Legislature(2023 - 2024)BARNES 124
03/13/2024 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HJR22 | |
| HB387 | |
| Presentation(s): Alaska Energy Authority Update by Curtis Thayer | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HJR 22 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 387 | TELECONFERENCED | |
HJR 22-RESIDENT SUBSISTENCE USE OF FISH/GAME
1:03:08 PM
CHAIR MCKAY announced that the first order of business would be
HOUSE JOINT RESOLUTION NO. 22, Proposing an amendment to the
Constitution of the State of Alaska relating to subsistence use
of replenishable natural resources by state residents; and
providing for an effective date for the amendment.
1:03:33 PM
The committee took an at-ease from 1:03 p.m. to 1:04 p.m.
1:04:01 PM
REPRESENTATIVE BAKER, as the prime sponsor, introduced HJR 22.
He explained that the goal behind the HJR 22 is to amend the
Constitution of the State of Alaska to effectively establish a
rural subsistence priority that in times of low yield would
allow for state management of natural resources for those who
depend on them most.
1:04:57 PM
STEVE ST. CLAIR, Staff, Representative Thomas Baker, Alaska
State Legislature, paraphrased from the sponsor statement [in
the committee packet], which read as follows [original
punctuation provided]:
The Alaskan National Interest Lands Conservation Act
(ANILCA) set aside more than 100 million acres to be
federally owned & managed. These conservation units
include national parks and preserves, national
wildlife refuges, designated wilderness areas, wild
and scenic rivers, the Iditarod National Historic
Trail, as well as the Steese National Conservation
Area and the White Mountains National Recreation Area.
Among other provisions, ANILCA specifically recognized
and protected subsistence use on the newly designated
lands.
The federal government allowed the Alaska state
government to enforce subsistence priority on federal
public lands until 1989. Prior to that, the Alaska
Ninth Circuit Court of Appeals decided that the
state's definition of "rural" was not in accordance
with ANILCA in McDowell v. State of Alaska. The state
was not in compliance with ANILCA; therefore, the
federal government took over management of fish and
wildlife on federal public lands in Alaska once again
in 1990. They created several federal agencies to
uphold their responsibility to provide rural resident
subsistence priority.
The Alaska Supreme Court ruled that ANILCA violates
[sections 3, 15,] and 17 of the Alaska State
Constitution by violating the "equal access rule".
Currently this creates special privileges, for certain
groups, to take fish and game, which is prohibited by
the constitution. This amendment brings Alaska in
compliance with rules and regulations stipulated in
ANILCA.
With Alaska in compliance, the State can manage fish
and wildlife on both State and Federal lands, which
will best benefit Alaskans using the sustainable yield
model. Additionally, this amendment would allow those
closest and most dependent on the resource to have
access in times of low yield, as opposed to a complete
closure.
1:08:16 PM
MR. ST. CLAIR pointed out that this would only be applicable in
low yield years. As well, it would do away with dual management
[of fish and game], bringing all [fish and game] management
under the umbrella of the State of Alaska.
1:08:34 PM
MR. ST. CLAIR reviewed five PowerPoint slides [to provide a
background for HJR 22]. He displayed the second slide,
"History," and said Alaska was purchased from Russia in 1867 and
th
became the 49 state in 1959. The Alaska constitution, he
noted, made no differentiation between Native and non-Native and
did not specifically reference subsistence use, but convention
delegates did recognize that Native and rural residents needed
to continue to earn their livelihoods through hunting and
fishing. The 1971 Alaska Native Claims Settlement Act (ANCSA)
set aside land and extinguished aboriginal hunting and fishing
rights for those people in Alaska prior to the settling of the
state by Russia and the U.S. In return, Alaska Natives received
44 million acres and nearly $1 billion. The report of the joint
session and House conference committee in Washington DC,
Congress expected that the U.S. Secretary of the Interior and
the State of Alaska would take actions necessary to protect the
subsistence needs of Natives, but this didn't happen due to the
focus on establishing an oil pipeline right-of-way rather than
subsistence. The 1980 Alaska National Interest Lands Act
(ANILCA) established a preference for subsistence hunting and
fishing by rural residents on federal lands and envisioned that
the State of Alaska would oversee [fish and game] management on
both state and federal lands using the ANILA's subsistence
stipulations. In 1989 the Alaska Supreme Court decision in
McDowell v. State of Alaska found that the [legislature's] 1986
rural subsistence preference law, which excluded urban residents
from subsistence hunting, violated Article 8 of the Alaska
constitution. In 1990 the federal government assumed
responsibility for wildlife management on federal lands [within
the state of Alaska].
