HOUSE JUDICIARY STANDING COMMITTEE March 11, 1998 1:15 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 406 "An Act relating to subsistence uses of fish and game." - HEARD AND HELD * HOUSE JOINT RESOLUTION NO. 60 Proposing amendments to the Constitution of the State of Alaska relating to the community dividend fund, the permanent fund, and the budget reserve fund. - BILL HEARING CANCELLED * HOUSE BILL NO. 122 "An Act relating to prisoner litigation, post-conviction relief, and sentence appeals and to execution on judgments against prisoners' accounts; amending Alaska Rule of Administrative Procedure 10(e), Alaska Rule of Appellate Procedure 502(b), Alaska Rule of Civil Procedure 26, and Alaska Rule of Criminal Procedure 35; and providing for an effective date." - BILL HEARING CANCELLED (* First public hearing) PREVIOUS ACTION BILL: HB 406 SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME SPONSOR(S): RESOURCES Jrn-Date Jrn-Page Action 2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S) 2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE 2/17/98 (H) RES AT 1:00 PM CAPITOL 124 2/17/98 (H) MINUTE(RES) 2/21/98 (H) RES AT 1:00 PM CAPITOL 124 2/21/98 (H) MINUTE(RES) 2/24/98 (H) RES AT 1:00 PM CAPITOL 124 2/24/98 (H) MINUTE(RES) 2/27/98 (H) JUD AT 1:00 PM CAPITOL 120 2/27/98 (H) MINUTE(JUD) 2/28/98 (H) RES AT 9:00 AM CAPITOL 124 2/28/98 (H) MINUTE(RES) 3/03/98 (H) RES AT 1:00 PM CAPITOL 124 3/03/98 (H) MINUTE(RES) 3/04/98 (H) JUD AT 1:00 PM CAPITOL 120 3/04/98 (H) MINUTE(JUD) 3/05/98 (H) RES AT 1:00 PM CAPITOL 124 3/05/98 (H) MINUTE(RES) 3/06/98 (H) JUD AT 1:00 PM CAPITOL 120 3/06/98 (H) MINUTE(JUD) 3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM 3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE; 3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS, HUDSON 3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW) 3/09/98 (H) JUD AT 1:00 PM CAPITOL 120 3/09/98 (H) MINUTE(JUD) 3/11/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE SCOTT OGAN Alaska State Legislature Capitol Building, Room 126 Juneau, Alaska 99801 Telephone: (907) 465-3878 POSITION STATEMENT: Discussed and answered questions on CSHB 406(RES). GEORGE UTERMOHLE, Attorney Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Answered questions regarding CSHB 406(RES). JEFF PARKER 500 "L" Street, Number 502 Anchorage, Alaska 99501 Telephone: (907) 272-6696 POSITION STATEMENT: Testified on CSHB 406(RES). MARY BISHOP 1555 Gus's Grind Fairbanks, Alaska 99709 Telephone: (907) 455-6151 POSITION STATEMENT: Testified on CSHB 406(RES). HUGH DOOGAN 359 Slater Street Fairbanks, Alaska 99701 Telephone: (907) 456-6189 POSITION STATEMENT: Testified on CSHB 406(RES). MICHELLE SPARCK P.O. Box 219 Bethel, Alaska 99559 Telephone: (907) 543-7342 POSITION STATEMENT: Testified on CSHB 406(RES). RICHARD SLATTS Chevak Traditional Council P.O. Box 140 Chevak, Alaska 99563 Telephone: (907) 858-7252 POSITION STATEMENT: Testified against CSHB 406(RES). BARBARA JANITSCHECK Maniilaq Association Box 256 Kotzebue, Alaska 99752 Telephone: (907) 442-3311 POSITION STATEMENT: Testified on CSHB 406(RES). PETE SCHAEFFER Box 296 Kotzebue Alaska 99752 Telephone: (907) 442-3467 POSITION STATEMENT: Testified on CSHB 406(RES). CONNIE FRIEND P.O. Box 724 Tok, Alaska 99780 Telephone: (907) 883-5181 POSITION STATEMENT: Testified on CSHB 406(RES). DANNY GRANGAARD P.O. Box 11 Tok, Alaska 99780 Telephone: (907) 883-2970 POSITION STATEMENT: Testified on CSHB 406(RES). DONALD WESTLUND P.O. Box 871 Ward Cove, Alaska 99928 Telephone: (907) 225-9319 POSITION STATEMENT: Testified on CSHB 406(RES). JOE WILLIAMS P.O. Box 6754 Ketchikan, Alaska 99901 Telephone: (907) 225-6754 POSITION STATEMENT: Testified on CSHB 406(RES). PERRY MENDENHALL P.O. Box 905 Nome, Alaska 99762 Telephone: (907) 443-2455 POSITION STATEMENT: Testified on CSHB 406(RES). AUSTIN AHMASUK Sitnasuak Native Corporation P.O. Box 1292 Nome, Alaska 99762 Telephone: (907) 443-4026 POSITION STATEMENT: Testified on CSHB 406(RES). DALE BONDURANT HC-1, Box 1197 Soldotna, Alaska 99669 Telephone: (907) 262-0818 POSITION STATEMENT: Testified on CSHB 406(RES). THEO MATTHEWS, President United Fishermen of Alaska Box 389 Kenai, Alaska 99611 Telephone: (907) 283-3600 POSITION STATEMENT: Testified against CSHB 406(RES). ELAINA SPRAKER P.O. Box 2534 Soldotna, Alaska 99669 Telephone: (907) 262-9592 POSITION STATEMENT: Testified against CSHB 406(RES). BARBARA BROADWATER P.O. Box 875082 Wasilla, Alaska 99687 Telephone: (Not provided) POSITION STATEMENT: Testified on CSHB 406(RES). DONALD BROADWATER P.O. Box 875082 Wasilla, Alaska 99687 Telephone: (Not provided) POSITION STATEMENT: Testified on CSHB 406(RES). DAN SENTZ 901 McDoo Way Wasilla, Alaska 99654 Telephone: (907) 376-4574 POSITION STATEMENT: Testified on CSHB 406(RES). STEPHEN WHITE, Assistant Attorney General Natural Resources Section Civil Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Answered questions on CSHB 406(RES). KEVIN DELANEY, Director Division of Sport Fish Department of Fish and Game P.O. Box 25526 Anchorage, Alaska 99518-1579 Telephone: (907) 267-2224 POSITION STATEMENT: Answered questions on CSHB 406(RES). MARY PETE, Director Division of Subsistence Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Telephone: (907) 267-2224 POSITION STATEMENT: Answered questions on CSHB 406(RES). ROBERT WILLARD, JR. Alaska Native Brotherhood; Member, Executive Committee, Southeast Native Subsistence Board 236 Third Street, Apartment A Juneau, Alaska 99801 Telephone: (907) 586-3902 POSITION STATEMENT: Testified on CSHB 406(RES). TOM LACKISH (ph) (Address not provided) Anchorage, Alaska Telephone: (Not provided) POSITION STATEMENT: Testified on CSHB 406. ACTION NARRATIVE TAPE 98-35, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:15 p.m. Members present at the call to order were Representatives Green, Bunde, Porter, Croft and Berkowitz. Representative James arrived at 1:18 p.m., and Representative Rokeberg arrived at 1:24 p.m. HB 406 - SUBSISTENCE USES OF FISH AND GAME Number 0033 CHAIRMAN GREEN announced the committee would revisit HB 406, "An Act relating to subsistence uses of fish and game." He announced the sponsor, Representative Ogan, was present to answer questions. Number 0116 REPRESENTATIVE CON BUNDE referred to page 7, Section 5, and said by expanding the local fish and game advisory boards and the regional advisory boards, he understands the interest in having local people involved. He asked Representative Ogan if he envisions the boards would counter or have veto power over the scientists and biologists. Representative Bunde stated his concern is that we're moving a step backwards into greater politicization of fish and game management rather than keeping it based on science. REPRESENTATIVE SCOTT OGAN said he doesn't believe Section 5 would politicize the process because the boards are advisory. The ultimate decision would be retained by the Board of Fisheries and/or the Board of Game. He said he is trying to match requirements in the Alaska National Interest Lands Conservation Act (ANILCA). He read a portion of Section 3116(D) of ANILCA, "Laws establishing a system of local advisory committees and regional advisory councils consistent with this section shall provide that the state rule-making authority shall consider the advice and recommendations of regional councils concerning the taking of fish and wildlife populations on public lands within their respective regions for subsistence uses. The regional councils may present recommendations and evidence upon which such recommendations are based to the state rule-making authority during the course of administrative proceedings of such authority. The state rule-making authority it determines is not supported by substantial evidence presented during the course of its administrative proceedings, violates recognized principles of fish and wildlife conservation or would be detrimental to the satisfaction of rural subsistence needs. If the recommendation is not adopted by the state rule-making authority, such authority shall set forth factual basis and reasons for its decision." Representative Ogan explained nothing in this section requires the state to do anything more than establish various advisory bodies and to reach defensible administrative decision. He said nothing in Title VIII of ANILCA purports to allow the administrating documents and agencies to do anything more than grant a preference amongst those otherwise authorized by the state of Alaska to hunt or fish, (indisc.) on federally owned land, and then only when certain conditions obtain. Nothing on the basis of this act is purported to authorize the federal government to set seasons and bag limits for the means and methods of harvest. Representative Ogan stated the intent is to set up basically what we have been asked to do in ANILCA. With the proper safeguards, he believes that can be done. REPRESENTATIVE OGAN continued, "ANILCA appeared to create (indisc.) or is interpreted and applied by the federal government a coercive scheme that, in effect, gives the state the choice between following federal mandates on how to regulate subsistence, or allowing the state traditional state authority over fish and wildlife be unconstitutionally usurped. And I think more specifically ANILCA mandates that the state must adopt a scheme that provides preferential treatment of rural residents for subsistence taking of renewable fish and wildlife resources on public lands or surrender the Statehood Act recognized and constitutional authority and duty to manage such taking of fish and wildlife on these lands. So what we're attempting to do is gain -- I believe this approach is the only approach, to date, that has been laid on the table that does regain full state management. And we do address -- what I think ANILCA was trying to address is the lack of trust of rural people in involvement in the system." REPRESENTATIVE BUNDE said his understanding of Representative Ogan's answer is that these panels are purely advisory. If based on good scientific judgement, the Board of Fisheries or the Board of Game decides not to go along with it, they have the right to not go along with it. REPRESENTATIVE OGAN responded that is correct. Number 0542 REPRESENTATIVE BUNDE said the current advisory boards seem to be working, but there seems to be a lack of will in enforcement. REPRESENTATIVE OGAN pointed out that there has to be appropriate sideboards. The authority has been given to the boards to delegate authority to the regional advisory boards if they wish. He said it is unfortunate that some groups don't acknowledge that authority. Number 0649 CHAIRMAN GREEN said the way the current version of the bill is crafted, there would be the advisory vote on the requirements (A) through (E) on page 24. He said as he reads the wording, there would be two risks. One would be that you would get a favorable advisory vote. Given that, that is a unilateral attitude from the state. He asked Representative Ogan, "Are you of the opinion that, even given that, that the state now agrees with this - that we could get a change in ANILCA without a subsequent quid pro quo from the state?" He said the legislature has been advised by Senators Stevens and Murkowski that we need unanimity. He asked if we have unanimity somehow, would that be enough to satisfy the federal government. REPRESENTATIVE OGAN referred to a letter in the committee file addressed to Bob Penney, dated November 25, 1997, from Senator Murkowski which says, "Some Alaskans can be granted a priority over other Alaskans to use fish and game for subsistence purposes, without a constitutional amendment, if the priority is granted using criteria rationally related to the legitimate policy objective of protecting the subsistence life style." He said it goes on to talk about whether or not different groups would sign on to that kind of a scenario. He said he believes the legislation has made a very serious attempt to do that. Representative Ogan pointed out that Senator Murkowski recognizes that we can grant a preference and that authority comes from Article VIII, Section 4. Number 0811 CHAIRMAN GREEN said, "There is the question of the Administration who has openly backed the task force proposal, which includes a constitutional amendment, somehow -- I guess what you would look for is a mandate backup or a mandate vote on the advisory vote, which would then maybe cause the Administration to change their attitude because I think Senator Murkowski said that it would require, before he could do something to change ANILCA, an agreement between the Governor, and the Native people, and the legislature. And without those three, he doesn't feel that there is a chance. And Senator Stevens, even with that, says he doesn't see that there is a chance to change. And so that's my question is even if all of this were to work, ... do you have something that the rest of us haven't heard that would suggest that we could get the feds off our back?" REPRESENTATIVE OGAN responded that there is litigation that could possibly serve that purpose. He said he doesn't believe that it behooves us to rely on the litigation alone. We should make every attempt to try to work this out. Representative Ogan said Governor Knowles is on record making campaign promises. Governor Knowles reiterated that he kept those promises when he dropped the lawsuit and said he would do all he could do to get a rural priority. He indicated he believes the current version of the legislation is as close as we can get. There is a very delicate balance in providing for needs and there may be a need to make changes to mitigate some of the heartburn some people have. Representative Ogan stated he believes the legislation meets the needs of Alaskans who have lived a subsistence life style. He would hope this could be worked out with Alaskans. It would be much more advantageous to do that than to rely on the courts. Number 0958 REPRESENTATIVE ETHAN BERKOWITZ asked how does turning subsistence into a welfare program rationally related to protecting a subsistence life style. REPRESENTATIVE OGAN responded that there has to be a rational basis and rational criteria. He pointed out that the bill is basically two-tiered. He indicated the first tier is in Section 16.16.010, subsection (b). He said, "If there is a shortage or if the projected level of harvest would exceed ... sustained yield, they shall allocate with a ranking of beneficial uses towards Alaskans first. That's the first tier. Now if there is not enough to go around after they do that then I would envision the second tier being the ... criteria of a $5 hunting license - and the people that truly depend on the resource or make a decision to adopt that life style. So I think that's a rational criteria. Rural priority certainly isn't rational. It's simply based on zip code. And ... here's documented cases of (indisc.), for example, that I think their medium income is $45,000 per household, or $35,000, and ... they're rural, Talkeetna, which is kind of similarly situated, I think their medium income is ... under $15,000 or $16,000, somewhere around there, and they're urban. So that's not a rational criteria, urban and rural isn't." REPRESENTATIVE BERKOWITZ said he didn't hear an answer to the question he asked. He again asked, "What's the link between welfare and subsistence." REPRESENTATIVE OGAN responded that when there is not enough to go around in a region, after tier I has kicked in and there is still not enough to go around, who is a have and who is a have not. There has to be rational criteria for doing that. He referred to somebody who lives in a rural dependent area and has a state job or regular income, and asked if they should be a "have?" He stated he envisions sustenance or subsistence as survival, meeting your basic needs. Representative Ogan said there is criteria in the bill which he believes rationally addresses that. Number 1133 REPRESENTATIVE BERKOWITZ said the criteria to receive a subsistence or sustenance permits would be to qualify for a $5 license, which would mean you are essentially on welfare. He said there is no causal linkage between being on welfare and living a subsistence life style. He again asked, "How is the condition of being on welfare related to leading a subsistence life style?" REPRESENTATIVE OGAN said he believes the link is dependency. He referred to page 4, line 28, and said, "A person is dependent on fish and game for sustenance if they either - they have to possess a $5 license they submit to the regional fish and game board, and to possess a $5 license, you have make less than 'X' amount of dollars. Anybody know the exact amount?" CHAIRMAN GREEN responded that he believes it is $8,200. REPRESENTATIVE OGAN continued, "$8,200 a year or receive public assistance, and they have to be dependent on fish and game ... for personal and family use, has either no alternative or there is an absence of a cash-based economy, or a person makes a decision. They make less than that amount of money and they make a decision to adopt a fish and game dependent life style. The $5 license is hopefully so we can have some record of the types of fish and game that they procured. And they would have to get tags and play by those rules like everybody else." He said the people who live in an area that is resource dependent and if the person doesn't make much money, they should be the people who should have a priority. REPRESENTATIVE BERKOWITZ said the nexus isn't there for him. REPRESENTATIVE OGAN stated reasonable people have different opinions. Number 1269 REPRESENTATIVE ERIC CROFT asked if it would be Representative Ogan's opinion that rather than saying, "You live in an area, you have the use of this resource, you already are a dependent fish and game area, we have a shortage, should we let the local people take it first or every welfare recipient in the state?" He asked Representative Ogan if he thinks the second is more logical. REPRESENTATIVE OGAN responded, "Given the parameters of our constitution and what our supreme court has ruled, I think to do anything otherwise would be unconstitutional." REPRESENTATIVE CROFT said, "If that's unconstitutional, would it be more logical? Would it be more fair?" REPRESENTATIVE OGAN said he doesn't think it would be logical and fair to create second class citizens out of any group of people in this state. REPRESENTATIVE CROFT pointed out that Representative Ogan is dividing citizens based on whether they receive or qualify for welfare. That is dividing citizens. He asked why it is more logical or fair, in a time of shortage, in a fish and game dependent area, to say every welfare recipient in the state gets it instead of the community that is affected gets it first. REPRESENTATIVE OGAN responded, "Because it violates equal protection to say just the community first gets it. And we exclude other people outside that community, it violates equal protection and we have to amend our constitution." Number 1369 REPRESENTATIVE CROFT referred to the dependent areas and said he is trying to understand how it works. He said Section 16.16.010 (b) says that everywhere the board shall have a preference for consumptive uses - anywhere in the state. Section 16.16.020 (b), page 4, says in dependent areas the board may adopt this specific preference in times of shortage. This specific preference would mean every welfare recipient, or one who qualifies, could come in and take it first. Representative