Legislature(1997 - 1998)
05/01/1998 03:40 PM Senate JUD
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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
HB 406 - SUBSISTENCE USES OF FISH AND GAME
MR. JIM JANSEN, President of the Lynden Companies and representing
Alaskans Together, spoke in support of doing whatever necessary to
avert a federal takeover. MR. JANSEN voiced his opinion that we
have one opportunity to keep the feds out and we need to take it.
MR. JANSEN declared a federal takeover would negatively affect all
resource-based industries in the state and federal management of
fish and game would be unacceptable.
TAPE 98-37, SIDE B
Number 560
CHAIRMAN TAYLOR questioned MR. JANSEN about his testimony, asking
what benefit would be derived from passing a constitutional
amendment to comply with the federal law. MR. JANSEN said state
management would allow Alaskans to keep their concerns and problems
within the state.
MR. DICK BISHOP, representing the Alaska Outdoor Council, testified
to his organization's support of the concepts within HB 406. MR.
BISHOP suggested that with some amendments, the bill could improve
management of subsistence uses of fish and game under state law.
MR. BISHOP indicated relating an individual priority to the
reliance on food is the right way to go. He said the Outdoor
Council has maintained that a subsistence priority in law is not
necessary to properly provide for subsistence uses, but if a
priority is to remain in law, it should be based on "how you live,
not where you live."
MR. BISHOP agreed that the ability to take fish and game for food
is a basic human right, as enunciated by the Alaska Native
subsistence summit and the Republican Party. MR. BISHOP said the
Alaska Supreme Court had also validated this idea in their decision
that said the common use of fish and game to meet the basic
necessities of life is a "highly important interest, running to
each person in the state." MR. BISHOP asked how anyone can advocate
discrimination against others if we all agree that subsistence is
a basic human right. He recounted testimony on the House floor by
members who pointed out that the Alaska Constitution protects
against discrimination. He quoted Representative Ethan Berkowitz
who spoke of the sanctity of the Constitution and its moral
imperative to treat all Alaskans as Alaskans. MR. BISHOP also
recalled members extolling the virtue of maintaining Alaska's
sovereignty.
MR. BISHOP said HB 406 avoids moral and civil rights travesties by
preserving the emphasis on the importance of Alaskans to maintain
the ability to harvest fish and game regardless of where they live.
He suggested this value is paramount and cuts across cultural,
ethnic, racial and geographic lines.
MR. BISHOP said the criticism that HB 406 does not comply with
ANILCA is "just so much rhetoric." MR. BISHOP stated ANILCA is not
a standard to aspire to; he said it institutionalizes
discrimination among Alaskans, compromises sound fish and game
management and abrogates the state's rights. MR. BISHOP explained
that conforming to ANILCA, especially as it was amended last Fall,
would leave the state without a legal leg to stand on in defending
its rights afforded by statehood.
MR. BISHOP argued the priority demanded by ANILCA is not triggered
by a shortage and would be there all the time, mandating the
elimination of other uses should it be necessary to accommodate
customary and traditional subsistence uses. MR. BISHOP also
reported that the need for food is not the standard in ANILCA, and
the sale and barter of food taken for subsistence is protected in
ANILCA. If the state agrees to ANILCA, the federal courts will
enforce their interpretation of that law and the manner in which
the state administers it. This would not amount to the state
regaining management, according to MR. BISHOP. MR. BISHOP concluded
that the Outdoor Council recommends that the legislature stick to
the principles in HB 406, consider some refinements to the bill,
and go on to seek the necessary changes to ANILCA, where the real
problem lies.
SENATOR WARD asked MR. BISHOP what he thinks will happen if the
state does not change its Constitution. MR. BISHOP replied that
will depend on what the legislature does between now and then and
how the Congressional delegation and the Secretary of the Interior
respond to it. MR. BISHOP added if we put forward a good bill, we
will have a good argument toward changes in ANILCA. MR. BISHOP said
if nothing changes, he has no doubt the feds will begin propagating
their own regulations on fish and game. MR. BISHOP also answered
CHAIRMAN TAYLOR's question about the difference between state or
federal management under ANILCA. He said there really is no
difference and he would characterize it as "shot or hung." Under
federal management, we will have a "zip code rural priority"
statewide. This will be the same under the state plan, according to
MR. BISHOP. He went on to illustrate how state and federal
management will amount to essentially the same thing. He added that
federal court enforcement will be the last word in all these cases.
MR. BISHOP said a federal takeover will leave us with unresolved
legal questions surrounding fish and game management and the end of
Alaska's constitutional protection of common use and equal access
to fish and game uses. MR. BISHOP said the state would also cede
any future arguments on these issues.
CHAIRMAN TAYLOR commented that he has been asking these same
questions for years and a big part of his frustration is the idea
people have that the state will be able to retain some sort of
management rights and make certain amendments to ANILCA. CHAIRMAN
TAYLOR said his reading of the bill shows we won't be able to do
anything.
SENATOR WARD said this is a very important issue to him and he is
bothered by how some people within the media and government treat
it. He reiterated that Senator Murkowski has said he will begin
hearings on this issue as soon as we can present him with an
"Alaskan solution." SENATOR WARD noted this solution does not have
to be a constitutional amendment, and we don't have to buy into
that rhetoric. He concluded by saying he truly believes that if we
do not come up with an Alaskan solution, "the commercial fishing
industry as we know it in Alaska will be gone."
