00 SENATE BILL NO. 239 01 "An Act establishing a priority for subsistence uses of fish and wildlife that is 02 based on place of residence; relating to the management and taking of fish and 03 wildlife for subsistence uses; relating to certain definitions for the fish and game 04 code; delaying the repeal of the current law regarding subsistence use of fish and 05 game; amending the effective date of secs. 3 and 5, ch. 1, SSSLA 1992; and 06 providing for an effective date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 16.05.258(a) is amended to read: 09 (a) In areas or communities classified as rural [EXCEPT IN 10 NONSUBSISTENCE AREAS], the Board of Fisheries and the Board of Game shall 11 identify the fish stocks and wildlife [GAME] populations, or portions of stocks or 12 populations, that are customarily and traditionally taken or used for subsistence. The 13 commissioner may [SHALL] provide recommendations to the boards concerning the 14 stock and population identifications. [THE BOARDS SHALL MAKE 01 IDENTIFICATIONS REQUIRED UNDER THIS SUBSECTION AFTER RECEIPT 02 OF THE COMMISSIONER'S RECOMMENDATIONS.] 03 * Sec. 2. AS 16.05.258(b) is amended to read: 04 (b) The appropriate board shall determine whether a portion of a fish stock or 05 wildlife [GAME] population identified under (a) of this section can be harvested 06 consistent with sustained yield. If a portion of a fish stock or wildlife population can 07 be harvested consistent with sustained yield, the board shall determine the amount of 08 the harvestable portion that is reasonably necessary for subsistence uses and 09 (1) if the harvestable portion of the fish stock or wildlife population 10 is sufficient to provide for all consumptive uses, the appropriate board 11 (A) shall adopt regulations that provide a reasonable opportunity 12 for subsistence uses of those fish stocks or wildlife populations; 13 (B) shall adopt regulations that provide for other uses of those 14 fish stocks or wildlife populations, subject to preferences among beneficial 15 uses; and 16 (C) may adopt regulations to differentiate among uses; 17 (2) if the harvestable portion of the fish stock or wildlife population 18 is sufficient to provide for subsistence uses and some, but not all, other consumptive 19 uses, the appropriate board 20 (A) shall adopt regulations that provide a reasonable opportunity 21 for subsistence uses of those fish stocks or wildlife populations; 22 (B) may adopt regulations that provide for other consumptive 23 uses of those fish stocks or wildlife populations; and 24 (C) shall adopt regulations to differentiate among consumptive 25 uses that provide for a priority [PREFERENCE] for [THE] subsistence uses, 26 if regulations are adopted under (B) of this paragraph; 27 (3) if the harvestable portion of the fish stock or wildlife population 28 is sufficient to provide for subsistence uses, but no other consumptive uses, the 29 appropriate board shall 30 (A) determine the portion of the fish stocks or wildlife 31 populations that can be harvested consistent with sustained yield; and 01 (B) adopt regulations that eliminate other consumptive uses in 02 order to provide a reasonable opportunity for subsistence uses; and 03 (4) if the harvestable portion of the fish stock or wildlife population 04 is not sufficient to provide a reasonable opportunity for human consumptive 05 subsistence uses, the appropriate board shall 06 (A) adopt regulations eliminating consumptive uses[,] other than 07 human consumptive subsistence uses; 08 (B) distinguish among subsistence users, through limitations 09 based on 10 (i) the customary and direct dependence on the fish 11 stock or wildlife [GAME] population by the subsistence user for human 12 consumption as a mainstay of livelihood; 13 (ii) the proximity of the domicile of the subsistence user 14 to the fish stock or wildlife population; and 15 (iii) the ability of the subsistence user to obtain food if 16 subsistence use is restricted or eliminated. 17 * Sec. 3. AS 16.05.258(c) is repealed and reenacted to read: 18 (c) The Board of Fisheries and the Board of Game, acting jointly, shall 19 determine by regulation whether communities or areas in the state should be classified 20 as rural and whether communities or areas classified as rural should no longer be 21 classified as rural. 