Legislature(1999 - 2000)
09/23/1999 02:20 PM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
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SENATE RESOURCES COMMITTEE
Second Special Session
September 23, 1999
2:20 p.m.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor, Vice Chairman
Senator Pete Kelly
Senator Jerry Mackie
Senator Lyda Green
Senator Sean Parnell
Senator Georgianna Lincoln
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 201
Proposing an amendment to the Constitution of the State of Alaska
relating to subsistence use of renewable natural resources by
residents of the state; and providing for an effective date.
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SJR 201 - See Resources minutes dated 9/22/99.
WITNESS REGISTER
Gerry Hope
ANB Sitka Camp 1
PO Box 72
Sitka, AK 99835
POSITION STATEMENT: Supports a constitutional amendment; opposes
any changes to ANILCA.
Eleanor Demert
PO Box 4
Cantwell, AK 99729
POSITION STATEMENT: Prefers state management of fish and game
resources but supports federal management if state management means
her culture must be suppressed.
Paul White, Jr.
Huna Totem Corporation
PO Box 22356
Juneau, AK 99802
POSITION STATEMENT: Opposes any changes to ANILCA.
Carl Rosier
8298 Garnet St.
Juneau, AK 99801
POSITION STATEMENT: Opposed to a constitutional amendment; believes
changes need to be made to ANILCA.
Lonnie Tyone
PO Box 761
Glennallen, AK 99588
POSITION STATEMENT: Supports a rural priority.
Ken Johns
Copper River Native Association
Copper Center, AK
POSITION STATEMENT: Federal management has been more responsive to
the needs of subsistence users.
Dewey George
PO Box 210225
Auke Bay, AK 99821
POSITION STATEMENT: Supports a state policy provides for a Native
subsistence right based on ancestry and a permit system for non-
Native subsistence users.
Gloria Stickwan
Copper River Native Association
PO Box 264
Copper Center, AK
POSITION STATEMENT: Supports a rural priority.
Lynn Levengood
Alaska Wildlife Conservation Alliance
931 Vide Way
Fairbanks, AK
POSITION STATEMENT: Opposed to amending the Constitution and
supports changing ANILCA.
Gabe Sam
Tanana Chiefs Conference
122 1st Ave. Suite 600
Fairbanks, AK
POSITION STATEMENT: Supports a rural priority.
Gilbert Bent
PO Box 614
Allakaket, AK 99720
POSITION STATEMENT: Native people need a subsistence priority.
Richard Lundahl
PO Box 718
Pelican, AK 99832
POSITION STATEMENT: Provided proposed legislation to committee
members.
Donne Fleagle
McGrath, AK
POSITION STATEMENT: Supports the continuation of Native subsistence
lifestyles and the override of the Governor's veto of SB 74.
Hjalmar Olson
PO Box 456
Dillingham, AK 99576
POSITION STATEMENT: Expressed concern about the negative impact on
villages caused by an increased number of non-resident hunters.
ACTION NARRATIVE
TAPE 99-37, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 2:20 p.m. Present were Senators Green, Taylor, Parnell,
Mackie, Lincoln and Chairman Halford. Other legislators present
were Senators Ward, Hoffman, Wilken, Leman and Torgerson and
Representative Cowdery.
SJR201-CONST.AM: RURAL SUBSISTENCE PRIORITY
CHAIRMAN HALFORD announced that at the request of Senator Ward, he
sent a letter to President Clinton requesting him to clarify his
position on protecting subsistence rights for all Alaska Natives
rather than for Natives who live in rural areas.
CHAIRMAN HALFORD informed participants that the committee would
continue to take testimony on SJR 201. He asked Gerry Hope to
testify.
GERRY HOPE, President of the Alaska Native Brotherhood (ANB) Sitka
Camp Number 1, gave the following testimony. ANB Sitka Camp
supports the Alaska Native Brotherhood and Alaska Native Sisterhood
Grand Camp Convention resolution that has been consistent since
1991. That resolution supports no changes to Title VIII of ANILCA
and it supports a state constitutional amendment to reflect the
language in Title VIII. In regard to SJR 201, Mr. Hope said he
supports changing the word "may" to "shall." He hopes that the
dialogue taking place during this special session on subsistence
will convince enough legislators to pass a constitutional amendment
to the voters. Mr. Hope stated that ANB Sitka Camp No. 1 prefers
local control, and it would prefer that the state manage fish and
game resources, however Alaska Natives cannot give up any more than
they already have. ANILCA is one of the few legal tools left that
helps to protect Alaska Natives' lifestyle. Alaska Natives use
very little of the resources, about four percent. If the choice is
federal control versus the loss of ANILCA and Title VIII
provisions, then he would regretfully choose federal control.
Number 074
SENATOR TAYLOR indicated that President Clinton and Ms. Kitka
stated they would support no changes to ANILCA in earlier
testimony, and then they stated that further relationships and
negotiations would occur on a government to government basis. He
asked what the President and Ms. Kitka meant by the term
"government-to-government."
MR. HOPE responded that he cannot speak for AFN, however he assumed
the federally recognized tribes would have more direct involvement
with the Department of Agriculture and the Department of Interior.
SENATOR MACKIE asked about the membership of Sitka's ANB and ANS
organizations.
MR. HOPE replied the two organizations have a combined membership
of 200 paying members. The federally recognized tribe of Sitka has
an enrollment of around 3,400, which is a significant portion of
the 8,500 residents as estimated in the 1990 census.
CHAIRMAN HALFORD asked if Sitka is considered to be rural under the
federal definition.
MR. HOPE said it is.
CHAIRMAN HALFORD asked if Sitka is the largest rural community
under the federal definition.
MR. HOPE said he believes it is.
SENATOR MACKIE clarified that Kodiak is the largest rural
community.
