HB 14: "An Act relating to subsistence use of fish and game, to fish and game advisory committees, and to permits for historic or traditional uses of fish and game and harvest practices; amending the definition of 'domicile' for purposes of the Fish and Game Code; and providing for an effective date."
00 HOUSE BILL NO. 14 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 harvest 03 practices; amending the definition of 'domicile' for purposes of the Fish and Game 04 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 AS 16.05.258 is repealed and reenacted to read: 07 Sec. 16.05.258.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, 10 that 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 is 04 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 08 opportunity 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 16 opportunity 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 26 the stock or population; and 27 (B) eliminate other consumptive uses in order to 28 provide a 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 05 opportunity for subsistence uses of the stock or population by subsistence users 06 who reside 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 20 opportunity for subsistence uses of the stock or population by subsistence users 21 who reside 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 or 18 community. In determining whether dependence on fish and game for nutritional and 19 other subsistence uses is a principal characteristic of the economy, culture, and way of 20 life of an area or community under this subsection, the boards shall jointly consider 21 the relative importance of subsistence in the context of the totality of the following 22 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 in 30 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 08 taking 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 28 stock 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 or 04 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 10 and use of the stock or population in accordance with patterns of taking or use of the 11 stock or population that have been established over a reasonable period of time, taking 12 into 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 or 04 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 30 that, taken together, cover the entire state. The number and boundaries of the regions 31 must be sufficient to ensure that regional differences in subsistence uses are
01 adequately 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 10 more than three years. A person may be reappointed to serve on a council, with no 11 limit on the number of terms served. A quorum is six members of a council. 12 Members of a council serve without compensation but are entitled to per diem and 13 travel expenses authorized for members of boards and commissions under 14 AS 39.20.180. 15 (c) Regional subsistence councils shall strive for consensus, but 16 recommendations shall be decided by majority vote. 17 (d) Each regional subsistence council may 18 (1) elect officers and adopt rules of procedure to govern meetings; 19 (2) hold public meetings on fish and game matters and solicit 20 proposals from the public on subsistence uses; 21 (3) review, evaluate, and make a recommendation, in consultation with 22 the local fish and game advisory committees in its region and with the department, to a 23 board on an existing or proposed regulation, policy, or management plan, or any other 24 matter directly relating to the subsistence use of fish and game in the region; 25 (4) comment on proposed regulations on hunting and sport, personal 26 use, and commercial fishing; 27 (5) make recommendations concerning permits provided in 28 AS 16.05.330(f); 29 (6) submit to the boards, the department, the Secretary of the United 30 States Department of the Interior, and the Secretary of the United States Department 31 of Agriculture, by November 15 of each year, an annual report, containing the
01 following: 02 (A) an identification of current and anticipated subsistence uses 03 of fish and game populations in the region, and other fish and game uses that 04 the council identifies; 05 (B) an evaluation of current and anticipated subsistence needs 06 for use of fish and game populations in the region and of other fish and game 07 needs that the council identifies; 08 (C) a recommended strategy for the management of fish and 09 game populations in the region to accommodate the identified fish and game 10 uses and needs; and 11 (D) recommendations concerning policies, standards, 12 guidelines, and regulations to implement the suggested strategy; 13 (7) meet with other regional subsistence councils to develop 14 recommendations on interregional proposals and issues; 15 (8) use a mediation process; and 16 (9) perform other duties specified by a board. 17 (e) Each regional subsistence council shall provide a forum for and assist local 18 fish and game advisory committees in the region in obtaining the opinions and 19 proposals of persons interested in fish and game matters so as to achieve the greatest 20 possible local participation in the decision-making process. 21 (f) Regulatory proposals relating primarily to subsistence issues that are 22 initiated by the public or by a local fish and game advisory committee must be 23 reviewed by the appropriate regional subsistence council before the appropriate board 24 takes action on the proposal. 25 (g) The appropriate board shall consider the reports and recommendations of 26 the regional subsistence councils. A board may not adopt any recommendation by a 27 council that the board determines (1) violates the sustained yield principle, (2) is not 28 supported by substantial evidence, (3) is detrimental to subsistence uses, (4) involves 29 an unresolved statewide or interregional subsistence management issue, or (5) is 30 contrary to an overriding statewide fish or game management interest. If a 31 recommendation by a council is not adopted by a board, the board shall provide a
