00 CS FOR HOUSE BILL NO. 406(JUD) 01 "An Act relating to fish and game; and providing for an effective date." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. POLICY AND FINDINGS. (a) It is the policy of the legislature that 04 (1) consistent with sound management principles and the conservation of 05 healthy stocks of fish and healthy populations of game, the use of land in Alaska is to the 06 extent practicable to have no substantial adverse effects on subsistence users who depend on 07 subsistence uses of the resources of the land; 08 (2) consistent with management of fish and game in accordance with 09 recognized scientific principles, subsistence users engaged in a subsistence way of life have 10 the opportunity to do so; 11 (3) nonwasteful subsistence uses of fish and game and other renewable 12 resources shall be the preferred consumptive uses of those resources on lands in Alaska; when 13 there is a shortage of fish and game and it is necessary to restrict taking of fish and game in 14 order to assure the continued viability of a fish stock or game population or the continuation 01 of subsistence uses of the stock or population, the taking of the stock or population for 02 nonwasteful subsistence uses shall be given preference over other consumptive uses; 03 (4) a subsistence user is a person who has demonstrated a customary and 04 traditional dependence on a particular fish stock or game population in an area outside of 05 nonsubsistence areas in Alaska. 06 (b) The legislature finds that 07 (1) a classification scheme employing individual characteristics is less invasive 08 of the open access values of art. VIII of the Constitution of the State of Alaska and more apt 09 to accomplish the purpose of this Act than a geographically based urban-rural residency 10 criterion; 11 (2) Webster's New World Dictionary, Second College Edition, defines "rural" 12 to mean "of or characteristic of the country, country life, or country people; rustic"; 13 (3) the policy set out in (a) of this section is consistent with the policy of the 14 Congress of the United States as expressed in Title VIII of the Alaska National Interest Lands 15 Conservation Act (P.L. 96-487). 16 * Sec. 2. AS 16.05.258 is repealed and reenacted to read: 17  Sec. 16.05.258. Subsistence use and allocation of fish and game. (a) 18 Except in nonsubsistence areas, the Board of Fisheries and the Board of Game shall 19 identify the fish stocks and game populations, or portions of stocks or populations, that 20 are customarily and traditionally taken or used for subsistence. The commissioner shall 21 provide recommendations to the boards concerning the stock and population 22 identifications. The boards shall make identifications required under this subsection 23 after receipt of the commissioner's recommendations. 24  (b) The appropriate board shall determine whether a portion of a fish stock or 25 game population identified under (a) of this section can be harvested consistent with 26 sustained yield. If a portion of a stock or population can be harvested consistent with 27 sustained yield, the board shall determine the amount of the harvestable portion that 28 is reasonably necessary for subsistence uses by residents, and, if the harvestable 29 portion of the stock or population 30  (1) is sufficient to provide for all consumptive uses, the appropriate 31 board 01  (A) shall adopt regulations that provide a reasonable opportunity 02 for all uses of the stock or population; and 03  (B) may adopt regulations to differentiate among uses; 04  (2) is sufficient to provide a reasonable opportunity for subsistence uses 05 by qualified subsistence users and for some, but not all, other consumptive uses, the 06 appropriate board 07  (A) shall adopt regulations that provide a reasonable opportunity 08 for subsistence uses of the stock or population by qualified subsistence users; 09  (B) may adopt regulations that provide for other consumptive 10 uses of the stock or population; and 11  (C) shall adopt regulations to differentiate among consumptive 12 uses that provide for a preference for the subsistence uses by qualified 13 subsistence users if regulations are adopted under (B) of this paragraph; 14  (3) is sufficient to provide a reasonable opportunity for subsistence uses 15 by qualified subsistence users, but no other consumptive uses, the appropriate board 16 shall 17  (A) adopt regulations that provide a reasonable opportunity for 18 subsistence uses of the stock or population by qualified subsistence users; and 19  (B) restrict or eliminate other consumptive uses of the stock or 20 population; and 21  (4) is not