Croft questioned why that is optional and why does it only apply to fish and game dependent areas and not urban areas. REPRESENTATIVE OGAN said, "Because I believe we're trying to meet the spirit of the intent of ANILCA to provide and protect subsistence needs of Alaskans. And in order to do that, we need to have a rational criteria. In order to do that within the parameters of our constitution, we cannot create one class of people - favor one class of people over the other. Now as far as why should other people that are on welfare from other areas be able to come in there and hunt and fish? So we treat everybody equally because if we say they can't come in and only the people in the one area can, that takes a constitutional amendment because it violates equal protection." Representative Ogan said if he is on welfare in Wasilla or Palmer , where he lives, and there is a shortage in Sleetmute which the board has declared, and the second tier kicks in. He said he is not going to want to go to Sleetmute to hunt because there is a shortage, and he probably couldn't afford to. He pointed out he would want a reasonable opportunity of success if he goes there, so he would probably look at some other areas. REPRESENTATIVE CROFT asked Representative Ogan if Palmer would be an urban nondependent area under his formula. REPRESENTATIVE OGAN said that would be correct. REPRESENTATIVE CROFT said if you're on welfare in Palmer and that area, which is not a dependent fish and game community, has a shortage, you don't get this preference. REPRESENTATIVE OGAN stated that is correct. REPRESENTATIVE CROFT asked why an urban welfare recipient isn't put in as good of position in their area as a rural welfare recipient. REPRESENTATIVE OGAN responded because they don't fit the criteria. He noted the criteria is based on the 14 points beginning on page 3, line 20. REPRESENTATIVE CROFT said they fit the criteria, but the area doesn't fit the criteria. If you're a welfare recipient in Palmer, you don't get the same super preference in times of shortage that you would if you lived as a welfare recipient in Sleetmute. REPRESENTATIVE OGAN said that is correct. He noted the courts have ruled that as long as you have a rational criteria in some of the areas -- this is not to unsimilar to what is in place today with tier II. He said, "We can discriminate if there is a rational criteria." Number 1601 REPRESENTATIVE CROFT said, "We can, I guess constitutionally. I'll accept your argument that it qualifies there, but why does it make sense to? Why should we?" REPRESENTATIVE OGAN responded, "Because we want to try to protect those people that have a dependency and that's the link. If you have a dependency and you're low income, I think in my heart and I think in hearts of most Alaskans, that's who - if there is a way to rationally give it preference, that's what we need to do because I think ... we have a more obligation to do that. Those that don't have the ability and the income and they need to feed their families. Let's face it they're going to ... I was in that situation and if my family was going to go without food, it probably wouldn't matter. I think one person said in our hearings, 'Hunger knows no law.' So those with low income that are hungry, let's give them the ability to legally operate and give them a preference. And I think subsistence ... under Article VIII, Section 4 of the constitution, we can give the preference subject to beneficial uses, and subsistence or sustenance - or whatever you want to call it, we have the authority to give that preference and that's what this operates under." CHAIRMAN GREEN said, "What I'm wondering if what you're trying to establish is that the first (b) would establish an area that would qualify as a subsistence area, for the various uses of the material or the stock that's there, and that the second (b) says ... within that area then, you can establish a priority among those things. It refers to area throughout that qualification area." REPRESENTATIVE OGAN said that falls all within subsection (b) in 020 and not the first (b). CHAIRMAN GREEN said if that's true, is that based on an exclusion of people who weren't there. He asked if that opens it up to anybody who qualifies, urban or rural. Even though it's only talking about that particular subsistence area, all others who qualify, who have a $5 license and have chosen that style or the other "ors," would qualify to go to a subsistence area and have a preference. REPRESENTATIVE OGAN said that is correct. Number 1479 REPRESENTATIVE BERKOWITZ said Representative Ogan indicated to Representative Croft that Palmer would be a nondependent use area, and he would assume that Anchorage, Fairbanks and Juneau would also be nondependent use, which would leave selection for dependent use areas in the rest of state. He asked if that is a fair characterization. REPRESENTATIVE OGAN stated he doesn't believe it's entirely fair. He read from the bill, "Social and economic structures, the ability of the economy, kinds of employment, amount of distribution of cash income, cost availability of goods and services, a variety of fish and game seasons, seasonable cycle of economic activity, percentage who live in the area, participating in hunting and fishing activities. He said the criteria is applied equally to every area, whether it's rural or urban. He referred to the census figures on medium income in some of the rural areas and said he believes there are 50 or 60 communities that have a higher medium income than Anchorage. It would be based on income and other criteria and it wouldn't particularly create urban/rural. REPRESENTATIVE BERKOWITZ asked if Anchorage could be a dependent use area. REPRESENTATIVE OGAN said he would doubt it very seriously. REPRESENTATIVE BERKOWITZ said if Anchorage can't be a dependent use area, it seems to him that there is a defacto situation where the state would be divided between urban and rural Alaska. REPRESENTATIVE OGAN stated he would disagree because if you apply the criteria across the state to community by community, there will be many communities that won't have a dependency. REPRESENTATIVE BERKOWITZ asked Representative Ogan if he could give an example of a community of more than 2,500 people that would qualify as a dependent use area. REPRESENTATIVE OGAN said he would have to get back to him on that question. Number 1857 REPRESENTATIVE NORMAN ROKEBERG referred to someone meeting the licensing and other stipulated criteria and asked if in order to qualify you would have to be a resident of a dependent use area before you could travel anywhere in the state to harvest on a subsistence basis. REPRESENTATIVE OGAN said if you meet the criteria, you would be eligible in other areas. REPRESENTATIVE ROKEBERG asked if Anchorage, Mat-Su Valley and the eastern portion of the Copper River would be an area. He noted he is having trouble visualizing the area concept. REPRESENTATIVE OGAN explained the area concept only takes into account the areas that fit into the criteria under 020. If it fits that criteria, then it's a dependent use area. He said, "All other areas of the state are covered in 010, subsection (b), where the board shall allocate - that you can't meet sustained yield - they'll allocate the use of fish and game for personal family use for sustenance. It's essentially two tiered, if there's not enough to go around, then these areas that have this other criteria qualify." REPRESENTATIVE ROKEBERG asked Representative Ogan if he has granted the Board of Fisheries and the Board of Game the power to draw the lines for the areas. REPRESENTATIVE OGAN said that is correct. REPRESENTATIVE ROKEBERG informed the committee that he is concerned about the person who would otherwise qualify that lives in the heart of Spenard, that doesn't make (indisc.) for a period of 30 or 40 years with family history that has been harvesting fish and game. He asked if the way the current version of the bill reads, would he be prohibited from doing so. REPRESENTATIVE OGAN stated he would qualify in area of the state, including the areas where a shortage has been declared. CHAIRMAN GREEN pointed out that if a person meets the criteria for a $5 license, he would have a dependent fish and game life style. Chairman Green said he believes that there are approximately 15,000 people who currently possess the license. In doing research, there are approximately 45,000 people who would qualify. Number 2079 REPRESENTATIVE OGAN informed the committee that under the proposal he believes that more fish and game will be taken in rural resident dependent use areas by rural dependent users than urban residents. REPRESENTATIVE BUNDE asked if the practical application of the regulations would allow a rural or a dependent use area preference because they have the advantage of location and time. REPRESENTATIVE OGAN said that is true just about all the time. He said people that live in an area where there is fish and game, they have a natural leg up on other people because they know when and where to hunt and fish. REPRESENTATIVE BUNDE said it is not the intention of the bill to discriminate, but the common sense reality of the application of the laws would end up with some natural discrimination by where people choose to live. REPRESENTATIVE OGAN said Representative Bunde is correct. He noted that it is not intentional. He said he knows the mountains behind his neighborhood better than the person who drives in from Anchorage. He said he can usually get a moose before the person from Anchorage can. He said there are people in rural Alaska that travel by snow machine to other areas and get caribou or moose. Representative Ogan said he doesn't think it's all exclusive as there are a lot of people that can travel around rather inexpensively. Number 2242 REPRESENTATIVE BRIAN PORTER said while the result of the bill isn't indented to be discriminatory, the natural and probable result of its configuration is discriminatory. He said he doesn't know whether that discrimination is legal or illegal. Representative Porter said he is still concerned about the dependent use area and its function. He said, "I commend your efforts to try to match it to ANILCA. From what I read of the definitions in ANILCA, or at least a proposed ANILCA that was just struck by Senator Stevens, it seems to indicate that an awful lot of what is in [HB] 406 is consistent with their definition of the area, and with the exception of the $5 license the description of the life style or the person. But to get to the point of probably, not necessarily for sure but probably, not having to amend the constitution I can't see a rational use for a dependent use area. If every subsistence user, by this definition, can hunt anywhere that is open for subsistence use in the time of shortage, whether an area was deemed to be a dependent area or not, there would be a shortage and the Board of Fish or Game would make that kind of a management decision based on the normal considerations of everybody's use, but recognizing subsistence as a priority. So what is the function of the dependent area?" REPRESENTATIVE OGAN stated the dependent area is to protect the resource. When there is a shortage in an area, he believes you have to have different tiers. It is an attempt to narrow down, during times of extreme shortage, those that have the greatest dependency. REPRESENTATIVE PORTER asked, "Who is eliminated, in the time of shortage, from a dependent use area any different than a nondependent use area? Who is eliminated that can't fish or hunt." REPRESENTATIVE OGAN responded anybody that makes over $8,200 and isn't on welfare. REPRESENTATIVE PORTER said, "Right, and that was the same as a dependent use area or a nondependent use area if there is a shortage and it's gone to tier II. So, again, what is the rational reason for the existence of a dependent use area?" Number 2386 REPRESENTATIVE OGAN said if we don't have a dependent use area, then areas that aren't truly dependent on fish and game would be -- anybody could participate. He said he believes it is a management tool. Representative Ogan said he understands what Representative Porter is saying. REPRESENTATIVE PORTER said he thinks it is left over from a local preference. He said, "It serves a function. If you're going to say that in a time of a shortage, in an area that has been determined to be an area that is a dependent use area, where more than 50 percent of the folks are dependent and need that for a sustenance of themselves and their family, then it's very logical to say -- and since there is a shortage there that only the folks that reside there are going to have a preference to hunt or fish in that area. But if everybody that is in the same criteria as a subsistence user can come into it, it's the same as any other place in the state with the same level of shortage - so regardless of the life style of that particular area." REPRESENTATIVE OGAN said the boards have controlled use area. He said, "We're establishing a criteria or a dependent use areas. And they don't limit necessarily people that can participate, but they certainly make it more difficult. And if I can't drive a four-wheeler into an tools to be able to manage and we're...." TAPE 98-35, SIDE B Number 0001 REPRESENTATIVE OGAN continued, "...of the fish and game ... is what we're after. I believe it would give them another tool to, at their discretion, to use. It doesn't require them to do it, but simply as a management tool." REPRESENTATIVE PORTER said, "By regulation, any area of dependent use can be managed through restrictions on time of the year, time of day, method and means, can create a situation where it's more likely that the local residents are going to have a successful hunt or fish than somebody from Spenard." REPRESENTATIVE OGAN said that is correct and we currently do that. He continued to give an example using caribou. He said these tools are what the board uses, at their discretion, to manage. He believes this is one more tool and a vast majority of low income people will be from the areas that we are trying to protect. REPRESENTATIVE PORTER said, "Just an observation I guess. I understand, and certainly no disrespect for the sponsor and those folks that think that ... the most important thing here is to not have to amend the constitution. But I don't think we both agree with what we're trying to accomplish here. I don't think most of the folks in the state would disagree with that as allottable goal. And if we can do it without the manipulation, I guess, if you will, of things rather than just do it straight forward and say, 'That's what we're going to do,' I think most of the folks in the state would say they don't particularly like it, but we understand it and we'll do it." Number 0140 REPRESENTATIVE BUNDE said he wonders if there is a relationship between the establishment of a dependent use area and the establishment of the subsistence advisory committee. REPRESENTATIVE OGAN said the advisory committees are already in place. He pointed out they would be creating the regional boards. The main fish and game boards would be allowed to delegate authority to the regional boards as they see appropriate. If there is an area shortage, they could delegate closure authority to them. REPRESENTATIVE BUNDE asked if there is a relationship between establishing a dependent use area and the regional boards that will be established. He asked, "You don't have to have one to have the other?" REPRESENTATIVE OGAN said a person that appeals who has a difference of opinion as to whether or not they qualify under 020 can appeal that decision to the regional board. He indicated that it would ultimately be decided by the main boards. Number 0169 REPRESENTATIVE BUNDE said, "One of the criteria that someone might appeal to this regional board is that they live in a dependent area. So there is, in my mind then, some relationship - gives them some further standing in their appeal by establishing a dependent area." REPRESENTATIVE OGAN responded, "I believe that if they either live in it or they don't ... I think Title 16, 'domicile residency' would probably be the appropriate ... barometer of that domicile being defined in Blacks Law Dictionary and all that other good stuff." Number 0203 REPRESENTATIVE JEANNETTE JAMES said she tends to agree with Representative Porter in that there really isn't any real need for a dependent use area except to draw another line. Drawing lines is already the problem that exists relating to rural. Representative James said it appears to her that the main criteria in ANILCA is customary and traditional. She asked if that is in the legislation. REPRESENTATIVE OGAN responded, "It's not specifically addressed, customary and traditional. However, I think it's addressed by the criteria." REPRESENTATIVE JAMES said, "Throughout this whole piece of legislation you're referring to 'sustenance,' however, as opposed to 'subsistence,' and I understand your rationale for that. But do we have customary and traditional sustenance? Or is it a subsistence life style, as indicated in Senator Murkowski's letter, that we're supposed to protect. Then following up on that question, if we're going to try to describe this need, which there is a need or we wouldn't be dealing with this issue, I mean I think there is a need that needs to be met, ... if there weren't, we wouldn't be having this problem. But would it be the wisest to start out with customary and traditional?" Number 0280 REPRESENTATIVE OGAN referred the committee to page 5, line 8, "(ii) the person's decision to adopt a fish and game dependent life style", and said that is probably as close as we can get to customary and traditional. He referred the committee to page 4, line 10, and said, "Historical, social, economic value associated with taking and use of fish and game would probably adequately describe it. And for the record, if I might, Mr. Chairman, I think the defacto priority that they were talking about was - in discussion - if I recall correctly - discussion to the part that was amended out of the bill of the use it where you shoot it." REPRESENTATIVE JAMES said she thinks this does the same thing as it is similar in nature. Number 0322 REPRESENTATIVE PORTER said in ANILCA customary and traditional uses means noncommercial, long-term and consistent taking of use of or reliance upon fish and wildlife in a specific area, and patterns and practices of taking of fish and wildlife established over a reasonable time, taking into consideration availability of fish and game. He said it sounds as if sustained yield is fine as there is a pattern and practice of taking. In terms of saying "subsistence uses," they use customary and traditional and say that the term "subsistence uses" means, "customary and traditional uses by rural Alaskan residents, of fish and wildlife for direct personal or family consumption as food, shelter, fuel, clothes, tools, or transportation, for the making and selling of handicraft articles out of non-edible by products of fish and wildlife resources taken for personal and family consumption for barter or sharing for personal family consumption, or for customary trade." He said the emphasis is so much on consumption and he doesn't think that the intent of ANILCA is diametrically opposed to where the committee is trying to go with the bill. Number 0389 REPRESENTATIVE OGAN said, "Personal family use for subsistence