00 HOUSE BILL NO. 30                                                                                                     
01 "An Act relating to subsistence use of fish and game, to fish and game advisory                                         
02 committees, and to permits for historic or traditional uses of fish and game and                                        
03 harvest practices; amending the definition of `domicile' for purposes of the Fish                                       
04 and Game Code; and providing for an effective date."                                                                    
05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                               
06    * Section 1.  AS 16.05.258 is repealed and reenacted to read:                                                      
07  Sec. 16.05.258.  Subsistence use and allocation of fish and game.  (a)                                              
08 Except in nonsubsistence areas, the Board of Fisheries and the Board of Game shall                                      
09 identify the fish stocks and game populations, or portions of stocks or populations, that                               
10 are customarily and traditionally taken or used for subsistence.  The commissioner                                      
11 shall provide recommendations to the boards concerning the stock and population                                         
12 identifications.  The boards shall make identifications required under this subsection                                  
13 after receipt of the commissioner's recommendations.                                                                    
14  (b)  The appropriate board shall determine whether a portion of a fish stock or                                       
01 game population identified under (a) of this section can be harvested consistent with                                   
02 sustained yield.  If a portion of a stock or population can be harvested consistent with                                
03 sustained yield, the board shall determine the amount of the harvestable portion that                                   
04 is reasonably necessary for subsistence uses, and,                                                                      
05   (1)  if the harvestable portion of the stock or population is sufficient to                                          
06 provide for all consumptive uses, the appropriate board                                                                 
07   (A)  shall adopt regulations that provide a reasonable opportunity                                                  
08 for subsistence uses of the stock or population;                                                                        
09   (B)  shall adopt regulations that provide for other uses of the                                                     
10 stock or population, subject to preferences among beneficial uses; and                                                  
11   (C)  may adopt regulations to differentiate among uses;                                                             
12   (2)  if the harvestable portion of the stock or population is sufficient to                                          
13 provide for subsistence uses and some, but not all, other consumptive uses, the                                         
14 appropriate board                                                                                                       
15   (A)  shall adopt regulations that provide a reasonable opportunity                                                  
16 for subsistence uses of the stock or population;                                                                        
17   (B)  may adopt regulations that provide for other consumptive                                                       
18 uses of the stock or population; and                                                                                    
19   (C)  shall adopt regulations to differentiate among consumptive                                                     
20 uses that provide for a priority for subsistence uses if regulations are adopted                                        
21 under (B) of this paragraph;                                                                                            
22   (3)  if the harvestable portion of the stock or population is sufficient to                                          
23 provide for subsistence uses, but no other consumptive uses, the appropriate board                                      
24 shall adopt regulations that                                                                                            
25   (A)  provide a reasonable opportunity for subsistence uses of the                                                   
26 stock or population; and                                                                                                
27    (B)  eliminate other consumptive uses in order to provide a                                                        
28 reasonable opportunity for subsistence uses;                                                                            
29   (4)  if the harvestable portion of the stock or population is sufficient to                                          
30 provide a reasonable opportunity for subsistence uses by subsistence users who reside                                   
31 in a subsistence area, but not to all subsistence users of the stock or population, the                                 
01 appropriate board                                                                                                       
02   (A)  shall adopt regulations eliminating consumptive uses other                                                     
03 than subsistence uses;                                                                                                  
04   (B)  shall adopt regulations that provide a reasonable opportunity                                                  
05 for subsistence uses of the stock or population by subsistence users who reside                                         
06 in a subsistence area;                                                                                                  
07   (C)  may adopt regulations that provide for subsistence uses of                                                     
08 the stock or population by subsistence users who do not reside in a subsistence                                         
09 area; and                                                                                                               
10   (D)  shall adopt regulations to differentiate between subsistence                                                   
11 users that provide a priority to subsistence users who reside in a subsistence                                          
12 area if regulations are adopted under (C) of this paragraph;                                                            
13   (5)  if the harvestable portion of the stock or population is sufficient to                                          
14 provide a reasonable opportunity for subsistence uses by subsistence users who reside                                   
15 in the subsistence area where the stock or population is located, but not to all                                        
16 subsistence users who reside in a subsistence area, the appropriate board                                               
17   (A)  shall adopt regulations eliminating consumptive uses other                                                     
18 than subsistence uses;                                                                                                  
19   (B)  shall adopt regulations that provide a reasonable opportunity                                                  