1:11:27 PM
MR. ST. CLAIR proceeded to the third slide, "Conflicts," and
said ANILCA currently violates [three sections in Article 8] of
the Alaska constitution: Section 3, Common Use; Section [15, No
Exclusive Right of Fishery]; and Section 17, [Uniform
Application]. The Alaska Supreme Court said that broadly
defining subsistence user by geography of residence is
unacceptable. Given there are urban Alaskans who could
legitimately claim subsistence user and rural residents who
could not, the court suggested that a classification scheme
using individual characteristics would be more likely to pass
muster. The rest of the subsistence statute giving preference
to subsistence users or other users remained intact. The result
is that Alaska isn't in compliance with ANILCA because ANILCA
defines subsistence users as those closest to the resource and
most dependent on the resource.
MR. ST. CLAIR explained that the statute defines federally
qualified subsistence users as permanent residents of a rural
area or community that has a federally recognized customary and
traditional use determination for that resource, but that not
everyone who is a federal subsistence user has access or is
qualified. For example, under current statute and policy,
friends of his in Chickaloon are considered federal subsistence
users, so they could participate in federal subsistence hunts on
the North Slope. The sponsor is trying to close it down so it's
more reflective of those in the area that need the resource or
are most dependent on it.
MR. ST. CLAIR continued speaking to the third slide. He said
there is disagreement between state and federal land managers on
the need for closure. There is a lack of transparency and in
some cases the science isn't clear, or the information is
erroneous. Wildlife does not adhere to federal and state
boundaries. The case of Sturgeon v. Frost has to do with dual
management and the resulting conflicts.
MR. ST. CLAIR moved to the fourth slide, "Solution," and stated
that HJR 22 would bring Alaska into compliance with ANILCA. He
pointed out that opinions differ on additional legislation that
would be required. At the state level, Alaska would need to
accept responsibility for [fish and game] management on federal
lands. At the national level, Congress would need to give those
management rights or commissions to the State of Alaska. In
times of low fish and game resources, he continued, HJR 22 would
give preference to those closest to the resource. For example,
while some people in Chickaloon might be qualified to
subsistence hunt on the North Slope, they are not necessarily
the ones closes to the resource. The resolution would eliminate
dual management and the subsequent conflicts of dual management.
The state's fish and wildlife resources would be managed by
Alaskans and those making decisions would be held accountable by
Alaskans. If HJR 22 is passed by both legislative bodies, the
resolution would go before the voters in the 2026 general
election because it is a constitutional amendment.
MR. ST. CLAIR ended his presentation with the fifth slide,
"Conclusion." He explained that HJR 22 is a constitutional
amendment because it would give a preference, and the current
Alaska constitution says there cannot be preferences.
1:16:34 PM
REPRESENTATIVE MCCABE offered his understanding that HJR 22
would make the Alaska constitution compliant with ANILCA.
REPRESENATIVE BAKER replied yes.
REPRESENTATIVE MCCABE offered his understanding that the Alaska
State Legislature would need to change some laws. He asked
whether any bills are in play to change those statutes.
REPRESENATIVE BAKER confirmed that some laws would need to be
changed, but said the biggest lift is the constitutional
amendment. This is twofold, HJR 22 starts that conversation of
the laws and things within the state that need to be addressed
outside of HJR 22.
MR. ST. CLAIR added that this has been ongoing for a long time.
He related that [Alaska's U.S. Senator Ted] Stevens had
introduced contingency language on the federal side that would
have brought Alaska in compliance and given appropriate
commissions had Alaska adjusted its constitution with a
constitutional amendment. If HJR 22 passes both bodies, prior
to going before the people [the sponsor] will initiate the
required secondary or tertiary legislation.
CHAIR MCKAY invited Mr. John Sturgeon to provide testimony on
HJR 22.