is already established - recognized use to common property resources in AS 16.05.940(32), 'Limits subsistence uses to uses for direct and personal family consumption for customary trade, barter or sharing for personal and family consumption.'" REPRESENTATIVE BERKOWITZ stated, "Those are repealed under this bill, including customary and traditional which is provided in Section 7 of [AS] 16.05.940. And your bill in Section 32, on page 22, repeals customary and traditional." REPRESENTATIVE OGAN said that it does repeal customary and traditional, but it is redefined in other ways that meet the same intent. REPRESENTATIVE CROFT asked where the repeal is located. REPRESENTATIVE BERKOWITZ responded that it is on page 22, lines 2 and 3, Section 32. Number 0443 REPRESENTATIVE OGAN stated the intent of that has been addressed in the bill. REPRESENTATIVE PORTER asked where the customary and traditional definition is. REPRESENTATIVE BUNDE said it is item (10) on page 4. REPRESENTATIVE CROFT asked, "Are we in the area section or the individual section?" REPRESENTATIVE OGAN said, "We're in the area section." REPRESENTATIVE CROFT said, "So it doesn't protect a customary and traditional use. It may have some flavor of it in the area, but it doesn't protect the customary and traditional use." REPRESENTATIVE OGAN stated in 010, it certainly does. He read from page 2, line 28, "The harvest of fish and game for personal and family use for sustenance by residents is the highest and best use of fish and game." He said the board shall manage and give a preference for consumptive use (indisc.) personal and family use for sustenance over other uses. Representative Ogan said, "That's pretty customary and traditional to me. And furthermore, in subsection (b), if we don't meet sustained yield that the boards shall allocate with the highest use being to feed Alaskans first. Now I don't think that gets anymore customary and traditional than that." Number 0539 REPRESENTATIVE CROFT said, "I think it could get somewhat more customary and traditional if we said it. I mean I don't know how it does it. Sustenance use can be a sport use right? Can be a noncustomary, nontraditional, but I eat it." REPRESENTATIVE OGAN referred the committee to page 17, line 5, "(37) 'fish and game dependent uses' means the noncommercial, historical uses of fish and game by a resident for direct personal or family consumption as food, shelter, fuel clothing, tools or transportation...." He said he believes it is addressed in the bill. CHAIRMAN GREEN asked if that was the intent of Section 37. REPRESENTATIVE OGAN said it is a fair assessment that they rename customary and traditional to fish and game dependent uses. REPRESENTATIVE JAMES said, "My understanding, on that point, that we're still talking about the area. We're still not talking about people." Number 0604 REPRESENTATIVE BERKOWITZ said, "But you have gone to great pains to use the word 'sustenance,' the term 'sustenance' instead of 'subsistence.'" He asked Representative Ogan how he defines "sustenance," and why. REPRESENTATIVE OGAN referred the committee to page 17, line 5, and said he would define sustenance as fish and game dependent use. Representative Ogan said probably the best definition would be in the dictionary. REPRESENTATIVE BERKOWITZ responded that he did and the synonym is "subsistence." He asked Representative Ogan why he went to such great lengths not use the word "subsistence." REPRESENTATIVE OGAN responded it pretty much means the same thing, but it's a less political term. Number 0665 REPRESENTATIVE JAMES said "subsistence" is more than "sustenance." She said as she reads the dictionary, a subsistence life style is depending upon other than a cash economy. She said, "And we know that you can't totally depend on that because there is other things to living. You have food, shelter and clothing; it's not just eating. And subsistence is all of that." REPRESENTATIVE OGAN said Representative James is correct. He said that is why he has identified the fish and wildlife dependency areas. Number 0698 CHAIRMAN GREEN said, "But if you use, in this definition, 'animal parts,' doesn't that smack more of the definition that we just heard about subsistence rather than just sustenance? If we go away from just the consumption aspect of it..." REPRESENTATIVE OGAN said there are people that have traditional uses for more than just meat. REPRESENTATIVE PORTER referred to the definition on page 17 of "fish and game dependent uses," and asked what use of fish and game dependent use does it define. He asked where is it in the rest of the text. REPRESENTATIVE OGAN said, "I don't have it highlighted where fish and game dependent uses is used throughout the rest of the text." REPRESENTATIVE PORTER noted the only one he can find is under the dependent use area. He said he doesn't think you can get customary and traditional, in the full sense of the word - use of the resource unless you're in a dependent use area. Representative Porter said, "Under general terms, a subsistence user, who otherwise qualified under the bill, but lives in Spenard, would not be able to do his customary and traditional -- the extent of customary and traditional unless he or she went to a dependent use area. And I don't think that's what you're trying to do." Number 0822 REPRESENTATIVE OGAN said he would have to disagree. He informed the committee that he thinks the primary objective of the bill is spelled out in Section 2.... REPRESENTATIVE PORTER interjected, "If it turns out that the specific wording of this bill creates that, you wouldn't mind if that that were altered." REPRESENTATIVE OGAN responded, "Before I say that, I'd like to fully understand it. Let me go back and look at the video tape and I'll give you an answer to that one." REPRESENTATIVE PORTER said there is no doubt, in his opinion, that they will write up anything that is going to make everybody in the state happy. He said, "What I see from the definitions of ANILCA, and the definitions that you have in here, I don't think you're too far apart." Number 0909 REPRESENTATIVE BERKOWITZ said even with all this, there is no recognition that subsistence has a spiritual component at all. Even in the definition of "subsistence," there is a recognition that there is such a thing as spiritual sustenance. That not being present in the bill is more than somewhat troublesome to him. Representative Berkowitz said he has been told that there is a zero fiscal note. REPRESENTATIVE OGAN indicated it is a zero fiscal note because the Resources Committee didn't receive the appropriate fiscal notes from the agencies because the bill had been changing so quickly. He said he wrote a zero fiscal note so that the bill could move. REPRESENTATIVE BERKOWITZ said there is an extremely large bureaucracy that is going to be spawned out of this bill. Given that there are competing interests over a finite amount of state dollars, he is sure the people, even in rural Alaska, would rather see that money spent on education than on creating on this bureaucracy. REPRESENTATIVE OGAN responded that if the feds would come through with the $4 million or $5 million that the promised to fund this program to match ANILCA, we probably wouldn't have a problem with it. He pointed out that he does recognize, in findings and intent, on page 1, line 11, that there are Native and non-Native Alaskans who have traditional, (indisc.) or cultural relationship and dependence on wild renewable resources. He said he believes it is unconstitutional to incorporate any type of spiritual or religious preferences in statutes. REPRESENTATIVE BERKOWITZ stated that we do make exemptions in laws related to alcohol use that there is an exception to allow minors to drink if there is a religious component to it. It is also part of Section 4 of the Constitution of Alaska that we're not going to make any laws that impede anyone's religious practices. He referred to the fiscal note and said, "We're creating a situation here where 15,000, and now I learned possibly 45,000 people are eligible, which means 45,000 people are going to have to be processed through some form of bureaucracy, which means there are going to be a certain number of folks who are disgruntled with the outcome. And when they're disgruntled with the outcome, they're going to run the course of appeals through these game boards and, what's not recognized here, up to the district or probably through the superior court. That's necessarily going to involve a cost. And I would feel more comfortable with this bill, not that I'm comfortable with it at all, but I would feel more comfortable with it if I knew what the cost associated with it were." REPRESENTATIVE OGAN said his point is well taken, and that's why they simplified the criteria from the original version in the Resources Committee. Number 1129 REPRESENTATIVE ROKEBERG noted he has been working with the drafter of the bill and the sponsor to overcome the fiscal note and the burden and the administrative problems revolving around the way the bill is currently drafted. REPRESENTATIVE BERKOWITZ said, "It would seem to be very difficult that any individual-based criteria to get past any bureaucratic formation. So there will be a large fiscal note attached." REPRESENTATIVE OGAN said there is something called strict liability that is similar to when you fill out your fish and game license, you say, under oath, that you qualify. If you're investigated by a police officer and if he has reason to believe that you aren't qualified, he can look into it. If you're guilty, it would be a violation. He noted that was dealt with in the residency bill two years ago. REPRESENTATIVE CROFT said the residency bill can do that because it's relatively easier to say where one's residence is. Meeting all the other criteria in the bill is tougher. Representative Croft said Representative Porter's question was well taken in that it doesn't seem like the dependent use areas have much function anymore, but the way it was left in the bill they seem to have a small residual function. He said, "There is a general overlying preference for everyone, and then only in fish and game dependent areas do we get this time line of dependent area. A shortage comes in, welfare uses from across the state can come in and take the first crack - be first in line. It leaves unsaid what happens in nondependent fish and game areas, and I take it from that, that this time line of welfare recipients from the whole state wouldn't come in. Do they or don't they? And if they do, why is distinguished between the two? Do you see what I mean? I mean why just say in dependent fish and game use areas, 'crises' means welfare recipients get first crack? Why not say in everywhere welfare recipients get first crack?" REPRESENTATIVE OGAN said he doesn't think it is necessary. If the board manages under criteria 010(b), they can allocate enough fish and game for Alaskans first. If there is a shortage in a game management area, that is when the board can narrow it down to the second tier. Number 1453 CHAIRMAN GREEN said, "Correct me where I'm wrong here that in a subsistence use area there are two people, one who makes $12,000 a year and one who makes $7,800 a year. So one of the those would qualify, the other would not, but someone just outside this area who makes $7,800 would have a preference over the person who lives there because he doesn't qualify as a subsistence priority recipient, and yet he may be. It's just that he ... is just above that dollar value hurdle. So you could have a significant number of in-subsistence area residents being shoved away from the subsistence by out of area qualifiers." REPRESENTATIVE OGAN informed the committee that could possibly happen. REPRESENTATIVE PORTER referred to a nondependent area and asked if there is a shortage, and HB 406 were law, would the board of game or fish be able to establish a preference for subsistence use only? REPRESENTATIVE OGAN referred the committee to 101(b) and said they would be able to establish a preference under Article VIII, Section 4, of the use of fish and game. He said, "We're asking them to allocate ... in accordance with the ranking of beneficial uses - the use of the fish and game resource. So yes, absolutely, they can provide a subsistence or sustenance...." REPRESENTATIVE PORTER interjected, "Over personal use." REPRESENTATIVE OGAN replied, "Well, they're grouped together in this bill, personal and family use for sustenance." REPRESENTATIVE PORTER asked what the classifications of permits or licenses are for taking game under the current version of the bill. REPRESENTATIVE OGAN said he isn't aware of that is specifically addressed. REPRESENTATIVE PORTER said, "There is a guide, there is a commercial use, there is sport use, there is personal use, and there is subsistence use, I guess. What of all those are left?" Number 1727 REPRESENTATIVE OGAN responded, "It's specified in Section [AS] 16.05.251(e), and notwithstanding that and that the Board of Fisheries may allocate ... the different uses that they may allocate are specified in existing statute under 251(e)." REPRESENTATIVE PORTER said, "If I understand the answer then, in this nondependent area, or I mean in this area that is not a dependent use area, in the time of a shortage, because of 16.010(b), a board of game or fish could restrict use down to those folks that qualify for subsistence." REPRESENTATIVE OGAN said that is absolutely correct. He said the board "shall" allocate, notwithstanding 251(e). REPRESENTATIVE PORTER stated personal use is the same as subsistence or sustenance. REPRESENTATIVE OGAN said that is correct. REPRESENTATIVE PORTER said he would guess that they could even differentiate between personal use and subsistence use if the shortage was great enough. REPRESENTATIVE OGAN said he doesn't believe so under the bill because they're lumped together. Number 1877 REPRESENTATIVE CROFT gave a scenario, "We're both Alaskans, you don't meet the income criteria - I do, Palmer and Spenard. You've got a sport license, therefore, you don't get this $5 one, and I get my $5 and I'm a subsistence or sustenance or whatever user. We are equal or I have a preference to go and get the mythical moose in your back yard?" REPRESENTATIVE OGAN responded, "We're absolutely equal." REPRESENTATIVE PORTER stated that puts a totally different picture on a dependent use area. Number 1937 REPRESENTATIVE BUNDE said there are specific personal use fisheries that are different than sport fisheries and subsistence. He pointed out there is a criteria called personal use and currently it is only in fisheries. CHAIRMAN GREEN said the committee just heard that they would be equal and that there is not differentiation. REPRESENTATIVE OGAN informed the committee that Mr. Utermohle was present. REPRESENTATIVE BERKOWITZ said the definition of "dependent" might be useful. Number 2041 REPRESENTATIVE PORTER stated the bill establishes dependent use areas and presumes that the rest of the areas of the state that are legal to hunt and fish in are not dependent use areas. He asked if there is a fish shortage in an area that has not been defined as a dependent use area, can the Board of Fisheries reduce the taking in that area down to those folks that qualify under the bill as subsistence users. GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, came before the committee. He said he does not see that the board would have authority, under the bill, to limit entry into a fishery where a shortage exists in an area outside of a fish and game dependent use area. He stated in a nonsubsistence area, CSHB 406(RES) would not allow the board to establish a criteria such as requiring the $5 license and a history of dependence. He stated that what the bill does do is requires the board to establish a series of allocations in giving preference to user groups. It gives the highest preference to those user groups of personal consumption. The boards, at that time. could limit access into that area where the shortage exists to those persons who will take the game for consumption. Therefore, it essentially eliminates trophy hunting versus hunting for food. The board does not have the authority to restrict that further. REPRESENTATIVE PORTER pointed out that there isn't a personal use license, but there are personal use areas. He said if wanted to go and get a license that would allow him to take advantage of that situation in a nondependent area or a nonsubsistence area where there was a shortage, it would just be a sport license. MR. UTERMOHLE confirmed that the only license provided under law for the purpose of hunting is a sport license. REPRESENTATIVE PORTER asked if the board, under this law, would be restricted in a nonsubsistence area and would not be able to differentiate between a sport license and a subsistence license. If they were both taking it for personal consumption, they would both have equal access in the time of a shortage to that resource. Number 2295 MR. UTERMOHLE said he believes that is the case. He said it is possible that the board might attempt to expand its existing authority, or utilize its existing authority to the fullest, to develop some criteria such as a lottery. REPRESENTATIVE CROFT said he had understood that it created a possible difference between dependent use and nondependent use areas, but he didn't know it was that dramatic. He said, "Urban/poor can come out to rural dependence areas with a priority, but rural/poor can't come into urban areas and get a priority because there ain't any. And isn't that creating a urban rural distinction - a distinction of more weight than I though between nondependence and dependence use areas, and one biased the opposite way." MR. UTERMOHLE stated that is a value judgement and he can't address that. TAPE 98-36, SIDE A Number 0001 REPRESENTATIVE OGAN pointed out that the village of Eyak has a medium income of $150,000, which is the highest paid community in Alaska. He noted he is reading from the 1990 U.S. Census data. Representative Ogan said Juneau is number 38, Anchorage 61, Ketchikan is 75. CHAIRMAN GREEN asked if he was reading from a tabulation of average incomes per community. REPRESENTATIVE OGAN said that is correct. He stated, "I guess my point is, Mr. Chairman, Representative Croft, it's not necessarily that rural hunters won't be able to come into urban areas if (indisc.) that kind of a nonsubsistence -- in a nonsubsistence areas, it's because I think some of these areas, because of the medium income could very well not be classified as subsistence areas when you have $150,000 per household income, that's certainly not subsistence economy." REPRESENTATIVE CROFT stated he understands the law correctly. From what Mr. Utermohle said, a poor person, that is a person who meets this welfare or welfare criteria, in nondependent zones can go out to rural Alaska in a time of shortage and get a preference. They can go out a dependent use area in a time shortage and get a preference, but a poor resident in a dependent use zone, i.e., rural but not always, cannot come into a urban nondependent zone and get that same preference because there isn't a preference in those zones. He asked if that legally correct. Number 0279 MR. UTERMOHLE stated the scheme Representative Croft just described is legal and is permissible. That is what the bill does and is what the current subsistence system does under state law. He said that has