person has a
subsistence right under Title 8 of ANILCA.
COMMISSIONER RUE agreed that if there's only a subsistence fishery
and it's only rural and you don't live in that community, you won't
be able to fish or hunt in that area.
SENATOR TAYLOR added that you wouldn't be able to either if the
State takes over and there are limited resources. Commissioner Rue
agreed.
SENATOR TORGERSON asked if there was a definition in the proposal
of renewable natural resources.
COMMISSIONER RUE answered no. It could be any resources the
legislature and/or the Boards determine people use.
REPRESENTATIVE OGAN said the proposed constitutional amendment
expands the definition to not only give a rural priority on fish
and wildlife, but also other renewable natural resources. He asked
if that was required by ANILCA. He asked where that change came
from.
COMMISSIONER RUE said he thought it was in ANILCA now as well as in
other State law. He added that subsistence users use a lot more
than fish and wildlife.
CHAIRMAN HALFORD asked if it isn't left up to the discretion of a
federal judge.
COMMISSIONER RUE said that was correct.
CHAIRMAN HALFORD said in every case expansions have been made by
the federal judiciary and the legislature has only been able to
react to those expansions.
COMMISSIONER RUE responded that a number of issues raised by those
cases are defined in the proposal. It clearly says that
subsistence is subject to bag limits and seasons.
CHAIRMAN HALFORD asked if this proposal reverses the Bobby Case.
COMMISSIONER RUE replied that the Bobby Case says you can still
have bag limits and seasons which we do.
CHAIRMAN HALFORD said the federal limit is year-round - 40 moose
for a community of less than 40 people.
COMMISSIONER RUE said he understood it to be during a season right
now.
CHAIRMAN HALFORD asked if the intent was to reverse or limit the
Bobby Case with regard to reasonable opportunity v. wide-open
seasons.
COMMISSIONER RUE said it does reverse that.
SENATOR LINCOLN said she wanted it on the record that this proposal
was signed-off by the Governor, the Lieutenant Governor, the
President of the Senate, the Speaker of the House, a former
Governor, a former Attorney General, and the Executive Director of
the Alaska Permanent Fund. She thought that surely somewhere in
all the discussions that have gone on there has to be a discussion
of these definitions.
COMMISSIONER RUE said he wasn't part of the discussions and didn't
know. He thought the definition would allow for kelp and those
kinds of specific findings. He noted that the Peratrovich Case set
limits for (under federal law) the amount of resource that could be
taken - $15,000 per person and $70,000 aggregate for sale on the
commercial market.
SENATOR TAYLOR said he didn't think that case said it was a limit,
but just a floor. It's hard to tell whether there is a right out
there for unlimited taking.
COMMISSIONER RUE said he thought the definitions of barter and
customary trade put definite limits on what qualifies. The intent
was not to have it be a commercial activity and focus on
quantities.
SENATOR TAYLOR said he had been told before that was the intent,
but there is no specific language in there. The first draft had
terms of values - money and cash. The new words are quantity. He
suggested that means in the future having a Board define every
single species and subspecies that may possibly be taken and then
defining wights and measures of some type that will determine when
and if it becomes commercial. ANILCA just says barter and trade.
If he were a subsistence user and found his regulations offensive,
he would immediately go to a federal court and ask a federal judge
if this is what ANILCA meant and then the judge would throw it out.
He said there aren't any notes and they didn't know who suggested
those words. He rhetorically asked how much a big quantity of bear
gall-bladders or horns-in-the-velvet he would have to have to be
significant.
COMMISSIONER RUE responded that the language says first of all it
has to be non-commercial and secondly in limited quantities. He
restated that this is only a proposal for them to discuss. One of
the reasons for not using cash was because that value can change
dramatically whereas they have found from studies done around the
State the amounts of berries or fish that are traded between people
between communities doesn't change much. They decided to use
quantity because it is less volatile and could be tracked better.
SENATOR WARD asked who in Kenai, Soldotna, and Nikiski qualifies
for subsistence under the rural preference in this proposal.
COMMISSIONER RUE replied only people in Port Graham, Nonvalnuk, and
Seldovia.
SENATOR WARD repeated his question.
COMMISSIONER RUE responded that use could be allowed under the
educational permit. Right now the Keneitze have a right to take
some fish as a passing on of the traditions of their tribe.
TAPE 97-44, SIDE B
SENATOR WARD said he thought the reason Title 8 was put into ANILCA
was to resolve some of the indigenous people's aboriginal rights to
subsistence. He said he is Athabascan and now he has a lot of
people growing up around him and there are people in the Coast
Guard in Kodiak who get to do subsistence, but he doesn't. And
neither do any of the Alaska Native Indians who had a community
grow up around them. He asked what discussion the committee had on
this issue.
COMMISSIONER RUE responded that the discussion, as he understands
it, is that urban areas like Kenai and Saxman would no longer have
a rural priority. It would be up to the joint Boards to decide if
a community should have rural priority. Under this proposal rural
would be defined. "Rural" in federal law is now defined by a court
case which talked about cattle and grazing and didn't really apply
to Alaska. So communities on the roads basically would not have a
rural priority. They would have to use personal use fisheries like
on the Kenai or the educational permit.
SENATOR WARD said he saw a press release in which the Lieutenant
Governor said that the Alaskan people supported a native preference
when it came to ducks and waterfowl before a U.S. congressional
committee. He didn't know if she meant native preference or rural
preference and asked if he knew.
COMMISSIONER RUE replied that the waterfowl treaty amendments that
were negotiated between Canada, the U.S, and Mexico talk about
indigenous inhabitants. The administration's definition of
indigenous residents are natives and can be non-natives as well.
The definition is there for those areas where there has been a
tradition of spring waterfowl.
He explained that the proposal allows for two things basically. If
you live in an urban area, you hunt and fish either under
commercial/sport/personal use regulations and/or if you are invited
back to the community where you have family, you could hunt for
your father or your uncle, but the resource would belong to them.
SENATOR WARD asked if it had to be a blood relative.
COMMISSIONER RUE said he thought the definition was blood relative
or live in a household out there. You can't be just visiting
someone.
SENATOR TAYLOR asked where the current federal regulations that we
are going to have imposed upon us come from if there wasn't
authorizing language within ANILCA for those things to be done.
COMMISSIONER RUE replied there was authorizing language for the
Secretary of Interior to establish subsistence rural priority on
federal lands.
SENATOR TAYLOR responded no there wasn't. He explained that we, as
a State, brought a suit against the federal government saying that
it wasn't the Babbit Case which was dismissed with prejudice by
this administration and following that, we have seen subsistence
regulations being proposed by agencies.
COMMISSIONER RUE replied that they appealed the question of where
federal authority goes under the Babbit Case and the Supreme Court
refused to hear it. The question that was not pursued is who
qualifies as a subsistence user on federal lands. He said the
proxy does talk about a family member.
COMMISSIONER RUE reviewed the proposed ANILCA amendments saying
that customary and traditional is defined as non-commercial, long-
term and consistent taking of, use of, or reliance upon fish or
wildlife in a specific area and the patterns of taking that fish or
wildlife.
CHAIRMAN HALFORD noted that an "and" on the second line of that was
changed in this draft to say "or reliance upon fish and wildlife."
By changing the "or" at the end of that series from "and" you can
meet any one of that list and still be customary and traditional.
COMMISSIONER RUE said that was correct.
CHAIRMAN HALFORD said that was the kind of significant changes they
were just learning about in this report that make a big difference
in how the federal law would read.
COMMISSIONER RUE said he thought the intent of this one was you may
not actually be the taker of the resource, but you are still
reliant on the resource. They did not want to exclude people who
weren't the actual harvesters.
CHAIRMAN HALFORD said one of the other changes was from minimal
value to minimal quantity.
COMMISSIONER RUE said that was correct and it was under the
customary trade definition. He repeated that quantities don't tend
to change and can be measured in any one year, but the dollar
equivalent may change dramatically.