Number 148
ELEANOR DEMERT, a resident of Cantwell, presented written testimony
to committee members and said she will not vote for a
constitutional amendment that contains the word "may" instead of
"shall" because she does not trust that the state will provide for
a rural preference otherwise.
SENATOR LEMAN asked Ms. Demert why legislators would want to go
through this painful exercise to put a constitutional amendment on
the ballot if the legislature did not intend to enact the amendment
if it passes.
MS. DEMERT noted the public voted on moving the capital, however
the legislature did nothing.
SENATOR LEMAN pointed out that the funding portion of the vote
failed.
MS. DEMERT said that is her opinion.
SENATOR LINCOLN remarked that the issue of subsistence has been a
painful one for 16 years. She asked, if it is the legislature's
intention to listen to the people's vote, why not change the word
"may" to "shall."
SENATOR TAYLOR maintained that he is troubled by Ms. Kitka's and
President Clinton's use of the term "government-to-government"
because it sounds as though they believe it will be preferable for
tribal leaders to negotiate directly with the federal government
rather than to make any changes to ANILCA. He asked Ms. Demert to
comment on that statement.
MS. DEMERT said she believes that is true because the federal
government recognizes tribal governments while the state has made
no efforts to work with them so far. As Cantwell Village Council
president for many years, she has never seen the state recognize
the Village Council while the federal government has. She added
that she agrees with Mr. Hope that she would prefer that the state
retain control of its fish and game resources, but she would prefer
federal management if her culture is going to be suppressed. She
stated that her people are and have been hunters, and her 8 year
old grandson asks when he can hunt with his grandfather. She noted
hunting is just part of her life and she cannot imagine changing
that. She wants her grandson to be comfortable in his village and
to live the way she has if that is what he chooses.
Number 223
PAUL WHITE, JR., representing the Huna Totem Corporation, made the
following comments. His ancestors came out of Glacier Bay well
over 10,000 years ago. The vest he is wearing has been handed down
through generations, so he has his ancestors with him. The Huna
Totem Corporation has over 1400 shareholders who support non-
diminishment of ANILCA. His group also supports the word "shall"
as opposed to "may" because the word "may" can be used as an
administrative tool, while the word "shall" states a policy. Mr.
White said that the word "subsistence" means a lot more than food
gathering to his people. His family worked year round putting up
food. Four of five families fished cohos at a specific Point each
summer. They sold the cohos so that they could buy coffee, salt,
and flour. The remainder of the food was gathered from the land.
He noted that bartering is a valuable tool in a subsistence
lifestyle. In his lifetime, he is only able to live a "limited"
subsistence lifestyle. The subsistence way of life has been
diminished. He asked committee members to seriously consider
allowing for a subsistence lifestyle.
SENATOR LINCOLN asked Mr. White his opinion of the lack of a
subsistence right for urban Natives under this proposal and whether
that is discriminatory toward urban Natives. She noted that during
the times that she lived in an urban area, she did not worry about
a lack of subsistence foods because her relatives sent her as much
of those foods as they could. She asked Mr. White to comment on
the concern that SJR 201 could result in discrimination against
Alaska Natives living in urban centers.
MR. WHITE said it is a dilemma for urban people who will no longer
be able to practice a subsistence way of life, however he noted
that villagers have always shared, and probably will continue to
share, food.
Number 378
MR. CARL ROSIER, testifying on his own behalf, informed committee
members that he has been associated with utilization and management
of Alaska's fish and game since 1955. Mr. Rosier gave the
following testimony.
He began working for the Alaska Department of Fish and Game as an
assistant area biologist in 1959, then advanced through the various
management positions of the department and was appointed deputy
commissioner in 1979. He left the department in 1980 to work for
the National Marine Fisheries Service, until he was appointed as
commissioner of ADFG in 1991. He retired in 1995. Over those
years, the salmon resources of the state responded to good
management after Alaska had inherited a severely depleted resource
at statehood. Today's bounty of salmon statewide is no accident
and many professionals have the scars of public opposition to
decisions made in the interest of conservation. Management of fish
and game resources requires making tough decisions on a timely
basis. Those decisions often affect people's income and lifestyle,
but the resource must be considered first, otherwise it will be
depleted, as in 1959.
Over the years, far-sighted legislators established state laws for
emergency provisions for harvesting fish and game resources for
food. The legislature provided for reduced-fee licenses in
recognition of data collection needs of ADFG and low income
individuals, use of fish and game for education purposes,
ceremonial taking in recognition of some cultural needs, and it
established the state's subsistence priority based on a sustained
yield. That system has worked well for all Alaskans, but now,
thanks to poorly crafted federal legislation, Alaska is on the
threshold of losing a major part of this system that was so
carefully crafted over the years to a new system of fighting among
Alaskans and placing the resource at major risk under federal
management. It is discouraging to hear Alaskans talk about
supporting federal management of subsistence because they believe
it will be more sensitive to its needs. Many people are being
misled for political reasons. Although we learned something about
the federal system of management during the pre-statehood days, we
have people supporting a return to that system who watched the
devastation of the beluga whale population in Cook Inlet just
recently.
The Vice-Chair of the Alaska Board of Fisheries mentioned yesterday
that efforts to develop an integrated subsistence management
program between the state and federal government was trashed by
federal participants in late June of 1999. ADFG documents from
that meeting indicate that the federal members no longer endorse
the concept of integrated management but instead maintain a
separate program approach at the direction of the federal regional
advisory council.
MR. ROSIER said he strongly opposes SJR 201 and he is appalled at
the statements made in the Governor's letter of transmittal. In
his view, the state gains absolutely nothing from the passage of
SJR 201 and it will be no more than a federal puppet as far as fish
and game management is concerned. The state will not get management
back by letting the voters vote. SJR 201 does not protect state's
rights, it denigrates the state's constitution, and if passed, it
will lead Alaskans to a future of dispute, rivalry, and ultimately
loss of fish and game resources. The real problems are the
provisions of Title VIII of ANILCA and the Governor recommends no
changes to that legislation. It is a shame that SJR 201 shows no
political courage.