22 * Sec. 4. AS 16.05.258(d) is amended to read: 23 (d) The boards may permit subsistence hunting or fishing under the 24 priority in this section only in areas or communities classified as rural. Fish 25 stocks and wildlife [GAME] populations, or portions of fish stocks and wildlife 26 [GAME] populations not identified under (a) of this section may be taken only under 27 nonsubsistence regulations. 28 * Sec. 5. AS 16.05.258(e) is amended to read: 29 (e) Takings and uses of fish and wildlife [GAME] authorized under this 30 section are subject to regulations regarding open and closed areas, seasons, methods 31 and means, marking and identification requirements, quotas, bag limits, harvest levels, 01 and sex, age, and size limitations. Takings and uses of resources authorized under this 02 section are subject to AS 16.05.831 and AS 16.30. 03 * Sec. 6. AS 16.05.258(f) is amended to read: 04 (f) For purposes of this section, "reasonable opportunity" 05 (1) means an opportunity, consistent with customary and traditional 06 uses, [AS DETERMINED BY THE APPROPRIATE BOARD, THAT ALLOWS A 07 SUBSISTENCE USER] to participate in a subsistence hunt or fishery [THAT 08 PROVIDES A NORMALLY DILIGENT PARTICIPANT] with a reasonable 09 expectation of success ; 10 (2) does not mean a guarantee of taking of fish or wildlife [GAME]. 11 * Sec. 7. AS 16.05.258 is amended by adding a new subsection to read: 12 (g) This section does not require the Board of Fisheries to close non-retention 13 fishing if the board has made a finding that the mortality caused by non-retention 14 fishing does not jeopardize subsistence uses or the conservation of healthy stocks. 15 * Sec. 8. AS 16.05.259 is amended to read: 16 Sec. 16.05.259. No subsistence defense. In a prosecution for the taking of 17 fish or wildlife [GAME] in violation of a statute or regulation, it is not a defense that 18 the taking was done for subsistence uses. 19 * Sec. 9. AS 16.05.260 is repealed and reenacted to read: 20 Sec. 16.05.260. Advisory committees. (a) The Board of Fisheries and the 21 Board of Game may adopt regulations they consider advisable in accordance with 22 AS 44.62 (Administrative Procedure Act) establishing, at places in the state designated 23 by the individual boards, advisory committees to be composed of persons who 24 collectively represent user groups in the area and who are well informed on the fish 25 or wildlife resources of the locality. The boards shall set the number and terms of 26 each of the members of the advisory committees, shall delegate one member of each 27 committee as chairperson, and shall give the chairperson authority to hold public 28 hearings on fish or wildlife matters. 29 (b) Recommendations from the advisory committees on uses other than 30 subsistence shall be forwarded to the appropriate board for its consideration but if the 31 Board of Fisheries or the Board of Game chooses not to follow the recommendations 01 of the local advisory committee the appropriate board shall inform the appropriate 02 advisory committee of this action and state the reasons for not following the 03 recommendations. 04 (c) An advisory committee shall send its recommendations on subsistence uses 05 to the appropriate regional subsistence council. If the regional subsistence council 06 does not adopt the recommendation of the advisory committee, the council shall inform 07 the advisory committee, shall state the reasons, and shall forward the advisory 08 committee recommendation with the council's reasons to the appropriate board. 09 (d) The commissioner shall delegate authority to advisory committees for 10 emergency closures during established seasons. The commissioner is empowered to 11 set aside and make null and void only opening of seasons set by the advisory 12 committees under this section. The appropriate board shall adopt the necessary 13 regulations governing these closures. 14 * Sec. 10. AS 16.05 is amended by adding a new section to read: 15 Sec. 16.05.262. Regional subsistence councils. (a) The Board of Fisheries 16 and the Board of Game jointly shall adopt regulations necessary to implement this 17 section, including regulations establishing at least six subsistence resource regions that, 18 taken together, cover the entire state. The number and boundaries of the regions must 19 be sufficient to assure that regional differences in subsistence uses are adequately 20 accommodated. 