The third definition defines a rural resident. He didn't think the
intent changed, but the language was made simpler. It defines a
resident rural community or area and defines it as substantially
dependent on fish and wildlife for nutritional and other
subsistence uses.
CHAIRMAN HALFORD said the previous definition in State law was a
community in which the principle characteristic of the community is
subsistence use.
COMMISSIONER RUE agreed. He said then the statute defines rural by
those areas that have been determined by the Boards as rural or
non-rural. That's the starting point. Then the joint Boards get
to decide if folks should be in or out at that point.
COMMISSIONER RUE reiterated that the Governor's Task Force did not
have the authority to vote on anything; they are simply providing
the people of the State a proposal to look at as a starting place.
He understood the intent to be for nutritional and other
subsistence uses rather than a principal part of the economy.
REPRESENTATIVE WILLIAMS said a part of the negotiated settlement in
ANCSA of 1971 was the subsistence they are talking about and asked
if that was brought up in any of the Task Force discussions. He
asked if the proposal expects both the Secretary and the State to
take any action necessary to protect the subsistence needs of the
Alaskan natives.
COMMISSIONER RUE said it was and there was also recognition that
ANILCA using the word "rural" as a way to achieve a subsistence
priority was a compromise and a way to address this issue.
SENATOR TAYLOR asked if he had heard under the Governor's plan that
Saxman would be considered a urban community.
REPRESENTATIVE WILLIAMS said he had.
COMMISSIONER RUE read on page 5, of the ANILCA amendments that said
a new paragraph would read the priority granted for this section is
for a reasonable opportunity to take fish and wildlife. A
reasonable opportunity consists of a customary and traditional use
to participate in a subsistence hunt or fishery with a reasonable
expectation of success. Reasonable opportunity shall not guarantee
taking of fish or wildlife.
CHAIRMAN HALFORD asked what that meant.
COMMISSIONER RUE said it meant that you don't absolutely guarantee
every user that they will get the resource.
CHAIRMAN HALFORD asked if a community, like Lime Village, that has
had federal management for the last eight years with a year-round
season with more moose allowed to be taken than there are people,
is taking that many moose as a tradition and is the year-round
season what a reasonable opportunity is going to require.
COMMISSIONER RUE answered that he didn't agree there was a year-
round season on moose; there was on caribou. Assuming there was...
CHAIRMAN HALFORD said under federal regulations there is a year-
round season on moose; State regulation is five months.
COMMISSIONER RUE answered if, for instance, there was a five-month
season on moose, the Board would look at if there has been a
customary and traditional five-month season for moose and they
would expect to continue that. They would also look at how much is
reasonably necessary for a community and if there was a sustained
yield concern you would restrict the season or close it.
CHAIRMAN HALFORD said the whole problem was the court case that
this is trying to address which says you have to have eliminate all
other uses before you can do any of these.
COMMISSIONER RUE added that you have to look at what is
traditionally necessary. If there was a tradition of 20 moose over
a three-month period there would be no reason to change that. A
wide-open season with no bag limit would be a different concern.
SENATOR LINCOLN asked what "reasonable opportunity shall not
guarantee taking of fish and wildlife" meant.
COMMISSIONER RUE answered it means that bag limits and regulations
don't have to guarantee that someone will be successful.
REPRESENTATIVE OGAN said he had George Utermohle research some
court cases on subsistence and in his conclusions he wrote the
Board may not consider the availability of a game or fish
population as a factor in restricting or reducing the demonstrated
customary and traditional uses. It may impose season bag limits on
subsistence hunting and fishing since restrictions are consistent
with customary and traditional uses. It also says it must first
eliminate other consumptive uses before restricting the customary
and traditional uses of game for subsistence purposes.
COMMISSIONER RUE said the proposal for the State statute talks
about what to do when there's enough resources for subsistence and
other use and what to do when there's just enough for subsistence
in that area for that resource and then what you do when there's
less than enough for subsistence.
The next change to ANILCA he explained was on page 6, the
definition of federal land. The intent is to be explicitly clear
that it doesn't include lands that have been titled to the State
after December 2, 1980. It does not include native lands, other
private lands, or native corporations' State land selections
defined in subsections 3a and b below.
REPRESENTATIVE JOULE asked if the community had taken their limit
yet this year.
COMMISSIONER RUE said he would have to check.
REPRESENTATIVE JOULE asked if the resource had suffered because of
that limit.
COMMISSIONER RUE answered that he didn't think it had, at least on
State lands.
CHAIRMAN HALFORD said that Lime Village is a poor case and he
didn't think there was much significance in how many moose that
village takes. The question is what happened when it went to
federal court and established a precedent that says you have to
have eliminated other uses before you can limit that use at all.
COMMISSIONER RUE answered that he thought the definition changes
and the statutory changes make it clear that subsistence uses are
subject to seasons and bag limits and he thought that was
important.
SENATOR TORGERSON asked in the case of Lime Village would they wait
until they got their 40 moose or if they got 20 moose half-way
through the season, would their management scheme restrict the
resource to the other users until they got their 40 moose and what
triggers the subsistence priority in that case.
COMMISSIONER RUE explained that the Board of Fisheries would look
at what is reasonably necessary for the community, let's say 40.
They would look at what the department says in that area, and the
area has to be defined. Then find how many moose are available in
that area. If 200 moose are available in that area, the Board of
Game would say that 40 moose can be taken by Lime Village residents
over so many days and it would be either an open hunt or a drawing.
Then they would establish a sport season in that area.
They would only restrict those sport hunters if the 40 moose is the
surplus amount and they are needed for the community.
SENATOR TORGERSON asked if the department had made the
determination that 40 moose are available in Lime Village or was
that settled in federal court.
COMMISSIONER RUE said he would have to look at the specific
finding.
SENATOR TORGERSON said he understood the court settled on 40 moose
as customary and traditional and there wasn't anyone out there to
actually get a head count. He didn't know how they would restrict
the priority use of the users if they did get a nose count.
COMMISSIONER RUE said they would have to have a count and would
have to say if there are only 20 moose available, they wouldn't
guarantee them getting 40 and let the herd be harvested into
oblivion.
REPRESENTATIVE MASEK said she thought the definitions were the core
of where they are at in finding solutions. She asked if the
administration had given consideration to where we are as a society
today, because she thought they had failed to recognize the levels
of cultural changes in the rural areas. She asked if the
definitions were relating to the 1920's or to 1997.
Also regarding the proxy system, she didn't think it made sense to
extend privileges in this matter because most individuals who are
not capable of participating on their own are probably living in a
cash economy and provided for by social services.
TAPE 97-45, SIDE A
Number 001
COMMISSIONER RUE responded that they have dealt with her concerns
in one way by giving the joint Boards the ability to change a
communities' designation as rural or not rural over time. That
would be in response to a change in the communities' use patterns
in size and growth and dependence on the resource.
REPRESENTATIVE MASEK asked if it was traditional for the native
people to use today's technology and would that be included in the
definition.
COMMISSIONER RUE replied yes and that would be taken into
consideration.
COMMISSIONER RUE commented next on page 10, Section 805 of ANILCA
changed the composition of the Subsistence Regional Advisory
Councils from the current federal process making the definition the
same as it is in State law.
CHAIRMAN HALFORD asked if this was an expansion of the federal
mandates in Title 8 or a reduction, because he read the existing
Title 8 as not requiring all these things in detail. When they are
amending a federal law in the area of what it requires the State to
do, why would they make Title 8 more controlling of the State.
COMMISSIONER RUE answered that the thought was to put definition to
the council to understand what they are and how they are composed
so there is a dialogue between different user groups.
CHAIRMAN HALFORD asked if the councils made recommendations on
subsistence issues or on commercial fisheries, etc.
COMMISSIONER RUE answered that they make recommendations on
subsistence proposals and they could comment on other issues. The
difference is that recommendations have a different weight with the
Boards and that is spelled out in statutory changes.