Number 442
SENATOR MACKIE commented that he believes Alaska has the best
resource management system in the world. He asked Mr. Rosier if he
is comfortable with a federal takeover on October 1, and what Mr.
Rosier predicts the outcome of that system to be.
MR. ROSIER replied that he is not comfortable with federal
management at all. He noted that he worked for the federal
government in a management capacity, and that the structure of
federal organizations is such that they cannot be sensitive to the
types of things that the Board of Fisheries and the Board of Game
are sensitive to. They generally take things in large bites, such
as the closure of Glacier Bay to commercial fishing. Mr. Rosier
maintained that there is no biological basis for closing Glacier
Bay to fishing. Likewise, the federal government stopped the
taking of seagull eggs for subsistence purposes until they did a
study to find out whether any impact had occurred. He noted that
the federal government will have to do a study every time it has to
say no to someone. Alaska is turning over a resource in good
condition, therefore the federal government has not had to say no.
In the long term, however, Alaska will lose its resources and will
be where it was in 1959.
SENATOR MACKIE asked Mr. Rosier why the legislature should not take
the issue to the people, given that the federal government is
poised and ready to take control. He asked Mr. Rosier how Alaska
can get "out of this box" of a federal takeover on October 1.
MR. ROSIER said the key is what the public wants regarding state's
rights. The crux of the statehood activity was that Alaska was to
be put on equal footing with all of the other states, and now
Alaska is backing away. The job that needs to be done now, because
the Administration is not showing leadership, is to go after the
state's rights. No options should be precluded for future
Administrations to take on this issue. Alaska must take this issue
to the U.S. Supreme Court to get it resolved. Once its
Constitution is modified, Alaska will be at the complete mercy of
the federal government.
SENATOR MACKIE noted the Alaska Legislature spent a lot of money
taking this issue to court, but the case was thrown out, and the
Governor is not willing to take that route. He asked what the
Legislature can do before October 1.
MR. ROSIER noted the case was thrown out of court for technical
reasons. He said the Legislature cannot do anything before October
1, however the world will not come to an end. This issue will have
to go back to Alaska's congressional delegation and the legislature
will have to put together a program that meets the needs of all
Alaskans.
SENATOR MACKIE noted the world will not come to an end, state
management will.
Number 509
SENATOR TAYLOR asked Mr. Rosier if there is one iota of a
difference between the enforcement that will take place under state
management and the enforcement that will take place under federal
management because ANILCA will remain the same. He emphasized that
the idea that state enforcement will differ from federal
enforcement is a complete misnomer.
MR. ROSIER agreed with Senator Taylor completely.
SENATOR TAYLOR maintained that if no changes are made to ANILCA,
Desa Jacobsson will get arrested by a state trooper rather than a
federal agent for putting a net in a particular stream. Either
way, Desa Jacobsson will go to jail because she is a Juneau
resident and ANILCA only gives the priority to rural residents. He
repeated that this "federal takeover" is a total misnomer.
Number 518
LONNIE TYONE, a resident of Gulkana Village, said he has lived in
Gulkana Village for a good portion of his life. He has never
shared his feelings about this issue with anyone. His definition
of the word "subsistence" is very different from legislators'.
TAPE 99-37, SIDE B
Mr. Tyone continued. Urban hunters have come into his area and
have depleted the game population. He fears that the day will come
when all game populations are depleted, and not until that time
will Natives be given a priority to what is left. He stated the
traditional and cultural aspect of subsistence is very important to
Native peoples. He asked what kind of future Alaska Natives will
have without a rural priority.
SENATOR LEMAN commented that Title VIII does not provide for a
traditional and customary priority, which he believes is a
shortfall of that legislation. He asked Mr. Tyone if he would
support changes to ANILCA that would provide for a traditional and
cultural priority rather than one that is solely based on
residence.
MR. TYONE replied that it depends on whether there are any strings
attached that will be detrimental to Alaska Natives.
SENATOR LEMAN thought a better solution would be to incorporate
traditional and customary use into the array of criteria for
qualification. Unfortunately, the state cannot incorporate that
criteria without changing the federal law.
MR. TYONE said there has to be a way to accommodate Native peoples
and that something needs to be done before the animal populations
are depleted.
Number 502
CHAIRMAN HALFORD noted that game management has been under federal
subsistence control for nine years. He asked if game management
has improved in the last nine years in Mr. Tyone's view.
MR. TYONE replied that the management is worse and many people who
solely lived a subsistence lifestyle are no longer able to. He
noted that many people who work "9 to 5" jobs also want priority
access to a subsistence lifestyle, and that the problem is a
conglomeration of many things that come down hard on the Native
people.
CHAIRMAN HALFORD agreed with Mr. Tyone's description of the
problem. With regard to fisheries, the conflict is not so much
rural versus urban as it is with game. He pointed out that the
conflict in the Lower Yukon-Lower Kuskokwim area is between rural
residents. He asked Mr. Tyone if he believes a local preference
would work better than a statewide rural preference so that the
person who is closest to the resource would have the priority.
MR. TYONE did not respond.
Number 445
KEN JOHNS, President of the Copper River Native Association (CRNA),
made the following comments. His area is known as the Unit 13
Area, which he considers the ground zero area for the subsistence
issue because of the pressure on the Nilchina caribou herd and
Copper River salmon runs. He asked legislators to protect the
Native villages. His village has been limited to a five day moose
hunt at times. Right now, the Nilchina caribou herd is off limits
to hunters under state management, however under federal management
one can take two caribou. Also, with a federal subsistence permit,
one can take any bull moose but the state only allows the taking of
a spike four or 50 inch bull. Because of that, many villagers
prefer federal management because it is more concerned with the
needs of the people in their areas.