been challenged and has been upheld. He stated the Kenaitze Indian Tribe case in the Alaska Supreme Court addressed two issues. One issue was access to fish and game for tier II. The court struck down the notion that if you live near the resource you have a greater right to the resource. There is no geographic preference in the state under the Alaska Constitution. The other thing the court didn't strike down, but upheld was the establishment of subsistence and nonsubsistence areas. The court held that there was no unconstitutional burden placed on the Alaska resident who is entitled to subsist, as we all are, just because he lived in a nonsubsistence area he had to go to a subsistence area. The court considered that an inconvenience and not rising to a constitutional significance. He stated that similar scheme is carried forward in the bill. Number 0397 REPRESENTATIVE OGAN said he would like to state, for the record, that Fairbanks is 121 with an income level of $32,000 a year. Number 0421 REPRESENTATIVE ROKEBERG asked Representative Ogan to describe what, if any, impacts the bill may have on commercial fishing, hunting and guiding. REPRESENTATIVE OGAN said, "I believe the board determines that there is, based on previous levels of harvest, that there is not enough to sustain a species that they may give a preference - they shall give a preference to personal family use for sustenance. I would also like to state, for the record, that over and over and over again I've heard that various meanings on another bill which I won't bring up, but that ... the allocation authority should remain with the board and that's exactly what this bill does." REPRESENTATIVE ROKEBERG referred to Section 40, page 23, and said it is the enabling language, after the advisory vote, which speaks to the changes of Title VIII of ANILCA. He asked Representative Ogan if he has spoken to somebody in either Senator Murkowski's office or Senator Stevens' office about what type of direction they would like to see in the level of specificity in the legislation to give direction to the congressional delegation. REPRESENTATIVE OGAN indicated he has had personal conversations with Senator Murkowski. He said, "He has indicated a willingness to make whole hearings on changes to ANILCA when the state makes its recommendations and there are certainly caveats of that that he would like a consensus. Senator Stevens has been a little bit less cooperative, but however, I think he's left the door open in deferring to Senator Murkowski and Representative Young's committees as the appropriate committees for this to happen." Number 0611 REPRESENTATIVE ROKEBERG stated his concern is whether we would be presumptuous of making specific suggestions as to the actual changes in ANILCA. He said he doesn't think we would. Representative Rokeberg stated he has talked to the Senator about that, but then the question becomes, "How far do we go?" He said he is concerned that the provisions currently in the bill are relatively general in nature and may not be quite specific enough. He said he would like some feedback. Representative Rokeberg suggested a conceptual amendment to change the word "sustenance" back to "subsistence." CHAIRMAN GREEN said he would prefer not to do that now as the meeting is an informational meeting. He indicated changes to the bill could be made the following week. REPRESENTATIVE ROKEBERG said if the sponsor doesn't object, maybe a CS could correct that. He said you can't simply change that word. You need to look at the context of all the language. It may even help clarify some of the issues. CHAIRMAN GREEN said it would be a fairly laborious process to do that. REPRESENTATIVE ROKEBERG said the logistics of it may have some merit. REPRESENTATIVE OGAN indicated he just wants to try and get the issue resolved. He said, "You guys can call it whatever you like as long as it makes -- if it gives people in rural Alaska some more comfort, I'm not going to lose any sleep over it. So lets -- defined closely, you know. Representative Berkowitz pointed out that he looked it up in the dictionary and ... 'sustenance' meant 'subsistence.' I think 'subsistence' is a little bit -- I think maybe we all ought to get out our dictionaries and look at what they mean and define the appropriate term." REPRESENTATIVE ROKEBERG suggested that the sponsor be directed to come back with a committee substitute if that's the sense of the committee. He said, "If he doesn't object and is willing to do that, it gives him the ability to draft it like you would like to make sure it's...." CHAIRMAN GREEN asked Representative Rokeberg if he is offing an amendment. Number 0930 REPRESENTATIVE ROKEBERG said he would make a conceptual amendment that the bill be amended to utilize the word "subsistence" where appropriate, subject to the sponsor's desire. CHAIRMAN GREEN objected for the purpose of discussion. REPRESENTATIVE BUNDE said he would offer an amendment to the conceptual amendment that all reference to subsistence be struck and be replaced with "personal use," because in his opinion there is no subsistence in Alaska. It's all personal use. CHAIRMAN GREEN said, "Is that a friendly amendment or are you just...." REPRESENTATIVE BUNDE said, "I would strongly object to continuing...." CHAIRMAN GREEN said, "It's an objection rather than an amendment to the amendment." REPRESENTATIVE BUNDE responded, "Yeah, let's just call it that." Number 0979 REPRESENTATIVE PORTER spoke against the amendment to the amendment, and the amendment. It is a little bit untimely at this point as the committee hasn't even heard testimony on the bill. He pointed out that there may be a desire to make a lot of changes, and how the amendment would relate to other changes the committee won't know until that process is started. That process won't be started until testimony is heard. Representative Porter said, "As I think in another context we said once, discrimination isn't illegal, illegal discrimination is illegal, and it is illegal because you've defined it that way. And sustenance or subsistence doesn't mean anything that we don't say it means in here, and if we've left that a question we have failed. So whatever we call it, it's up to our definition to hopefully import what it means clearly." Number 1028 REPRESENTATIVE ROKEBERG indicated he doesn't want to create any problems, and then stated he would withdraw his amendment. REPRESENTATIVE BUNDE said, "There was just one point that I'd like to correct, for the record, and I don't think Mr. Utermohle intended that, but there was some discussion about in a certain event trophy hunting would be stopped and it would only be hunting for food. And obviously there is no trophy hunting in Alaska. You must salvage the meat and to not do so is currently against the law. I'm not sure what the intent of the discussion was, but I just wanted to clarify that there isn't any trophy hunting in Alaska per se." Number 1115 REPRESENTATIVE JAMES said she objects to the fact that there is no trophy hunting, there is trophy hunting. People go out and hunt, they take a lot of moose and they donate it to the villages. So there is trophy hunting. Representative James indicated she is still puzzled with dependent use areas. She asked, "Are you, in describing a dependent use area, describing an area that has a certain population of game or are you describing the area where people live?" MR. UTERMOHLE explained that the bill describes a dependent use area as an area where a certain use of fish and game occurs. REPRESENTATIVE JAMES said, "It's my evaluation, that being the case, that by opening the door to all these people all over the state to participate in subsistence or sustenance hunting and fishing as long as they qualify with this issue, that if we start defining these areas -- and that seems to be everyone can go there, that the amount of fish and game that needs to be taken to meet this need, to find a reasonable opportunity for people to hunt, would something be something that the game board would have to know that that is so they could know when there is a shortage. And it appears to me there would always be one, and that the only hunting and fishing that's left is for sustenance." REPRESENTATIVE OGAN said he would have to disagree that it would create a massive influx of people into an area that would over use or would really reduce fish and game for the people that live in the area. He said in a practical aspect, he is not going to want to go hunting, even if he's qualified under the low income criteria, into an area where there is a shortage. He indicated he would go to an area where he would have a reasonable opportunity of success. If people flock to an area where there is a shortage, they'll be disappointed and leave. Number 1271 REPRESENTATIVE JAMES explained that she doesn't see any place in the identification of a dependent use area that it only defines "dependent use area" when there is a shortage. It's is a dependent use area because of the nature of the use there. Representative James questioned why they should recognize it. REPRESENTATIVE OGAN indicated he would get back to Representative James regarding that question. Number 1319 REPRESENTATIVE BERKOWITZ asked Representative Ogan to get back to him regarding his question. He said he is looking for a definition of "dependent" or "dependence." Representative Berkowitz said he is curious to know what the impact of this scheme would be on Cook Inlet fisheries. He asked if you could have dependent use for game and nondependent use for fisheries in the same area. He also asked, "I'm also curious, in the larger scheme, to know what the impact is on personal use - how is that defined? Is that rod and reel? Is there more to it than that? And commercial fisheries?" CHAIRMAN GREEN indicated the committee would take public testimony. Number 1370 JEFF PARKER testified via teleconference from Anchorage. He informed the committee members he was legal counsel to the Senate State Affairs Committee in 1985 and 1986. He said he believes the current version of the bill would have the same constitutional type of problems as what was drafted in 1986. The current version of the bill creates a closed class just as much as rural did. He said, "In here the class would be for dependent use and it would be defined based on income or welfare dependency. Whereas in rural it was defined as -- with class was closed but defined by residency. I think it's very important to understand why the bill (indisc.) the rural criteria unconstitutional and did so because it was a closed class. And of course perspective, this is really substituting one closed class for another, and I think in that sense we have recreated a different version of the same problem and may also fail constitutional muster for that reason." Mr. Parker said Representative James made an excellent point. The bill really puts all fishing and hunting into the category of sustenance because on almost - on any fish and game stocks in this state we don't have sufficient resources in order to have longer extensive seasons. What this will mean is a reduction of seasons and bag limits in any place in which you have methods and means regulations that restrict the ability to harvest, and therefore, increase the ability to have a longer season. He explained a scenario using catch and release trout fisheries and antler regulations on moose. Mr. Parker said another problem is with the definition of "sustained yield." He pointed out that the boards are flexible with what sustained yield means in order to tailor it to different situations and social demands. Therefore, you have, for example, catch and release fisheries or antler regulations. The current version of the bill would drive everything towards a strict maximum harvest kind of regime and would shorten seasons and decrease a lot of opportunities. Number 1581 MARY BISHOP was next to address the committee via teleconference from Fairbanks. She said she believes the committee is moving in the right direction, but there still needs to be a lot of fine tuning. She informed the committee that the McDowell decision specifically suggests that a preference based on individual needs would be acceptable by the constitution, but the rural/urban criteria is extremely crude. She said she would be happy to provide the committee with those quotes. Ms. Bishop referred to the dependent use areas and suggested the committee consider taking out the "dependent use areas" and insert the "eat it where you harvest" provision. That might provide a more equitable situation for everyone. She urged the committee not to use the wording "customary and traditional use," as those words could cause legal disputes. It could raise the issue of water fowl swans being shot with guns by moonlight. It was argued that it was customary and traditional. She referred to the Totemoff case where shining deer was argued to be customary and traditional. Ms. Bishop questioned whether fish traps would be customary and traditional. She continued to give the committee other examples of what could happen if the wording customary and traditional is used. Ms. Bishop continued to discuss her concerns with ANILCA. CHAIRMAN GREEN informed Ms. Bishop he would probably contact her with some questions. Number 1791 HUGH DOOGAN testified via teleconference from Fairbanks. He informed the committee members he is a senior citizen and has a $5 senior citizen license. He suggested the committee review a House Journal that includes discussion between Representative Charlie Parr from Fairbanks and Nels Anderson of Dillingham. He also suggested the committee obtain a Kodiak court case, Madison v. State of Alaska. He said Mr. Madison took a deer out of season for subsistence use. Mr. Doogan thanked the committee members for all the work they're doing. Number 1831 REPRESENTATIVE CROFT asked Mr. Doogan if his $5 license is a special senior license. He asked him whether he was on welfare or if he earns more than $8,200. MR. DOOGAN stated he is a senior citizen. He said the state of Alaska sold him the license for $5 when he turned 65 years old. He said it is a lifetime license for fish and game. REPRESENTATIVE CROFT said, "As I read it, you wouldn't be covered under this if that was the question." MR. DOOGAN said that is what he is trying to bring up, he isn't covered, but he paid $5. He stated he believes there would be discrimination against a class of people. Number 1886 MICHELLE SPARCK testified via teleconference from Bethel. She stated, "The subsistence users of the Yukon-Kuskokwim Delta have awaited the Alaska legislature to find a suitable solution to the state's debate on satisfying the federal mandate under ANILCA. In the meantime the funding for such management has been categorically reduced in years. It has lead to ADF&G [Alaska Department of Fish and Game], especially the Division of Subsistence, to cut critical management programs. The boards of fish and game are made up of appointments, not elections. That wouldn't guarantee fair and equal representation among stakeholders. To the state and federal government, this issue comes down to a question of control, but I would like to testify on (indisc.) nature in which the author of this bill has been treating our way of life. It is essentially to us a matter of life. Despite a demonstrated history of customary and traditional use of our fish and wildlife, our people have been held in limbo over who gets control over our subsistence harvest runs. Mr. Ogan would like to belittle our dependence on subsistence to a case of need. I would hope that his fellow colleagues would not make the same mistake for our practice of subsistence isn't so much a need, but a clear right to the taking of the sacrament. In the taking of wild animal we honor in spirit for being put on an earth to feed and clothe us, for sustaining us in such harsh environment. We are the last of the great hunters and gathers of North America. We practice our birth right and legacy every day and seasons change, so does our fresh diets. Our practice take us well beyond the parameters that Mr. Ogan's bill would designate as user areas because our (indisc.) yielding has different characteristics from village into the next. If an elder from the coastal village of Chevak wakes up one day with a hankering for caribou meat, every (indisc.) mountain 200 miles away." Ms. Sparck said HB 406 also orders them to prove themselves indigent in order to qualify for their subsistence rights for the sustenance of their families. She informed the committee she will be submitting a resolution passed by 56 Yukon-Kuskokwim villages that urges state lawmakers to not vote for HB 406. Number 2193 REPRESENTATIVE BUNDE said he understands that subsistence has been a tradition for many generations. He asked if there is some point that the tradition would stop or change. He asked if a child that is born today would be expected to have the same tradition and subsistence rights when they are 60 or 70 years old. He also asked Ms. Sparck how many generations does she anticipate that this would go forward. MS. SPARCK stated it will go forward as long as the state doesn't prevent them from doing so. REPRESENTATIVE BUNDE pointed out that three generations back his family was involved in a subsistence life style, but he has changed. He said he would suggest that three generations into the future, Alaska will be far different than it is now. MS. SPARCK indicated her mother lived in fish camps before the missionaries started sending them to school. Her mother makes a very good living now because she had a college education, but she still practices the subsistence way of life. They will practice the subsistence way of life because it defines their culture. Number 2261 RICHARD SLATTS, Chevak Traditional Council, testified via teleconference from Chevak. He noted he also works under the Chevak Tribal Courts. Mr. Slatts referred to the subsistence way of life and said it was handed down by his father as his father taught him and his father before him. This life style is not afforded and it's not a weekend get-a-way camping trip. It is a way of life and it is a necessity for their very existence. It has been a long standing role to protect any and all inherent rights of their tribe. Mr. Slatts referred to CSHB 406(RES) and explained it may be in violation of ANILCA. Mr. Slatts discussed the traditional and cultural life styles in rural areas and villages in the state. TAPE 98-36, SIDE B Number 0001 MR. SLATTS explained subsistence resources aren't just for food, but also for clothing, tools and many other things. He said customary and traditional also means that the customary and traditional users have to learn to preserve their food for hard times; it's their delicacy. He urged the committee to not pass CSHB 406(RES). Number 0095 BARBARA JANITSCHECK testified via teleconference from Kotzebue. She said she is offering her testimony on behalf of the Maniilaq Association and its member villages. She stated the proposed sustenance users of fish and game provide that the resources are equally available to any user no matter where they live in the state. It appears that the proposed language that the user, either rich or poor, can hunt or fish in any area that is determined to be a dependent use area. This scenario causes extreme concern and alarm to their villages because of the competition that it creates for the available resources