Legislature(2007 - 2008)BUTROVICH 205
05/07/2007 04:00 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB87 | |
| HB220 | |
| SB57 | |
| SJR4 | |
| HJR4 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 87 | TELECONFERENCED | |
| += | HB 220 | TELECONFERENCED | |
| += | SB 57 | TELECONFERENCED | |
| += | SJR 4 | TELECONFERENCED | |
| += | HJR 4 | TELECONFERENCED | |
| + | TELECONFERENCED |
CSHJR 4(RLS)-KENAI/KASILOF SUBSISTENCE PRIORITY
4:49:43 PM
CHAIR HUGGINS announced HJR 4 to be up for consideration. [CSHJR
4(RLS) was before the committee.]
CONRAD JACKSON, staff to Representative Kurt Olson, sponsor of
HJR 4, said it had been amended to ask the Federal Subsistence
Board to rescind its recent customary and traditional use
determination that grants subsistence priority for four
communities on the Kenai Peninsula - Ninilchik, Hope, Cooper
Landing, and Happy Valley. He said an amendment would be offered
and the sponsor did not object.
MR. JACKSON explained that at this point the Federal Subsistence
Board has ruled against the state on its request for
reconsideration.
CHAIR HUGGINS asked if there was any resistance.
MR. CONRAD replied that resistance has come from the Ninilchik
Tribal Council.
4:50:44 PM
TINA CUNNING, special assistant to the Commissioner of Alaska
Department of Fish and Game (ADF&G) on subsistence and federal
issues, supported CSHJR 4(RLS). She explained that the State of
Alaska was deeply troubled by the recent Federal Subsistence
Board decision on the Kenai Peninsula to grant the communities
of Ninilchik, Happy Valley, Hope and Cooper Landing a
subsistence priority in the Kenai and Kasilof River drainages.
She said the state has filed several requests for
reconsideration over the last year, most recently in January and
it was heard again last week. HJR 4 is consistent with the
state's various appeals.
MS. CUNNING explained:
Under state law these communities are regarded as non-
rural in nature and are part of the Anchorage/Mat-Su,
Kenai non-subsistence area. The Federal Board regarded
these communities as rural even though they are
surrounded by non-rural communities and it found that
they have a customary and traditional use of the Kenai
and Kasilof River drainages.
The state argues that the board did not base its
decisions on evidence that fulfills the eight criteria
required by federal regulations for making such
customary and traditional use determinations. For
example, the regulations require demonstration of a
long-term customary and traditional pattern of
consistent use by a community of the fish resource on
federal land. Instead, the board ignored and misused
the available data indicating that at most a very
small percentage - up to 7 percent - of Ninilchik
residents had fished in the area of the proposed
subsistence fishery in the study year. The data did
not demonstrate that required long-term pattern of
community use.
The board also neglected to take several factors into
consideration such as the changing demographics of
Ninilchik, the impact that Ninilchik's connection to
the available road system has on use levels and the
type of use - such as sport fishing, Ninilchik's
access to and more common use of local fisheries on
their doorstep, historical tribal use areas, which do
not include the Upper Kenai River area, and the
purposes of Kenai Refuge.
Considered collectively, these factors do not appear
to support a long-term consistent pattern of community
use. The state is concerned that the Cook Inlet
fisheries are already fully allocated and the board's
decision will eventually result in unnecessary
restriction of existing established uses, such as
commercial, sport, and personal use fishing. The state
is also concerned that the Federal Board does not
consistently apply the eight criteria with the
substantial evidence required by regulation before
making its C&T determination, does not consider
impacts of its decisions on other beneficial uses as
required by the Ninth Circuit Court decision in 2000,
has not adopted an applied criteria in regulations
that require substantial evidence before implementing
restrictions on closures on state-authorized
fisheries.
This issue before us is not about putting food on the
table; the state provides substantial opportunity for
personal and family consumption through personal use
fisheries and for cultural and educational purposes
through our educational fishery permits, which also
provide for consumption. The amounts of fish allowed
to be taken under the state fisheries far exceed the
numbers actually taken by the residents of Hope,
Cooper Landing, and Ninilchik.