21 (b) Each subsistence resource region must be represented by a regional 22 subsistence council with members appointed by the governor. Each regional 23 subsistence council must have 10 members, four of whom shall be selected from 24 nominees who reside in that region of the state submitted by tribal councils in the 25 region, and six of whom shall be selected from nominees submitted by local 26 governments and local advisory committees. Three of these six must be subsistence 27 users who reside in the region of the state and three must be sport or commercial 28 users. Sport and commercial representatives may be residents of any subsistence 29 resource region in the state. The regulations must provide for staggered terms of 30 council members. The maximum term is three years, with no limit on the number of 31 terms served. A quorum is a majority of the members of a council. 01 (c) Regional subsistence councils shall strive for consensus, but 02 recommendations must be decided by majority vote. 03 (d) Each regional subsistence council has the authority to 04 (1) elect officers and adopt rules of procedure; 05 (2) hold public meetings on fish and wildlife matters and solicit 06 proposals from the public on subsistence uses; 07 (3) in consultation with the local fish and game advisory committees 08 in its region and with the department, review, evaluate, and make a recommendation 09 to a board on any existing or proposed regulation, policy, or management plan, or any 10 other matter directly relating to the subsistence use of fish and wildlife within its 11 region; 12 (4) comment on sport, personal use, and commercial proposals; 13 (5) make recommendations concerning permits provided in 14 AS 16.05.330(e) and 16.05.405(g); 15 (6) submit to the boards, the department, and the secretaries of the 16 United States Departments of the Interior and Agriculture, by November 15 of each 17 year, an annual report, containing the following: 18 (A) an identification of current and anticipated subsistence uses 19 of fish and wildlife populations within the region, and other fish and wildlife 20 uses that the council identifies; 21 (B) an evaluation of current and anticipated subsistence needs 22 for use of fish and wildlife populations within the region, and of other fish and 23 wildlife needs that the council identifies; 24 (C) a recommended strategy for the management of fish and 25 wildlife populations within the region to accommodate the identified fish and 26 wildlife uses and needs; and 27 (D) recommendations concerning policies, standards, guidelines, 28 and regulations to implement the strategy; and 29 (7) perform other duties specified by a board. 30 (e) Each council shall provide a forum for, and assist its region's local fish and 31 game advisory committees in, obtaining the opinions and proposals of persons 01 interested in fish and wildlife matters so as to achieve the greatest possible local 02 participation in the decision-making process. 03 (f) Regulatory proposals submitted to a board relating primarily to subsistence 04 issues, initiated by the public or by a local fish and game advisory committee, must 05 be reviewed by the appropriate regional subsistence council before the board takes 06 action on the proposal. 07 (g) Regional subsistence councils may meet to develop recommendations on 08 inter-regional proposals and issues. 09 (h) The appropriate board shall consider the reports and recommendations of 10 the regional subsistence councils and shall give deference to their subsistence 11 recommendations. If the council recommendation is unanimous, there is a presumption 12 in favor of adoption by the board. However, the board may decide not to adopt any 13 recommendation that it determines violates the sustained yield principle, is not 14 supported by substantial evidence, is detrimental to subsistence uses, involves an 15 unresolved statewide or inter-regional subsistence management issue, or is contrary to 16 an overriding statewide fish or wildlife management interest. If a recommendation is 17 not adopted by the board, the board shall provide a written statement of the factual 18 basis and reasons for its decision and shall remand the recommendation to the regional 19 subsistence council for further consideration. 20 (i) A regional subsistence council shall give deference to proposals from local 21 governments, tribal councils, and local advisory committees that identify local 22 subsistence needs and uses and the methods, means, seasons, and other issues related 23 to local subsistence management. 