1:19:47 PM
JOHN STURGEON, President, Safari Club International Alaska
Chapter (AK SCI), testified that AK SCI opposes dual management
of Alaska's fish and wildlife, supports the efforts of HJR 22,
and supports changes to ANILCA Title 8 so if Alaska's
constitution is changed the federal government would no longer
manage Alaska's fish and game. He said Alaska should be the
sole manager of fish and wildlife like every other state since
wildlife don't recognize political boundaries. Alaska has
managed subsistence since its territorial days, he continued,
and after it first became a state and had subsistence
priorities. Alaska's system of the Board of Fisheries and the
Board of Game cannot be beat. Any Alaskan can submit a proposal
to the boards that will be considered, unlike the federal
system. Almost always the federal system has ignored scientific
information from the Alaska Department of Fish and Game (ADF&G).
In times of low game populations, the federal system is opposed
to intensive management like predator control. The state can be
much more flexible in providing subsistence opportunities
because it has a better management system that can target rural
areas and can respond quickly. The state manages for maximum
sustained yield while the federal government manages for maximum
biodiversity.
CHAIR MCKAY invited Mr. Doug Vincent-Lang to provide testimony
on HJR 22.
1:23:37 PM
DOUG VINCENT-LANG, Commissioner, Alaska Department of Fish and
Game, testified in support of HJR 22. He said the resolution
addresses some long standing issues that have progressively
eroded the state's authority to manage its fish and wildlife
resources. Subsistence, he emphasized, is a priority in Alaska
with subsistence being in the state's statutes, regulations, and
constitution. A primary reason Alaska pushed for statehood was
to become the manager of its fish and wildlife resources and
their uses because outside interests were threatening their
sustainability. The concepts of sustainability and sustained
yield were built into the Alaska constitution and laws were
passed to establish a foundation for management. With this
framework in place, Executive Order [10857] by President
Eisenhower granted Alaska the authority to manage its fish and
game resources.
COMMISSIONER VINCENT-LANG related that Section 1314 of the 1980
Alaska National Interest Conservation Act (ANILCA] directs that
nothing in the Act is intended to enlarge or diminish the State
of Alaska's responsibility and authority for the management of
fish and wildlife resources on public lands. As well, ANILCA
requires the State of Alaska to provide preference to rural
Alaskans for subsistence on public lands. Public lands are
defined as lands, waters, and interests therein the title to
which is in the United States. It also grants the Secretary of
Agriculture and Secretary of Interior the ability to restrict
the taking of populations of fish and wildlife from public lands
when necessary to protect the viability of the said populations
or their continued uses; the keywords being "to restrict" "when
necessary". After ANILCA became law the secretaries of
agriculture and interior transferred subsistence regulation on
public lands to Alaska, as Congress intended.
COMMISSIONER VINCENT-LANG further related that in its McDowell
decision, the Alaska Supreme Court ruled that a rural preference
was against the equal access provisions of the Alaska
constitution and that all Alaskans are entitled to subsistence
preference regardless of where they live. This brought Alaska
out of compliance and began the era of what is commonly referred
to as "dual management." At first the federal government and
the state worked cooperatively under dual management to ensure
the subsistence priority was met, with Alaska continuing to be
the primary manager of the fish and wildlife resources. But
slowly changed as the Federal Subsistence Board and federal land
agencies began to supplant state management with their own.
Rather than restricting when necessary to ensure a rural
subsistence priority, they have built their own regulatory
structure that supplants state management with theirs. They
open and close seasons, adjust methods and means, and employ in-
season management.
COMMISSIONER VINCENT-LANG cited several examples of the federal
management he is referring to. In the area of Kake the federal
government opened a moose hunt after the state season closed
that took the season's entire harvestable surplus, which
jeopardized future sustained yields. As well, non-tribal, but
otherwise federally qualified users, were excluded from
participating in the hunt. Neither ANILCA nor state law make
this sort of distinction amongst Native and non-Native rural
Alaskans. In Northwest Alaska the federal government closed
state hunts for caribou despite sufficient resources to meet the
subsistence needs of all Alaskans, but they were left open to a
small number of Alaskans and prevented people who had grown up
in the region from traveling home to practice their traditions.
In the Kuskokwim River, a navigable waterway owned by the state,
the federal government sued the state and replaced state
management strategy, saying Alaska has no authority to manage
within in the boundaries of the Yukon Delta National Wildlife
Refuge. This has resulted in closures that only allow federally
qualified users to participate. The federal management strategy
is also impacting the state's ability to provide for subsistence
uses upriver within the area of federal jurisdiction about 10
King Salmon are harvested per household and above the area of
federal jurisdiction only 1.7 King Salmon are harvested per
household.