CHAIRMAN HALFORD asked if the state law now allows any bull to be
taken in Unit 13 with a subsistence permit while under a non-
subsistence moose hunt, one must take a spike four or 50 inch or
better.
MR. JOHNS said they have separate seasons and that only 150 permits
are given for the early season. Hunters must compete with everyone
in the state for those permits. He said it is very tough and the
attractiveness of federal management is evident to Native villages.
He cautioned legislators to be careful of the wording in a
constitutional amendment because no one wants to spend two or three
years in court over terms like "reasonable opportunity." Villagers
have fought the state for ten years on that definition. He also
cautioned that the Legislature needs to resolve this issue with the
Native people now.
SENATOR PETE KELLY maintained that the topic of shortages caused by
poor management has been raised several times during this special
session, such as the five day moose hunting season. He asked Mr.
Johns to encourage rural lawmakers to support the override of the
Governor's veto on SB 74, which would give a preference to good
game management over wolves in Alaska.
MR. JOHNS said he is with Senator Kelly on that but his Native
brothers will not be at the table because the subsistence issue is
still under discussion.
SENATOR KELLY remarked that Alaska will have subsistence for wolves
rather than subsistence for the Native people. He noted that he is
concerned that rural lawmakers should be at the table.
MR. JOHNS maintained that rural lawmakers need the Native coalition
to stand behind the issues that should be discussed, one of them
being predator control.
SENATOR MACKIE asked Mr. Johns if he served on the Board of Game.
MR. JOHNS said he served one term.
SENATOR MACKIE stated that Mr. Johns is uniquely qualified to
comment on this topic. He asked Mr. Johns what red flags he sees
if the federal government takes over management of Alaska's
fisheries on October 1.
MR. JOHNS replied he sees years of non-cooperation between state
and federal managers and he feels the younger generation will be
the losers. The federal managers are likely to implement laws and
regulations that will provide for grandfather rights which will
make many ineligible. He noted that may be good for today's
villagers, but not future generations, which is why he feels it is
critical that the state protect Native villages now.
SENATOR LINCOLN referred to Senator Kelly's comment about rural
legislators support of SB 74, and commented that she has not been
pressured by the Governor and she objects to that kind of a blanket
statement. She also noted that a statement was made that implied
that ANILCA does not provide for cultural and traditional aspects
of subsistence. She asked Mr. Johns whether he believes that
Congress would open up ANILCA to make only those changes.
MR. JOHNS said he does not believe so because too many things are
tied to ANILCA, for example mining and development.
SENATOR TAYLOR asked Mr. Johns, as a former member of the Board of
Game, who is taking care of the resource if, under federal
management, the Nilchina caribou herd has crashed yet subsistence
permit holders can still take two caribou per season. He asked how
far the herd will have to be depleted before the federal government
decides there are not enough animals left for anyone to kill.
MR. JOHNS said if you invite Fairbanks and Anchorage in to hunt, as
in the days of state management in the 1960's, the herd will be cut
to nothing.
SENATOR TAYLOR said that the only people who can hunt that herd
today are subsistence qualified people.
MR. JOHNS remarked that the problem in that area is that there are
too many hunters for that herd and that urban hunters come in. He
noted there was a four day open registration hunt one year and
during that hunt 4,000 caribou were shot in 3+ days.
CHAIRMAN HALFORD interjected and said he thought both Senator
Taylor and Mr. Johns are right. He clarified that Senator Taylor
is saying that the state closed hunting of that herd while Mr.
Johns is saying that when it was open, there was so much capacity
in hunters that they could take the harvestable surplus in no time
at all.
SENATOR TAYLOR remarked that he agrees with Mr. John and said that
as a Wrangell hunter, he qualifies under subsistence to go shoot
two of the Nilchina caribou under federal law. He said he does not
believe it is his place to go to that area and shoot a caribou out
of someone's backyard. He repeated that his concern was who will
take care of the resource and, that under ANILCA, the federal
managers will work off of a viability standard rather than a
sustained yield standard. He explained that a viable population
can be considered a handful of breeding cows and bulls. That
aspect of ANILCA frightens him and he agrees that the next
generation will suffer.
MR. JOHNS asked committee members not to make the assumption that
he is in total support of federal management. He clarified that he
was saying that federal management is better suited for the five
villages in his area at this time because the state has not been
doing its job in doe protection. He stated that he encourages
everyone to hunt, but when there is so much pressure on a herd that
the hunt must be shut down, it is not the urban people who suffer,
it is the villagers within that area. He repeated that his concern
is one of protection for villagers so that they can put food on the
table.
Number 207
DEWEY GEORGE, testifying on his family's behalf, made the following
comments. Mr. George distributed copies of a letter he wrote to
Lt. Governor Fran Ulmer to committee members. His concern is for
the preservation of a culture and for the preservation of wildlife
populations. The federal policy focusses on protecting rural
residents, Native and non-Native alike. The state policy leans
toward protecting economic interests. He proposes a state policy
that focuses on the protection and preservation of the Native
cultures of the State of Alaska. Such a policy may force federal
managers to rewrite their own policies. He has no interest in
excluding non-Native residents of the State of Alaska. His
proposal would give all Natives the right to subsistence as a way
of life by virtue of their ancestry. For non-Natives who wish to
continue practicing a subsistence way of life, they should be given
the right to continue their lifestyle by way of a license or
permit. He does not believe any Alaska resident, Native or non-
Native, does or should have any intent to harm what remains of the
Native culture. The present federal and state policies are both
missing the target.
CHAIRMAN HALFORD commented that he does not believe that the state
can differentiate between Natives and non-Natives in its
Constitution and provide a different licensing scheme. The federal
government can because of specific provisions in the federal
Constitution. There may be ways that the state could deal with the
federal mandate.