in the dependent use areas. Ms. Janitschek explained her understanding is that this means: (1) As long as a urban hunter purchases a $5 permit and submits a written statement that the individual or his family demonstrates that they eat and game that is caught; (2) that they live in a economically depressed area and need to provide food from the catch for their family; and (3) because they simply want to adopt this life style, they would be permitted to carry out their activity in any dependent use area. This scenario and the problems that it will create is exactly the reason while Title VIII of ANILCA provisions were enacted. She said the proposed language, "in a time of shortage of fish and game resources the appropriate board may (indisc.) be preference among the beneficial uses of fish and game in a region or area," should be printed from "may" to "shall." Ms. Janitschek said the changes in the House Resources Committee did not include cultural and traditional use, but (indisc.) was offered by testimony from throughout rural Alaska. Cultural sharing of fish and game is one of the most important functions that sustains the immediate family, extended family and the community. Without this sharing, it can be concluded that Native people would not have survived these generations. This is still true today. Food gatherers, fishermen and hunters in rural Alaska continue to share their food with those who are in need no matter how limited or extreme the need is. The proposed advisory vote on preference for use of fish and game for personal or family use for sustenance is structured in a way that is actually two different questions to the public with only one allowable answer, "yes" or "no." An individual might answer "yes" to question number one and no to question number two, but is forced to select a "yes" or "no" response to address both questions. She said they suggest that it be broken out to allow an individual to answer both questions without conflict or confusion (indisc.) to their answer. In 1958, there came statehood. Alaskans were required to agree to a number of provisions in the Statehood Act, including in a compact language an agreement with the United States that Alaskans forever to claim all right to the titles to the lands and other property, including fishing rights held by the United States for (indisc.) and for the Alaska people. Alaskans acknowledged that all such lands or other property, including fishing rights, would remain under the absolute jurisdiction and control of the United States. It has been argued that in 1971, Native people gave up their rights to aboriginal claims on fish and game. If both the state and Native people gave up these rights then it is better to say that only Congress of the United States holds these rights. In 1980, ANILCA, Title VIII, was passed by congressional action and signed into law providing for a rural preference after hearing about the problems Native people were experiencing under a state system. The issue so often raised by everyone is that the state constitution does not allow a rural preference. Congress said that if the state cannot manage the fish and game resources the way it intended, then the federal government will take over the management scheme. Alaskans have nine months left to resolve this issue. House Bill 406, even with the small changes that the House Resources Committee made, does not meet the level of protection rural Alaska subsistence users enjoyed under Title VIII of ANILCA and defeats the trust responsibility that Congress has (indisc.) the Alaska Native people. She encouraged the committee to focus on the issue and to come up with a plan that will satisfy all parties and bring closure to the issue. Number 0305 PETE SCHAEFFER testified via teleconference from Kotzebue. He said he thinks the main problem with the bill is that it is the needs-based scenario those needs-based requirements would be met. Mr. Schaeffer said he wonders in terms of the administrative (indisc.) to do that, if it is just transforming the now disappearing welfare program into another one. He referred to the issue of changing the word "subsistence" to "sustenance" raises a potential (indisc.). He said, "An amendment to ANILCA, which actually does not require either this language to change or the federal language to change in regards to the definition of subsistence, and I think it probably creates more problems then it's intended to fix. He referred to the question in the bill on page 23, lines 14 through 22, (indisc.) ANILCA amendment already on the table. Senator Stevens has done some work there. He said he was wondering if the intention is to have further amendments to ANILCA. He said he doesn't believe there is enough time for an advisory vote if December 1 is truly the cutoff date. Perhaps there should be some consideration as to whether or not it should change from an advisory vote on preference to a natural vote on preference. REPRESENTATIVE CROFT said the advisory vote would indicate substantial new changes to ANILCA which are listed on page 24. He noted he has the congressional schedule which shows Congress has a target adjournment of October 9. We certify the primary election sometime late in September, ten days after any possible challenge. He said he believes Congress would have a week to two weeks to act if we got the vote. Number 0462 CONNIE FRIEND testified via teleconference from Tok. She explained she has strong concerns with the language in the bill. Decisions are being made about a way of life that is uniquely rural and uniquely Native. Those decisions are being made without a true understanding of issues involved and the depth of the issue. She said she believes that Native people, for hundreds of thousands of years, have been closely related to the land and animals. There is a depth to it that isn't acknowledged, respected or considered. Ms. Friend said she believes that ANILCA was intended to protect that right that Native people have in that cultural and traditional history that goes back thousands of years. Ms. Friend indicated subsistence is a way of life and many people depend on these resources in an interdependent kind of way. She said urban people really don't have a claim to a subsistence life style because they're not living it. It is only 3 percent of a resource. She suggested that if it is possible, the committee should invite Native elders and rural people who are actually living a subsistence life style and ask questions. The knowledge is in the rural areas. It obvious that there is a big, big gap in rural perspectives and the perspective of people in Juneau. Number 0645 DANNY GRANGAARD testified via teleconference from Tok. He stated that the has a problem with the $5 license as he believes it is just another welfare program. He said he thought the state of Alaska was trying to get people off the welfare role. Mr. Grangaard said anybody that makes under $8,700, or receives any federal or state aid, would still qualify for that license, approximately 14,000 people. He indicated he believes the enforcement will be real difficult. Mr. Grangaard informed the committee members that in the Tok area, they only harvest about 150 moose a year. If there was a time of shortage and 14,000 people descended on Tok, the season probably wouldn't open again. He said, "I don't see why just because you're on food stamps that ... automatically qualifies you to be a subsistence hunter. There is other things that qualify subsistence hunters. If you get food stamps, nobody is going to starve." CHAIRMAN GREEN said, "If there were a way that in the small areas that we would anticipate ever qualifying as a subsistence-only area, the people living in that area were ... the only ones eligible during that whatever length of time that subsistence issue would be up -- would that transcend many of the concerns that you've expressed?" MR. GRANGAARD respond a little bit. He stated he thinks there is still potential of having problems down the road as it is a very complicated issue. Number 0851 DONALD WESTLUND testified via teleconference from Ketchikan. He said he believes that there is a big misunderstanding as the bill is not a welfare bill. It is a bill that is privilege to people in times of shortage. You can't use customary and traditional uses in a place of shortage as the populations will not support it. The bill is a real easy bill to understand that in times of shortage it means the people that need to have sustenance gets a priority. It is not a subsistence bill, it's a sustenance bill. It means that people who need to eat need to have priority for that sustenance for whatever game and for whatever area that it's in. Mr. Westlund explained that under federal management, people of Klawock will have subsistence rights. He pointed out that they have a community airport, fish and game (indisc.), hatchery, cannery and logging. There is a lot of work there, but they would have subsistence rights under federal law. He referred to the Saxman area and half of Pennock Island, which is a half a mile away by water, has subsistence rights under federal law and so does Saxman. He urged that the people of Alaska be able to vote on this issue. Number 1019 JOE WILLIAMS was next to testify via teleconference from Ketchikan. He said, "In addressing the particular issue of -- I really find it rather interesting that once again we're changing the name to protect the innocent. We've been talking about subsistence and (indisc.) since I was a little boy. Now we're all of a sudden talking sustenance. ...We're actually really only talking about 3 percent of the resources. My recommendation to this committee is to go back to what ANILCA initially stated. ... It's what we Native people of Alaska gave up. We gave up our traditional rights to all these (indisc.) to all the land that once belonged to our forefathers for, in our cases, as far as Saxman is concerned, we're (indisc.) 3,000 acres." He said you cannot deny the fact that ANILCA language is there. Mr. Williams referred to the current version of the bill and said it seems no consideration has been given ANILCA. He urged the committee to review ANILCA and come back with a bill that will support ANILCA. REPRESENTATIVE BUNDE asked what he means by going back to ANILCA. MR. WILLIAMS responded, "Well from the conference committee report to write ANILCA. ANILCA was intended to protect and the conference committee report has clearly stated - was there to protect the Natives of Alaska. It has nothing to do with rural communities." REPRESENTATIVE BUNDE said he just wanted to know if Mr. Williams was advocating for Native rights or rural rights. Obviously, it's the conference committee and Native rights that he is advocating. MR. WILLIAMS stated that is correct. Number 1246 PERRY MENDENHALL testified via teleconference from Nome. He referred to Section 16.16.020(c) and said it states that person submits to the regional fish and game board, for the region in which he lives, a signed and written statement for either condition (A) and/or (B). He said, "This would (indisc.) a special police action committee (indisc.) files based on customary and traditional use of rural fish and game resources which once was Alaska Native's taken for granted freedom for existence. There is no guarantee here as to how these newly created files will be used or be shared other than for (indisc.) needed. Is it not enough to just to have the ANCSA [Alaska Native Claims Settlement Act] files of our shareholders and our future descendants? What we eat or gather - do we have to put a yellow star over our heart to show that we have the right to subsist? It's not a welfare system. I believe that under state management, the walrus population was defined, it was turned over to the federal management to where we now have the Eskimo Walrus Commission. There is no more decline of the walrus. The same goes for the whales. When the Eskimo Whaling Commission was created, the whales multiplied. It does of speak of local control on a regional and statewide, as well as on an international scale as big as Alaska. (Indisc.) it does show that we can manage resources. Just as there was a fish crash for nearly ten years in our region under the present state system, the state government has not responded in a timely manner until it became a crises to both commercial and subsistence users." Mr. Mendenhall said HB 406 questions the federal bill ANILCA to be put on a state ballot to be amended. He said he doesn't want ANILCA to be touched or amended as he fears other amendments may be added by outside interests. Let's put the trust back into the state system through a constitutional amendment. The question should be on a ballot before the people. House Bill 406 is a mandate bill to fix a complex rural Alaska lifestyle of dependency on fish and game. Mr. Mendenhall informed the committee members that the Bering Straits Region has been an economic depressed area since statehood and is dependent upon the subsistence menu. He continued to give testimony regarding CSHB 406(RES). Number 1465 AUSTIN AHMASUK, Sitnasuak Native Corporation, was next to testify via teleconference from Nome. He informed the committee members that he commends the practices that his forefathers used in taking game, and he still continues to take fish and game in a traditional manner. He urged Native people of Alaska, as well as state government, to seek a constitutional amendment. Mr. Ahmasuk pointed out that he has not favored the legislative action of this state regarding Native people. The state of Alaska has refused to acknowledge subsistence resources and subsistence use. He said he is fearful that the present state government is falling way short of what Native people want. Native people want to live the life that they have been living since (indisc.). Mr. Ahmasuk continued to discuss the relationship between Native people and animals. He thanked the committee for allowing him to testify. Number 1773 DALE BONDURANT testified via teleconference from Kenai. He stated that there is no question as to the authority and responsibility of the legislature to constitutionally manage the common property public trust fish, wildlife and water resource. He said he believes it is incredulous that the legislature, as a body, has not explicitly demanded that their body of responsibility, as trustees of the public trust, resources, be employed. The Alaska public, as equal beneficiaries of these replenishable resources, deserve more addressing responsibility by the legislative trustees. Mr. Bondurant said he has not once heard that it is way past time to demand self-imposed leadership for the immediate implementation of this state authority, which is a police power as practiced and accepted in all other equal states of our nation. He said the Alaska Supreme Court has found that the state, not the federal government, has the trustee authority to manage Alaska's public resources. Mr. Bondurant continued to give testimony citing court cases where he believes Alaska has responsible management authority to manage resources. Public equal protection rights are still being threatened by proposed constitutional amendments. It would appear that the legislature's judicial committee would have a logical purpose to be cognizant of such important related judicial findings. He said politics has no logic. Number 2031 THEO MATTHEWS, President, United Fishermen of Alaska (UFA), was next to testify via teleconference from Kenai. He noted he is also chairman of the UFA Subsistence Committee and is one of the eight members of the Hickel Subsistence Advisory Task Force, which essentially drafted much of the current state statutes. He informed the committee he had submitted written testimony to the Resources Committee. He said, "Since 1992, UFA has held a position calling for technical amendments to ANILCA, combining with a constitutional amendment linked together to follow this (indisc.) problem. Every year since then, we have basically been told by one side or the other that we'll never get a constitutional amendment or we'll never get ANILCA changes. I submit to this committee that we are at a historic crossroad where both of those things are now possible. And if we don't take the opportunity to resolve this, the day may go by us. In response to House Bill 406, we are opposed to this legislation for several reasons, primarily policy-wise, it does and the federal dilemma. To reallocate our fish and game resources has far-reaching implications for all user groups. Allocation legislation creates a new form of statewide consumptive preference, which is not based on need." Mr. Matthews continued to give testimony saying the bill will not allow the Board of Fisheries to accommodate and treat all users fairly. He said Section 16.16.020(b) does attempt to address the issue of what do you do in a time of shortage in a dependent area. They find that preference there is no more than the boards currently have, and as written, it appears that there is even less preference in dependent areas than in nondependent areas. Mr. Matthews stated the UFA feels the legislation creates many new problems and really resolves none. He said UFA's written comments of March 10, have suggested (indisc.) items that they think will constructively help resolve the problem. We need to identify and require technical amendments to ANILCA. We need then to provide for the passage of a constitutional amendment which is linked to the passage of the agreed technical amendments. We need to assure all Alaskans that we are not reallocating fish and game from one user group to another, and if we don't do that we won't get everyone to the table. We need to retain flexibility for the Board of Fisheries and the Board of Game to manage and need to provide a package plan to submit to the voters this fall. REPRESENTATIVE CROFT referred to page 3, line 3, (b), and said, "If the Board of Fisheries determines that the projected level of a fish stock would exceed the sustainable level of harvest, the appropriate board shall allocate it with the highest preference to consumptive uses." He said that appears to be a stock-by-stock analysis. He asked Mr. Matthews, "Can you give us some idea of what that preference, putting consumptive use on every fisheries stock, could have in some commercial fisheries - the impact it could have on some commercial fisheries." MR. MATTHEWS said this is a major policy issue that is involved in any kind of preference, whether it be subsistence in rural areas or if he got a commercial fishing preference in (indisc.). He said, "If it is a stock specific preference you are going to eliminate all other uses. (Indisc.) commercial, tourism, sports." TAPE 98-37, SIDE A Number 0010 REPRESENTATIVE BUNDE said we frequently hear that only 3 percent of the fishing harvest goes to subsistence. He asked what UFA's opinion is on that. MR. MATTHEWS responded that he thinks that 3 percent number is probably accurate in terms of total aggregate harvest, but once again, that statement ignores the fact that it is a stock specific preference. He said, "So within any given stock, no matter how small the subsistence harvest, if the shortage comes in then they're all recalled to eliminate all other uses. It doesn't really matter how many of those fish are being harvested for subsistence. So the stock-specific nature of this preference, once again, is something that everyone needs to be aware