sufficient to provide a reasonable opportunity for human 22 consumptive subsistence uses by all qualified subsistence users, the appropriate board 23 shall 24  (A) adopt regulations eliminating consumptive uses, other than 25 human consumptive subsistence uses of the stock or population by qualified 26 subsistence users; and 27  (B) distinguish among qualified subsistence users, through 28 limitations based on 29  (i) the customary and direct dependence on the stock or 30 population by the subsistence user for human consumption as a 31 mainstay of livelihood; and 01  (ii) the ability of the subsistence user to obtain food if 02 subsistence use of the stock or population is restricted or eliminated. 03  (c) For purposes of (b) of this section, a qualified subsistence user is a 04 resident, without regard to the location of the resident's domicile in the state, who has 05 demonstrated a customary and traditional dependence on a particular fish stock or 06 game population identified under (a) of this section. To determine whether a resident 07 is a qualified subsistence user, the Board of Fisheries or the Board of Game, as 08 appropriate, shall establish criteria for determining if a resident has demonstrated a 09 customary and traditional dependence on the stock or population based on 10  (1) past use of the stock or population; 11  (2) lack of alternative resources; 12  (3) the proportion of diet made up of subsistence resources; 13  (4) the variety of fish and game species consumed; 14  (5) the importance of sharing and exchange of fish and game resources; 15  (6) the number of days engaged in harvesting fish and game resources. 16  (d) Notwithstanding (c) of this section, a resident who is domiciled 17  (1) in an area that is determined by the appropriate board to be 18 customarily and traditionally dependent on the stock or population that is described in 19 (b)(2) - (4) of this section is presumed to be a qualified subsistence user; 20  (2) outside of an area that is determined by the appropriate board to be 21 customarily and traditionally dependent on the stock or population that is described in 22 (b)(2) - (4) of this section is presumed not to be a qualified subsistence user. 23  (e) A presumption established under (d) of this section is rebuttable by a 24 preponderance of the evidence presented at a hearing before the Board of Fisheries or 25 Board of Game, as appropriate. Each board shall adopt procedures by which the board 26 shall determine the qualifications of a person who challenges a presumption established 27 under (d) of this section or whose eligibility to engage in subsistence fishing or 28 hunting for a specific stock or population is challenged. The procedure established by 29 a board must include AS 44.62.330 - 44.62.630. 30  (f) The Board of Fisheries shall identify by regulation the boundaries of 31 nonsubsistence fishing areas. The Board of Game shall identify by regulations the 01 boundaries of nonsubsistence hunting areas. The boards may act jointly in identifying 02 the boundaries of nonsubsistence fishing and hunting areas. A nonsubsistence fishing 03 area or a nonsubsistence hunting area is an area or community where a cash-based 04 economy is a principal characteristic of the economy, culture, and way of life of the 05 area or community. In determining whether a cash-based economy is a principal 06 characteristic of the economy, culture, and way of life of an area or community under 07 this subsection, each board shall consider the relative importance of a cash-based 08 economy to the area or community in the context of the totality of the following 09 socioeconomic characteristics of the area or community: 10  (1) the social and economic structure; 11  (2) the stability of the economy; 12  (3) the extent and kinds of employment for wages, including full-time, 13 part-time, temporary, and seasonal employment; 14  (4) the amount and distribution of cash income among those domiciled 15 in the area or community; 16  (5) the cost and availability of goods and services to those domiciled 17 in the area or community; 18  (6) the variety of fish and game species used by those domiciled in the 19 area or community; 20  (7) the seasonal cycle of economic activity; 21  (8) the percentage of those domiciled in the area or community 22 participating in hunting and fishing activities or using wild fish and game; 23  (9) the harvest levels of fish and game by those domiciled in the area 24 or community; 25  (10) the cultural, social, and economic values associated with the taking 26 and use of fish and game; 27  (11) the geographic locations where those domiciled in the area or 28 community hunt and fish; 29  (12) the extent of sharing and exchange of fish and game by those 30 domiciled in the area or community; 31  (13) the other sources of direct and indirect economic support available 01 to those domiciled in the area or community; 02  (14) additional similar factors a board establishes by regulation to be 03 relevant to its determinations under this subsection. 