CHAIRMAN HALFORD asked if that meant you couldn't deny the
recommendation unless you find overwhelming evidence.
COMMISSIONER RUE said that was correct. There were four ways to
overturn regional council recommendations - no substantial
evidence, if it's contrary to subsistence or sustained yield; if
there's a conflict between two regions and, if it's contrary to an
overriding State-wide interest.
Commenting doesn't carry the same weight and it doesn't require the
Boards to demonstrate anything.
SENATOR LEMAN said they were told by Joe Mason, Counsel to the Task
Force, that it tried to do a minimal amount to bring the State into
practical compliance with ANILCA and yet he thought they went
beyond in this area and asked if there were any other
considerations involved.
COMMISSIONER RUE answered that the attempt was to clarify ANILCA
with definitions and also have the two statutes consistent. They
did not want an open-ended Regional Subsistence Council in federal
law and then one that's defined in State law to have a certain
membership and terms. Not to create a conflict between the two was
the intent.
SENATOR TAYLOR asked relative to council membership, if he had a
definition for what a tribal council was.
COMMISSIONER RUE answered he would look at federal recognition of
tribes and who is recognized there.
SENATOR TAYLOR asked if they had to mirror this in State law and
how do they do that.
COMMISSIONER RUE replied yes and his understanding was that this
meant those recognized tribal councils under federal law.
SENATOR TAYLOR asked if that was the 226 number he had heard talked
about or another number. He asked if it was a racial definition.
COMMISSIONER RUE answered that to be a member of a tribe he thought
you had to be an Alaskan native.
SENATOR WARD asked since Kenai had a traditional tribe and all of
them are excluded from subsistence, they would not have an input
into the tribal entities that are on the council.
COMMISSIONER RUE answered under this proposal that is true.
SENATOR WARD asked if the village of Tyonek wasn't getting as many
kings as they usually get, under this proposal would they stop
commercial fishermen from fishing until they got them.
COMMISSIONER RUE answered assuming that Tyonek is in a rural area
and they had a traditional use of kings for subsistence under
customary and tradition findings, and they could not get a certain
number of fish (80), the commercial fishery in this example would
probably be closed until they did, if it was intercepting those
fish.
SENATOR WARD asked if that would affect the personal use and
educational permits of the Kenai natives, too.
COMMISSIONER RUE answered you would have to look at the situation
to see if there is a direct connection. Educational permits do not
have a priority.
SENATOR LEMAN asked about management on intercepts that are fairly
distant and where connection has been shown, like False Pass. How
would the Board guarantee some reasonable opportunity in the river
system.
COMMISSIONER RUE said that was a good point and why they had terms
like reasonable opportunity and no guarantee. They were going to
have to use their best science to say what effect one particular
fishery has on the next fishery and whether a reasonable
opportunity could be provided up the line.
REPRESENTATIVE MASEK asked where the funding would come from for
the proposed regional councils.
COMMISSIONER RUE replied that ANILCA talks about up to $5 million
to help the State implement subsistence on federal lands. In the
past they've given us about $2.5 million. The current federal
subsistence council process is costing them a little over $1
million for 10 regional councils.
REPRESENTATIVE MASEK asked if the regional councils were only
advisory only to the Boards.
COMMISSIONER RUE explained that they make recommendations to the
Boards and are given deference and can be rejected based on the
four criteria he mentioned earlier.
REPRESENTATIVE MASEK said she wanted a yes or no answer and asked
if they advisory only or are they authorized to make decisions.
COMMISSIONER RUE said they are advisory only.
CHAIRMAN HALFORD asked if they have any emergency authority at all.
COMMISSIONER RUE replied no.
REPRESENTATIVE HUDSON said he was concerned with the connection
between the advisory mechanism and the final decision making of the
Board regarding final allocations, and elimination of intercept
fisheries. He thought the current wording was mushy and said they
are trying to give more credence to the subsistence advisory
mechanism, but they need to make certain that tight control remains
in the over-all management of that run and the intercept uses of it
as it goes along the line because there are clearly subsistence
fish that go through False Pass.
COMMISSIONER RUE answered that they had to look at several critical
pieces. He thought it important that one Board, not two, address
the issue of commercial, sport, and subsistence. If there is a
federal board and a State board trying to do subsistence on State
waters, plus sport and commercial, it won't work. The point is to
have the State Board of Fisheries look at all three to try and make
them mesh. He noted that many subsistence users are also
commercial users.
He said he thought reasonable opportunity not being a guarantee was
critical so they didn't have to shut everyone down to provide one
fish at the end of the pipe.
REPRESENTATIVE HUDSON said that was his biggest concern about the
potential loss of management.
SENATOR TORGERSON asked if the boundaries were subject to change
from administration to administration.
COMMISSIONER RUE answered it was subject to change; that six
members were needed. He hoped it wouldn't be whimsical, because it
wouldn't be a cheap thing to do.
SENATOR TORGERSON asked why they didn't put boundaries in statute.
COMMISSIONER RUE replied that the idea was that subsistence would
change over time and communities may not be rural in 20-years under
the definition.
SENATOR TORGERSON asked if renewable natural resources were left
out of the recommendations possible from the regional councils.
COMMISSIONER RUE answered that was probably an oversight.
SENATOR TORGERSON asked if the intent was to include renewable
natural resources.
COMMISSIONER RUE said yes; the issue wasn't debated.
SENATOR WARD asked for an example of an overriding State's
interest.
COMMISSIONER RUE said he wasn't there for that discussion. His
impression of that was some fish or game issue.
SENATOR WARD said he thought this was very important because he
thought that money might be an overriding interest.
SENATOR LINCOLN wondered who the regional councils would owe their
allegiance to.
COMMISSIONER RUE answered that he really didn't want to speculate
on that. His reading is that they are supposed to represent those
subsistence users in the region and there are several sources for
nominations of members so there should be a mix or representation
from the region. He thought the resource, the region, and the
particular use would be the allegiance.
He explained the next ANILCA amendment on page 17 adds two new
sections which he read. The point was that the State would not
have to litigate their way back into compliance on federal lands;
congress would just say we are in compliance if these things are
done.
He next read Section 807 which makes it clear that the federal
courts give State agencies the same weight they give federal
agencies which has not always been the case. There were no changes
on pages 19 - 24. Page 25 added a sentence saying that the
Secretary will not implement regulations on federal lands as long
as we are in compliance.
SENATOR LINCOLN asked if this meant the Secretary could not
override the State.
COMMISSIONER RUE said he thought that was the meaning unless the
State was found out of compliance.
SENATOR TORGERSON asked if less than necessary funding for the
program could be construed as out-of-compliance and trigger the
Secretary coming in and could he control the budget for Department
of Fish and Game that way.
COMMISSIONER RUE said he thought they would have to be to the point
of being totally unable to deal with subsistence issues or not fund
the regional councils. It would have to be a substantial problem.
SENATOR TORGERSON said he thought there were a lot of questions
about what was substantial.
COMMISSIONER RUE noted the section in ANILCA where the term
substantial non-compliance was used.
SENATOR TORGERSON asked if a court would rule on what was
substantial before it. So if a village brought a suit, it could be
substantially in non-compliance because of actions in the one
management area.
COMMISSIONER RUE responded that that was a major point that needs
to be looked at.
SENATOR LINCOLN pointed out that the Governor's Task Force on
Subsistence had seven members including the Speaker of the House,
President of the Senate. The Governor did not present this.
SENATOR TAYLOR said he was concerned that we are going to have an
amendment in State law which mirrors the amendment in ANILCA where
tribal councils will be the only nominating authority for four out
of the 10 people seated on a regional council making fish and game
allocations - and having priority over all other allocations. He
thought that was a very significant State recognition and
declaration of tribal status.
He thought the State was neutral on sovereignty and tribal status
and at the same time was asking congress to amend its law, and
congress does have the authority to pass laws concerning native
peoples, that will discriminate.