MR. GEORGE informed committee members that he left a more detailed
proposal with the Attorney General's Office yesterday. He said
that he does not believe that anyone wants a federal takeover, so
he urged legislators to make their decisions based on principle.
Number 132
GLORIA STICKWAN, subsistence coordinator for the Copper River
Native Association, made the following comments. She lives in the
Ahtna region and believes federal management will work best for
that area, however she believes a legislative solution on the
subsistence priority needs to be found. The Southcentral Regional
Advisory Council currently submits proposals to the Federal
Subsistence Board and those proposals are accepted unless a sound
conservation reason not to accept them exists. Seven villages in
her area will be directly affected by federal management because
they are adjacent to the Wrangell St. Elias Park Preserve. She
believes the word "may" in SJR 201 should be changed to "shall" so
that the legislature does not have the option of granting the rural
priority. She agrees with Mr. Johns that the term "reasonable
opportunity" does not ensure protection to villagers. Her area is
heavily impacted by urban hunters who use ATVs to cover many off-
road miles. The villagers do not use those so must hunt along the
road system. The villagers are afraid they will be shot at if they
venture off the road.
Number 42
LYNN LEVENGOOD, a member of the Alaska Wildlife Conservation
Association and Fairbanks attorney, distributed a copy of a
proposed constitutional amendment and a paper regarding Alaska's
sovereign authority to manage its resources within its submerged
lands and waters.
TAPE 99-38, SIDE A
MR. LEVENGOOD gave the following testimony. The issue at hand is
Alaska's sovereignty versus federal intrusion. The proposed
solution by this Governor is that we divide Alaskans among
Alaskans. The Attorney General testified yesterday before the
House Resources Committee, and what he did not say was much more
important than what he did say. The Governor's transmittal letter
says that on October 1, Alaska will lose the right to manage a
significant portion of Alaska's fish and wildlife. That is not a
true statement. With the Statehood Compact and the Submerged Lands
Act, Alaska received sovereignty and the sovereign ability and
ownership of the submerged lands and the water, and all of the
wildlife resources contained in those lands and waters. Alaska's
sovereignty gives it the ability to manage and allocate those
resources. Congress does not have the ability to take away the
sovereignty of the State of Alaska. Moreover, ANILCA does not
provide for any management authority within it. The only authority
the Secretary of Interior has if Alaska is not in compliance with
ANILCA is to go to the federal courts.
Yesterday, Attorney General Botelho was asked a question by a House
Resources Committee member regarding the member's wife who was of
Native heritage. He asked whether his wife, who lives in Juneau,
would become a second class citizen. The Attorney General replied
that her ability to harvest wildlife resources will come via some
sort of proxy or educational permit. MR. LEVENGOOD noted that was
a judicial admission that the scheme created by SJR 201 is to, in
fact, create second class citizens because to require one group of
citizens to get a special educational or proxy permit automatically
determines that their citizenship and equality is of a lesser
standard than others. Attorney General Botelho did not tell the
committee that a very viable alternative is for the Legislature to
do nothing and, if the federal government attempts to take over
fisheries management in the State of Alaska on October 2, a direct
action should be filed in the U.S. Supreme Court.
MR. LEVENGOOD cited U.S. Supreme Court v Alaska, USA 4-1975, a case
brought by the United States government regarding the submerged
lands beneath Cook Inlet:
It would appear that this case qualifies under Article III
Section 2 of the U.S. Constitution for original jurisdiction.
MR. LEVENGOOD cited United States v West Virginia 295 U.S. 463-
1935:
We are not enlightened as to why the United States chose not
to bring this as an original action in the U.S. Supreme Court.
MR. LEVENGOOD said the issue before the Legislature, which is the
title and ownership of the submerged lands and waters, has already
been to the Supreme Court who said any future disputes should come
to them directly. If Alaska goes that route, finality will be
reached within two years. If SJR 201 is passed by the Legislature,
it will not reach a vote of the people because it qualitatively and
quantitatively touches at least 13 sections of the Alaska
Constitution. Most importantly, it does not satisfy ANILCA. SJR
201 contains the word "may" which makes it volitional; and it
contains the words "to" and "among" which creates additional
divisions. Furthermore, Mr. Levengood read a portion of the final
regulations in the Federal Register:
Should the Secretary of the Interior certify before October 1,
1999 that the State of Alaska has passed a bill or resolution
to amend the Constitution of the State of Alaska that, if
approved by the electorate would enable the implementation of
state laws consistent with and provide for the definition,
preference, and participation described in Sections 803, 804,
805 of ANILCA, then these regulations will be held in abeyance
until December, 2000.
MR. LEVENGOOD maintained that the federal regulations will come
into effect on either October 1, 1999 or December 1, 2000. If they
come into effect October 1, there will be a potential 600,000
causes of action against the federal government, one for each
Alaska resident, for taking Alaska's resources away from its
citizens. More importantly, the federal government will be
attempting to manage on only federal lands, with federal dollars,
and federal personnel. If Alaska passes a constitutional
amendment, the Stevens Amendment requires that amendment be of
general applicability. To even attempt to satisfy the Stevens
Amendment, Alaska's law would have to be a general law
incorporating all of the lands within the State of Alaska, not just
federal lands. Then, Alaska would be regulating based upon the
federal rules and federal regulations, with state dollars, state
payrolls, state enforcement but no state management because the
Federal Subsistence Board will set the hunting and fishing seasons.
Mr. Levengood noted that the Federal Subsistence Board has already
shown that it is not interested in cooperative management with the
state.
MR. LEVENGOOD indicated that the mechanism to divide pits Alaskans
against Alaskans and implicates 13 sections of the state
constitution. Most of those sections contain the individual
constitutional rights of each and every Alaskan. Those rights are
recognized by our constitution, and provided by our constitution.
They cannot be taken away by our government and they are not
subject to popular vote.