20 for subsistence uses of the stock or population by subsistence users who reside                                         
21 in the subsistence area where the stock or population is located;                                                       
22   (C)  may adopt regulations that provide for subsistence uses of                                                     
23 the stock or population by subsistence users who do not reside in the                                                   
24 subsistence area where the stock or population is located; and                                                          
25   (D)  shall adopt regulations to differentiate between subsistence                                                   
26 users that provide a priority to subsistence users who reside in the subsistence                                        
27 area where the stock or population is located if regulations are adopted under                                          
28 (C) of this paragraph; and                                                                                              
29   (6)  if the harvestable portion of the stock or population is not sufficient                                         
30 to provide a reasonable opportunity for subsistence uses by subsistence users who                                       
31 reside in the subsistence area where the stock or population is located, the appropriate                                
01 board shall                                                                                                             
02   (A)  adopt regulations eliminating consumptive uses other than                                                      
03 subsistence uses by subsistence users who reside in the subsistence area where                                          
04 the stock or population is located;                                                                                     
05   (B)  distinguish among subsistence users who reside in the                                                          
06 subsistence area through limitations based on                                                                           
07   (i)  the customary and direct dependence on the stock or                                                           
08 population by the subsistence user for human consumption as a                                                           
09 mainstay of livelihood;                                                                                                 
10   (ii)  the proximity of the domicile of the subsistence user                                                        
11 to the stock or population; and                                                                                         
12   (iii)  the ability of the subsistence user to obtain food if                                                       
13 subsistence use is restricted or eliminated.                                                                            
14  (c)  The boards, acting jointly, shall identify by regulation the boundaries of                                       
15 subsistence areas and nonsubsistence areas.  A subsistence area is an area or                                           
16 community where dependence on fish and game for nutritional and other subsistence                                       
17 uses is a principal characteristic of the economy, culture, and way of life of the area                                 
18 or community.  In determining whether dependence on fish and game for nutritional                                       
19 and other subsistence uses is a principal characteristic of the economy, culture, and                                   
20 way of life of an area or community under this subsection, the boards shall jointly                                     
21 consider the relative importance of subsistence in the context of the totality of the                                   
22 following socioeconomic characteristics of the area or community:                                                       
23   (1)  the social and economic structure;                                                                              
24   (2)  the stability of the economy;                                                                                   
25   (3)  the extent and the kinds of employment for wages, including full-                                               
26 time, part-time, temporary, and seasonal employment;                                                                    
27   (4)  the amount and distribution of cash income among those domiciled                                                
28 in the area or community;                                                                                               
29   (5)  the cost and availability of goods and services to those domiciled                                              
30 in the area or community;                                                                                               
31   (6)  the variety of fish and game species used by those domiciled in the                                             
01 area or community;                                                                                                      
02   (7)  the seasonal cycle of economic activity;                                                                        
03   (8)  the percentage of those domiciled in the area or community                                                      
04 participating in hunting and fishing activities or using wild fish and game;                                            
05   (9)  the harvest levels of fish and game by those domiciled in the area                                              
06 or community;                                                                                                           
07   (10)  the cultural, social, and economic values associated with the taking                                           
08 and use of fish and game;                                                                                               
09   (11)  the geographic locations where those domiciled in the area or                                                  
10 community hunt and fish;                                                                                                
11   (12)  the extent of sharing and exchange of fish and game by those                                                   
12 domiciled in the area or community;                                                                                     
13   (13)  additional similar factors the boards establish by regulation to be                                            
14 relevant to their determinations under this subsection.                                                                 
15  (d)  A subsistence user is a resident                                                                                 
16   (1)  who resides in the subsistence area in which the fish stock or game                                             
17 population to be taken for subsistence uses is located; or                                                              
18   (2)  who                                                                                                             
19   (A)  resides                                                                                                        
20   (i)  in a nonsubsistence area; or                                                                                  
21   (ii)  in a subsistence area that is outside of the                                                                 
22 subsistence area in which the stock or population to be taken for                                                       