TAPE 97-45, SIDE B
Number 001
COMMISSIONER RUE said the intent was not to change the status
through this act.
SENATOR TAYLOR said he was concerned that allocation of common
property resources as they are now listed in our Constitution
having first priority will be by boards that are racially based.
If this is the case he is concerned that we are in trouble under
Pitman/Roberts and Wallop/Roe funding, because there is a specific
declaration that we must abide by the Civil Rights Act of the
United States Congress that says we cannot distribute those funds
on a racial basis.
COMMISSIONER RUE said that is why they are advisory boards, not
regulatory.
SENATOR TAYLOR said they are calling them advisory, but the type of
recommendation they make can only be overturned by four specific
categories, for which you have to have specific findings, which
means there is a presumption. The presumption is that the
recommendation will be followed. It is the exception that the
recommendation will be rejected. With the opportunity to run to
federal court with these things we are setting ourselves up for the
situation where any disgruntled group or village can go to federal
court and we'll be found out of compliance. So the Secretary gets
to take over or we have to come into compliance in a way that may
very well be in violation of about 40% of the funding.
COMMISSIONER RUE agreed that the language needs to be very clear
and reiterated that the intent is that the councils are only
advisory.
CHAIRMAN HALFORD said the problem with the precedence for the last
200 years in American Indian law is that entities are determined
finally by the U.S. Supreme Court to have or not-have powers based
upon how you treat them, not what you say. If you, for the first
time add tribal recommendations, even if that may be the logical
recommendation, you have guaranteed that Title 8 of ANILCA becomes
Indian law - even if you say that you don't intend that. The
principal enumerated in case after case in the Supreme Court is
that they are what you treat them as. That simple change makes
Title 8 into Indian law.
COMMISSIONER RUE reiterated that it wasn't the intent to give them
any new status.
SENATOR WARD said that they are discriminating also against tribes
that have populations grow around them.
CHAIRMAN HALFORD asked if we put this constitutional amendment on
the ballot and congress changes nothing in ANILCA, would the
constitutional amendment would still go forward to the voters.
COMMISSIONER RUE replied under this proposal, it would still be on
the ballot.
CHAIRMAN HALFORD said there would be no guaranteed linkage in the
proposal as it comes from the Task Force.
COMMISSIONER RUE explained that the guaranteed linkage is that the
voters would know if congress changed ANILCA.
SENATOR LINCOLN said that the linkage is stated to first have a
State statute amendment, then have the amendments to ANILCA. Then
the voters know whether those two pieces have been passed of the
three.
COMMISSIONER RUE replied that was correct.
CHAIRMAN HALFORD said the point was the legislature would be called
upon to put a constitutional amendment on the ballot not knowing
whether, in fact, the federal government would change ANILCA or
not.
He thought the linkage could be completed by saying that unless the
changes to ANILCA were made before the vote, it wouldn't even go to
the ballot.
COMMISSIONER RUE and SENATOR LINCOLN agreed.
SENATOR TORGERSON asked if the proposal had been sent to Secretary
Babbitt and had they heard back from him.
COMMISSIONER RUE said it had been sent to him and they hadn't heard
back, yet.
REPRESENTATIVE OGAN asked if his department supported the Task
Force proposal.
COMMISSIONER RUE replied that he supported the package in concept
and with this language.
REPRESENTATIVE OGAN asked if the Governor had a lot of input into
his decision to drop the Babbitt suit with prejudice that
compromised our right to manage fish and game which is guaranteed
on the Statehood Compact.
COMMISSIONER RUE said he did not review that decision throughout
the Department. He clarified that they dropped the question who
qualifies under federal law in the Babbitt suit, but they did not
drop the question of where. They took that to the Supreme Court
and they rejected it. Most people understood we were to lose on
the other issue as well.
SENATOR WARD had concerns with trees and moss coming under the
regional councils' purview.
COMMISSIONER RUE said the proposal only allows for them to deal
with things used for subsistence.
SENATOR TAYLOR said the number one goal of the Task Force was to
ensure the effective State authority over fish and game management
on all lands and waters of Alaska. He asked these same questions
about federal oversight and whether or not we end up in federal
court to each of his predecessors and they all answered that
federal oversight was not being removed. He noted that there is a
certain group of people who want federal oversight.
He thought the proposal was a complete misstatement that the people
of Alaska were now going to receive even a semblance of control
over our fish and game with its passage.
COMMISSIONER RUE responded to that saying that the options are to
get rid of the federal law, get rid of ANILCA or get rid of various
designations. The proposal says that they are not going to get rid
of the federal law or ANILCA; they are going to try to confine
courts by clarifying definitions to refine their jurisdiction and
be clear where it has jurisdiction.
CHAIRMAN HALFORD said there appears to be about 100 million acres
under federal court jurisdiction when we are out of compliance, but
State and private land comes out of that and we aren't under
federal jurisdiction. However, once we comply the decisions on all
of Alaska on all State lands and all private lands go back to a
federal judge. He asked if he was wrong.
COMMISSIONER RUE said they needed to look at where federal
jurisdiction is going to go with federal lands. Their jurisdiction
is everywhere, but it is under terms that the State has defined.
That is the trade-off.
REPRESENTATIVE HUDSON asked if a court would actually adhere to the
three levels of arbitrary and capricious if congress puts it in a
law or is it still subjected to their own interpretation.
SENATOR TAYLOR replied they would find that throughout
administrative law both on the federal and State level there is a
standard that is commonly used. The courts are supposed to limit
their discretion in making decisions and give due deference to the
agency or the lower court, whoever made the other decision. Within
that wording, however, there are sufficient escape opportunities
for a member of the bench, if they wish to, to exercise a lack of
judicial restraint and move forward on the subject themselves.
They have done this on all kinds of issues across the states, like
busing.
He reiterated that this proposal does not keep anything out of
federal court.
COMMISSIONER RUE clarified that they did not say it removed federal
oversight; it makes definitions so the court won't define them.
REPRESENTATIVE OGAN asked if he knew of any other state in the
union that has had this level of federal take-over of fish and game
management and does he think it exceeded the authority delegated by
the states to the federal government under the 10th amendment of
the U.S. Constitution.
COMMISSIONER RUE said he thought the Bolt decision in Washington
was a huge federal intervention and that gives 50% of the fish to
the tribes. Here we are dealing with tribes through ANCSA and
ANILCA. We don't have reservations. He couldn't give him an
opinion on whether it violates the Constitution or not.
SENATOR TAYLOR asked why the Governor had never filed a suit to
test that in court so we could find out if we have to comply with
this law or if it is unconstitutional.
COMMISSIONER RUE said the reason he, personally, wouldn't do it is
because that would take years and years of litigation while the
issue festers and we get federal management. He didn't know what
reasons the Governor had.
MR. BOB PENNEY, Cook Inlet Sportfishing Caucus, said he voted for
Statehood specifically because he wanted the State to maintain
control of fish and game. He wants his grandchildren to enjoy them
as much as he has been able to. He remembers what it was like
before statehood in 1958 and has been told that under subsistence
there will be winter fishing for rainbow trout and char again.
He had talked with Senator Stevens who said we would have federal
management. Since then he has talked to a lot of people from a lay
persons viewpoint and has discussed what would happen if this
proposal would be put into effect. He had a statement from Dan
Coffey, Board of Fish, addressing that issue saying, in essence,
that nothing would happen. Fishing would be managed the same way
it is now if the proposal passed tomorrow.
After talking with many other people they have come up with this
conclusion. If we replace today's law relating to sportfishing
with the revised proposal, the result would be neutral to neutral-
positive Statewide. He thought they would hear from commercial
fishermen and sport hunters that they would be affected the same
way.
MR. PENNEY said he didn't understand what would change. If you
accept the fact that you have to have rural preference, you have to
ask yourself if you want State or federal control. Our
congressional delegation has told him that we have to amend our
Constitution. They cannot get rid of ANILCA.
