Alaska State Legislature

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CSHB 406(FIN) AM(EFD FLD): "An Act authorizing the Board of Fisheries and the Board of Game to identify fish and game that are taken for subsistence and to identify subsistence and nonsubsistence areas; relating to the establishment of preferences for and to regulation of subsistence fishing and hunting; relating to advisory committees."

00CS FOR HOUSE BILL NO. 406(FIN) am(efd fld) 01 "An Act authorizing the Board of Fisheries and the Board of Game to identify 02 fish and game that are taken for subsistence and to identify subsistence and 03 nonsubsistence areas; relating to the establishment of preferences for and to 04 regulation of subsistence fishing and hunting; relating to advisory committees." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. POLICY AND FINDINGS. (a) It is the policy of the legislature that 07 (1) consistent with sound management principles and the conservation of 08 healthy stocks of fish and healthy populations of game, the use of fish and game resources in 09 Alaska is to the extent practicable to have no substantial adverse effects on subsistence users 10 who depend on subsistence uses of the fish and game resources; 11 (2) consistent with management of fish and game in accordance with 12 recognized scientific principles, subsistence users engaged in a subsistence way of life have 13 the opportunity to do so; 14 (3) nonwasteful subsistence uses of fish and game and other renewable

01 resources shall be the preferred consumptive uses of those resources on lands in Alaska; when 02 there is a shortage of fish and game and it is necessary to restrict taking of fish and game in 03 order to assure the continued viability of a fish stock or game population or the continuation 04 of subsistence uses of the stock or population, the taking of the stock or population for 05 nonwasteful subsistence uses shall be given preference over other consumptive uses; 06 (4) a subsistence user is a person who has demonstrated a customary and 07 traditional dependence on a particular fish stock or game population in an area outside of 08 nonsubsistence areas in Alaska. 09 (b) The legislature finds that 10 (1) a classification scheme employing individual characteristics is less invasive 11 of the open access values of art. VIII of the Constitution of the State of Alaska and more apt 12 to accomplish the purpose of this Act than a geographically based urban-rural residency 13 criterion; 14 (2) Webster's New World Dictionary, Second College Edition, defines "rural" 15 to mean "of or characteristic of the country, country life, or country people; rustic"; 16 (3) the policy set out in (a) of this section is consistent with the policy of the 17 Congress of the United States as expressed in Title VIII of the Alaska National Interest Lands 18 Conservation Act (P.L. 96-487). 19 * Sec. 2. AS 16.05.258 is repealed and reenacted to read: 20 Sec. 16.05.258. Subsistence use and allocation of fish and game. (a) 21 Except in nonsubsistence areas, the Board of Fisheries and the Board of Game shall 22 identify the fish stocks and game populations, or portions of stocks or populations, that 23 are customarily and traditionally taken or used for subsistence. The commissioner shall 24 provide recommendations to the boards concerning the stock and population 25 identifications. The boards shall make identifications required under this subsection 26 after receipt of the commissioner's recommendations. 27 (b) The appropriate board shall determine whether a portion of a fish stock or 28 game population identified under (a) of this section can be harvested consistent with 29 sustained yield. If a portion of a stock or population can be harvested consistent with 30 sustained yield, the board shall determine an amount of the harvestable portion that is 31 reasonably necessary for subsistence uses by residents, and, if the harvestable portion

01 of the stock or population 02 (1) is sufficient to provide for all consumptive uses, the appropriate 03 board 04 (A) shall adopt regulations that provide a reasonable opportunity 05 for all uses of the stock or population; and 06 (B) may adopt regulations consistent with art. VIII, sec. 4, 07 Constitution of the State of Alaska, that recognizes preference among beneficial 08 uses; 09 (2) is sufficient to provide a reasonable opportunity for subsistence uses 10 by qualified subsistence users and for some, but not all, other consumptive uses, the 11 appropriate board 12 (A) shall adopt regulations that provide a reasonable opportunity 13 for subsistence uses of the stock or population by qualified subsistence users; 14 (B) may adopt regulations that provide for other consumptive 15 uses of the stock or population; 16 (C) shall adopt regulations to differentiate among consumptive 17 uses that provide for a preference for the subsistence uses by qualified 18 subsistence users if regulations are adopted under (B) of this paragraph; and 19 (D) shall seek to reestablish stock or population levels, 20 consistent with sound biological and environmental principles, which will 21 attempt to restore a reasonable opportunity for all consumptive uses; 22 (3) is sufficient to provide a reasonable opportunity for subsistence uses 23 by qualified subsistence users, but no other consumptive uses, the appropriate board 24 shall 25 (A) adopt regulations that provide a reasonable opportunity for 26 subsistence uses of the stock or population by qualified subsistence users; 27 (B) restrict or eliminate other consumptive uses of the stock or 28 population; and 29 (C) seek to reestablish stock or population levels, consistent 30 with sound biological and environmental principles, which will attempt to 31 restore a reasonable opportunity for all consumptive uses;