24 (j) Regional subsistence councils may use a mediation process. 25 (k) When implementing the provisions of this section, the boards, the regional 26 subsistence councils, and the department shall seek data from, consult with, and make 27 use of the special knowledge of subsistence users. If appropriate to implement the 28 provisions of this section, the department may contract for services with subsistence 29 users and local groups in order to utilize their special knowledge of resources in the 30 region. 31 (l) The regional subsistence councils shall be adequately financed. 01 * Sec. 11. AS 16.05.330(a) is amended to read: 02 (a) Except as otherwise permitted in this chapter, without having the 03 appropriate license or tag in actual possession a person may not engage in 04 (1) sport fishing, including the taking of razor clams; 05 (2) hunting, trapping, or fur dealing; 06 (3) the farming of fish, fur, or wildlife [GAME]; or 07 (4) taxidermy. 08 * Sec. 12. AS 16.05.330(c) is amended to read: 09 (c) The Board of Fisheries and the Board of Game may adopt regulations 10 providing for the issuance and expiration of subsistence permits for areas, villages, 11 communities, groups, or individuals as needed for authorizing, regulating, and 12 monitoring the subsistence harvest of fish and wildlife [GAME]. To be eligible to 13 take fish or wildlife in a rural community or area using the subsistence priority 14 in AS 16.05.258, a person must be a resident domiciled in that community or area 15 [THE BOARDS SHALL ADOPT THESE REGULATIONS WHEN THE 16 SUBSISTENCE PREFERENCE REQUIRES A REDUCTION IN THE HARVEST OF 17 A FISH STOCK OR GAME POPULATION BY NONSUBSISTENCE USERS]. 18 * Sec. 13. AS 16.05.330 is amended by adding a new subsection to read: 19 (e) The Board of Fisheries and the Board of Game shall adopt regulations 20 allowing the commissioner to issue permits for the taking of fish and wildlife in order 21 to teach and preserve historic or traditional uses and harvest practices. The permits 22 issued under the regulations adopted under this subsection do not entitle successful 23 applicants to the subsistence priority under AS 16.05.258. 24 * Sec. 14. AS 16.05.405 is repealed and reenacted to read: 25 Sec. 16.05.405. Taking fish and wildlife by proxy. (a) Subject to 26 regulations adopted by the Board of Fisheries or the Board of Game to implement this 27 section, including regulations relating to or restricting seasons, areas, methods and 28 means, and species, a resident may take fish or wildlife harvested primarily for food 29 on behalf of another person under this section. 30 (b) Notwithstanding AS 16.05.420(c), a resident holding a valid resident 31 hunting license may take wildlife on behalf of a person who is blind, has physical 01 disabilities, or is 65 years of age or older if the resident possesses on the resident's 02 person 03 (1) a document signed by the person on whose behalf the wildlife is 04 taken, stating that the resident possesses the person's hunting license or permanent 05 identification card in order to take wildlife on behalf of that person; and 06 (2) the person's 07 (A) resident hunting license issued under AS 16.05.403 or 08 permanent identification card issued under AS 16.05.400(b); and 09 (B) harvest ticket, tag, stamp, or other document required by 10 law as a condition of taking the wildlife. 11 (c) Notwithstanding AS 16.05.420(c), a resident holding a valid noncommercial 12 fishing license may take fish on behalf of a person who is blind, has physical 13 disabilities, or is 65 years of age or older if the resident possesses on the resident's 14 person 15 (1) a document signed by the person on whose behalf the fish is taken, 16 stating that the resident possesses the person's sport fishing license, subsistence fishing 17 permit, personal use fishing permit, or permanent identification card in order to take 18 fish on behalf of that person; 19 (2) the person's 20 (A) resident sport fishing license issued under AS 16.05.403 or 21 permanent identification card issued under AS 16.05.400(b); 22 (B) resident subsistence fishing permit issued under 23 AS 16.05.403; or 24 (C) resident personal use fishing permit issued under 25 AS 16.05.403; and 26 (3) all other documents issued to the person that are required by law 27 as a condition of taking the fish. 28 (d) Subject to applicable regulations of the Board of Fisheries or the Board of 29 Game, a resident who takes fish or wildlife under this section on behalf of another 30 person may take the fish or wildlife only under those conditions that would apply to 31 the other person if the other person took the fish or wildlife personally. 