He thought the constitutional amendment needed to be put on the
ballot and to delay doing that would be playing poker with his
grandkids with a losing hand, because the feds have all the chips
stacked against them.
He implored the legislature to get this "popped out" by the first
of November, to get rid of the politics and who did what to whom.
He urged them to think of all of everyone and come to some
conclusion so we could stop the feds from getting too powerful.
He concluded by asking them to please get on with the process and
let the public vote on the issue.
SENATOR LINCOLN said she appreciated his testimony. She
appreciated his comments about his grandchildren. She thought the
false division of Alaskans that was being put forward was
ludicrous.
She asked if he saw part of the resolution was that we manage those
resources so we're not in a predicament.
MR. PENNEY said he didn't know anyone who didn't feel this way. In
a time of shortage when the people are using it for food, the
people should have a right to that. The bottom line has to be the
continuation of the resource.
Specifically, he asked on page 33 if they could change line 13 and
delete "the Board has made a finding that." This allows
sportfishing for catch and release across the entire State of
Alaska, even in subsistence areas.
The way it's written means the Board has to find every stream or
creek.
MR. JIM REARDON said their discussion and conversation today
reminded him of the four years he was on the Board trying to
understand subsistence. He was concerned that the subsistence
issue has destroyed a once-fine game management program.
Subsistence laws have made it impossible to implement regulations
based strictly on biology and the realistic needs of residents.
Two decades of coping with the demands of subsistence laws has
stolen from the Board of Game most of its time and effort it should
have spent in the scientific management and establishment of
policies for which the board was originally established.
TAPE 97-46, SIDE A
Number 001
MR. REARDON said any review of hunting regulations from the 40's -
1978 when the State subsistence law was enacted shows that the
rural regions of Alaska enjoyed far longer big game hunting season
and often considerably larger bag limits than the game management
units that are most hunted by so-called urban hunters. That
continues today and the reason is simple. Before statehood, and
after, the Board had no problem in providing long seasons and
expanded bag limits for vast areas of low human population and
healthy game numbers. Rural Alaska has always enjoyed an automatic
rural priority. Further, the Boards have always been aware of the
dependence of rural Alaskans on fish and game and the regulations
have long reflected this awareness.
He said that a law for rural priority is unnecessary and was
unnecessary to begin with. Federal management of Alaska's big
game, which would include the rural priority would bring only worse
mismanagement than we now have. In the territorial days, federal
mismanagement destroyed our salmon fishery. The answer to our
subsistence dilemma is not to change our Constitution which would
reenforce the mismanagement policy we have followed for the past 19
years. The answer is for Alaskans to demand that congress rescind
the federal rural priority requirement so Alaska can get back to
common sense and proper management of her most valuable resource.
If managed properly our wildlife can be an important part of the
lives of Alaskans for centuries to come including his
grandchildren, 12 of whom are Alaska natives.
MR. RON PETTERSON, Kenaitze Tribal Chairperson, said he was
concerned that if this proposal passed, they wouldn't have a say in
subsistence. They have submitted a resolution (9724) which he read
for the record in strong support of a subsistence priority for all
Alaska natives.
SENATOR WARD asked him if he thought a family that wasn't native
whose members had walked across Canada two generations ago should
also have a subsistence priority. He asked if that should be a
high priority for all Alaskans coming before those who take fish
and game for profit.
MR. PETTERSON said that would be fine; that they are not against
sharing. They have always shared.
REPRESENTATIVE HUDSON asked if local native use should be expanded
so that his people could hunt in Bristol Bay, for example.
MR. PATTERSON replied not if it was going to take away from that
area. He thought they should stay within their establish
boundaries.
REPRESENTATIVE MASEK asked him for a definition of customary and
traditional culture as far as his inherent right.
MR. PATTERSON said his ancestors had been here for a minimum of
1200 years and they have talked about harvesting the land and the
water - medicinal plants and edible foods. There are elders who
still harvest the land today.
REPRESENTATIVE MASEK asked him to explain what gives him the right
to ask for priority over everyone else because he's part of a
tribe.
MR. PATTERSON responded that to preserve their tribal entity they
need to stay connected with the land by using and respecting it.
REPRESENTATIVE MASEK asked him how he makes his living.
MR. PATTERSON replied that he was a professional substance abuse
counselor. He also subsists off the land.
REPRESENTATIVE MASEK asked what he thought would have to change in
order to protect his culture. She asked him if he supported the
Governor's proposal.
MR. PATTERSON said he didn't support the whole of it.
REPRESENTATIVE MASEK asked if he supported discrimination saying he
has that privilege while other older Alaskan pioneers can't.
MR. PATTERSON said he didn't see it as discrimination. He said his
tribe wanted him to ask the legislature to maintain their
connection to the land without having to ask permission to use it.
SENATOR LINCOLN pointed out again that this was not the Governor's
plan. This is a Task Force on which House Speaker Gail Phillips
and Senate President Mike Miller participated.
REPRESENTATIVE JOULE pointed out that yesterday limited entry was
used as an example of creating different classes of people. He
thought that creating a different class of people for subsistence
would give control to people with interests outside of the State.
He also said that mostly he is quiet because he wants to hear other
people's opinions.
MR. HERMAN FANDEL said he owns two family businesses and thought it
was a shame when people have to resort to voter initiatives and
possible federal take-over to get some of the things we rightfully
should have. His family opposed amending the Alaska Constitution
partly because they felt it would make second class citizens out of
a lot of people in towns like Soldotna and Kenai. He also opposed
federal takeover, but he didn't think they could do a worse job of
mismanagement in the area that he is acquainted with of Cook Inlet
and the Kenai River.
MS. BECKY HULTBERG said she appreciated the complexities of the
issue and wanted to speak regarding the constitutional issues
because their policy decisions will affect future generations as
well as our own. She did not support the Task Force proposal and
said we would be loosing a battle of principle. We would lose the
moral authority to assert our State's rights in future situations.
Article 10 of the Bill of Rights states that the powers not
delegated to the United States by the Constitution nor prohibited
by it to the States are reserved to the states respectively. And
the last time she checked fish and game management was definitely
not delegated to the U.S. federal government. It was never the
intention of this document that federal legislation would take
precedence over a state constitution.
She said their duty as legislators is to govern Alaska wisely and
well and to uphold the State Constitution. Allowing the feds to
take over fish and game management might hurt some people, but in
the long run our refusal to compromise and our defense of our
Constitution may give us back the self determination we have built
our State on.
Finally, she said the Constitution is a living document, but it was
not meant to be changed by the force of threat. She urged them to
challenge the federal mandate, not because it's easy, but because
it's the right policy decision for Alaska.
MS. MARY ANN MILLS, Aleut from the Kenai Peninsula, said this issue
should be solved by basing our resolve in honesty and truth. She
said that Alaska natives have been good hosts and hostesses to most
guests who have come into their land. It is their nature to care
and share with others and to respect everyone and everything in
their existence. They believe the creator made them caretakers of
their land before the United States and before the State of Alaska.
She said they were not prepared for greed, disrespect and lies.
Today indigenous people of Alaska are in a crisis of genocidal
proportions. The biggest deception of the United States government
is when they announced to the American people that they purchased
Alaska from Russia. It is well documented that Russian never
claimed ownership of Alaska, but just the right to trade. She said
that ANCSA was never ratified by indigenous peoples of Alaska; it
is an act of termination, an act of apartheid, and an act of
genocide. It is not a jurisdiction or a treaty; therefore our
inherent rights are intact.
MS. MILLS said the AFN is misrepresenting themselves; they do not
represent the indigenous people. They represent the corporations.
We would not expect K-Mart to represent the American people, just
as we should not expect AFN to represent them. It is an insult to
have Byron Mallott on the Governor's Subsistence panel of seven,
because it was he along with the AFN who illegally implemented
rural preference for the subsistence rights in ANILCA. This was
accomplished without the knowledge or consent of her people and is
considered an act of treason and genocide on their part by many of
them.