of." Number 0056 REPRESENTATIVE BERKOWITZ said if there were a shortage of King salmon in the Kenai River, the entire Cook Inlet fishery could be shut down. MR. MATTHEWS said that would be the case. REPRESENTATIVE BERKOWITZ asked Mr. Matthews in the reading of the bill, how would he characterize Cook Inlet in that would it be one of those dependent or non-dependent use areas. MR. MATTHEWS said in his mind it would be a non-dependent use area with a priority put in place that would eliminate just about all recreational and commercial uses. REPRESENTATIVE BERKOWITZ said the consequences for sport fishermen from Anchorage and the Kenai would be somewhat calamitous. MR. MATTHEWS responded it would be somewhat calamitous on all stocks. Number 0209 ELAINA SPRAKER was the next person to testify via teleconference from Kenai. She when she first became interested in this issue, she was one that did not want to, under any circumstance, amend the constitution. Through a long learning process, she has come to the conclusion that the only way this issue is going to be resolved is with the concept of technical amendments to ANILCA, an amendment to the constitution, and changes in state statutory regulations. Ms. Spraker said she believes Congress will not concur with HB 406 because it doesn't follow the parameters in which the intent of ANILCA was passed in 1980. She said the legislation is a big waste of time. She indicated she is concerned with the power that would be given to the regional boards as it will break down the regulatory process. We have a good system in place. It's not a perfect system, it can be improved on. She referred to the all Alaskan preference in CSHB 406 and said there is not enough fish and game to go around. Ms. Spraker stated the concept of a solution is simple and she encouraged the committee to go forward with it. CHAIRMAN GREEN said, "If this type of a bill as it's written now were to become law, do you see a -- you've indicated that there ... aren't enough game animals to go around, sometimes fish is a question. But do you see a rash of problems, perhaps litigation the fact that there are limits imposed that we would possibly be forced to go into this kind of a program in every stock?" MS. SPRAKER responded in the affirmative. Number 0517 REPRESENTATIVE BERKOWITZ said if CSHB 406(RES) falls short of ANILCA, it seems that it would bring in federal management on December 1. He asked if she could comment on the consequence to commercial fisheries. MS. SPRAKER stated Mr. Matthews' expertise is in commercial fisheries. She said, "I'm a handful of people that went through the process with the feds and got (indisc.). And I have some real intimate knowledge. And trust me, if there is anything that I can tell you today, you don't want federal management - work hard." Number 0593 MR. MATTHEWS also responded to Representative Berkowitz's question. He stated, "The opinion that UFA has drawn, and I totally concur with this, is initially federal management will first impact the recreational fisheries. Over time, with them being restricted, there will of course be a (indisc.) to reach out into salt water and impact the commercial fisheries. The biggest problem with federal management is they have only one - it's not even one client, they have only one use that they care about and that's the subsistence use. And the thing I really hope this committee will concentrate on this. This preference is given to the use so it could hurt -- even someone that has the preference can be hurt when it kicks in. For example, a Yukon River commercial fisherman - when a subsistence preference kicks in, he can no longer commercial fish and it is a vital part of his activity ... and life style. So the biggest problem with federal management is they don't care, they have one use that they're dictated to manage for." REPRESENTATIVE BUNDE said from his perspective, Mr. Matthews addressed allocation issues. He said he can't understand how allocation issues will not be fought out in federal court no matter what we do. MR. MATTHEWS responded that the only allocation issue the courts will take up is subsistence use. They will not deal with sport or commercial allocation. If we only manage to provide enough critters for subsistence or sustenance use, there won't be enough for other uses and that's vital to our culture and our economy. REPRESENTATIVE BUNDE said people up the Yukon River fighting with people at False Pass will be on federal land, the fish will go through federal waters. He asked if that won't be decided in federal court. MR. MATTHEWS indicated there are two legal opinions. One is that the Yukon chums don't spawn on federal lands, so it wouldn't be an issue. He said, "I'm sure that we can take to federal court at a subsistence issue. Yes, I concur with that." Number 0814 BARBARA BROADWATER testified via teleconference from Mat-Su. She referred the committee members to page 4, line 28, "A person dependent on fish and game for personal and family use for sustenance if the person...." She said this would eliminate individuals such as disabled veterans that have a permanent sports license. She said she believes these individuals should also be included as well as (indisc.). There are many individuals that are over 50 years old, who have permanent hunting licenses, that needs to be addressed also because they're either on fixed incomes or their life style is where they live off the meat. They should be able to have an opportunity. Ms. Broadwater indicated there is situation in Unit 14 where the Department of Fish and Game allocates antlerless (ph) moose hunts, as well as any bull hunts to nonresidents. She said they have a problem with their resources dwindling. We have to realize that these are nonresidents. Either the fees have to go up so that it makes it harder for them to be able to hunt. We should start allocating our resources for Alaskans. Commercial fishermen should be Alaskans. Alaskans should look out for Alaskans and make it harder for nonresidents to take our resources. Number 0964 DONALD BROADWATER, also testifying via teleconference from Mat-Su, said, "You legislators are supposed to be working for Alaskans. Now why don't you keep an eye on fish and game." He explained his concerns about people coming up from the Lower 48 to hunt Alaskan resources. Number 1014 DAN SENTZ testified via teleconference from Mat-Su. He stated he appreciates a lot of the comments he has heard during the meeting, but there is a theme that the ANILCA legislation has to do with the rural preference. It is not a Native preference and that should be kept in focus. Mr. Sentz said he understands customary and traditional use and that goes for all people who have operated in that life style. He believes that the problem is with ANILCA as it includes language that we have to have a rural preference. He said he believes it is important that the legislature operate under the premise that we have to provide to all Alaskans that trusteeship, and that nobody is going to be disenfranchise by any legislation that comes out of Juneau. He said, "Also, we have to bear in mind that it's competing uses, it's not competing people. And I think that this bill, [CSHB] 406, if anything it makes that clear that it's a competing use. And I, for one, believe that anybody who has a need for that sustenance, if you want to call it subsistence or sustenance, that they should have the first opportunity for it. There is no legislation that protects that level of subsistence. And I would like to see this bill go forward in the idea that nobody is disenfranchised and that it provides a protection for those who need the sustenance and that it's a product of competing uses." CHAIRMAN GREEN asked, "Do you feel that we're bargaining from a position that would allow us to require, or request at least, changes to ANILCA without giving up something?" MR. SENTZ responded, "Well I think our position is stronger in the past few weeks because there is less to give up because of the Venetie case. You know I think there is going to ramifications from that. And also I just heard today that the lawsuit on the state managing its own resources is going to be held in Washington. I think there is a very strong chance that we can win at that. I think if we do anything that is too premature to compromise our position prior to that lawsuit being done, then I think we may have to give more. But I think if there is anything that we can give, it needs to be on the side of the management of the game and the projection of the resource, not the dividing up of the people." Number 1261 CHAIRMAN GREEN asked Mr. Sentz if he feels there is a reasonable expectation that we would get the results of the litigation in time to meet the deadline that we're facing. MR. SENTZ responded that he doubts it. He said if we're stampeded, as a state, into settling for something that will not serve our people well, it may not be in the best interest of the state. He said, "I think if the federal government wants to manage our resource that bad rather than change ANILCA, I think that we should take the $41 million windfall and use it for the 8 or 10 or 6 months, or 12 months, that they want to try to manage it. I think even if they're managing, ... as a state we can always come back and lean on them and have them make the necessary changes so they can unload that management to the state where it belongs. I for one would rather sweat it out then to settle for something that is irrevocable and then only to find that we could have done better." Number 1350 REPRESENTATIVE PORTER asked Mr. Sentz if he would qualify as a dependent use person under the bill. MR. SENTZ responded that he probably wouldn't qualify in terms of need. He noted he would qualify to assume that life style if he so chooses. REPRESENTATIVE PORTER asked if under his current situation, would he feel disenfranchised if he was prohibited from being able to hunt in a resource dependent area. MR. SENTZ said he would if it was based upon where he currently lives. REPRESENTATIVE PORTER pointed out, "I'm saying under the bill." MR. SENTZ stated he isn't sure he understands the question. REPRESENTATIVE PORTER stated, "In the time of a shortage would be the only time, under the bill, that there would be a limitation in a dependent use area to just people qualified under the criteria in the bill for subsistence use or use of sustenance. If you currently do not qualify for that, my question is, 'Why are you not feeling disenfranchised for not having that opportunity?'" MR. SENTZ said he wouldn't feel disenfranchised. The opportunity would still be there for him to qualify based on criteria that is not specific, either by nationality, race or zip code. He said he could go with the guidelines in the bill. Mr. Sentz referred to the tier II drawings and said there are times that he isn't selected. If he isn't selected, it doesn't have anything to do with his race or where he lives. It has to do with other selected factors. REPRESENTATIVE PORTER asked Mr. Sentz if he was in Alaska prior to statehood. MR. SENTZ informed him he wasn't. He has been in Alaska about 19 years. REPRESENTATIVE PORTER said, "You ought to talk to somebody that was in terms of whether you think the feds would be manageable and would leave if we asked them to." MR. SENTZ stated, "I believe a very strong case can be made for 'Hell on Earth,' and that's probably the best description of it - that one can give, is having federal management. I've heard older people, who have been around, talk about it and I don't have an answer for it but I think it's important that we, as a state, operate in one voice to our legislator - legislators and that we operate as one people. And the tyranny, if you will, and the pressure of the federal government is really not gaining them any points." Number 1572 REPRESENTATIVE CROFT explained he is an urban resident who doesn't qualify under the criteria in the bill. He pointed out that he feels disenfranchised by the bill as the alternatives under the bill are to essentially go on welfare or get an income level that would qualify him for welfare. Under the Governor's proposal, it would be move out to rural Alaska. Representative Croft said it seems that if he moves to rural Alaska and lives the life style, he will always have the option open. Under CSHB 406(RES), he would have to go on welfare to do it. He asked, "Why isn't [CSHB] 406 a worse disenfranchisement of me?" MR. SENTZ informed the Representative Croft that he doesn't understand the bill that way. He said it's his understanding that only in times of shortage are those criterions used. The regional groups or committees are a selection process, but where an individual lives is only part of the criteria. Mr. Sentz referred to having some Native friends who spend a lot of time in the larger cities during the winter and during the summers they're at fish camp. He asked if their residence was in Anchorage, would they be denied from going home to help with the family fish camp. CHAIRMAN GREEN said, "Resident's establishment might be a bit of a problem." He indicated there were no further people to testify via teleconference. He noted there were some people in Juneau who would like to testify. Number 1674 STEPHEN WHITE, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, came before the committee. He explained he testified on CSHB 406(RES) the previous Thursday before the House Resources Committee. He stated he testified about one particularly troublesome constitutional issue which has been removed. Mr. White said he would comment on a couple of other constitutional issues. He indicated those issues were pointed out by other people in the Department of Law that are more versed in that area of law than he is. Mr. White referred to the advisory vote, which appears in Section 37, and said it raises three issues. He said, "The first legal issue presented by this advisory vote basically which ... would have the (indisc.) of the public comment on this bill and the changes to ANILCA is presented under the constitution because the constitution prohibits a delegation of lawmaking powers. Now whether this is a delegation of lawmaking power is unclear at this point. In 1980, we wrote some opinions concluding that an advisory vote of this nature would probably not offend the constitution. However, since that time, there has been several supreme court decisions that have reflected on our ability - the public's ability to put forth legislation through initiatives and referendums that seem to suggest that maybe our court is - would be leaning in the other direction. So I think that before we can make a conclusion about whether the advisory vote violates that particular part of the constitution, we would have to make an analysis based upon later court decisions and determine whether this is one that would escape the prohibition or whether there would be problems with it. And, again, I can't make a conclusion at that point, but that's something we'll be looking at...." CHAIRMAN GREEN interjected that the legislature would be taking an extended weekend. He said the committee would reconvene in a week. He asked Mr. White if it would be possible for him to look into that aspect and then come before the committee the following week. MR. WHITE said he believes that Representative Berkowitz has asked the author of the two opinions to update them. Number 1829 MR. WHITE explained another attorney has said that the advisory vote might have to be reviewed or be approved by the Justice Department under the Voting Rights Act. He noted he isn't sure what that would require. Mr. White explained the third concern has to do with the language in the question that is actually presented. There is an Alaska statute that says that any ballot propositions have to be clear, concise and readable. That is a policy of the state in AS 15.60.005. There is actually a test in that statute in which you can take the language of anything that's deferred to the public and score it to determine how clear the language is. Mr. White pointed out that the attorney that is familiar with this area subjected the language to a test and it came out with a score of 20. The state policy is have a score of at least 60 in order to pass the policy expressed in that statute. He said he would recommend that the language be more simple, clarified and concise so the policy standards can be met in that statute. CHAIRMAN GREEN asked if the score was 20 because it was too complex. MR. WHITE responded in the affirmative. He said the formula looks at things like the number of large words and how many words are in it. He said it is a compound question, so it loses points. It looks at various factors. If the score is over 60, you would meet the intent of that statute and if it's under 60, you don't. He said it doesn't mean it would fail for any reason, it just doesn't meet the policy. Mr. White said another point he wanted to raise was that there are provisions in Section 12, page 13, which deals with the legislature's confirmation of the members of the new original boards. Under the constitution, the legislature may specifically confirm members to only boards that have regulatory and quasi judicial powers. In other words, boards would adopt regulations (indisc.) which do some judicial function. He said he believes the regional boards just have an advisory function. For example, they look at subsistence proposals and applications for people who wish to be subsistence users and merely pass on the recommendations to the Board of Fisheries and the Board of Game, who finally acts on them. In that sense, if they don't have regulatory and judicial powers, then it would be improper for the bill to provide that the legislature have confirmation powers over those people. He noted it is fairly technical, but it was pointed out to him and he decided to share it with the committee. CHAIRMAN GREEN said if the bill were to pass in its current form, it would require that in order for it to become an act we would need to have all of the issues on page 24 approved by the government. He asked Mr. White if any one of the issues were to fail, would the whole thing fail. MR. WHITE said because there is the word "and," he believes every one of the conditions would have to be met in order for the legislation to become effective. Number 2050 CHAIRMAN GREEN said, "Having familiarity with ANILCA and the conversations that we've had with our congressional delegates, do you think there is a reasonable likelihood that we could get those things done with the bill as it is drafted now? I know you can't speak for the federal government but..." MR. WHITE responded that a lot of those things are a result of political events in Washington, which he couldn't predict at this point. Number 2080 REPRESENTATIVE JAMES said, "On the advisory vote issue and the fact that, Mr. Chairman and Mr. White, the advisory question as to whether or not we can do that to make law, which this does. In other words, it says it isn't effective ... unless it passes muster with the voters, is it possible to just have an effective date at sometime after the election or at some later time whereby we could take the advisory vote and then move on in an advisory capacity on this piece of legislation? Having it failed, then we would probably try to do something else." MR. WHITE responded, "I think the problem comes when you actually delegate, to the