01 (4) is not sufficient to provide a reasonable opportunity for human 02 consumptive subsistence uses by all qualified subsistence users, the appropriate board 03 shall 04 (A) adopt regulations eliminating consumptive uses, other than 05 human consumptive subsistence uses of the stock or population by qualified 06 subsistence users; 07 (B) distinguish among qualified subsistence users, through 08 limitations based on 09 (i) the customary and direct dependence on the stock or 10 population by the subsistence user for human consumption as a 11 mainstay of livelihood; and 12 (ii) the ability of the subsistence user to obtain food if 13 subsistence use of the stock or population is restricted or eliminated; 14 and 15 (C) seek to reestablish stock or population levels, consistent 16 with sound biological and environmental principles, which will attempt to 17 restore a reasonable opportunity for all consumptive uses. 18 (c) For purposes of (b) of this section, a qualified subsistence user is a 19 resident, without regard to the location of the resident's domicile in the state, who has 20 demonstrated a customary and traditional dependence on a particular fish stock or 21 game population identified under (a) of this section. To determine whether a resident 22 is a qualified subsistence user, the Board of Fisheries or the Board of Game, as 23 appropriate, shall establish criteria for determining if a resident has demonstrated a 24 customary and traditional dependence on the stock or population based on 25 (1) past use of the stock or population; 26 (2) lack of alternative resources; 27 (3) the proportion of diet made up of subsistence resources; 28 (4) the variety of fish and game species consumed; 29 (5) the importance of sharing and exchange of fish and game resources; 30 (6) the number of days engaged in harvesting fish and game resources. 31 (d) Notwithstanding (c) of this section, a resident who is domiciled

01 (1) in an area that is determined by the appropriate board to be 02 customarily and traditionally dependent on the stock or population that is described in 03 (b)(2) - (4) of this section is presumed to be a qualified subsistence user; 04 (2) outside of an area that is determined by the appropriate board to be 05 customarily and traditionally dependent on the stock or population that is described in 06 (b)(2) - (4) of this section is presumed not to be a qualified subsistence user. 07 (e) A presumption established under (d) of this section is rebuttable by a 08 preponderance of the evidence presented at a hearing before the Board of Fisheries or 09 Board of Game, as appropriate. Each board shall adopt procedures by which the board 10 shall determine the qualifications of a person who challenges a presumption established 11 under (d) of this section or whose eligibility to engage in subsistence fishing or 12 hunting for a specific stock or population is challenged. The procedure established by 13 a board must include AS 44.62.330 - 44.62.630. 14 (f) The Board of Fisheries shall identify by regulation the boundaries of 15 nonsubsistence fishing areas. The Board of Game shall identify by regulations the 16 boundaries of nonsubsistence hunting areas. The boards may act jointly in identifying 17 the boundaries of nonsubsistence fishing and hunting areas. A nonsubsistence fishing 18 area or a nonsubsistence hunting area is an area or community where a cash-based 19 economy is a principal characteristic of the economy, culture, and way of life of the 20 area or community. In determining whether a cash-based economy is a principal 21 characteristic of the economy, culture, and way of life of an area or community under 22 this subsection, each board shall consider the relative importance of a cash-based 23 economy to the area or community in the context of the totality of the following 24 socioeconomic characteristics of the area or community: 25 (1) the social and economic structure; 26 (2) the stability of the economy; 27 (3) the extent and kinds of employment for wages, including full-time, 28 part-time, temporary, and seasonal employment; 29 (4) the amount and distribution of cash income among those domiciled 30 in the area or community; 31 (5) the cost and availability of goods and services to those domiciled