MR. LEVENGOOD asserted that the best action is to take no action
and to keep open every avenue available to this government to
challenge federal intrusion on Alaska's sovereignty. If this issue
goes before the Supreme Court and it decides that ANILCA, or
portions of it, are constitutional, Alaska can always comply at a
later date. Mr. Levengood emphasized that the only result of a
vote by the electorate would be the delay of implementation of
federal regulations, and that the only way to get state management
back is for Congress to amend ANILCA. He believes the Legislature
has no choice but to defend Alaskan sovereignty, its Constitution,
and the individual rights of its citizens.
SENATOR TAYLOR asked Mr. Levengood to explain what the word
"takeover" means when associated with the federal takeover on
October 1.
MR. LEVENGOOD remarked that term of art probably has as many
meanings as the number of speakers who utter it, however, according
to the federal register, federal regulations will take effect, but
as far as subsistence goes, the regulations say there will be very
little initial impact by the federal government.
SENATOR TAYLOR asked, assuming SJR 201 is adopted even though it is
not in compliance with ANILCA and violates Ulmer v Bess, what law
the state will be enforcing if a constitutional amendment passes.
MR. LEVENGOOD replied that all state lands would be affected, not
just federal lands.
SENATOR TAYLOR asked if, by passing the constitutional amendment,
the jurisdiction of the federal law will be expanded, so that the
same discriminatory enforcement will apply to state and private
lands.
MR. LEVENGOOD said, "Absolutely, and that basically then closes the
door to then challenge the state-federal sovereignty issue because
we have now passed state law that adopts the federal law and
regulations into state law, so the state-federal issue goes away.
Some legal scholars will tell me that portions of it still exist,
but large portions of it would be lost and would not be able to be
litigated in court."
SENATOR TAYLOR asked if we go along with this group that wants to
embrace the federal law, we will end up having to enforce the same
law that the federal agencies would have to enforce.
MR. LEVENGOOD said they are the same and are spelled out in the
Federal Register and they will be enforced in either October of
1999 or December of 2000. Thereafter, changes will be made by the
Federal Subsistence Board and regional boards set up under the
program. Because these regulations provide for discriminatory
treatment of citizens, the State of Alaska is subject to lose up to
$40 million per year in Dingell-Johnson-Pittman-Robinson funds
because those funds cannot be utilized in areas where equality is
not the rule of law. The State of Alaska may still be able to
receive the funds but not expend them on certain areas.
SENATOR TAYLOR asked Mr. Levengood if he knows of any legal
scholars in Alaska who disagree with the legal statements Mr.
Levengood made about ANILCA and the congressional record. He noted
that lawyers read ANILCA to say that people, of any racial
background, living in a community that is too large, who attempt to
exercise their right of subsistence, will be arrested. He added
that he would rather resist federal encroachment and protect the
citizens of Alaska.
MR. LEVENGOOD said he does not know of any contrary interpretations
regarding implementation of ANILCA, however regarding extra-
territoriality, the buzz word is Kleppe v. New Mexico, and in the
appeal of the Katie John case before the Ninth Circuit Court.
Kleppe enabled the federal government to protect an endangered
species on state, federal and private lands in New Mexico. It
provided the federal government with protective authority only, no
management or allocation authority. The issue in Alaska is one of
title: who owns the wildlife resources. The Submerged Lands Act
and the Statehood Compact are clear on that question but no case
law exists that allows the federal government an allocation
authority. In the Katie John appeal, the Court determined that the
federal government only has an interest in unappropriated, or
reserved, waters. That decision clearly avoided any title or
allocation issues.
Number 358
SENATOR WILKEN asked Mr. Levengood to expand on the information on
page 5 regarding two recent U.S. Supreme Court decisions on
navigable waters. He asked if the premise is that the power of
Alaska's Constitution trumps the power of Congress or the Governor
or a Legislature. He noted if that is the case, the Legislature
should not be meeting in special session.
MR. LEVENGOOD said the strongest case is the 1992 U.S. Supreme
Court case of New York v. United States. That court decided that
Congress cannot expand its authority nor do the states have the
ability to diminish their authority. That case determined that
neither the Governor, Legislature, nor the people have the power to
expand or contract sovereignty. He noted that the only way that he
is aware of extending sovereignty is through a purchase. There is
no overlap of sovereign authority, there is only a dividing line.
Regarding the navigable waters issue, two Supreme Court cases
address that issue: the 1997 Idaho-Coeur d'Alene case which says
that the lands underlying navigable waters have historically been
considered sovereign lands to which state ownership is considered
an essential element of state sovereignty; and almost identical
language was contained in the decision in the Dinkum Sands case
(United States v. Alaska), written by Supreme Court Justice Sandra
Day O'Connor. Since 1996, the U.S. Supreme Court has been states'
rights oriented in its decisions, and clearly so on the submerged
lands issue.
Number 408
Gilbert Bent (ph) from Allakaket made the following comments.
Watching how this system works has been an unbelievable experience
for him. Subsistence is very important for Native people, and the
Legislature must understand that because Native people must live
under legislative guidelines. The system is in decline; the number
of hunters versus the number of game will not allow the current
system to last for long. And, by the time the Legislature makes a
decision, no game will be left. Native people need the subsistence
priority. His lifestyle is completely different from legislators
and he needs his rights.
GABE SAM, Director of Wildlife and Parks for the Tanana Chiefs'
Conference (TCC), gave the following testimony. Information is
being exchanged rapidly and everyone is trying to decipher what it
means, but he has been hearing about a federal takeover and co-
management, and for the record, the program that he supervises is
working on a co-management project with the U.S. Fish and Wildlife
Service already, and the venture has been successful. On the other
hand, he has been having a difficult time working with ADFG in
sorting out the problems he is having with the big game
populations, for example predator control. He hopes the
Legislature will overturn the Governor's veto of the predator
control bill. However, in some areas of the state, particularly
19D East, even if the wolf predation control program is
implemented, it may be too late. Other parts of the region are
feeling the effects of the lack of strict regulations on the big
game guiding industry and the problems are escalating. He has been
unable to make any headway on the issue with state officials, but
has been promised by the U.S. Fish and Wildlife Service that they
will be responsive.