23 subsistence uses is located; and                                                                                        
24   (B)  has demonstrated either                                                                                        
25   (i)  a dependence on the stock or population for                                                                   
26 nutritional or other subsistence uses;                                                                                  
27   (ii) a history of customary and traditional use of the stock                                                       
28 or population; or                                                                                                       
29   (iii) a combination of dependence on the stock or                                                                  
30 population and history of customary and traditional use of the stock or                                                 
31 population.                                                                                                             
01  (e)  Each board shall adopt regulations establishing criteria for identifying a                                       
02 resident who qualifies as a subsistence user under (d)(2) of this section.  In                                          
03 establishing criteria for identifying a resident who has a dependence on a fish stock                                   
04 or game population for nutritional or other subsistence uses, a board shall consider the                                
05 resident's household income, reliance on the stock or population for a significant                                      
06 proportion of food consumed by the resident or the resident's household, and other                                      
07 criteria the board considers relevant.  In establishing criteria for identifying a resident                             
08 who has a history of customary and traditional use of a stock or population, a board                                    
09 shall consider whether the resident has a history of long-term and consistent taking and                                
10 use of the stock or population in accordance with patterns of taking or use of the stock                                
11 or population that have been established over a reasonable period of time, taking into                                  
12 consideration the availability of the stock or population.                                                              
13  (f)  Subsistence hunting or fishing may occur only in subsistence areas.  Fish                                        
14 stocks and game populations, or portions of stocks and populations, not identified                                      
15 under (a) of this section may be taken only under nonsubsistence regulations.                                           
16  (g)  The taking and use of fish and game authorized under this section are                                            
17 subject to regulations regarding open and closed areas, seasons, methods and means,                                     
18 marking and identification requirements, quotas, bag limits, harvest levels, and sex,                                   
19 age, and size limitations.  The taking and use of fish and game authorized under this                                   
20 section are subject to AS 16.05.831 and AS 16.30.                                                                       
21  (h)  This section does not require the Board of Fisheries to close nonretention                                       
22 fishing if the board finds that the mortality caused by nonretention fishing does not                                   
23 jeopardize subsistence uses or the conservation of healthy stocks.                                                      
24  (i)  For purposes of this section, "reasonable opportunity"                                                           
25   (1)  means an opportunity, consistent with customary and traditional                                                 
26 uses, to participate in subsistence hunting or subsistence fishing with a reasonable                                    
27 expectation of success;                                                                                                 
28   (2)  does not mean a guarantee of taking of fish or game.                                                            
29    * Sec. 2.  AS 16.05.260 is repealed and reenacted to read:                                                         
30  Sec. 16.05.260.  Advisory committees.  (a)  The Board of Fisheries and the                                          
31 Board of Game may adopt regulations the boards consider advisable in accordance                                         
01 with AS 44.62 (Administrative Procedure Act) establishing, at places in the state                                       
02 designated by the individual boards, advisory committees composed of persons who                                        
03 collectively represent user groups in the area and who are well informed on the fish                                    
04 or game resources of the locality.  The boards shall set the number and terms of the                                    
05 members of the advisory committees, shall designate one member of each committee                                        
06 as chair, and shall give the chair authority to hold public hearings on fish or game                                    
07 matters.                                                                                                                
08  (b)  Recommendations from the advisory committees on uses other than                                                  
09 subsistence shall be forwarded to the appropriate board for its consideration.  If the                                  
10 Board of Fisheries or the Board of Game chooses not to follow the recommendations                                       
11 of the local advisory committee, the appropriate board shall inform the appropriate                                     
12 advisory committee of this action and state the reasons for not following the                                           
13 recommendations.                                                                                                        
14  (c)  An advisory committee shall send its recommendations on subsistence uses                                         
15 of fish and game to the appropriate regional subsistence council.  If the regional                                      
16 subsistence council does not adopt the recommendation of the advisory committee, the                                    
17 council shall                                                                                                           
18   (1)  inform the advisory committee in writing the reasons for not                                                    
19 adopting the recommendation; and                                                                                        
20   (2)  forward the advisory committee's recommendation to the                                                          
21 appropriate board with the council's reasons for not adopting the recommendation.                                       
22  (d)  The commissioner shall delegate authority to advisory committees for                                             
23 emergency closures during established seasons.  The commissioner may not set aside                                      
24 an emergency closure of a season set by advisory committees under this subsection.                                      