public, your legislative function, but if you go to the public and ask them a question and then you later go back, based upon what you hear, then you take the legislative function back, I think that there is less of a problem in that regard." REPRESENTATIVE JAMES asked if there is anything wrong with putting out an advisory vote to the public. It's not the final decision, it's just advisory. MR. WHITE responded, "Right, I think, again, I'm speaking outside my expertise, but it seems to me that if you're just seeking the public's opinion on something, then you're going to use your legislative power to act on it, you escape a lot of problems than taking a legislative act and then saying, 'Well, it's going to become effective or not depending on how the public later votes on it.'" REPRESENTATIVE JAMES referred to the problem with the word "rural" and said it draws lines not necessarily where all the need is. It sometimes captures the need that is not there on issues. Representative James said "dependent use areas" is defined in the bill which she believes draws lines. She explained George Utermohle, the drafter of the legislation, said that the reason it is constitutional is because even though they set up the dependent use areas, and then they defined the shortage in that area at which time it kicks in the priority, that anyone in the state can go to the dependent use area and hunt. She said, "We heard your testimony on the eat it where you shoot it issue where you believed it was unconstitutional because defacto, it was also giving a preference where they lived. And I'd like to have your opinion on this other dependent use area because it seems to me like similar because these welfare people, or those people with ... little money could not go to these dependent use areas. So they probably wouldn't be able to. Then the defacto fact of the matter is then that we have given a preference to those people who live in the area. You don't have to answer that for me right now, but is the same issue and is that a problem?" MR. WHITE said he guesses it's a matter of degree. He stated his problem with the eat it where you shoot it provision is that he thinks it would bar people who lived outside the area. They would have no way at all to use the resource. On the other hand, the supreme court in the Kenaitze decision said that when you have an area where you exclude a certain use, a subsistence and a nonsubsistence use areas, it makes it less convenient for people living there to participate in subsistence because they have to go outside the area to subsistence use elsewhere. The supreme court did not equate that with being disqualified from the user group. They just have to travel further and, therefore, they're not prevented from using the resource because it's in some other area. Mr. White said, "My problem with the other situation was it was not just inconvenient and practically speaking they ... could not participate in hunts, fishery because they could not take it outside the area. Again, it's a matter of degree. When you get past the degree, we're actually functionally preventing a person from using the resource because of where they live. I was worried the constitution...." Number 2281 REPRESENTATIVE JAMES said a question brought to her by Jeffrey Parker is he wanted to know whether the legislature can declare constitutional law such as by stating that the taking of fish and game for person sustenance is a fundamental right, which would indicate that it's a constitutional basic right, which can't be put in statute. She questioned what the consequences would be. MR. WHITE responded, "I think I testified in the last committee that when you establish it as a fundamental right, use of subsistence for example, then you later attempt to qualify some people and not qualify other people. Once the courts see it's a fundamental right, they're going to be a lot less tolerant of the lines that you draw, which comes to mind, for example, the income level. ... The courts will look at that with very strict scrutiny and ... measure that income issue against what the real purpose of what subsistence is. And if there is not a good rational relationship between the two, it's likely to have problems. So that's the problem by defining something as that high of a right. The courts really get in and say, 'We will allow that type of discrimination, but only if that's the only discrimination that one can think of that will accomplish the purpose that you have in mind for it.'" Number 2418 REPRESENTATIVE PORTER said another question that came up was whether or not we have an equal protection problem, under the bill, in relation to two people, one living in an urban area and one living in a dependent use area, who would both qualify for subsistence use under the criteria. Again, the rationale being defacto, the poor person in Spenard is not going to be able to get to Sleetmute. So he must compete in his area with all personal use sport people under the bill, but there is a preference for the same category of people in the dependent use area. He asked if that would present a constitutional issue. MR. WHITE responded, "Well, I think in practical application, if a person in a - let's call it a urban nondependent area, because of their income limitation which qualifies them for the use...." TAPE 98-37, SIDE B Number 0001 MR. WHITE continued, "....whatever in fish and game statistics you see that that's the result, then someone could come in and say, 'Well, on the face of it, it looks fine, but practical application discriminates us based upon our residency through our income limitation and, therefore, you have a constitutional problem,' - either equal protection or equal access, it doesn't matter they both use the same kind of analysis." Number 0020 CHAIRMAN GREEN asked, "If we were to pass the bill as it is now and it gets by without a constitutional amendment, in your opinion would you see where regulation ... where in order to accomplish what we think we want to get done that you might have a statute that passes muster, but the enabling regs to do it may have to drift to the point where we would then be in a dilemma that maybe we would be unconstitutional?" MR. WHITE explained the Department of Law reviews all the regulations and they look to see whether they are consistent with the statute. They then make a second call on their constitutionality; it's like a fail safe system. If anything waivers towards unconstitutionality, even if it was arguably within the intent of the bill, they would recommend that the boards not adopt it. That is not to say that they wouldn't, but if they did the department would try to defend it. It is sort of a two level process. Number 0088 KEVIN DELANEY, Director, Division of Sport Fish, Department of Fish and Game, was next to come before the committee. He noted that Mary Pete, Director, Division of Subsistence, was also with him. Mr. Delaney said he would focus on Section 16.16.010, "Preferred use of fish and game." He stated, "By statute, we're giving a allocative preference on the use of fish and wildlife to...." CHAIRMAN GREEN asked him what page that section is on. MR. DELANEY said, "Page 2, the very bottom of page 2 at the very beginning of the bill -- where a preference is given for personal and family use for sustenance by residents - it's highest and best use of the fish and game, established by statute herein and instructions to the boards of fish and game to implement that allocative priority, at any time that the harvestable surplus is less than needed to accommodate all uses, which would include sport, which in this case would be not predominately necessary, but a high proportion of that use would be by nonresidents. It would include guided sport. It would include commercial fishing in that case." Mr. Delaney indicated he would be focusing on the practical implications of trying to implement this in the nonsubsistence zones. He informed the committee the nonsubsistence zones include the Anchorage, Mat-Su, Kenai, Fairbanks, Juneau, Ketchikan, Valdez areas. Mr. Delaney stated that he would focus on the Anchorage, Mat-Su, Kenai nonsubsistence zone. Since the subsistence priority is not addressed specifically in the bill, he can only lean back on the way the boards have dealt with it in the past, which is on a sock by stock basis. He referred to trying to implement that on a stock by stock basis and said he would review the ones that are going to have the most severe implications or would result in the most change from the way things currently happen in Cook Inlet. He noted that with fisheries, king salmon tops that list. MR. DELANEY said, "The harvest potential of Alaskan residents to take and consume king salmon is larger than the harvestable surplus of king salmon in Cook Inlet today. Because of that, and because of the board's desire, over years, to allow commercial harvest of that species to some extent, and to allow nonresident to come and participate in both our tourism industry and our guided sport fisheries, we have regulations in place that limit the annual harvest of Chinook salmon, by all anglers, to two fish on the Kenai River, no more than five in Cook Inlet total, to only two out Anchor, Deep Ninilchik, for the near-shore marine waters adjacent there. The northern district commercial setnet fishery is allowing anywhere from one to three or four periods early in the year with a quota of no more than 12,500 fish. The central district commercial fishery doesn't begin until essentially July 1, and there is a management plan that governs what happens there in response to the abundance of king salmon. What could happen there? It is very likely that personal consumptive use by Alaskan residents is going to drive all other uses out of business in a very short period of time, if not immediately. The order in which they would fall, I can't tell you, but certainly it's not only a possibility - it's highly likely I would say. It's almost improbable that would not occur. Rainbow trout, another species that we manage for very, very limited yields - catch and release fisheries, size limits, annual limit of no more than two fish over 20 inches. They cannot be taken commercially, they cannot be sold. In a case like this, the personal consumptive fishery that could occur by allowing all Alaskan residents to use these fish for food would again jeopardize all other uses of these fish, which in this case would be primarily the sport fishery that occurs is participated in by nonresidents and guided fishermen. But just the consumptive use alone could result in the shortening or closure of most of these fisheries just to provide the harvestable surplus all for harvest and for consumption." Number 0312 MR. DELANEY referred to game and said there are antler restrictions on moose. The purpose for those restrictions is to allow for all beneficial uses to continue - spite fork are 50 inches and above. He stated it is very easy to see if the entire harvestable surplus moose in the Anchorage, Mat-Su, Kenai areas were allocated to just feeing to Alaskan residents, they could make a case of, "Why should I not be able to shoot moose that are between spike fork and 50?" If that occurred, that would take an additional proportion of that harvestable surplus, probably a large enough proportion over time, that any guided hunting by nonresidents would cease to be allowed. MR. DELANEY pointed out that another species is sheep. There are full curl sheep restrictions in most of the hunts, in some there are not. If this species was intended to be used to only feed residents, a case could be made that, "If it's to eat, why should we wait until they're all full curl rams? Why can't we take them at some other point in their life?" Mr. Delaney said it is easy to see, in that case, that the harvestable surplus would not be sufficient to provide for food for all of our residents. It certainly wouldn't be sufficient to allow for any guided hunting. Mr. Delaney said, "That's the focus of my comments to you, it's not intended to place a value on whether it's good or bad. It's just to discuss with you and lay out for you what I believe what the practical implications are of trying to put in statute a preference for resident consumptive use." Number 0398 REPRESENTATIVE BUNDE explained that what Mr. Delaney has said is that by saying, "personal consumptive uses highest and best," and asked if it would undermine current commercial sport use. MR. DELANEY responded that under the current urban situation, the definition of "nonsubsistence zones" speaks to a diversified economy. Within that diversified economy exists diverse uses of our fish and wildlife resources. People use them to eat. People use them as the currency that we use to generate commerce. Some people take people fishing, some people commercial fish and sell the fish. These people then pay for their life styles and put their children through college, et cetera, on the benefits that they get through making use of our resources in that manner. Mr. Delaney said he thinks it's this diversification that makes the urban areas or nonsubsistence zones different. The boards have struggled, but they have consistently attempted to balance these competing uses while keeping them all in the game. Mr. Delaney said a statutory preference for one removes the flexibility that the boards have had and have struggled to use, but have used nonetheless, to keep everybody in the game and produce diverse benefits. REPRESENTATIVE BUNDE said "A statutory provision for one, in this case that you're discussing best and highest use, but would your concerns also broaden out you say a statutory provision for one group. Would this also impact our traditional management patterns?" MR. DELANEY responded in the affirmative. He pointed out that on a stock by stock basis, which is the way that the subsistence priority has been implemented in the rural areas of the state, you would lose flexibility. It would destroy competing uses in the urban areas. REPRESENTATIVE BUNDE said, "Were we to have a rural preference, and still the stock by stock management, this still would, in your words, destroy the management system we've used?" MR. DELANEY responded that it could. It would depend on how many users were afforded the preference. There is in the current system and under a number of the proposals the ability to modify the size and shape of the nonsubsistence zones or the non-dependent use areas. If careful attention was paid there, you could end up with a situation where very few of the other uses were jeopardized. You may compromise some ability to participate in subsistence activities at the same time, but this is the balancing act that the boards have attempted to accomplish over the years. Number 0590 REPRESENTATIVE BUNDE said it has been postulated that there is plenty of opportunity for subsistence fish now. There is just a lack of fish in some areas. What we have is an allocation problem and not an opportunity problem. It has been contended that these allocation issues, particularly where you have migratory species that cross federal, state and private land, would be argued in federal court. We would essentially have the federal courts deciding allocation, which is a major portion of management. He asked if there is a merit to that point. MR. DELANEY stated his sense is that if we allow the federal government to begin management of subsistence fisheries on December 2, that is certain to occur. If we are somehow able to find our way through this mine field and create a system that we can defend in federal court, which is a legitimate question, then we'll be arguing that out in our own board system. He noted he has a lot more faith in that system. Number 0685 MARY PETE, Director, Division of Subsistence, Department of Fish and Game, came before the committee. She stated that CSHB 406(RES) doesn't comply with ANILCA, so it wouldn't return unitary management of Alaska lands and waters to the state. The major criteria for qualification, the possession of a $5 hardship license, would disqualify many rural residents that currently engage in subsistence hunting and fishing, which runs counter to ANILCA. Ms. Pete said she believes it would really undermine subsistence economies. Subsistence economies are engaged in by families and communities, not necessarily by individuals. They're efficient, and in order to be efficient, you find able-bodied people that can produce a lot in a short period of time. The whole value of subsistence is being efficient to produce a lot of food for the winter. So it's not just the act of harvesting, it's processing and putting it away for the winter. Number 0742 MS. PETE stated that finding an income level is very arbitrary because there is no income level at which subsistence stops. There is certainly preponderance of subsistence production among certain income levels. The very wealthy in rural areas don't generally engage in subsistence as they are busy doing their jobs, or they're are a few highly paid seasonal jobs such as school teaching. She said, "We found what we consider to be a 70/30 split in rural communities. The 70/30 split means that 70 percent of the subsistence output for the year, or the subsistence production for the year is generate by 30 percent of the households. And in those 30 percent of the households, you have the most active hunters and fishers that, by in large, have wherewithal - have the equipment, the means, the money or their money is shared with them to produce - to be high producers. And I would bet that many of the high producers would fall above the poverty line. So any income level is very arbitrary. It would destroy these well maintained production consumption sharing patterns." CHAIRMAN GREEN said, "If they were able to transfer the allotments, would that still impact -- if I exceed the need because I may fall above that line, but I take three or four allotments because of infirman (ph) people or something else. Would that still cause this problem with the concept that you've been giving us?" MS. PETE responded that she supposes it depend on how that proxy system was established. She explained that currently, high producers share with infirm, elderly or those that can't hunt or fish for themselves. They do it as a matter of course. There is no bureaucracy that mandates or keeps track of it. It just happens. Number 0848 MS. PETE referred to another aspect of a needs based system and said the pool of eligible users would change from year to year depending on income. That would really be a difficult thing for management to determine. When you have a class that changes from year to year, depending on the number of jobs or the economic situation, it makes it difficult for management planning. Number 0898 REPRESENTATIVE PORTER said it is his understanding that the intent of the bill is to overcome the McDowell and Kenaitze decision, in terms of location, by setting up a preferential use rather than try to discriminate among users. He asked, "Am I correct that in general terms that that was the scheme, prior to McDowell, that the users was not as important as a specific area, and the use then within that area for the resource as basically for sustenance?" MS. PETE stated that is correct. She added that the research that they did as a division was on subsistence uses. Many people were also involved in commercial fishing or if they used a rod and reel, they needed a sport