She believes subsistence is a human right given to all of us by our
creator. She agrees with Senator Halford when he said subsistence
is an inalienable right. She concluded by saying that basic sacred
fundamental human rights are not negotiable.
MR. DENNIS RANDA, representing his family, said he had lived here
for 24 years and had some hard times, but never had to sign up for
welfare because he was able to sustain himself with the resources.
He fears that people may not be able to do this in the future. He
asked the legislators to not give up his rights of access to State
land. If he had to be a second class citizen on federal lands, so
be it, he said.
MR. RANDA asked if the federal government has a mandate of managing
for sustained yield or managing resources similar to what the
Alaska Constitution states for the agencies.
TAPE 97-46, SIDE B
Number 001
MR. DON JOHNSON opposed the Task Force proposal. He thought it cut
off all our roads to exit this situation. He thought it would cost
more than $5 million to administer. He didn't think the Governor
should have dismissed the lawsuit; he would like to sue the federal
government himself. He didn't think the feds knew what the Alaska
Constitution said or they didn't care.
CHAIRMAN HALFORD read a section from the original ANILCA because it
provides that nothing in this Act is intended to be construed as
granting and then applies it to a lot of phrases. That's section
815 of the committee report of the bill they passed, he said. They
were lying to themselves at the same time they were lying to us.
MR. LARRY LEWIS opposed the Task Force proposal. He was opposed to
the sport hunting designation because most people who hunt or fish
feed their families with whatever they get. He thought this was
basically a racial issue and this proposal does nothing but open up
another can of worms. It amounts to State management with federal
oversight and he would have very limited representation on any of
the boards or committees.
He said he was a white guy who didn't have any special federal
protection and he felt really put-upon.
MS. MEL KROGSENG, representing herself and the Alaska Sportfish
Recovery Association, read the statement that she passed to the
committee members opposing a constitutional amendment. A
subsistence preference for an exclusive group of people will
further divide the people of Alaska. He supported the common use
clause of the Constitution.
She suggested that the subsistence problem may stem from incomplete
implementation of the limited entry amendment which granted limited
special access privileges for some people. She explained that
exclusive hunting rights have been pursued by hunting guides and
commercial fishermen to the point of restricting resource use by
the public, thus, in part, creating the subsistence problem. The
result has been over-harvest of the fisheries resources which has
exacerbated the subsistence lifestyle of all Alaskans residents,
rural and urban.
ANILCA must be amended so as not to conflict with Alaska's
Constitution. It should have been written to survive within our
Constitution, not the other way around. There is nothing wrong
with giving all of Alaska's people a subsistence priority over
other uses, but the privilege must survive within our current
Constitution.
She suggested that the legislature pass a resolution urging
congress to immediately amend ANILCA to be consistent with our
Constitution. Our legislature should ask other state legislatures
to join us in this endeavor. This is a state's rights issue and
other states should be sympathetic. She suggested amending the
limited entry statutes as indicated in her written testimony.
She agreed with Senator Halford about the linkage in the proposal.
The wording that has been added is extremely deceptive and is the
same type of language that was put before the people in the early
80's. She thought it was hard to believe Senator Stevens could not
get an amendment to ANILCA through, under the circumstances, and
with the power he holds. She thought they should mount a massive
states' rights campaign encouraging other states to join with us.
REPRESENTATIVE OGAN told her that last year at the Western States
Coalition he got a resolution unanimously passed opposing any state
amending their constitution to conform with federal law. They are
aware of it and he has asked for their help.
SENATOR TAYLOR said he thought the conditions of the buy-back
provision had been amply met; and that it's time to take a hard
look at the buy-back program to begin implementation of that.
MS. KROGSENG said they would help in any way they could.
MR. SEYMOUR MARVIN MILLS asked if ANILCA was a treaty or was it
based on a treaty.
CHAIRMAN HALFORD answered no to both questions.
MR. MILLS said that Fish and Game gets all of its authority from
treaties starting with the Migratory Bird Treaty of 1909. He said
under the Equal Footing Doctrine of 1787 and several other things
along those same lines seemed to be being used to supersede the
Constitution. Common sense has to tell us that the intent can't be
to do that, because if that's the case, why do we bother with
constitutions.
He thought the Statehood Compact was very deceptive and he pointed
out a number of clauses that he questioned. He said he wasn't
interested in amendments to anything, but that we go to court
whatever the cost and find out if we are a State or not. If we
aren't, then we better become one on equal footing with the
originals in all respects and stop all this nonsense.
MR. RON DOLCHUK, Kenai, said ANCSA happened for the non-native
benefit and stripped him of his cultural background. He said they
had nothing to do with it. He accused Senator Stevens of working
with a judge advocate's office circumventing territorial laws
having to do with voting. He asked why the Attorney General
couldn't check into what we could do in an admiralty court. He
said so many things happened in the last 20 years, it should be
looked at.
REPRESENTATIVE SCOTT OGAN chaired the meeting at this point.
MR. W. T. MANER said he thought this was a done deal; that either
the federal government was going to take over management of Alaska
or we were going to do what the federal government wants us to do.
He said his family on his mother's side had been here 300 years and
he didn't know how long he had to be here to become a citizen.
TAPE 97-47, SIDE A
Number 001
He said he defended the United States in a number of wars and
isn't afraid of the federal government. He thought that white
people were blamed for just about everything and noted that his
grandmother was a Cherokee Indian.
SENATOR WARD said this committee had no intention of trampling on
his rights.
SENATOR LINCOLN said she was disturbed that she heard the division
of color in his testimony and she hoped our State wouldn't get into
that. She thinks it has gotten better and she has a lot of hopes
for the future generations. She asked Mr. Maner what rural
priority meant to him.
MR. MANER said it means to him what the federal government has laid
it out to be and since he lives in Soldotna, rural doesn't include
him. He noted that he had been here 22 years and not one time had
heard of anyone starving to death because they didn't have enough
sense to go shoot a moose if they needed to eat. He said he was
part Cherokee and didn't sit around and whine about things that
were taken from him. He goes to work every day and is taxed 33% by
the federal government that turns around and screws him.
MS. ELAINA SPRAKER, KPOC, said their goal is to remove the rural
subsistence priority from the Kenai Peninsula except in the remote
villages of Nanwalek and Port Graham. They are not against
consumptive use of fish and wildlife; most of them are highly
dependent upon it. The very reasons they live in Alaska center on
their ability to harvest fish and wildlife.
She said they have accepted that ANILCA is here to stay and
recognize that rural preference has a place in remote parts of
Alaska and acknowledge the two communities.
MS. SPRAKER said that we have in a small way already voted away our
equal access clause with limited entry, Tier I and Tier II permits.
If we remain status quo and choose not to come up with some
solution, federal authority will be expanded.
She thought whatever the solution was, that it would be argued in
federal court and thought the best course was to give them as
little room for interpretation as possible. She supported the Task
Force proposal as a good place to start, but not as it was written.
She asked the legislature to look at the Kenai Peninsula as an
example of dysfunctional federal laws of Title 8. Because it isn't
defined, it became a classic example of rural gone wrong. The feds
created the haves and have-nots and created subsistence councils
that did not represent the views of their community. The councils
were given the power to make up the rules as they went along.
They suggest the following changes: 1. The definition of rural
should be defined where subsistence is a principle characteristic
of the economy which would ensure communities such as Ninilchik,
Sitka, and Kodiak that do not represent a subsistence lifestyle be
granted a rural preference. 2. The power given to the regional
subsistence councils must be diminished because giving them
substantial deference will hold the Boards of Fisheries and Game
hostage which will break down the regulatory process. In addition,
sound fish and wildlife management would be threatened with a lack
of consideration the councils would have given on a biological
basis.
She asked the legislature to move forward to solve the subsistence
dilemma.
SENATOR TAYLOR said his concern was that there is the pervasive
idea that you just can't change ANILCA. He asked her what basis
she used for that belief.