25 The appropriate board shall adopt the necessary regulations governing these closures.                                   
26    * Sec. 3.  AS 16.05 is amended by adding a new section to read:                                                    
27  Sec. 16.05.262.  Regional subsistence councils.  (a)  The Board of Fisheries                                        
28 and the Board of Game shall jointly adopt regulations necessary to implement this                                       
29 section, including regulations establishing at least six subsistence resource regions that,                             
30 taken together, cover the entire state.  The number and boundaries of the regions must                                  
31 be sufficient to ensure that regional differences in subsistence uses are adequately                                    
01 accommodated.                                                                                                           
02  (b)  Each subsistence resource region must be represented by a regional                                               
03 subsistence council with 10 members appointed by the governor.  Four members of                                         
04 each council may be selected from nominees who reside in that region of the state                                       
05 submitted by tribal councils in the region.  Six members of each council may be                                         
06 selected from nominees submitted by local governments and local advisory                                                
07 committees.  Seven members of each council must be subsistence users of fish and                                        
08 game and three members must be sport or commercial users of fish and game.  The                                         
09 members of each council shall be residents and shall serve staggered terms of not more                                  
10 than three years.  A person may be reappointed to serve on a council, with no limit on                                  
11 the number of terms served.  A quorum is six members of a council.  Members of a                                        
12 council serve without compensation but are entitled to per diem and travel expenses                                     
13 authorized for members of boards and commissions under AS 39.20.180.                                                    
14  (c)  Regional subsistence councils shall strive for consensus, but                                                    
15 recommendations shall be decided by majority vote.                                                                      
16  (d)  Each regional subsistence council may                                                                            
17   (1)  elect officers and adopt rules of procedure to govern meetings;                                                 
18   (2)  hold public meetings on fish and game matters and solicit proposals                                             
19 from the public on subsistence uses;                                                                                    
20   (3)  review, evaluate, and make a recommendation, in consultation with                                               
21 the local fish and game advisory committees in its region and with the department, to                                   
22 a board on an existing or proposed regulation, policy, or management plan, or any                                       
23 other matter directly relating to the subsistence use of fish and game in the region;                                   
24   (4)  comment on proposed regulations on hunting and sport, personal                                                  
25 use, and commercial fishing;                                                                                            
26   (5)  make recommendations concerning permits provided in                                                             
27 AS 16.05.330(f);                                                                                                        
28   (6)  submit to the boards, the department, the Secretary of the United                                               
29 States Department of the Interior, and the Secretary of the United States Department                                    
30 of Agriculture, by November 15 of each year, an annual report, containing the                                           
31 following:                                                                                                              
01   (A)  an identification of current and anticipated subsistence uses                                                  
02 of fish and game populations in the region, and other fish and game uses that                                           
03 the council identifies;                                                                                                 
04   (B)  an evaluation of current and anticipated subsistence needs                                                     
05 for use of fish and game populations in the region and of other fish and game                                           
06 needs that the council identifies;                                                                                      
07   (C)  a recommended strategy for the management of fish and                                                          
08 game populations in the region to accommodate the identified fish and game                                              
09 uses and needs; and                                                                                                     
10   (D)  recommendations concerning policies, standards, guidelines,                                                    
11 and regulations to implement the suggested strategy;                                                                    
12   (7)  meet with other regional subsistence councils to develop                                                        
13 recommendations on interregional proposals and issues;                                                                  