fish license. They couldn't say, "I'm a subsistence user and only a subsistence user." It's the use that they engaged in that was protected. She said, "I think it was Theo Matthews that said if the feds had to, for example, in complying with ANILCA, provide for only subsistence uses many people in rural Alaska would be harmed by it because they're both commercial and subsistence fishers. I think they'd be hard pressed to, in some cases, determine which use they wanted to maintain because income from commercial fishing underwrites their subsistence production. So it's the use, not the user." Number 1079 REPRESENTATIVE JAMES said some of the rural areas don't necessarily practice the kind of subsistence life style Ms. Pete discussed. In other words, they are on an individual basis and because they live in an area that is located as rural, regardless of what their need is, they're entitled. She said she suspects that also within the communities there are the individual people too. She asked how they fit into that family practice. MS. PETE pointed out that under ANILCA, you need to be rural to qualify, but just because you're rural it doesn't mean you qualify. You need customary and traditional uses on top of being rural. There are rural areas that don't qualify such as military bases. Mining towns could found to be non-qualifying areas. A character of your community has to have a tie to fish and game use. She said, "And certainly and sort of classic, subsistence economies - it's family based and community based. They're sharing throughout the community. In the pre-McDowell system and essentially ... how we're managing right now other than messing with all Alaskans under tier II when we have to, we're finding that if people need fish and game to support their families, they certainly are allowed to get fish and game. Whether they share or not, if that becomes a criterion, I think that would be a problem - if they're neighbor is 50 miles away and they can't share outside of the household. But if they needed to support their families, as you all have said in one form or another, that is sustenance." REPRESENTATIVE JAMES asked if you have to have a special subsistence license or a regular license. MS. PETE explained that for hunting, everyone needs a license whether they're subsistence or general hunting. For subsistence fishing, you don't need a license. REPRESENTATIVE JAMES said the bill seems to principally address game and not so much fishing. She said the seasons and bag limits that are available for the hunters is available for everyone that lives in the rural areas. If somebody from outside the rural area went to hunt, would they have the same seasons and bag limits. MS. PETE indicated they would. REPRESENTATIVE JAMES questioned what the subsistence advantage is if anyone else can come in with the same hunting license and hunt the same seasons and get the same bag limits without living there, what is the real advantage that you have for being a subsistence user. MS. PETE said she believes the advantage is best seen in fisheries as there are liberal bag limits. She said, "Also in hunting, short of going to tier II when you did have rural preference, the Board of Game could design seasons, methods, means and, in some cases, bag limits more liberally, or restrict nonsubsistence users. They'd still have access, but more restricted access. So there is a way to manipulate subsistence hunts, those that were deemed to be subsistence hunts, to favor local residents short of going to tier II. Once you went to tier II, the clear advantage was you were the last eliminate in times of a shortage." Number 1421 REPRESENTATIVE BUNDE asked Ms. Pete how she defines "customary and traditional." MS. PETE responded that it is defined in statute and there are eight factors. The most important that the boards use is long term consistent pattern of use. REPRESENTATIVE BUNDE said, "I'm trying to get my hands around long term and where does it kick in and when does it stop. But as I understand the Governor's proposal, ... when people in urban areas complain they say, 'Simply move to a rural area and you can have the same rights.' So in order to qualify for customary and traditional, a urban resident that moves to rural doesn't qualify until - one generation, two generations, three generations?" MS. PETE said the boards have made those determinations. She thinks it depends on the type of use. In some cases, it has just been one generation in the mix of the population. REPRESENTATIVE BUNDE said when someone moves from rural to urban, when do they lose customary and traditional. MS. PETE responded it's an immediate qualification or disqualification. Number 1532 MR. DELANEY said when the boards had made a determination of whether or not there was customary and traditional use, they have used various periods of time, anywhere from 5-year period of time to a couple of generations. It's been a case-by-case basis and it's variable. When an individual moves from an urban area to rural area, they immediately become eligible to participate in those subsistence opportunities that exist there. When an individual moves from a rural area into an urban area, they immediately are disqualified from participating. MS. PETE stated that currently, because all Alaskans qualify, it doesn't matter where you live if the harvestable surplus accommodates everyone. REPRESENTATIVE BUNDE said, "Much like the person the rural area, who is a person of means or has the equipment, a person in the urban area, who also may be the person with more money and who buys more licenses, buys more equipment, makes a greater contribution toward the management of our fish and game through the taxes, the Pittman/Robinson taxes that they pay on the equipment they buy, they may be very supportive of our fish and game. And my problem is then - I have to tell them that they don't have equal opportunity even though they are much like the rural person who is the more efficient harvester. They are the greater supporter of our fish and game and (indisc.), and I have to tell them that they don't have equal opportunity, and that's difficult for me to do and I'm looking for help." MS. PETE responded that currently, because all Alaskans qualify, once the McDowell decision came into effect there was a proliferation of tier II hunts. So, in effect, there was less opportunity for urban residents. She said if we could go back to some kind of distinguishing criterion to differentiate among rural and non-rural, she would imagine a majority of the tier II hunts would disappear and be replaced by drawing permits, or other means to provide more opportunity for urban residents. Ms. Pete said because all Alaskans qualify, they have had to resort to tier II because the available resources can't meet the demand of all Alaskans. REPRESENTATIVE BUNDE said, "And that leads to my final point, and if I might Mr. Chairman, and that is that there is never not a shortage. So would subsistence preference, as conceptualized in the Governor's task force proposed amendment, subsistence preference would always be in effect." REPRESENTATIVE BERKOWITZ interjected, "Point of order, Mr. Chair, are we going to talk about that bill? Because I'd like to." Number 1772 CHAIRMAN GREEN responded in the negative and noted that bill is not before the committee. REPRESENTATIVE BUNDE asked if there isn't any time that there is not a shortage. MS. PETE stated that she would agree there is always a shortage because we have seasons and bag limits for everything. Number 1797 REPRESENTATIVE CROFT referred to CSHB 406(RES) and questioned if there will be a shortage situation almost all the time under the definition in the bill regarding the shortage criteria. MS. PETE responded that it would depend on the pool of eligible people. REPRESENTATIVE CROFT indicated there are two different criterions in the bill on page 3, line 3, (b), and on page 4, line 13, (b). He said he isn't sure he understands which is the more restrictive or which applies on more situations. He referred to the wording on page 3, "projected level of a fish stock or game population in an area would exceed the sustainable level of harvest under the sustained yield principle,". He said he would guess that the author means that if all the competing uses got what they wanted or what they could conceivably take, and everybody could be accommodated with sustained yield, then there would not be a preference under page 3, (b). Representative Croft asked if "projected level of harvest exceed sustainable level of harvest" is the standard situation. Number 1898 MR. DELANEY responded that the Board of Fisheries and the Board of Game, through their deliberations, established situational definitions for sustained yield. In all cases, under the state system, they attempt to achieve fairly high levels of sustained yield so that as many beneficial uses as possible can participate in the harvest. He noted there is certainly the harvest potential between combined beneficial users of all fish and game stocks to harvest the entire harvestable surplus. Because of that, we have seasons and bag limits in all cases. To some degree, with some species, you can accommodate a preferential use by continuing to reallocate from other uses, but that can only occur to a point where the preferential use is capable of taking the entire harvestable surplus of that stock by itself. Therein lies the real problem in implementing this concept, especially in the nonsubsistence zones where a bulk of Alaska's population lives. Number 2075 REPRESENTATIVE PORTER said the rural preference of ANILCA is aimed at the kind of rural designation that includes the ability to say what the normal area characteristics are, which includes whether most of the people have a subsistence life style and the economy of the area, et cetera. He asked, "Would you think that the way we had managed subsistence areas was consistent with ANILCA's rural preference?" MS. PETE responded, "Yes, because in implementing the subsistence law, even our current law, we go through a process of determining customary and traditional uses. And if there are no customary and traditional uses, there is no subsistence." REPRESENTATIVE PORTER pointed out that CSHB 406(RES) establishes dependent use areas and has a criteria set up for how to establish those areas. He asked if that criteria is generally consistent with how it has been done. MS. PETE said, "The current law says, 'a principle characteristic' rather than 'the principle characteristic', because 'a principle' is vague. This specifically says '50 percent or greater.' Exactly how that would impact determinations of areas...." REPRESENTATIVE PORTER said, "I guess what I'm trying to get at is that ANILCA recognizes -- if we could make them say it correctly, they probably would allow us to make a determination on a subsistence area along the way - along the general guidelines that we had been, or that are in this bill. They wouldn't require that anything that's non-urban is rural, and consequently is a subsistence area." MS. PETE said she would imagine that Representative Porter is correct. Number 2304 REPRESENTATIVE BERKOWITZ referred to page 5 of the bill and said there is a lot of discussion on fish and game dependent life style. He explained the way he reads "dependent," based on its context in other parts of the bill is that it means 51 percent. He asked Ms. Pete if that is consistent with how she reads it. MS. PETE responded, "Yeah, because the definition of principle is more than 50 percent." REPRESENTATIVE BERKOWITZ referred to page 5, Section (2)(A), and said it would be hard for him to determine how someone who is living in Anchorage could be dependent on fish and game for personal and family use. He asked Ms. Pete if she know of any instances of people like that. MS. PETE responded that she didn't know of anyone in Anchorage. She said she imagines there are people in nonsubsistence areas, such as Fairbanks. She said, "We heard in public testimony examples of people and probably from local people's perspective fit this description. In a place like Anchorage, I would figure it would be difficult to maintain this life style because of ... equipment requirements." REPRESENTATIVE BERKOWITZ said, "(B)(i), is clearly a cash-based economy, (indisc.) any place within ready driving range of Anchorage would be a cash-based economy it would seem to me...." TAPE 98-38, SIDE A Number 0001 REPRESENTATIVE BERKOWITZ said that essentially, nobody in Anchorage could qualify for subsistence under the bill. MS. PETE stated it would be very hard to qualify. They could avow to qualify because they would present a signed written statement that they do. REPRESENTATIVE BERKOWTIZ said that Representative Ogan spoke about median incomes, in certain areas, as influencing the decision of whether to declare them dependent use or not. MS. PETE said, "In a community it means 50 percent of income producers fall below that point and 50 percent fall above that point, which is really not a very good way to characterize income in an area or community. Average income is a better measure, and in terms of trying to measure sort of a economic wage earning capability, income is not the totality of (indisc.). A community's economy is and we need to look at the number of jobs, ... the level of unemployment over a sustained period of time. In fact, in many rural communities you tend to have a bimodal income distribution. The median may be relatively high by sort of statewide standards, but the stretch between the median and the actual lowest income is very long, and the lowest income is very, very low, and the stretch on the other side - the upper end is very short. So you have the 50 percent that's above, it's really crunched. So you have a real interesting bimodal income picture where this upper part is very crunched and lower portion is very long. So it makes more sense to use average income rather than median income." CHAIRMAN GREEN thanked Ms. Pete and Mr. Delaney for answering questions. Number 0279 ROBERT WILLARD, Jr., Alaska Native Brotherhood (ANB); Member, Executive Committee, Southeast Native Subsistence Board, came before the committee to testify. He said that CSHB 406(RES) would deal a very severe blow to the cultures of the Alaska Native tribes that are dependent upon uses of wild renewable resources. Mr. Willard stated that they object to the change of the term "subsistence." There are at least 51 or 52 references to the term "sustenance." Sustenance implies a welfare type program for the bear minimum for survival. He discussed how the boards are also authorized to establish additional criteria if they so desire. There is then the process of application that a person would have undergo to prove eligibility status. Mr. Willard informed the committee members of tribal customs, within the Tlingit culture, when a tribal member is deceased, and how the legislation would conflict with the culture. He discussed problems between tribal law and state law. Mr. Willard pointed out in 1980, the federal subsistence board designated all communities in Southeast Alaska to be rural and subsistence eligible except for Juneau and Ketchikan. The legislation would require that each community undergo a qualification process, and the ANB objects to this cumbersome process. Under Title VIII of ANILCA, the regional council is comprised of persons who have knowledge of the area, subareas, terrain, dynamics of the species and the subsistence needs of the communities within the region. Under the legislation, the regional council in the community would examine the qualification process of individuals. They do not believe this should be involved as the council is sure to address only resource management. He indicated that there are Tlingit elders that posses knowledge of the areas, terrain and resources. He said he would pit any of the elder's knowledge against any scientists or biologists any day of the week. The ANB objects to recommended changes to Title VIII of ANILCA. Number 0904 REPRESENTATIVE PORTER said, "It hasn't been said yet, and I guess it probably should be for the record. There are some folks that would love to go back to the way it was. We don't have that ability. We cannot write a law to give your tribe a preference. We can't write a law that distinguishes between people by their race. The only folks that could do that is the federal government in their relationship with the tribes and they chose, for whatever reason, to do that. So what we have to do is try to get something as close as possible to provide you with what you need, but not say it that way. And that's why this effort is so confusing." REPRESENTATIVE BERKOWITZ said, "I think what Representative Porter has said illustrates why this problem, in spite of a lot of rhetoric to the contrary, is not a Native problem. It's the problem for the state. If it were solely a Native problem, it seems to me, then the rural preference under ANILCA federal takeover option would be one that Native organizations endorse wholeheartedly. But because the Native organization that I've been in contract with have expressed a desire to continue state management of fish and game, it seems clear to me that they're looking for a solution that allows Alaskans to control fish and game, ... which brings it back to it being our responsibility, as representing all Alaskans, to solve this problem in an Alaskan way - not a question of Native or non-Native, but how to keep the federal government from managing our fish and game resources. And that ought to be the focus of what we attempt to do." Number 1026 REPRESENTATIVE CROFT pointed out that if Congress get so frustrated with our inability or lack of will to protect the subsistence way of life in rural Alaska, they can very easily make it Native. We're playing with fire in an attempt to fine-tune something that we could lose. TOM LACKISH (ph), testified via teleconference from Anchorage. He stated a solution for this problem is fairly complex and he would suggest some amendments. He said the bill goes in the right direction to create public purposes and beneficial uses. Mr. Lackish stated he would suggest that local subsistence use be equivalent to indigent use, that there be non-local subsistence use, that there be customary and traditional trade, that there be commercial use and recreational use. He discussed the judge's findings in the Kenaitze case. As an accommodation for the commercial fishermen and also the guides, he would suggest that be given a right to guide subsistence users. For example, all commercial fishermen and river guides would be given a permit to guide subsistence users or take their proxies and then (indisc.) their fish. Commercial fishermen just want to get their money for their fish and the people just want their fish, they want to be able to eat. This scenario would also help alleviate some of the management problems where there would be a lot of people all trying to all go out and catch fish. He said this would allow everybody to get their fish and game in their freezers and would allow commercial fishermen to advertise their permits and their gear. He thanked the committee for the opportunity to testify. Number 1366 CHAIRMAN GREEN indicated there were no further witnesses to testify. [CSHB 406(RES) was held over for further consideration.] ADJOURNMENT Number 1366 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 6:21 p.m.