Legislature(1997 - 1998)
05/09/1998 09:00 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL 406
"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."
Co-chair Sharp addressed the fiscal notes. He referred to a
recap of the fiscal notes in the members' files.
Senator Phillips MOVED to MODIFY the fiscal notes to change
them all to federal funds except for the fiscal notes from
the Alaska Courts and the Department of Natural Resources
(Department of Law, Civil Division, component DNR).
Senator Adams OBJECTED because there had not been a
discussion on HB 406 and he did not understand why there
were nearly $3 million in fiscal notes.
A roll call was taken on the motion.
IN FAVOR: Parnell, Phillips, Donley, Pearce, Sharp
OPPOSED: Adams
Senator Torgerson was absent from the vote.
The motion PASSED (5/1). The fiscal notes were changed to
federal funds except for Alaska Courts and the Department
of Law.
Senator Adams wanted clarification about the
constitutionality of the bill.
STEVE WHITE, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,
replied that there were two sections of the bill that
raised constitutional issues. The first section was the one
dealing with eligibility for subsistence, or who would be
considered a qualified subsistence user. One section of the
bill would qualify people based on residency; people would
get a presumption in favor of eligibility or a presumption
against eligibility based on whether they lived in a
subsistence-dependent area. A constitutional issue would be
raised under equal-access clauses based upon the supreme
court's decision in a case a few years prior. He detailed
the reference related to page 4, line 31 to page 5, line
13, subsections (d) and (e).
Mr. White continued that there were essentially two ways to
become a qualified subsistence user under the bill. The
first would be to qualify under individual criteria, which
were administered through a process before the board (in
subsection (c)). The presumptions based on where a person
lived were in subsection (d); the way the presumptions
would operate was described in subsection (e). There were
constitutional issues under the McDowell and Camacho
decisions because the presumptions were based on where a
person lived.
Mr. White noted that there was also a possible second
constitutional issue in subsection (c) that was not as
clear; one of the criterion to become a certain kind of
subsistence user was history of use of a stock or
population; the question had been raised of whether the
provision would create a closed class, or one that no one
could enter in the future. In other words, a person could
not become a subsistence user unless they used the stock or
population for subsistence, but on the other hand, the
person could not use the stock or population unless they
were a subsistence user; it created a no-win situation. He
thought the issue could be reconciled if past use could be
established through some other use besides subsistence, for
example, through sport or commercial use. The resolution
could be difficult but could address concerns about
creating a closed class.
Mr. White summarized that the principal constitutional
issue was raised by the presumptions based upon residency
in the other two sections.
Co-chair Sharp asked whether the current Tier II was based
a point system for qualification related to past usages and
where a person lived.
Mr. White explained that Tier II had two criteria left
after the supreme court removed the "where you live"
criteria; one related to a person's dependency on a
particular stock or population and the second related to
the availability of alternative resources. The system was
not closed because a person was already a subsistence user;
the legislation would qualify them through the other two
Tier II criteria. A person would qualify in the first place
in subsection (c) as a subsistence user.
Co-chair Sharp noted that Tier II applications asked how
long an applicant had lived in the area and used the
resource; the longer and more often used, the more points,
and the more ability to qualify for a permit. He mentioned
something about being tied to a region, which he did not
think had been challenged.
Senator Adams asked whether the bill would comply with the
Alaska National Interest Lands Conservation Act (ANILCA).
Mr. White responded that he did not believe the bill would
comply with ANILCA. He thought there would have to be
changes to the bill or to ANILCA in order to regain state
management.
Senator Adams pointed out that Senator Ted Stevens had
amendments regarding ANILCA. He asked for more details
about the amendments and whether they would be beneficial
to the state of Alaska.
Co-chair Sharp did not think what Senator Stevens would do
had any relationship to HB 406. He opined that Senator
Stevens did things he said he would not do and did not do
other things he said he would do.
Senator Adams argued that possible provisions in HB 406
could result in dual management.
Co-chair Sharp believed that Senator Stevens had been
"flexible" in the past.
Mr. White described the amendments; whether they were
beneficial to the state was a judgment the legislators
could make. He underlined that the amendments would not be
truly effective until December 1, and then only if the
state had a law that came in compliance with ANILCA.
Mr. White provided an overview of what the amendments would
do. The amendments would clarify what federal lands were;
ANILCA governed subsistence uses on federal lands. The
amendments would make certain findings, one of which had
been controversial. The amendments would define customary,
traditional uses, commercial trade, and rural residency in
Alaska, and they would establish reasonable opportunities
to measure subsistence under federal law. The definitions
and establishment of reasonable opportunity would bring
ANILCA closer to what the state's statutory definitions and
practices had been over the years. The amendments would
specify the composition and operation of regional councils,
which was not present in the existing version of ANILCA.
The amendments would clarify what would happen when the
state came into compliance; the state would unequivocally
regain management, unless the state was found by a court to
be out of compliance. The amendments dealt with federal
court oversight and would establish that state agencies
(such as state boards) had the same deference as equivalent
federal agencies (such as federal boards) and that the
decisions made by the boards could not be overturned unless
found to be arbitrary, capricious, an abuse of discretion,
or otherwise in violation of law. In other words, the
federal courts would have to defer to interpretations or
adoptions of subsistence regulations by state boards,
unless they were defective in any one of the three listed
ways. Finally, the amendments would not prohibit the state
or the federal government from co-managing with other land-
use organizations or organizations involved in subsistence
resource.