04  (g) Fishing under subsistence regulations may not occur in a nonsubsistence 05 fishing area identified under this section. Hunting under subsistence regulations may 06 not occur in a nonsubsistence hunting area identified under this section. Fish stocks 07 and game populations, or portions of fish stocks and game populations, not identified 08 under (a) of this section may be taken only under nonsubsistence regulations. 09  (h) The taking and use of fish and game authorized under this section are 10 subject to 11  (1) AS 16.05.831 and AS 16.30; and 12  (2) regulations adopted by the appropriate board regarding open and 13 closed areas, seasons, methods and means, marking and identification requirements, 14 quotas, bag limits, harvest levels, and sex, age, and size limitations. 15  (i) A person may not knowingly provide false information to the department 16 or a board regarding the taking or use of fish or game for subsistence uses or regarding 17 the person's or another person's eligibility to engage in subsistence uses of fish or 18 game. Notwithstanding other provisions of this chapter, a person who violates this 19 subsection is guilty of a class A misdemeanor. In addition to the imposition of other 20 penalties provided by law under AS 12.55, if a person is convicted of violating this 21 subsection, the court shall suspend the person's hunting and fishing privileges for not 22 less than one year. In this subsection, "knowingly" has the meaning given in 23 AS 11.81.900. 24  (j) For purposes of this section, 25  (1) "preference" means an advantage, but not necessarily an exclusive 26 privilege, conferred on a use of fish and game over other uses through the adoption 27 of seasons, areas, bag limits, methods and means, and other regulations that take into 28 consideration the consumptive uses and harvest methods of the user groups; 29  (2) "reasonable opportunity" means an opportunity, as determined by 30 the appropriate board, that allows a normally diligent hunter or fisherman to participate 31 in a hunt or fishery with a reasonable expectation of success in taking fish or game; 01 "reasonable opportunity" does not mean a guarantee of taking fish or game; 02  (3) "sustained yield" means a level of utilization of a fish or game 03 population for consumptive uses by humans that is capable of being maintained in 04 perpetuity. 05 * Sec. 3. AS 16.05.260 is amended to read: 06  Sec. 16.05.260. Local and regional advisory [ADVISORY] committees.  (a)  07 The Board of Fisheries and the Board of Game may adopt regulations they consider 08 advisable in accordance with AS 44.62 (Administrative Procedure Act) establishing, 09 at places in the state designated by the individual boards,  local  advisory committees 10 to be composed of persons well informed on the fish or game resources of the locality. 11 The boards shall set the number and terms of each of the members of the  local  12 advisory committees, shall  designate [DELEGATE] one member of each committee 13 as  chair  [CHAIRMAN], and shall give the  chair  [CHAIRMAN] authority to hold 14 public hearings on fish or game matters. Recommendations from the  local  advisory 15 committees shall be forwarded to  regional advisory committees and to  the 16 appropriate board for their consideration . If  [BUT IF] the Board of Fisheries or the 17 Board of Game chooses not to follow the recommendations of the local advisory 18 committee ,  the appropriate board shall inform the appropriate  local advisory committee 19 of this action and state the reasons for not following the recommendations. 20   (b) The Board of Fisheries and the Board of Game, acting jointly, shall 21 establish six fish and game regulatory regions that together comprise the whole 22 of the state and shall establish a regional advisory committee for each region. 