14  (8)  use a mediation process; and                                                                                    
15   (9)  perform other duties specified by a board.                                                                      
16  (e)  Each regional subsistence council shall provide a forum for and assist local                                     
17 fish and game advisory committees in the region in obtaining the opinions and                                           
18 proposals of persons interested in fish and game matters so as to achieve the greatest                                  
19 possible local participation in the decision-making process.                                                            
20  (f)  Regulatory proposals relating primarily to subsistence issues that are                                           
21 initiated by the public or by a local fish and game advisory committee must be                                          
22 reviewed by the appropriate regional subsistence council before the appropriate board                                   
23 takes action on the proposal.                                                                                           
24  (g)  The appropriate board shall consider the reports and recommendations of                                          
25 the regional subsistence councils.  A board may not adopt any recommendation by a                                       
26 council that the board determines (1) violates the sustained yield principle, (2) is not                                
27 supported by substantial evidence, (3) is detrimental to subsistence uses, (4) involves                                 
28 an unresolved statewide or interregional subsistence management issue, or (5) is                                        
29 contrary to an overriding statewide fish or game management interest.  If a                                             
30 recommendation by a council is not adopted by a board, the board shall provide a                                        
31 written statement of the factual basis and reasons for its decision and may return the                                  
01 recommendation to the regional subsistence council for further consideration.                                           
02  (h)  A regional subsistence council shall consider proposals from local                                               
03 governments, tribal councils, and local advisory committees that identify local                                         
04 subsistence needs and uses, methods, means, seasons, and other issues related to local                                  
05 subsistence management.                                                                                                 
06  (i)  When implementing the provisions of this section, the boards, the regional                                       
07 subsistence councils, and the department shall seek data from, consult with, and make                                   
08 use of the special knowledge of subsistence users.  If appropriate to implement the                                     
09 provisions of this section, the department may contract for services with subsistence                                   
10 users and local groups in order to use special knowledge of resources in the region.                                    
11    * Sec. 4.  AS 16.05.330(c) is amended to read:                                                                     
12  (c)  The Board of Fisheries and the Board of Game may adopt regulations                                               
13 providing for the issuance and expiration of subsistence permits for areas, villages,                                   
14 communities, groups, or individuals as needed for authorizing, regulating, and                                          
15 monitoring the subsistence harvest of fish and game.  [THE BOARDS SHALL                                                 
16 ADOPT THESE REGULATIONS WHEN THE SUBSISTENCE PREFERENCE                                                                 
17 REQUIRES A REDUCTION IN THE HARVEST OF A FISH STOCK OR GAME                                                             
18 POPULATION BY NONSUBSISTENCE USERS.]                                                                                    
19    * Sec. 5.  AS 16.05.330 is amended by adding a new subsection to read:                                             
20  (f)  The Board of Fisheries and the Board of Game shall adopt regulations                                             
21 authorizing the commissioner to issue permits for the taking of fish and game in order                                  
22 to teach and preserve historic or traditional uses and harvest practices.  The permits                                  
23 issued under the regulations adopted under this subsection do not entitle successful                                    
24 applicants to the subsistence priority under AS 16.05.258.                                                              
25    * Sec. 6.  AS 16.05.940(7) is amended to read:                                                                     
26   (7)  "customary and traditional" means the noncommercial, long-term,                                                 
27 and consistent taking of, use of, and reliance upon fish or game in a specific area and                                 
28 the [USE] patterns  of taking or use  of that fish or game that have been established                                 
29 over a reasonable period of time taking into consideration the availability of the fish                                 
30 or game;                                                                                                                
31    * Sec. 7.  AS 16.05.940(8) is amended to read:                                                                     
01   (8)  "customary trade" means the limited noncommercial exchange, for                                                 