01 (e) A resident who takes, or attempts to take, fish or wildlife under this section 02 on behalf of a person may also simultaneously engage in fishing or hunting for the 03 resident's use; however, the resident may not take or attempt to take fish or wildlife 04 by proxy for more than one person at a time. For the purposes of this subsection, a 05 resident is engaged in taking, or attempting to take, fish or wildlife by proxy while the 06 resident has possession of 07 (1) another person's 08 (A) license, permit, or identification card and all other 09 documents issued to the person that are required by law as a condition of 10 taking the fish or wildlife being pursued; and 11 (B) signed document under (b)(1) or (c)(1) of this section; or 12 (2) fish or wildlife taken on behalf of another person. 13 (f) A resident who takes fish or wildlife on behalf of another person under this 14 section shall 15 (1) complete reports relating to the taking of the fish or wildlife as 16 required by the commissioner of fish and game under AS 16.05.370; 17 (2) deliver all parts of fish and wildlife removed from the field to the 18 person on whose behalf the fish or wildlife was taken within a reasonable time after 19 the fish or wildlife is taken; and 20 (3) until the fish or wildlife is delivered to the person on whose behalf 21 the fish or wildlife was taken, retain the person's 22 (A) license or permit and all other documents issued to the 23 person that are required by law as a condition of taking the fish or wildlife; and 24 (B) signed document required under (b)(1) or (c)(1) of this 25 section. 26 (g) In addition to the proxy hunting and fishing opportunities authorized by 27 (a) - (f) of this section, the Board of Fisheries and the Board of Game shall adopt 28 regulations to permit a resident who is (1) a member of the family of a resident 29 domiciled in a rural community or area, or (2) domiciled in a rural community or area, 30 to participate in subsistence harvest activities as a proxy for a resident eligible for the 31 subsistence priority under AS 16.05.258, regardless of the eligible resident's age or 01 physical ability to hunt or fish. A proxy hunter or fisherman who is not part of the 02 eligible resident's family must be domiciled in the area in which the eligible resident 03 lives. The amount of fish or wildlife permitted to be taken for subsistence uses in a 04 rural community or area may not be increased because of proxy hunting or fishing. 05 Fish or wildlife taken by a proxy under this section belongs to the person on whose 06 behalf it was taken, and the majority of the fish and wildlife taken by a proxy must 07 remain in the rural community or area in which it was taken. A person may not give 08 or receive cash remuneration in connection with a proxy harvest. A person who gives 09 a proxy under this section may not participate in the hunt or fishery for which the 10 proxy was given. The proxy hunting and fishing authorized by this section are subject 11 to the limitations and reporting requirements of (d), (e), and (f) of this section. For 12 purposes of this subsection, "family" has the meaning given "family" in the definition 13 of "subsistence uses" in AS 16.05.940. 14 * Sec. 15. AS 16.05.940(2) is amended to read: 15 (2) "barter" means the exchange or trade of fish or wildlife [GAME], 16 or their parts, taken for subsistence uses 17 (A) for other fish or wildlife [GAME] or their parts; or 18 (B) for other food or for nonedible items other than money if 19 the exchange is of a limited and noncommercial nature; 20 * Sec. 16. AS 16.05.940(7) is amended to read: 21 (7) "customary and traditional" means the noncommercial, long-term, 22 and consistent taking of, use of, and reliance upon fish or wildlife [GAME] in a 23 specific area and the [USE] patterns of taking or use of that fish or wildlife [GAME] 24 that have been established over a reasonable period of time taking into consideration 25 the availability of the fish or wildlife [GAME]; 26 * Sec. 17. AS 16.05.940(8) is amended to read: 27 (8) "customary trade" means the limited noncommercial exchange, for 28 cash, of fish or wildlife or their parts in minimal quantities [AMOUNTS OF 29 CASH], as restricted by the appropriate board[, OF FISH OR GAME RESOURCES]; 30 the terms of this paragraph do not restrict money sales of furs and furbearers ; [.] 