Legislature(1999 - 2000)
09/24/1999 08:05 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HJR 201 - CONST.AM: RURAL SUBSISTENCE PRIORITY CO-CHAIR OGAN again brought before the committee House Joint Resolution No. 201, Proposing an amendment to the Constitution of the State of Alaska relating to subsistence use of renewable natural resources by residents of the state; and providing for an effective date. He noted that Version K had been adopted for discussion the previous day, and language problems now had been cleaned up. [Subsequent motions relating to Version "K.2" were in error and are not included here.] Number 0312 CO-CHAIR SANDERS made a motion to adopt a new proposed committee substitute (CS), version 1-GH1071\S, Utermohle, 9/24/99 (Version S), as a work draft. There being no objection, Version S was before the committee. CO-CHAIR OGAN asked the drafter, George Utermohle, to provide an overview. He stated his own belief that if the constitution were to be amended, people should know exactly what areas of the constitution it would affect. Number 0411 GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, told members that Version S incorporates rewritten language from Version K. Specifically, amendment "K.2" [not formally provided to the committee] is incorporated into Section 4 of Version S. Because establishment of a subsistence preference under Article VIII, Section 4, of the constitution affects the equal access provisions, a number of other provisions are implicitly affected. As learned in the McDowell decision, particularly, the equal access provisions under "common use," "no exclusive right of fishery," and "uniform application" in the constitution are implicated by preferences granted to subsets of the Alaska population; it was those three provisions that caused the rural preference to be struck down in McDowell. MR. UTERMOHLE advised members that Version S also incorporates changes to two other provisions of the constitution found in Article I: Section 1, the inherent rights provision, which is where the state's generic equal rights provision is contained; and Section 7, the state's due process provision. These are included in this resolution also because back in the Ostrosky case - the challenge to the state limited entry program that established a closed class of citizens able to participate in the state's commercial fisheries - provisions under that constitutional amendment were challenged under equal protection and due process. In that case, the court found there was no violation of those provisions; although they were implicated and affected by the amendment, the amendment had the effect of creating an exemption from those provisions for purposes of establishing a limited entry program. Number 0604 CO-CHAIR OGAN asked whether Version S changes anything in concept that the committee had looked at the previous day, other than the minor language change on page 2, between lines 15 and 21. MR. UTERMOHLE specified that it changes the approach, by expressly going into each other provision of the constitution that was implicitly affected by the single amendment being considered the previous day, and by expressly creating a direct exception to those provisions. It is a stronger situation than the single amendment to Article VIII, Section 4, he said, although the court would probably find that these other provisions were implicitly amended to the extent necessary to provide for the preference that the amendment adopts. Number 0721 CO-CHAIR OGAN asked for confirmation that legally Version S doesn't do anything different other than expose the areas being affected by the implied change to Article VIII, Section 4. MR. UTERMOHLE answered that in his mind, setting it out has to have more effect; however, he couldn't say whether there is a quantitatively measurable difference. Number 0808 REPRESENTATIVE JOULE asked whether, as Version S is written, it could bring the state into compliance with ANILCA. MR. UTERMOHLE noted that Version S is a rewritten version of what was before the committee the previous evening [Version K], with a change of style to make it easier to read, rather than an attempt to effect a substantive change. He believes Version S would provide an opportunity for the state to come into compliance with ANILCA, with the proviso, however, that the ultimate determination of whether this language is sufficient lies solely in the discretion of the Secretary of Interior. Number 0911 REPRESENTATIVE JOULE asked about changes on page 2, lines 15 through 21, noting that there are at least two issues here: "local residence" and "reasonable opportunity." He referred to the memorandum dated September 23, 1999, from the Regional Solicitor for the United States Department of the Interior, copies of which the committee had received in response to Version D of HJR 201; he said that seemed to be fairly clear. Number 0998 REPRESENTATIVE KAPSNER asked whether this provides any kind of Tier I protection or is only a Tier II approach. Specifically, does it provide subsistence protection at all times, or only under a Tier II scenario? MR. UTERMOHLE replied that Section 4 of Version S, which amends Article [VIII], Section 4, of the state constitution, does not provide for a 24-hour-a-day, 7-day-a-week subsistence preference. Rather, it provides for what is euphemistically called an "in times of shortage" preference. Number 1063 REPRESENTATIVE WHITAKER asked whether this "in times of shortage" provision complies with ANILCA. MR. UTERMOHLE answered that there is no provision in ANILCA for an "in times of shortage" preference. The basic Tier I preference in ANILCA is in place at all times. REPRESENTATIVE WHITAKER asked whether this complies with ANILCA. MR. UTERMOHLE replied that the conditions put on the preference, such as the "only in times of shortage" concept, may be a significant constraint on the ability to come into compliance with ANILCA. Particularly in light of the memoranda from the Regional Solicitor of the Department of the Interior, it is quite possible that the Secretary of Interior will not find this language sufficient to bring the state into compliance. Number 1130 REPRESENTATIVE JAMES commented that "in times of shortage" is troubling to her, because she has heard U.S. Senator Stevens, when talking