02  cash, of fish or game or their parts in  minimal  quantities  [AMOUNTS OF CASH],                                   
03 as restricted by the appropriate board [, OF FISH OR GAME RESOURCES]; the                                               
04 terms of this paragraph do not restrict money sales of furs and furbearers;                                             
05    * Sec. 8.  AS 16.05.940(11) is amended to read:                                                                    
06   (11)  "domicile" means the true and permanent home of a person from                                                  
07 which the person has no present intention of moving and to which the person intends                                     
08 to return whenever the person is away; [DOMICILE MAY BE PROVED BY                                                       
09 PRESENTING EVIDENCE ACCEPTABLE TO THE BOARDS OF FISHERIES AND                                                           
10 GAME;]                                                                                                                  
11    * Sec. 9.  AS 16.05.940(30) is amended to read:                                                                    
12   (30)  "subsistence fishing" means the taking of, fishing for, or                                                     
13 possession of fish, shellfish, or other fisheries resources by a resident [DOMICILED                                    
14 IN A RURAL AREA OF THE STATE] for subsistence uses with gill net, seine, fish                                           
15 wheel, long line, or other means defined by the Board of Fisheries;                                                     
16    * Sec. 10.  AS 16.05.940(31) is amended to read:                                                                   
17   (31)  "subsistence hunting" means the taking of, hunting for, or                                                     
18 possession of game by a resident [DOMICILED IN A RURAL AREA OF THE                                                      
19 STATE] for subsistence uses by means defined by the Board of Game;                                                      
20    * Sec. 11.  AS 16.05.940(32) is amended to read:                                                                   
21   (32)  "subsistence uses" means the noncommercial, customary and                                                      
22 traditional uses of wild, renewable resources by a resident [DOMICILED IN A                                             
23 RURAL AREA OF THE STATE] for direct personal or family consumption as food,                                             
24 shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft                             
25 articles out of nonedible by-products of fish and  game  [WILDLIFE] resources taken                                   
26 for personal or family consumption, and for the customary trade, barter, or sharing for                                 
27 personal or family consumption; in this paragraph, "family" means persons related by                                    
28 blood, marriage, or adoption, and a person living in the household on a permanent                                       
29 basis;                                                                                                                  
30    * Sec. 12.  AS 38.05.945(d) is amended to read:                                                                    
31  (d)  Notice at least 30 days before action under (a)(5) of this section shall be                                      
01 given to appropriate                                                                                                    
02   (1)  regional  subsistence  [FISH AND GAME] councils established                                                   
03 under  AS 16.05.262  [AS 16.05.260]; and                                                                              
04   (2)  coastal resource service areas organized under AS 46.40.110 -                                                   
05 46.40.210.                                                                                                              
06    * Sec. 13.  TRANSITION: AREAS AND COMMUNITIES CLASSIFIED                                                           
07 AS SUBSISTENCE AREAS.  All areas and communities outside the nonsubsistence areas                                       
08 established by regulations adopted by the Board of Fisheries and the Board of Game and                                  
09 effective on May 15, 1993, are classified as subsistence areas for the purpose of this Act.  The                        
10 classifications made under this section are subject to revision under AS 16.05.258(c), as                               
11 repealed and reenacted in sec. 1 of this Act.                                                                           
12    * Sec. 14.  TRANSITION: REGULATIONS.  Notwithstanding sec. 16 of this Act, the                                     
13 Board of Fisheries, the Board of Game, and the Department of Fish and Game may                                          
14 immediately proceed to adopt regulations to implement this Act.  The regulations take effect                            
15 under AS 44.62 (Administrative Procedure Act), but not before the effective date provided in                            
16 sec. 16 of this Act.                                                                                                    
17    * Sec. 15.  Section 14 of this Act takes effect immediately under AS 01.10.070(c).                                 
18    * Sec. 16.  Except as provided in sec. 15 of this Act, this Act takes effect on the effective                      
19 date of an amendment to the Constitution of the State of Alaska, approved by the voters in                              
20 2000, authorizing a priority for subsistence users of fish and game that is based on place of                           
21 residence, dependence on fish and game for subsistence uses, or customary and traditional use                           
22 of fish and game for subsistence uses.