Legislature(2003 - 2004)
03/24/2004 03:30 PM Senate RES
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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
SB 318-CONSUMPTIVE USE OF FISH AND GAME
CHAIR SCOTT OGAN announced SB 318 to be up for consideration. He
said there was a proposed CS.
SENATOR RALPH SEEKINS moved to adopt CSSB 318, version Q, for
discussion. There were no objections and it was so ordered.
CHAIR OGAN said that he would take public testimony today and
planned to move it out on Friday.
MR. MIKE TINKER, Fairbanks Advisory Board member, said:
Ever since the concept of prioritizing uses for Alaska
have come out of the original subsistence bill of the
state in 1978, the Boards of Fish and Game have had a
terrible time figuring out how the priorities are -
how to word the various definitions of the terms
within them. And, although this seems very obvious,
the way it's written - that sustenance should be
important and Alaskans should use their fish and game
resources for food - it gets complicated at the board
level when the PhDs and sociologists and professional
folks at the subsistence division try to work out the
details. I think it's extremely good for you on the
legislative side to put these things into statute,
especially the definitions, and let the regulatory
folks on the boards have more guidance to deal with
them.... I think this is a wonderful direction to go
and I hope you will move it along.
CHAIR OGAN asked him if he supported the CS.
MR. TINKER said he did.
MR. WAYNE REGELIN, Deputy Commissioner, Alaska Department of
Fish and Game (ADF&G), said he didn't intend to testify because
the committee really needed to talk to the Department of Law.
CHAIR OGAN said that he had talked to the Legislative Legal
Services Division about changing the language from individual
right to use preference. He had some concerns that the original
bill talked about it being a fundamental right, which could be
misconstrued by some people and found in court that hunting
seasons couldn't be closed, for instance.
SENATOR RALPH SEEKINS read from page 11 - 12 of the McDowell 1
case in 1989 regarding fundamental rights and justification of
law:
The only justification for a law regulating and
restricting the common right of individuals to take
wild game and fish is the necessity for protecting the
same from extinction and, thus, to preserve and
perpetuate to the individual members of the community
the inalienable rights, which they have had from time
immemorial.
He then explained:
When the state holding the title to game and fish, so
to speak, in trust for every individual member of the
community, 'May pass laws to regulate the rights of
each individual in the manner of taking and using the
common property. Yet, as we have already stated, this
must be done under the constitution upon the same
terms to all people, etc.'
So, it is the established law of the State of Alaska
that even on an inalienable right, the State of Alaska
has the right to pass laws to regulate the taking for
perpetuation of the species which is in compliance,
then, with the sustained yield principle under the
state constitution - and used the word 'inalienable,'
which, I think, is stronger than 'fundamental.'
MR. REGELIN maintained that it has the potential to change the
way fisheries are allocated. He thought it was the Legislature's
right to provide direction to the boards if it wants to, but
lawyers could explain how the bill would change that.
MR. LEN LIVENGOOD, Atty., said the word "fundamental" goes back
to how the sustained yield principle was put into the
constitution. It was expected that the Legislature would enact
definitions and protections for the consumptive uses as the
highest and best use.
This legislation has been needed since statehood and
will make it clear that consumptive uses are
considered fundamental rights for Alaska residents to
provide sustenance for themselves. It will change the
way the Boards of Fish and Game enact regulations
because consumptive uses will have a higher standard
than other uses. Other than that, I think this is
something that is consistent with our constitution and
this is necessary.
The question about fundamental right giving a person
the right to violate other laws - clearly we have the
rights to keep and bear arms and there are laws
regarding concealed carry. We have the fundamental
right of freedom in travel, but that doesn't allow you
to violate speeding regulations. So, the law and
constitutional rights are dovetailed and are
intertwined. Just because something is a fundamental
right does not provide an unfettered ability to
violate the state's law and regulations. I urge you to
pass this legislation.
SENATOR WAGONER said he didn't have any questions for Mr.
Livengood, but he wanted to hear from the Department of Law
before he passed this out.
CHAIR OGAN said he would be happy to bring this up again on
Friday. There being no further business to come before the
committee, he adjourned the meeting at 5:35 p.m.
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