01 written statement of the factual basis and reasons for its decision and may return the 02 recommendation to the regional subsistence council for further consideration. 03 (h) A regional subsistence council shall consider proposals from local 04 governments, tribal councils, and local advisory committees that identify local 05 subsistence needs and uses, methods, means, seasons, and other issues related to local 06 subsistence management. 07 (i) When implementing the provisions of this section, the boards, the regional 08 subsistence councils, and the department shall seek data from, consult with, and make 09 use of the special knowledge of subsistence users. If appropriate to implement the 10 provisions of this section, the department may contract for services with subsistence 11 users and local groups in order to use special knowledge of resources in the region. 12 * Sec. 4. AS 16.05.330(c) is amended to read: 13 (c) The Board of Fisheries and the Board of Game may adopt regulations 14 providing for the issuance and expiration of subsistence permits for areas, villages, 15 communities, groups, or individuals as needed for authorizing, regulating, and 16 monitoring the subsistence harvest of fish and game. [THE BOARDS SHALL 17 ADOPT THESE REGULATIONS WHEN THE SUBSISTENCE PREFERENCE 18 REQUIRES A REDUCTION IN THE HARVEST OF A FISH STOCK OR GAME 19 POPULATION BY NONSUBSISTENCE USERS.] 20 * Sec. 5. AS 16.05.330 is amended by adding a new subsection to read: 21 (f) The Board of Fisheries and the Board of Game shall adopt regulations 22 authorizing the commissioner to issue permits for the taking of fish and game in order 23 to teach and preserve historic or traditional uses and harvest practices. The permits 24 issued under the regulations adopted under this subsection do not entitle successful 25 applicants to the subsistence priority under AS 16.05.258. 26 * Sec. 6. AS 16.05.940(7) is amended to read: 27 (7) "customary and traditional" means the noncommercial, long-term, 28 and consistent taking of, use of, and reliance upon fish or game in a specific area and 29 the [USE] patterns of taking or use of that fish or game that have been established 30 over a reasonable period of time taking into consideration the availability of the fish or 31 game;
01 * Sec. 7. AS 16.05.940(8) is amended to read: 02 (8) "customary trade" means the limited noncommercial exchange, for 03 cash, of fish or game or their parts in minimal quantities [AMOUNTS OF CASH], 04 as restricted by the appropriate board [, OF FISH OR GAME RESOURCES]; the 05 terms of this paragraph do not restrict money sales of furs and furbearers; 06 * Sec. 8. AS 16.05.940(11) is amended to read: 07 (11) "domicile" means the true and permanent home of a person from 08 which the person has no present intention of moving and to which the person intends 09 to return whenever the person is away; [DOMICILE MAY BE PROVED BY 10 PRESENTING EVIDENCE ACCEPTABLE TO THE BOARDS OF FISHERIES 11 AND GAME;] 12 * Sec. 9. AS 16.05.940(30) is amended to read: 13 (30) "subsistence fishing" means the taking of, fishing for, or 14 possession of fish, shellfish, or other fisheries resources by a resident [DOMICILED 15 IN A RURAL AREA OF THE STATE] for subsistence uses with gill net, seine, fish 16 wheel, long line, or other means defined by the Board of Fisheries; 17 * Sec. 10. AS 16.05.940(31) is amended to read: 18 (31) "subsistence hunting" means the taking of, hunting for, or 19 possession of game by a resident [DOMICILED IN A RURAL AREA OF THE 20 STATE] for subsistence uses by means defined by the Board of Game; 21 * Sec. 11. AS 16.05.940(32) is amended to read: 22 (32) "subsistence uses" means the noncommercial, customary and 23 traditional uses of wild, renewable resources by a resident [DOMICILED IN A 24 RURAL AREA OF THE STATE] for direct personal or family consumption as food, 25 shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft 26 articles out of nonedible by-products of fish and game [WILDLIFE] resources taken 27 for personal or family consumption, and for the customary trade, barter, or sharing for 28 personal or family consumption; in this paragraph, "family" means persons related by 29 blood, marriage, or adoption, and a person living in the household on a permanent 30 basis; 31 * Sec. 12. AS 38.05.945(d) is amended to read:
01 (d) Notice at least 30 days before action under (a) (5) of this section shall be 02 given to appropriate 03 (1) regional subsistence [FISH AND GAME] councils established 04 under AS 16.05.262 [AS 16.05.260]; and 05 (2) coastal resource service areas organized under AS 46.40.110 - 06 46.40.210. 07 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 08 read: 09 TRANSITION: AREAS AND COMMUNITIES CLASSIFIED AS SUBSISTENCE 10 AREAS. All areas and communities outside the nonsubsistence areas established by 11 regulations adopted by the Board of Fisheries and the Board of Game and effective on 12 May 15, 1993, are classified as subsistence areas for the purpose of this Act. The 13 classifications made under this section are subject to revision under AS 16.05.258(c), as 14 repealed and reenacted in sec. 1 of this Act. 15 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 16 read: 17 TRANSITION: REGULATIONS. Notwithstanding sec. 16 of this Act, the Board of 18 Fisheries, the Board of Game, and the Department of Fish and Game may immediately 19 proceed to adopt regulations to implement this Act. The regulations take effect under 20 AS 44.62 (Administrative Procedure Act), but not before the effective date provided in sec. 16 21 of this Act. 22 * Sec. 15. Section 14 of this Act takes effect immediately under AS 01.10.070(c). 23 * Sec. 16. Except as provided in sec. 15 of this Act, this Act takes effect on the effective 24 date of an amendment to the Constitution of the State of Alaska, approved by the voters in 25 2002, authorizing a priority for subsistence users of fish and game that is based on place of 26 residence, dependence on fish and game for subsistence uses, or customary and traditional use 27 of fish and game for subsistence uses.