01 in the area or community; 02 (6) the variety of fish and game species used by those domiciled in the 03 area or community; 04 (7) the seasonal cycle of economic activity; 05 (8) the percentage of those domiciled in the area or community 06 participating in hunting and fishing activities or using wild fish and game; 07 (9) the harvest levels of fish and game by those domiciled in the area 08 or community; 09 (10) the cultural, social, and economic values associated with the taking 10 and use of fish and game; 11 (11) the geographic locations where those domiciled in the area or 12 community hunt and fish; 13 (12) the extent of sharing and exchange of fish and game by those 14 domiciled in the area or community; 15 (13) the other sources of direct and indirect economic support available 16 to those domiciled in the area or community; 17 (14) additional similar factors a board establishes by regulation to be 18 relevant to its determinations under this subsection. 19 (g) Fishing under subsistence regulations may not occur in a nonsubsistence 20 fishing area identified under this section. Hunting under subsistence regulations may 21 not occur in a nonsubsistence hunting area identified under this section. Fish stocks 22 and game populations, or portions of fish stocks and game populations, not identified 23 under (a) of this section may be taken only under nonsubsistence regulations. 24 (h) The taking and use of fish and game authorized under this section are 25 subject to 26 (1) AS 16.05.831 and AS 16.30; and 27 (2) regulations adopted by the appropriate board regarding open and 28 closed areas, seasons, methods and means, marking and identification requirements, 29 quotas, bag limits, harvest levels, and sex, age, and size limitations. 30 (i) A person may not knowingly provide false information to the department 31 or a board regarding the taking or use of fish or game for subsistence uses or regarding

01 the person's or another person's eligibility to engage in subsistence uses of fish or 02 game. Notwithstanding other provisions of this chapter, a person who violates this 03 subsection is guilty of a class A misdemeanor. In addition to the imposition of other 04 penalties provided by law under AS 12.55, if a person is convicted of violating this 05 subsection, the court shall suspend the person's hunting and fishing privileges for not 06 less than one year. In this subsection, "knowingly" has the meaning given in 07 AS 11.81.900. 08 (j) For purposes of this section, 09 (1) "preference" means an advantage, but not necessarily an exclusive 10 privilege, conferred on a use of fish and game over other uses through the adoption 11 of seasons, areas, bag limits, methods and means, and other regulations that take into 12 consideration the consumptive uses and harvest methods of the user groups; 13 (2) "reasonable opportunity" means an opportunity, as determined by 14 the appropriate board, that allows a normally diligent hunter or fisherman to participate 15 in a hunt or fishery with a reasonable expectation of success in taking fish or game; 16 "reasonable opportunity" does not mean a guarantee of taking fish or game; 17 (3) "sustained yield" means a level of utilization of a fish or game 18 population for consumptive uses by humans that is capable of being maintained in 19 perpetuity. 20 * Sec. 3. AS 16.05.260 is amended to read: 21 Sec. 16.05.260. Local and regional advisory [ADVISORY] committees. (a) 22 The Board of Fisheries and the Board of Game may adopt regulations they consider 23 advisable in accordance with AS 44.62 (Administrative Procedure Act) establishing, 24 at places in the state designated by the individual boards, local advisory committees 25 to be composed of persons well informed on the fish or game resources of the locality. 26 The boards shall set the number and terms of each of the members of the local 27 advisory committees, shall designate [DELEGATE] one member of each committee 28 as chair [CHAIRMAN], and shall give the chair [CHAIRMAN] authority to hold 29 public hearings on fish or game matters. Recommendations from the local advisory 30 committees shall be forwarded to regional advisory committees and to the 31 appropriate board for their consideration . If [BUT IF] the Board of Fisheries or the