31 * Sec. 18. AS 16.05.940(11) is amended to read: 01 (11) "domicile" means the true and permanent home of a person from 02 which the person has no present intention of moving and to which the person intends 03 to return whenever the person is away; [DOMICILE MAY BE PROVED BY 04 PRESENTING EVIDENCE ACCEPTABLE TO THE BOARDS OF FISHERIES AND 05 GAME;] 06 * Sec. 19. AS 16.05.940(27) is repealed and readopted to read: 07 (27) "rural community or area" is a community or area classified by the 08 Board of Fisheries and the Board of Game to be substantially dependent on fish and 09 wildlife for nutritional and other subsistence uses; 10 * Sec. 20. AS 16.05.940(30) is amended to read: 11 (30) "subsistence fishing" means the taking of, fishing for, or 12 possession of fish, shellfish, or other fisheries resources [BY A RESIDENT 13 DOMICILED IN A RURAL AREA OF THE STATE] for subsistence uses with gill 14 net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; 15 * Sec. 21. AS 16.05.940(31) is amended to read: 16 (31) "subsistence hunting" means the taking of, hunting for, or 17 possession of wildlife [GAME BY A RESIDENT DOMICILED IN A RURAL AREA 18 OF THE STATE] for subsistence uses by means defined by the Board of Game; 19 * Sec. 22. AS 16.05.940(32) is amended to read: 20 (32) "subsistence uses" means the noncommercial, customary and 21 traditional uses of wild, renewable resources [BY A RESIDENT DOMICILED IN A 22 RURAL AREA OF THE STATE] for direct personal or family consumption as food, 23 shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft 24 articles out of nonedible by-products of fish and wildlife resources taken for personal 25 or family consumption, and for the customary trade, barter, or sharing for personal or 26 family consumption; in this paragraph, "family" means persons related by blood, 27 marriage, or adoption, and a person living in the household on a permanent basis; 28 * Sec. 23. AS 16.05.940(33) is amended to read: 29 (33) "take" means taking, pursuing, hunting, fishing, trapping, or in any 30 manner disturbing, capturing, or killing or attempting to take, pursue, hunt, fish, trap, 31 or in any manner capture or kill fish or wildlife [GAME]; 01 * Sec. 24. AS 16.05.940 is amended by adding new paragraphs to read: 02 (37) "wildlife" has the same meaning given "game" in this section; 03 wildlife may be classified by regulation as big game, small game, fur bearers, or other 04 categories considered essential for carrying out the intention and purposes of 05 AS 16.05 - AS 16.40; 06 (38) "wildlife population" has the meaning given "game population" in 07 this section. 08 * Sec. 25. Section 12, ch. 1, SSSLA 1992, as amended by sec. 3, ch. 68, SLA 1995, sec. 09 3, ch. 130, SLA 1996, and sec. 1, ch. 109, SLA 1997 is amended to read: 10 Sec. 12. Sections 3 and 5 of this Act take effect October 1, 1999 [1998]. 11 * Sec. 26. Sections 3 and 5, ch. 1, SSSLA 1992 are repealed. 12 * Sec. 27. Section 12, ch. 1, SSSLA 1992, as amended by sec. 3, ch. 68, SLA 1995, sec. 13 3, ch. 130, SLA 1996, sec. 1, ch. 109, SLA 1997, and sec. 25 of this Act, is repealed. 14 * Sec. 28. TRANSITION: AREAS AND COMMUNITIES CLASSIFIED AS RURAL. All 15 communities and areas outside the nonsubsistence areas established by regulations adopted by 16 the Board of Fisheries and the Board of Game and effective on May 15, 1993, are classified 17 as rural for the purpose of this Act. The classifications made under this section are subject 18 to the provisions of AS 16.05.258(c) as repealed and reenacted by sec. 3 of this Act. 19 * Sec. 29. TRANSITION: REGULATIONS. Notwithstanding sec. 31 of this Act, the 20 Board of Fisheries, the Board of Game, and the Department of Fish and Game may 21 immediately proceed to adopt regulations to implement this Act. The regulations take effect 22 under AS 44.62 (Administrative Procedure Act), but not before the effective date provided in 23 sec. 31 of this Act. 24 * Sec. 30. Sections 25 and 29 of this Act take effect immediately under AS 01.10.070(c). 25 * Sec. 31. Except as provided in sec. 30 of this Act, this Act takes effect on the effective 26 date of an amendment to the Constitution of the State of Alaska, approved by the voters in 27 1998, authorizing a priority for subsistence uses of renewable natural resources that is based 28 on place of residence.