Co-chair Sharp queried the constitutionality and
workability of HB 406.
TED POPELY, COUNSEL, SENATE AND HOUSE MAJORITIES, responded
that the bill as written conformed to the Alaska
Constitution and would not require an amendment. He added
that the provision in the bill that had raised concerns
related to community-based presumptions that were fully
rebuttable and had been argued to go afoul of the equal-
access provisions, including uniform application of law. He
did not believe the bill would be found to violate the
state constitution because the residency-based criterion
was not ultimately used in determining whether or not
someone was a qualified subsistence user. In other words,
it was merely used at the presumption stage, and was fully
rebuttable, which meant that the subsistence preference was
ultimately open to anybody in the state of Alaska without
regard to where they lived. The criterion would merely be
used in a preliminary fashion as an administrative
convenience to sort people. Ultimately, since the
presumption was rebuttable (by preponderance of the
evidence standard) it would not be used as a determining
factor as it had been in McDowell and other cases. He
stressed that it would not be even a little bit of a factor
in the ultimate determination by the boards of whether or
not someone would qualify as a subsistence user in Alaska.
Mr. Popely quoted from a passage by the Alaska Supreme
Court in the Kenaitze case [1986 State v. Kenaitze Indian
Tribe], the closest case providing guidance as to whether
or not the proposed legislation could violate the
constitution. He reminded the committee that in the
Kenaitze case, the supreme court considered the Tier II
provisions that originally included a person's proximity to
the resource as one of the qualifying criterion. The
proximity to resource was ultimately stricken and the
determination was made that the non-subsistence areas were
found not to violate the constitution. The court looked at
the argument raised against the non-subsistence areas,
which said that establishing non-subsistence areas created
an extreme inconvenience for people who did not live in
them. The people would not have local access to subsistence
resources in their immediate proximity the way people
outside the non-subsistence areas could. The court
addressed the argument and said:
Inconvenience is in no sense the equivalent of bar to
eligibility for participation in subsistence hunting
and fishing, and does not suffice to trigger an
analysis under the equal access clauses.
Mr. Popely submitted that the same argument would apply
under HB 406 if and when it were challenged; ultimately the
residence criteria would be classified as an administrative
inconvenience rather than as a qualifying criterion as it
was in McDowell or Kenaitze, and would therefore be upheld.
Co-chair Sharp asked whether any of the proposed amendments
would cause conflicts with existing state law or cause
potential problems for the state.
Mr. Popely responded that there had been sections that were
added by Public Law 105-83 that were not contemplated at
the task force stage. For example, Mr. White had addressed
the basis on which the federal courts could overturn agency
decisions, or the deference standard. He pointed to the
example of the section added to comply with the
Administrative Procedure Act, which added the section
"otherwise not in accordance with law." There were also
provisions in the findings of the law that was passed that
were not contained in the task force proposal. For example,
there was explicit recognition of both the Katie John
[Katie John v. United States] and Babbitt [Alaska v.
Babbitt] decisions; if the provisions were adopted because
the state adopted a constitutional amendment, the
provisions would become part of federal law. The Katie John
decision would go to the federal government's ability and
authority to manage navigable waters in Alaska, and the
Babbitt decision would go to the U.S. Secretary of
Interior's ultimate authority to manage lands in Alaska.
Mr. Popely turned to Section 805, another provision that
was added. He noted that there was a provision in the
Stevens amendments that would permit the interior secretary
to bring a judicial action to enforce the subsection
relating to the state's compliance with federal law; that
was another provision not contained in the task force
proposal. In other words, if the provision were adopted,
the U.S. Secretary of the Interior could bring an action to
enforce the state's non-compliance with federal law,
whereas under the previous Title VIII provisions, an
individual would bring the action.
Senator Adams asked whether HB 406 would comply with
ANILCA.
Mr. Popely replied that there were two questions and two
answers. The first question was related to whether the bill
would comply in terms of the specific preference schemes
articulated under Title VIII; the answer was no. The second
question was whether the legislation would comply with the
general intent of ANILCA. He believed the question asked by
Senator Adams was the first question.
Senator Adams replied that he liked the first answer. He
noted that the legislative majority had conducted a public
opinion poll on the subject of subsistence. The response
had been that the public wanted to vote on a constitutional
amendment. He asked whether the legislature should hold
back on the constitutional amendment.
Co-chair Sharp opined that the choice would not be made by
Mr. Popely but by the legislature.
Senator Adams pointed out that Mr. Popely represented the
majority. He withdrew the question.
Senator Phillips MOVED to REPORT CSHB 406(FIN)am with
individual recommendations and the updated fiscal note.
Senator Adams OBJECTED. He stated that his problem with the
bill was the constitutionality of a few provisions related
to equal access and resident status. He believed that the
bill would not comply with ANILCA. He thought the bill
would function as an invitation for dual management, which
he did not believe the public wanted. He noted the nearly
$3 million fiscal note change from general funds to
Department of Fish and Game funds, with the exception of a
few items. He opined that there was an expectation of the
measure complying with ANILCA, so that the state would get
management back.
A roll call was taken on the motion.
IN FAVOR: Parnell, Phillips, Donley, Pearce, Sharp
OPPOSED: Adams
Senator Torgerson was absent from the vote.
The motion PASSED (5/1).
CSHB 406(FIN) was REPORTED out of committee with no
recommendation and fiscal notes by the Department of Law
and the Alaska Courts.
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