01 Board of Game chooses not to follow the recommendations of the local advisory 02 committee , the appropriate board shall inform the appropriate local advisory committee 03 of this action and state the reasons for not following the recommendations. 04 (b) The Board of Fisheries and the Board of Game, acting jointly, shall 05 establish six fish and game regulatory regions that together comprise the whole 06 of the state and shall establish a regional advisory committee for each region. 07 Each regional advisory committee shall be composed of nine members who are 08 appointed by the governor and who are well informed on the fish or game 09 resources of the region in which the committee is located. At least five of the 10 members of each regional advisory committee shall reside in the fish and game 11 regulatory region in which the committee is located. The boards shall set the 12 terms of each of the members of the regional advisory committees, shall designate 13 one member of each committee as chair, and shall give the chair authority to hold 14 public hearings on fish or game matters. Recommendations from the regional 15 advisory committees shall be forwarded to the appropriate board for the board's 16 consideration. A board may choose not to follow the recommendations of a 17 regional advisory committee that the board determines are not supported by 18 substantial evidence presented to the board, violate recognized principles of fish 19 or game conservation, are detrimental to the satisfaction of subsistence needs, or 20 are inconsistent with sound public policy. If a board chooses not to follow a 21 recommendation of a regional advisory committee, the appropriate board shall 22 inform the regional advisory committee of this action and state the reasons for not 23 following the recommendation. 24 (c) The commissioner shall delegate authority to local advisory committees for 25 emergency closures during established seasons. The commissioner is empowered to 26 set aside and make null and void only opening of seasons set by the local advisory 27 committees under this section. The appropriate board shall adopt the necessary 28 regulations governing these closures. 29 * Sec. 4. AS 16.05.940(7) is amended to read: 30 (7) "customary and traditional" means the noncommercial, long-term, 31 and consistent taking of, use of, and reliance upon fish or game in a specific area and

01 the [USE] patterns of taking or use of that fish or game that have been established 02 over a reasonable period of time taking into consideration the availability of the fish 03 or game; 04 * Sec. 5. AS 16.05.940(30) is amended to read: 05 (30) "subsistence fishing" means the taking of, fishing for, or 06 possession of fish, shellfish, or other fisheries resources [BY A RESIDENT 07 DOMICILED IN A RURAL AREA OF THE STATE] for subsistence uses with gill 08 net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; 09 * Sec. 6. AS 16.05.940(31) is amended to read: 10 (31) "subsistence hunting" means the taking of, hunting for, or 11 possession of game [BY A RESIDENT DOMICILED IN A RURAL AREA OF THE 12 STATE] for subsistence uses by means defined by the Board of Game; 13 * Sec. 7. AS 16.05.940(32) is amended to read: 14 (32) "subsistence uses" means the noncommercial, customary and 15 traditional uses of wild, renewable resources [BY A RESIDENT DOMICILED IN A 16 RURAL AREA OF THE STATE] for direct personal or family consumption as food, 17 shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft 18 articles out of nonedible by-products of fish and wildlife resources taken for personal 19 or family consumption, and for the customary trade, barter, or sharing for personal or 20 family consumption; in this paragraph, "family" means persons related by blood, 21 marriage, or adoption, and a person living in the household on a permanent basis; 22 * Sec. 8. AS 38.05.945(d) is amended to read: 23 (d) Notice at least 30 days before action under (a)(5) of this section shall be 24 given to appropriate 25 (1) regional advisory committees [FISH AND GAME COUNCILS] 26 established under AS 16.05.260; and 27 (2) coastal resource service areas organized under AS 46.40.110 - 28 46.40.210. 29 * Sec. 9. AS 16.05.940(27) is repealed. 30 * Sec. 10. Sections 3 and 5, ch. 1, SSSLA 1992, are repealed. 31 * Sec. 11. TRANSITION: SUBSISTENCE AREAS. (a) Notwithstanding AS 16.05.258,

01 as repealed and reenacted by sec. 2 of this Act, an area located outside of a nonsubsistence 02 area established by the Board of Fisheries and the Board of Game as of May 15, 1993, is a 03 subsistence fishing and hunting area for the purposes of AS 16.05.258, as repealed and 04 reenacted by sec. 2 of this Act. Subsistence fishing and hunting areas established by this 05 subsection are superseded by the taking effect of regulations identifying and delineating 06 nonsubsistence fishing areas and nonsubsistence hunting areas under AS 16.05.258, as repealed 07 and reenacted by sec. 2 of this Act, and (b) of this section. 08 (b) Within two years after the effective date of this section, the Board of Fisheries and 09 the Board of Game shall identify and delineate nonsubsistence fishing areas and 10 nonsubsistence hunting areas, respectively, in accordance with AS 16.05.258, as repealed and 11 reenacted by sec. 2 of this Act.