COMMISSIONER VINCENT-LANG stated that proper management and
consideration of the subsistence needs of all rural Alaskans
should be taken into consideration, regardless of whether they
live within the boundaries of federal land. He said ANILCA is
not working as envisioned when passed by Congress and is not
fulfilling the promises made to the state under the Alaska
Statehood Compact, and something needs to change.
1:31:27 PM
CHAIR MCKAY commented that HJR 22 is a very deep topic that will
be discussed in future meetings. He inquired about the outcome
of the 1990 debate [on this same topic] and whether a resolution
made it to the ballot.
MR. ST. CLAIR replied that it came up one vote shy of passing
the Senate for going to the ballot.
1:32:59 PM
CHAIR MCKAY asked why it has taken 34 years to come back to
this. He further asked what [management] would look like if HJR
22 is passed since about 60 percent of Alaska is federal land.
REPRESENATIVE BAKER responded to Chair McKay's first question.
Based on his personal experience growing up as a subsistence
hunter in a rural region dependent on subsistence hunting and
fishing, he said part of the reason for it taking so long to
come back around is that there have been resounding attempts
both for and against a rural preference for a subsistence
resident, and people got beaten down. He explained that his
reason for bringing it forward now is to see where the culture
of the state is today and to reinvigorate this conversation.
1:34:50 PM
COMMISSIONER VINCENT-LANG responded to Chair McKay's questions.
He said three things have changed. The first change is that
state management has been completely replaced with federal
management on the landscape rather than to just restrict when
necessary. The Department of Justice sued the state in federal
court saying the state has no management authority in the
Kuskokwim River, including no ability to open a salmon season
based on the state's data and being prohibited from issuing any
emergency order. A patchwork management across the landscape is
the result, especially with salmon as he outlined on the
Kuskokwim earlier. Second, the demographics in Alaska have
changed. Many people who have cultural dependencies now live in
urban areas. For example, 20 percent of Anchorage's population
is Alaska Native, and those people are now prohibited from
participating in their cultural tradition simply based on where
they now live. To the extent possible, [the state] should have
the opportunity to provide for the subsistence needs for those
people in addition to the people who are living in rural Alaska.
The third change is that federal land management desires have
crept into the federal process; for instance, predator control
cannot be done on federal land to try to build [game]
populations. Commissioner Vincent-Lang further pointed out that
even if [HJR 22] is put into place, Alaska will remain in the
same position it is now if federal changes aren't also made,
such as the language that was proposed by U.S. Senator Ted
Stevens that said if the state came into compliance then certain
sections of ANILCA would go away.
1:36:54 PM
COMMISSIONER VINCENT-LANG, in response to Chair McKay, agreed to
provide his testimony in writing to the committee.
1:37:19 PM
REPRESENTATIVE MEARS stated that this is a very big issue with
lots of potential legal discussions. She recognized that dual
management is an issue. She said the definition of subsistence
user is important and asked whether definitions would be
established with this constitutional amendment.
MR. ST. CLAIR answered that the [Alaska] constitution's Common
Use Clause currently states that every Alaskan resident is a
subsistence user. By adopting the proposed amendment, all
Alaskans would still be defined as subsistence users, but a
priority would be given to those geographically closest to the
resource when the resource is scarce.
1:39:05 PM
[CHAIR MCKAY announced that HJR 22 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 22 Sponsor Statement.pdf |
HRES 3/13/2024 1:00:00 PM |
HJR 22 |
| HJR 22 ver. A.pdf |
HRES 3/13/2024 1:00:00 PM |
HJR 22 |
| HJR 22 Presentation.pdf |
HRES 3/13/2024 1:00:00 PM |
HJR 22 |
| CSHB 387(RES) LS-1282S.pdf |
HRES 3/13/2024 1:00:00 PM |
HB 387 |
| CSHB 387(RES) LS-1282S Summary of Changes.pdf |
HRES 3/13/2024 1:00:00 PM |
HB 387 |
| Presentation - Alaska Energy Authority Updates.pdf |
HRES 3/13/2024 1:00:00 PM |