VICE-CHAIR TAYLOR asked if TCC has a co-management agreement with
the U.S. Fish and Wildlife Service to do some predator control.
MR. SAM said not for predator control, the co-management agreement
is on fisheries and had been in existence for three years. TCC is
also working on some projects on the Yukon River with the
Canadians. He added that the subsistence way of life for Natives
is hanging in the balance right now, and it is up to legislators to
make the decision. Many villagers paid their own way to come to
Juneau to speak on this issue, and more wanted to come but could
not afford to.
VICE-CHAIR TAYLOR asked, on the wolf control issue, whether TCC has
faith that the U.S. Fish and Wildlife Service will do something to
help TCC on that issue. He noted that the same agency took away
about half of the timber harvesting ability in the Tongass National
Forest to protect it as a habitat conservation area to preserve the
Southeast Archipelago wolf.
MR. SAM replied that he was speaking of the big game guiding
operations in the refuge. One of the main problems in that area is
that there are too many hunters. He said the rural subsistence
right to hunt and fish will be protected under the terms of ANILCA
and the U.S. Fish and Wildlife Service will enforce that. He added
that federal implementation is looking more attractive to TCC.
SENATOR WILKEN commented that Mr. Sam's testimony troubles him
because the Governor's proposal will prevent Mr. Sam and his son
from hunting because they do not live in rural areas. He asked Mr.
Sam if that bothers him.
MR. SAM stated that he gave up a lot when he left his village in
1992 to attend the University of Alaska Fairbanks. He said he gave
up his right to hunt and fish in his village. He wanted to work to
protect rural peoples' way of life because they choose to live that
way of life. He said that now that he lives in Fairbanks, he sits
on the Board of the Fairbanks Native Association, in hopes of
building better community relations among Native people and the
community. He noted that he has made the choice to remain in
Fairbanks, but he is willing to protect the rights of the people
who have chosen to live a subsistence lifestyle.
Number 583
RICHARD LUNDAHL, a commercial fishermen from Pelican, made the
following comments. He first became aware of ANILCA in 1977 when
a public hearing was held by the Forest Service in Pelican. He
became involved politically with the issue when the state had a
meeting for advisory committee chairs about subsistence, in about
1980. Pelican residents were opposed to the idea of subsistence at
the time because they disapproved the return to federal management.
He believes the state must do four things: it must take action
immediately which means that the state cannot wait to amend the
Constitution; it must pass legislation that satisfies all
constituents; it must pass legislation that satisfies the federal
courts; and fourth, it must pass legislation that satisfies the
state court. He presented a bill that he drafted that meets the
four criteria. The bill's premise is that a priority is to be made
for personal or family consumption of the resources for food, fuel,
transportation, clothing, etc. The second priority is that the
uses of the non-edible portions of the resources are to be used for
handicrafts, and the third premise is that the resources should be
used for barter. Barter is defined as a non-commercial activity.
The fourth use listed in the bill is customary trade.
MR. LUNDAHL noted that the bill he drafted considers rural to mean
"isolated" and he divided than into two categories. The first is
a location which requires a person to take a plane or boat to a
city with any size population. The second is a semi-isolated town
in which a person could get on a major airline with one boarding
and go to Seattle.
MR. LUNDAHL noted the second major point of contention is customary
trade, because half of the people in this state make their living
from the wild resources. Pelican would have no residents after one
year if commercial fishing were to cease. Two-thirds of Pelican's
population has left since its cold storage closed three years ago.
If, on the other hand, sport fishing were to close tomorrow, a few
people would be hurt but the town would continue just the same.
MR. LUNDAHL explained that he defined the four subsistence uses in
the draft bill as personal subsistence use fishermen, personal
handicraft subsistence use, subsistence barterer, and a customary
subsistence trade commercial fisherman. He defined customary trade
as being anything the state has legally allowed, licensed, or
permitted up to this date. For example, the state has issued
limited entry permits, therefore commercial fishing with such
permits would be considered customary trade. In 1960, ADFG had a
commercial fisheries division and that division had a subsistence
section. That was changed with the advent of ANILCA; commercial
fishing became a part of subsistence rather than the other way
around. Mr. Lundahl's proposed bill also sets up criteria for a
priority of who would be able to fish during different closures.
In Pelican, for example, the personal use fishers who use the catch
for food for their families or for clothing would be given top
priority. The second priority would go to both the Juneau personal
use fishers, which would include handicraft subsistence users and
barterers. Customary trade of the commercial fishers would kick in
at the same time as the Juneau personal use fishers. The third
priority would be given to the Pelican sports fishers and the
Juneau commercial fishers.
MR. LUNDAHL said that his plan would meet the requirements of
ANILCA because the priorities fit under the four uses for
livelihood. He noted the limited entry program complies with
ANILCA. He emphasized that many problems would be eliminated by
placing commercial fishing under customary trade.
CHAIRMAN HALFORD asked Mr. Lundahl what would happen to the sale of
limited entry permits under this scenario.
MR. LUNDAHL stated, "I think they would migrate back to the
villages because if you ever had a subsistence priority and started
to kick out people, you wouldn't kick them out, you'd just say,
well you've still got your permit but you can't fish it this year
because we've got a real problem."
CHAIRMAN HALFORD surmised that the sale of limited entry permits
would disappear.
MR. LUNDAHL said he thinks the Seattle fishermen would not be able
to fish and the value would go down, but the Angoon or Pelican
fishermen would want to buy those permits.