CHAIRMAN TAYLOR said if the state does not surrender to the federal
mandate and comply with ANILCA, wouldn't we retain management of
fish and game on state and private lands, more than 150 million
acres. MR. BISHOP replied this is correct and the federal
government was authorized to manage for subsistence only on federal
lands, however, the rules recently proposed would extend this
authority to make regulations off federal lands if necessary to
protect the subsistence priority. MR. BISHOP said this authority,
if held up under review, would impinge on the authority of the
state.
CHAIRMAN TAYLOR advised, "if the state surrenders its sovereignty,
complies with the federal law, amends its constitution, then we've
handed over all of the rest of the statehood lands and all of the
private lands in the state - we've handed those over to be
regulated under the federal standard and available to the federal
courts for oversight." So in fact, if we do not comply with the
Babbitt-Knowles plan we at least retain our rights on our state and
private lands, according to CHAIRMAN TAYLOR. MR. BISHOP said that
is correct, and that is a good additional comparison to make.
Number 278
MR. DONALD WESTLUND, testifying from Ketchikan, agreed with SENATOR
WARD, saying we should not give away any sovereign rights or we
risk becoming a territory again. MR. WESTLUND read a summary from
a document entitled "An Examination of Federal Authority to Manage
Fish and Game in Alaska". MR. WESTLUND concluded that the
Legislature should not pass a constitutional amendment regarding
subsistence on the basis of the argument that the state, as a
trustee, may not appropriate a trust asset to one class of citizens
to the exclusion of others.
Number 135
CHAIRMAN TAYLOR asked MR. WESTLUND if he supports the lawsuit filed
by the Legislative Council. MR. WESTLUND indicated he does.
MR. PETE AMUNDSON testified from Ketchikan and urged the committee
not to compromise on the subsistence issue and create another
Washington D.C. in Alaska. MR. AMUNDSON informed the committee he
did not wish to be classed nor to be included in anything not
allowed by the State Constitution.
MS. KAY ANDREW agreed with the previous speaker and encouraged the
committee to enforce the position taken by Mr. Ralph Seekins
through support of the Legislative Council's lawsuit.
TAPE 98-38, SIDE A
Number 001
MR. ROB BOSWORTH, Deputy Commissioner of the Department of Fish and
Game (ADF&G), outlined problems the department sees with HB 406.
First, the bill will not avert a federal takeover. Second, HB 406
will not protect subsistence uses in Alaska, as the standard for a
non-subsistence economy requires a cash based economy, present in
many rural areas. For example, under this bill Bristol Bay and the
North Slope would not be considered subsistence areas. Third, MR.
BOSWORTH said HB 406 would be enormously costly and nearly
impossible for ADF&G to manage. MR. BOSWORTH concluded that the
concept of identifying users dependent on subsistence is attractive
but unworkable.
Number 100
CHAIRMAN TAYLOR asked MR. BOSWORTH how subsistence could be
structured without violating Alaska's Constitution. MR. BOSWORTH
replied that he is working with his fourth Governor on this issue
and there really is nothing new under the sun. He has concluded
that the rural distinction works.
Number 153
SENATOR WARD remarked that he has a problem with the zip code
approach which will take hunting and fishing rights from one half
of Alaska natives. MR. BOSWORTH responded that access would be
impaired only in times of shortage. SENATOR WARD stated that a
rural preference would still be unfair to people like him, around
whom Anchorage grew up; he suggested the Governor should instead
pursue the lawsuit filed by the Legislative Council.
Number 219
MR. BOSWORTH conceded that the rural preference plan is imperfect.
The plan is both over inclusive and under inclusive in regard to
people who should receive subsistence rights in times of shortage.
He maintained that the plan is the best compromise.
CHAIRMAN TAYLOR asked if there wasn't a third plan, allowing the
feds to take over federal lands and leaving state managers to
manage state and private lands. MR. BOSWORTH agreed this was
possible with some qualifications.
Number 347
CHAIRMAN TAYLOR cited some examples in which federal regulations
would supersede state management even if Alaska did change the
constitution. MR. BOSWORTH remarked that a state regional council,
much like the federal regional council, would be used under the
task force proposal. CHAIRMAN TAYLOR argued that any challenges to
the state board would be taken to a federal judge. MR. BOSWORTH
insisted that management by the state's expert biologists could be
supported in court and is preferable to management from outside.
Number 411
CHAIRMAN TAYLOR thanked MR. BOSWORTH for his help and invited his
further input on amending HB 406.
MR. STEVE WHITE, Assistant District Attorney for the Department of
Law, testified that the vast majority of subsistence challenges
stay in state court. MR. WHITE also observed that the amendments
proposed bring ANILCA closer to state law and in fact benefit
Alaska.
CHAIRMAN TAYLOR expressed his concern for the sustainability of the
resource. MR. WHITE said that the state board is a multi-user board
and will be able to manage for multiple use. He feared the federal
government may not have the concern nor the resources to manage for
multiple use. CHAIRMAN TAYLOR interjected that the feds only have
the authority to manage for subsistence and MR. WHITE replied that
is true but this management will also affect other uses. CHAIRMAN
TAYLOR countered that if the last person up the stream attempting
to get at the resource is unsatisfied, they can go to federal court
and the court will regulate all other users in an attempt to
satisfy that one person. MR. WHITE concluded that he has confidence
in state management and fears federal management. CHAIRMAN TAYLOR
expressed his interest in working further on HB 406. He asked MR.
WHITE for his continued help.
TAPE 98-38, SIDE B
Number 001
CHAIRMAN TAYLOR asked if there was anyone else wishing to testify
on HB 406. Hearing none, CHAIRMAN TAYLOR adjourned the meeting at
7:30 p.m.
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