23 The regional advisory committees shall be composed of persons well informed on 24 the fish or game resources of the region. The boards shall set the number and 25 terms of each of the members of the regional advisory committees, shall designate 26 one member of each committee as chair, and shall give the chair authority to hold 27 public hearings on fish or game matters. Recommendations from the regional 28 advisory committees shall be forwarded to the appropriate board for the board's 29 consideration. A board may choose not to follow the recommendations of a 30 regional advisory committee that the board determines are not supported by 31 substantial evidence presented to the board, violate recognized principles of fish 01 or game conservation, are detrimental to the satisfaction of subsistence needs, or 02 are inconsistent with sound public policy. If a board chooses not to follow a 03 recommendation of a regional advisory committee, the appropriate board shall 04 inform the regional advisory committee of this action and state the reasons for not 05 following the recommendation. 06  (c) The commissioner shall delegate authority to  local  advisory committees for 07 emergency closures during established seasons. The commissioner is empowered to 08 set aside and make null and void only opening of seasons set by the  local  advisory 09 committees under this section. The appropriate board shall adopt the necessary 10 regulations governing these closures. 11 * Sec. 4. AS 16.05.940(7) is amended to read: 12  (7) "customary and traditional" means the noncommercial, long-term, 13 and consistent taking of, use of, and reliance upon fish or game in a specific area and 14 the [USE] patterns of  taking or use of  that fish or game that have been established 15 over a reasonable period of time taking into consideration the availability of the fish 16 or game; 17 * Sec. 5. AS 16.05.940(30) is amended to read: 18  (30) "subsistence fishing" means the taking of, fishing for, or 19 possession of fish, shellfish, or other fisheries resources [BY A RESIDENT 20 DOMICILED IN A RURAL AREA OF THE STATE] for subsistence uses with gill 21 net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; 22 * Sec. 6. AS 16.05.940(31) is amended to read: 23  (31) "subsistence hunting" means the taking of, hunting for, or 24 possession of game [BY A RESIDENT DOMICILED IN A RURAL AREA OF THE 25 STATE] for subsistence uses by means defined by the Board of Game; 26 * Sec. 7. AS 16.05.940(32) is amended to read: 27  (32) "subsistence uses" means the noncommercial, customary and 28 traditional uses of wild, renewable resources [BY A RESIDENT DOMICILED IN A 29 RURAL AREA OF THE STATE] for direct personal or family consumption as food, 30 shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft 31 articles out of nonedible by-products of fish and wildlife resources taken for personal 01 or family consumption, and for the customary trade, barter, or sharing for personal or 02 family consumption; in this paragraph, "family" means persons related by blood, 03 marriage, or adoption, and a person living in the household on a permanent basis; 04 * Sec. 8. AS 38.05.945(d) is amended to read: 05  (d) Notice at least 30 days before action under (a)(5) of this section shall be 06 given to appropriate 07  (1) regional  advisory committees [FISH AND GAME COUNCILS] 08 established under AS 16.05.260; and 09  (2) coastal resource service areas organized under AS 46.40.110 - 10 46.40.210. 11 * Sec. 9. AS 16.05.940(27) is repealed. 12 * Sec. 10. Sections 3 and 5, ch. 1, SSSLA 1992, are repealed. 13 * Sec. 11. TRANSITION: SUBSISTENCE AREAS. (a) Notwithstanding AS 16.05.258, 14 as repealed and reenacted by sec. 2 of this Act, an area located outside of a nonsubsistence 15 area established by the Board of Fisheries and the Board of Game as of May 15, 1993, is a 16 subsistence fishing and hunting area for the purposes of AS 16.05.258, as repealed and 17 reenacted by sec. 2 of this Act. Subsistence fishing and hunting areas established by this 18 subsection are superseded by the taking effect of regulations identifying and delineating 19 nonsubsistence fishing areas and nonsubsistence hunting areas under AS 16.05.258, as repealed 20 and reenacted by sec. 2 of this Act, and (b) and (c) of this section. 21 (b) Within two years after the effective date of this section, the Board of Fisheries and 22 the Board of Game shall identify and delineate nonsubsistence fishing areas and 23 nonsubsistence hunting areas, respectively, in accordance with AS 16.05.258, as repealed and 24 reenacted by sec. 2 of this Act, and (c) of this section. 25 (c) The Board of Fisheries and the Board of Game shall review the nonsubsistence 26 areas established by the boards as of May 15, 1993, and substantially increase the portion of 27 the state that is identified as nonsubsistence fishing areas and nonsubsistence hunting areas 28 in order to implement the purpose of this Act. 29 * Sec. 12. Section 10 of this Act takes effect immediately under AS 01.10.070(c).