MS. SPRAKER replied that, first, she has gone through federal
subsistence abuse like no one had. She has been figuratively
beaten-up by the councils because whether or not we want to
acknowledge it this is a native/non-native issue, it is. She has
seen the federal interagency staff in action and the muscle they
have. Another thing is that Senator Stevens won't amend ANILCA
because it's his baby. It's not that he can't amend it. She said
they look at this as a cancer that has to have treatment
administered to it before it kills them.
SENATOR TAYLOR stated for the record that he had talked to former
Alaska Attorney General Charlie Cole in Fairbanks in August and
asked if the direct action lawsuit through the Supreme Court was a
possibility and one that might be viable. He answered that of
course it would be. He also asked if an injunction would have a
good chance of prevailing and he answered yes. He said, however in
a joking manner, how are you going to convince this Governor to do
it. Senator Taylor said he has not heard anyone say it's a bad
idea.
MS. SPRAKER said if the legislature would put a proposal on the
table, they would study it and make recommendations on it, too.
The point is that they want to move forward because they have seen
what federal subsistence management can do to a community and they
are scared to death.
SENATOR TAYLOR asked her to present the lawsuit scenario to her
organization.
MS. SPRAKER said they thought a problem was in 1995 - 96 when the
federal subsistence board gave customary and traditional use to
Nanwalek and Port Graham communities that showed no evidence of
harvesting in unit 15-A. Her coalition went forward and put a
reconsideration before the Board which would have been a good time
to initiate a lawsuit. She has talked with the Governor about it.
She thought if he couldn't implement a small lawsuit, she didn't
think he would initiate a lawsuit for a larger issue.
SENATOR TORGERSON thanked her for her time and asked her what
powers of the Board she would suggest limiting.
MS. SPRAKER answered that whatever plan goes forward, it is
important that the regional subsistence councils do not have
substantial deference or the regulatory process will be broken.
From the point of view of a fish and game biologist, she thought it
was important that they had created another layer of bureaucracy,
people who don't appreciate conservation. She did not believe the
councils would be merely advisory.
REPRESENTATIVE WILLIAMS thanked her for all her work on this issue
and asked if she had read the conference report that went with the
Alaska Native Land Claims Settlement Act.
MS. SPRAKER said she hadn't.
REPRESENTATIVE WILLIAMS asked her if she would. He said the
conference committee expects both the Secretary and the State to
take any action necessary to protect the subsistence of the
natives. Under ANILCA a matter of equity is necessary for congress
to invoke its constitutional authority over native affairs and its
authority under the property clause of the Commerce clause to
protect and provide the opportunity for continued subsistence use
on public lands of natives, non-natives and rural residents. He
asked her or anyone to contact him on where he is wrong so they can
take care of the subsistence issue.
REPRESENTATIVE OGAN asked if that was really adopted.
REPRESENTATIVE WILLIAMS said it was on December 13, 1971.
REPRESENTATIVE OGAN pointed out that it wasn't part of the bill and
that he had that question addressed by their legal counsel.
SENATOR WARD asked Ms. Spraker if they supported the Task Force
proposal.
MS. SPRAKER said they didn't as it was written.
SENATOR WARD asked if they wanted to change the equal opportunity
clause in our State Constitution.
MS. SPRAKER said they would be willing to change the Constitution
if the amendments to ANILCA are significant and if it will resolve
the subsistence dilemma.
SENATOR LINCOLN said they have tried to get a vote to the people on
rural preference and that has been held up by the majority in the
legislature. She asked if they supported going to the people and
if there wasn't that fear of the federal government coming in, what
would their solution be.
MS. SPRAKER said her organization thought that the real sore here
was ANILCA - that the intent was good, but it's poorly written and
attorneys and judges have twisted it. She said they might go down
a different road if the facts were different, but they aren't. She
highly recommended putting a vote to the people if there's a viable
solution that's really going to fix the subsistence dilemma. She
is afraid if it is voted on, that the majority of Alaskans will not
know exactly what it is they are voting for.
MS. PEPPER JOHANSEN said she was born and raised in Kenai and
thought this was so confusing, she didn't know how voters could
possibly figure it out, but she thought this was a start. She was
afraid that the feds were going to take over, because her family
commercial fished and they starved when the feds were managing the
resources. She didn't want to divide this into a native or non-
native issue; she thought it was rural or non-rural and it needed
to be defined.
TAPE 97-47, SIDE B
Number 001
She said when she was young, her family was basically starving
eating beans and beaver and no one gave them moose meat. When they
moved to Alexander Creek, a white person came up and gave them a
quarter of moose saying it was their custom to share the first
moose. She believed a basic consideration for rural preference
should be the concept of whether you live on the road or not. She
didn't think "hard-lining it as a states rights thing" would work.
She thought the feds would take over and we would all be hurt for
it.
MR. JOE CLOUD said he was born in Alaska and claimed it's his birth
right that he is a native Alaskan even though he is caucasian.
When he was born there were about 7,000 other people born, too.
They are also natives; it doesn't matter what color their skin is.
He can remember 1954 when we worked to get rid of the feds by
becoming a State. He was always told in school that the Alaska
Constitution was not just a good constitution, but the best. He
still believes that to this day and is opposed to any changes to
it. He said people in Washington D.C. don't have any idea of what
is going on up here and Alaska was once actually considered foreign
duty up here.
He said it looks like the federal government is trying to divide
this along racial lines and he thought that was totally wrong. He
suggested if they have to allocate, maybe they should let people
get their tags January 1 - 30. He didn't think too many people
would travel to Lime Village at that time of the year to get a
subsistence permit.
MR. BEN ELLIS, Executive Director, Kenai River Sport Fishing
Association, said they had already received copies of their written
testimony. They support the following points: 1. the retention of
State control over our fish and game, 2. the granting of a
subsistence priority in times of shortages is acceptable as long as
it pertains to all people regardless of race or creed who reside in
areas of the State where subsistence is the principal
characteristic of the economy, and 3. the changes required of the
Constitution for the linkage. He hoped they could build on the
proposal before them.
SENATOR TAYLOR noted that he hadn't ever heard of one person being
denied any subsistence. One of the first territorial laws ever
passed said that any person would have a right to take birds or
game for food if they needed it.
MR. ELLIS said the concern is what Ms. Spraker expressed. He
didn't think anyone wanted to turn neighbor against neighbor.
MS. DEBRA HORNE supported equal opportunity and equal access to our
resources. She was not in favor of federal take over of management
of fish and game. Anything like that happening would be clearly
interpreted as exceeding federal authority as stated in the 10th
Amendment of our U.S. Constitution. She criticized the Governor's
decision to drop the Babbitt suit. She thought our congressional
delegation could have done more on this issue long ago. She
thought Alaskans should somehow require our representatives in
Washington D.C. to make changes to ANILCA. She opposed amending
the Constitution, because it would lead to further damage of social
unity that we have in Alaska today. She asked them to preserve
optimum equality of opportunity in Alaska.
MR.THEO MATTHEWS, President, UFA, said he is also Executive
Director of the United Cook Inlet Drift Association. He pointed
out that federal law has a priority for subsistence in some areas
and not others and we have a State law under the State Constitution
that requires a subsistence priority in some areas and not others.
The essential idea they have come up with is to take the best of
State law and work with the federal government to accept that by
amending ANILCA. He noted that there was a rural preference before
a lawsuit overturned it, not an upheaval in Alaska.
He said a constitutional amendment by itself would be an absolute
disaster and did not think congress would give up federal court
oversight. So he thought that was why they emphasized ANILCA
amendments. He told them that every year after 1992 they had been
told by two different sides that they would not get ANILCA
amendments. He said whether we like it or not these are federal
lands.
He supported the Task Force's efforts and urged the legislature to
take the opportunity to leverage congress to amend ANILCA in such
a way that it would essentially give us the same results as our
current State law has with the exception of having to put in rural
preference.