MR. LUNDAHL commented that he thinks such a bill would comply with
Alaska's Constitution because it was amended in 1970 when limited
entry was established. That amendment created the "no exclusive
right of fishery" provision. He stated his proposed bill would
comply with ANILCA because it is designed to prevent economic
distress. When limited entry was established, many people involved
in the fishery were suddenly excluded because they did not fish
during the qualifying years.
CHAIRMAN HALFORD asked Mr. Lundahl to provide the committee with a
copy of his proposal so that it could be distributed to members and
analyzed.
MR. LUNDAHL remarked that his proposal is capable of solving the
subsistence dilemma this week. He said he fears a federal takeover
because it could destroy the commercial fishing industry and the
town of Pelican.
CHAIRMAN HALFORD thanked Mr. Lundahl for his presentation.
Number 449
DONNE FLEAGLE, a resident of McGrath, made the following comments.
She was raised five miles from McGrath on her late mother's Native
allotment. Historically, indigenous people worldwide have not had
equal opportunities or the ability to govern themselves once a
dominant society moved in. During a visit to Botswana two years
ago, she saw the bushmen being moved out of wildlife refuges
because their cultures are incompatible with the rules of the
refuges. She is from game unit 19D East which is on state land.
The moose population has declined and four years ago the Governor
visited the area and worked the Board of Game process. An
initiative went into effect and removed one of the most successful
management tools available to that area based on terrain. The
ADF&G has failed to manage that area based on a sustained yield
principle. She would like to believe that all men are created
equal, however in reality, a person's ability to hunt where they
want depends on how much money they have and what their resources
are. She sees state government as a centralized, political
structure; one that is disenfranchising more and more people. She
finds it sad that more money has been spent on Minnesota Drive in
Anchorage than in all of rural Alaska. The intellectual debate
that has occurred over the last years regarding subsistence does
not concern her because she will continue to teach her children as
she was taught, despite whether she is a law-abiding citizen or
not. Her way of life was practiced before statehood, and will be
practiced in the future. She asked Senators to vote to override
the Governor's veto of SB 74. She noted the moose to wolf ratio is
as bad as it can get and she faults state management.
Number 376
HJALMAR OLSON, a resident of Dillingham, gave the following
testimony. He has been hunting and fishing in the state for almost
60 years. In the late '60s through the '70s, the Alaska Peninsula
was a haven for hunters. The villagers got all of the meat they
wanted. As the population of the state increased and non-resident
hunters came into the area on booked hunts, the caribou and moose
herds declined. Villagers now have to travel a long way to get a
moose, and some do not get them. This year, he heard several
complaints about the tier 2 hunt in that area.
CHAIRMAN HALFORD asked Mr. Olson if he was referring to the
Northern Peninsula caribou herd.
MR. OLSON said yes, before they merged with the Malchatna (ph)
caribou herd. As the pressure on the herd increased, the hunters
moved to the King Salmon area. As that area declined, the two
herds mingled, and the herd now consists of about 250,000 animals
that have moved West toward Dillingham, Togiak, and Holy Cross.
The upper part of Unit 17B, around the Malchatna River and Nushagak
River, has become a haven for big game hunters. The locals do not
go to that area anymore. He urged Senators to look at what will
happen to the people who live in these areas and the herds if the
people are not given a preference when the game numbers are down.
He noted the same impact is happening caused by the sport fishery
in rural areas. He believes the local people in an area should
have the first right to take fish and game when those populations
are down.
CHAIRMAN HALFORD clarified that Mr. Olson was speaking to a local
preference rather than a rural preference.
MR. OLSON said that he was referring to a rural preference.
CHAIRMAN HALFORD explained that under the federal law, Senator
Taylor, who is a resident of a rural area in Southeast Alaska,
would be given the same rural preference as any other rural
resident in an area north of Fairbanks. He noted that the question
of a rural preference versus a local preference has been discussed
and that the House looked at providing a local preference.
MR. OLSON said that the fish and game belong to Alaskans first, not
non-residents. That industry is exploding.
CHAIRMAN HALFORD stated that ADF&G says that the increase in the
volume in the number of hunters and fishers is from air taxi
operators. He asked Mr. Olson if he had any thoughts on what the
regulatory structure should be to limit that harvest. He added
that some air taxi operators transport 300 hunters.
MR. OLSON replied the Upper Alchatna (ph) is a haven for hunters
and rafters and one sees hunters rafting all of the time. They go
on a nine-day hunt but the meat from their prey spoils because they
do not have any way to preserve it during the trip. He noted that
one air taxi operator transports about 50 hunters in one day.
Number 258
CHAIRMAN HALFORD pointed out that some of the operators are local
people.
CHAIRMAN HALFORD noted that no other participants wish to testify
at this time. He tentatively scheduled a Senate Resources meeting
for 2:00 p.m. on September 24. He thanked all participants for
attending.
SENATOR GREEN referred to SJR 201, the Governor's letter of
transmittal and the accompanying statute, and noted the phrase
"Alaska Native" is never mentioned, yet most of the testimony
focussed on subsistence for Alaska Natives. She pointed out that
she represents an extraordinarily rural district, however it would
not be considered rural under the scheme of SJR 201. She expressed
concern about how to provide a rural preference that could
encompass rural residents in the Mat-Su Borough so that those
people would be afforded the same ability to hunt as a resident of
Wrangell. She pointed out that the only reference she has found to
rural residents was overturned in the McDowell case so that
reference in Alaska statute is ineffective. She questioned what
the definition means at this time. She noted that the only
reference to Alaska Natives is in ANILCA which refers continually
to the residents of Alaska. ANILCA does distinguish between
residents and non-residents as far as who should be given priority
in licensing, permitting, etcetera, but there is no mention that
there should be a distinction between constituents in varying
districts. She asked for help to clarify that issue.
CHAIRMAN HALFORD announced that the committee is tentatively
scheduled to meet the next day. He then adjourned the meeting at
5:14 p.m.
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