4:54:19 PM
SENATOR WAGONER asked if - due to the federal board's blatant
disregard for its own criteria - this would open up an avenue
for the state to bring legal action against it.
MS. CUNNING answered that she believed so.
4:54:48 PM
MIKE SEWRIGHT, Assistant Attorney General, Department of Law,
said he wondered if the question was in the context of suing the
federal government for some type of damages or pursuing a court
action to the effect that the customary and traditional use
determinations are illegal and invalid.
SENATOR WAGONER said the reason he asked is that he thought the
only community that really should have any subsistence claims is
Ninilchik and more likely than not, probably just the Ninilchik
Tribe. For instance, Hope was a community that was developed at
the turn of the twentieth century as a gold mine town. Cooper
Landing was developed far later than that as was Happy Valley.
This is what happens when the federal government comes in and
decides what is rural based on zip codes. He urged that the
state bring legal action against the board.
4:56:43 PM
ROD ARNO, Executive Director, Alaska Outdoor Council, supported
HJR 4 saying he has been attending the federal board meetings
for years and he was at the last one when it denied the state's
request for reconsideration. He also agreed that the board had
been inconsistent in following its own regulations and the C&T
regulations were just one example of that.
However, Mr. Arno said he thought HJR 4 would be strengthened by
adding a clause that speaks to the intended use of the Kenai
National Wildlife Refuge. This refuge was created by Congress
and was renamed from the Kenai National Moose Range when ANILCA
was passed. In ANILCA Congress established nine new refuges
across the state and every one of them except the Kenai included
in its purpose the priority for continued subsistence uses by
local residents as a use. The one refuge that Congress didn't
include was the Kenai Refuge and Congress did not treat the
Kenai Refuge different by accident.
MR. ARNO said the questions on the purpose of the refuges were
exhausted in (d)(2) debates in the late 1970s. A preponderance
of the testimony then was the fact that these people recreated
on the Kenai. With that in mind, while language for subsistence
in the Kenai Refuge was purposely left out of section 303 (b)(5)
of ANILCA, language listed as a use "the opportunities for fish
and wildlife recreation." He explained:
That language was included, Mr. Chairman, because
Congress recognized that while subsistence uses of
local residents in the Kenai National Wildlife Refuge
was no longer characteristic of the area or its
people, recreational and personal use - taking of wild
fish and game by all the residents, 470,000, was
highly characteristic of the area. The Outdoor Council
believes that providing that opportunity for 1,800
residents that qualify for that would be detrimental
to Alaska....
5:00:53 PM
CHAIR HUGGINS moved Amendment 1.
25-LS0201\O.1
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR HUGGINS
TO: CSHJR 4(RLS)
Page 1, line 15, following "priority;":
Insert "and
WHEREAS the United States Congress determined that, unlike
purposes of other federal refuges established or expanded by the
Alaska National Interest Lands Conservation Act, the rural
subsistence priority was not an appropriate purpose of the Kenai
National Wildlife Refuge, and, therefore, purposefully omitted
"continued subsistence uses by local rural residents" from the
list of purposes of the Kenai National Wildlife Refuge; and
WHEREAS, unlike its determination of purposes for other
federal refuges, the United States Congress chose to make fish-
and wildlife-oriented recreational opportunities a purpose of
the Kenai National Wildlife Refuge;"
CHAIR HUGGINS pointed out that Amendment 1 consists of two
elements. The first part is that Congress expressly omitted
continued subsistence uses by local rural residents on the Kenai
Refuge and secondly, it chose to make fish and wildlife-oriented
recreation opportunities a purpose of the Kenai National
Wildlife Refuge.
There were no objections and Amendment 1 was adopted.
5:01:45 PM
SENATOR STEVENS moved to pass from committee CS for HJR 4, as
amended, with individual recommendations and attached fiscal
note. There were no objections and SCS CSHJR 4(RES) moved from
committee.
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