SENATOR LINCOLN asked where he saw the greater equality for
Alaskans might lie.
MR. MATTHEWS said a constitutional amendment would not resolve this
issue. Alaska was accepting a rural priority and no one was being
systematically denied their access to resources until 1989 with the
Keneitze decision which said our definition of rural wasn't good
enough. He said their position has consistently been that they
can't either amend ANILCA or the Constitution. He said there is
nothing equal about the State subsistence statute. If we go out to
Tok enmass, we kick in the priority which limits the options for
those communities. They would lose their guiding business, their
tourism business, and their commercial fishing business.
SENATOR WARD asked if he thought the people who live off the land
should have a right to fish and game before those who commercially
harvest it.
MR. MATTHEWS replied yes.
SENATOR WARD said he meant all Alaskans regardless of where they
lived.
MR. MATTHEWS replied no.
REPRESENTATIVE OGAN asked if he understood that if a constitutional
amendment changed, there was no automatic linkage that forces the
change to ANILCA.
MR. MATTHEWS replied that he understood that and his point is that
the proposal is not perfect, but it's the only one that's going to
work in reality and they want to work with the legislature to
improve it.
REPRESENTATIVE OGAN asked if he would back a lawsuit as suggested
by Senator Taylor.
MR. MATTHEWS answered he thought so under one caveat. We are not
prepared to play chicken with the federal government for 15 years.
They are concerned with the feds getting a foothold. He would
consider it.
MR. BOB KROGSENG said over the years he has observed if you start
out with a faulty idea or premise, you just dig yourself deeper if
you try to justify the faulty logic. He said there is nothing
wrong with our Constitution. If it's not broken, don't fix it.
The problem happened when the federal government tried to put in a
racial preference which was illegal. He implored them to not
tamper with our Constitution. If the feds take over management of
our fish and game, it won't last for ever. They won't want to
spend the $40 million per year and we'll get at least one chance or
more a year to change things or get it back.
REPRESENTATAIVE OGAN noted for the record that his constituent,
Alex Arnegost, wanted the dictionary definition of subsistence to
be read. Subsistence is defined as a minimum of food or shelter
necessary to support life, a source or means of obtaining the
necessities of life.
MS. VICTORIA HERMANSEN said she was speaking on behalf of herself,
Bill Whitney, and their four children. She supported comments by
Herman Fandel, Don Johnson, Mel Krogseng, and others like them in
the audience. She said she is raising her family in this bountiful
land where they subsistence fish and hunt. It teaches her family
to be independent and respectful of what god has given them. She
supported upholding the Constitution for ourselves and future
generations.
MR. RANDY SHUMATE, President, Local Chapter, Safari Club
International, said there is not a lot of information on what is
happening to hunting opportunities on a national level as well as
local.
TAPE 97-48, SIDE A
Number 001
He didn't see why we couldn't just change ANILCA, although he
didn't think we would be able to until we got cooperation from our
congressmen.
SENATOR TAYLOR asked him if it seemed strange that the same
congressional delegation that has refused to offer even one
amendment to ANILCA on this issue since 1980 has participated in
and been involved in the amending of ANILCA 19 times. He asked how
they could believe that the amendments in the proposal would
necessarily pass.
MR. SHUMATE said he didn't understand either. Another point he
wanted to make clear is that there are powerful hunting lobbying
groups that have recognized what's happening and they are not
opposed to subsistence and not necessarily opposed to ANILCA in its
intent. What's happened over the years is that it's been
reinterpreted so many times that it's no longer serving its own
purpose. They advocate equal access and are not opposed to
subsistence priority as long as it's proper and considers the
resource first.
MR. JIM RAY, SR., opposed changing the Constitution. He didn't
think we could have two classes of people. He said we should be
able to hunt equally.
MS. KAREN MCGAHAN said she has spent the last three days canning
moose and putting up berries which she has customarily and
traditionally done for 33 years. She said she had never seen any
Alaskan hunter kill a moose and stuff it in their living room. They
all hunted for the meat to eat. She said they don't want to be
outlaws. She explained that there were more people of native blood
than caucasian blood when she first came to the Kenai area and now
the native issue has become a very divisive thing. Some of her
children have married people with native blood. So this would
allow some of them to hunt and others not to.
The definition of rural is an impossible situation. She thought we
all need equal opportunity to our fish and game as is guaranteed by
the Constitution which is a right principal and correct. She
thought there would be a lawsuit one way or the other and doesn't
want to see it happen.
MR. BOB BIRD said he lived here for 20 years and taught
constitutional government. The argument that tells us we have to
amend our State Constitution in order to avoid federal control is
oxymoronic. We already have federal control if it's telling us to
do that.
He said that Senator Stevens has refused to admit he made a mistake
with the subsistence amendment in ANILCA and refuses to consider
amending it to give Alaska back its sovereignty. He thought the
legislators have the ability to do something because the
congressmen have to pay attention to them. He said they wouldn't
find allies unless they decided to fight and he strongly urged them
to do so.
MR. KARL KIRCHER, Administrative Assistant, Kenai Peninsula
Fishermen's Association, supported the concept of the Governor's
Task Force proposal. The definition needs tweaking and we
definitely need linkage because we can't just throw our
constitutional amendment out there and hope something is going to
come back the other way. He agreed that subsistence is a universal
right and if people are doing it, they are probably living in rural
Alaska. However, he didn't think amending our equal access clause
necessarily meant we are tossing it out. Maybe it means by working
on it we can make it better. He didn't think the amendment was
suggesting a division along racial lines. It says anyone can move
to rural Alaska and have an equal opportunity to have a subsistence
preference.
He encouraged them to take the basic concepts in the proposal and
turn them to their liking and use it.
SENATOR WARD asked if his group supported the right for people to
live off the land before those who take fish and game for
commercial interests.
MR. KIRCHER replied that relative to the proposal before them if
they are doing it in rural Alaska, not Kenai or Anchorage, they
supported it.
SENATOR WARD asked if he thought the rest of Alaska had the right
to live off of fish before a commercial harvest.
MR. KIRCHER replied that he thought that was a question for fish
and game to answer.
SENATOR TAYLOR noted that the commercial fishermen weren't really
interested in the subsistence issue until it began to affect them.
MR. KIRCHER responded that his wallet and his ability to catch fish
is his subsistence and it affects him now.
SENATOR TAYLOR explained that the point he is making is that now
there is an alignment among commercial fishermen who want him to
solve the subsistence issue at any expense, just so they don't have
to be impacted.
MR. KIRCHER responded that in 1992 UFA had this identical position.
MR. SAM MCDOWELL said he did not support the Task Force proposal.
He said he resigned his position as president of the local chapter
of the Isaac Walton League so he could join other people to fight
for their constitutional rights. The first thing they did in 1986-
87 was form the Public Waters Defense Fund and went to the U.S.
Supreme Court to protect the navigable waters of this State. He
said he is the McDowell in the McDowell decision that won in State
court in 1989. He said under Article 14 of the U.S. Constitution
you can't take a vote on this issue. He wanted the committee to be
sure to read the comments from Dale Bondurant on this particular
issue.
MR. MCDOWELL does not believe in a rural priority at all. He said
you can allocate any fish and game to any area of this State that
can't be legally challenged with methods and means and open and
closed seasons. To a person who asked him how he would limit the
guides who come into his area to shoot moose, he answered that he
wouldn't open the season until all bulls dropped their horns and he
would also do away with all mechanized conveyances. He urged them
to do what is legally right and what they pledged to do: uphold the
Constitution, and file a suit against the federal government based
on Article 14.
REPRESENTATIVE OGAN thanked him for his efforts on behalf of the
State of Alaska.
MR. RICHARD MCGAHN reminded them that they took an oath of office
to uphold the Constitution of the State of Alaska and the United
States and said if we do that, we would get over this hurdle real
quick.
REPRESENTATIVE OGAN thanked everyone for their patience and
participation. He then adjourned the meeting.
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