about subsistence, say it is only in times of shortage. [that the preference would occur]. She has heard subsistence users statewide say the same thing. Noting that she cannot find that language in ANILCA, she asked whether it is implicit in ANILCA, to Mr. Utermohle's understanding. MR. UTERMOHLE said he can't see anything that suggests it might be implicit in ANILCA, other than perhaps his understanding of how resources are allocated. He noted that this is based on his understanding of the opinions issued by the Regional Solicitor, the Department of the Interior, and perhaps elements of those federal court cases, to the effect that the preference is not only in times of shortage but at all times. REPRESENTATIVE JAMES replied that her rational sense of the need for a preference would be because there wasn't enough [to go around]. She said it seems unreasonable to believe that there is always "not enough." She asked whether that is a good evaluation of why there is a need for a preference, "or is it just because we want to give everything to them?" MR. UTERMOHLE said he couldn't answer that question. CO-CHAIR OGAN noted that present from the ADF&G, and able to address policy questions, were Robert Bosworth, Deputy Commissioner, and Mary Pete, Director of the Division of Subsistence. Also present was Stephen White of the Department of Law. Number 1279 CO-CHAIR OGAN called a brief at-ease from 3:04 p.m. to 3:05 p.m. He then referred to a memorandum from the Department of the Interior, Office of the Solicitor, dated April 1995, discussing Bobby v. State, 718 F. Supp. 764 (D. Alaska 1989) [only page 2 was provided]. He read from the second paragraph of page 2, which stated in part: Under ANILCA section 804, codified at 16 U.S.C. 3114, non-subsistence uses must be eliminated before subsistence uses may be restricted. He then read from the Bobby decision, as quoted at the bottom of the same paragraph, which stated: With regard to any portion of a wildlife population ... the taking of which must be restricted for conservation purposes, all other uses must be reduced or proscribed before subsistence use is restricted. ... An established subsistence use of a particular wildlife population must be afforded its statutory preference, and such use may be curtailed or proscribed only as a last resort .... CO-CHAIR OGAN noted that he has said all along that if the state adopts the federal system of management into statute and the constitution, it will incorporate all the case law and federal management. He has concerns that need to be addressed before he is even remotely comfortable with any of this, he added, that all other uses are restricted, reduced or proscribed before subsistence use is restricted. Number 1398 CO-CHAIR OGAN called an at-ease at 3:07 p.m. and called the meeting back to order at 3:15 p.m. He asked Ted Popely and Stephen White to address the question of whether the state would inherit the Bobby decision, as well as other case law and federal law, in the proposed constitutional amendment. He noted that this particular ruling has been applied not only on federal lands, but also on state lands and navigable waters. Number 1545 THEODORE POPELY, Legal Counsel for the Senate and House Majority, Alaska State Legislature, replied yes, it is reasonable to presume that in complying with Title VIII of ANILCA, all accompanying federal case law that has interpreted the statute would follow as well. Referring to discussion of Bobby in a previous hearing, he said yes, the federal subsistence regime is generally designed to provide a subsistence preference for rural residents; that is the priority, and that is what the subsistence board and the department are charged with protecting, first and foremost. "They don't have a co-equal management duty for other uses within the state, like sport and commercial," he added. Number 1601 STEPHEN WHITE, Assistant Attorney General, Natural Resources Section, Civil Division (Juneau), Department of Law, pointed out the necessity of putting the Bobby decision in context. First of all, Bobby was the attempt of the federal district court to interpret state subsistence law, he said, so it isn't really an interpretation of ANILCA. CO-CHAIR OGAN interjected, then again read the Solicitor's own language from the memorandum: "Under ANILCA section 804, codified at 16 U.S.C. 3114, non-subsistence uses must be eliminated before subsistence uses may be restricted." He suggested the Department of the Interior's interpretation of the policy directly contradicts Mr. White's statement. MR. WHITE requested that he be allowed to explain the rest of the historic context of Bobby. He said he believes unfortunately that this provision out of Bobby has been read out of context, and he believes it was an unfortunate choice of words by Judge Holland. Referring to the language that says all other uses must be reduced or proscribed before "subsistence use" is restricted, he suggested it would have been true had it said, instead, before "reasonable opportunity" is restricted. Mr. White explained: The reason I know that that's an unfortunate use of words is because in a later case, in Katie John, which I argued before Judge Holland, the same argument was raised for Katie John. The argument was, "We cannot restrict Katie John's subsistence opportunities ... unless we eliminate all commercial and personal use fisheries on the Copper River." Judge Holland rejected that argument. In fact, when we restricted Katie John to seasons and bag limits, the rest of the other uses continued. So, that's one .... Number 1672 CO-CHAIR OGAN responded that there was enough fish in the Copper River to make sure that Katie John got hers, and everybody else could get theirs. He emphasized the large number of fish in that river, saying it is a little different situation from not having enough to go around and other uses having to be eliminated. "It's their own policy," he restated. MR. WHITE replied: Other uses have to be eliminated if subsistence isn't getting its reasonable opportunity. ... If subsistence is getting its reasonable opportunity, subsistence can be limited, in seasons and bag limits and other restrictions, while other opportunities are allowed, other uses are allowed to continue. And, in fact, if you look at the federal subsistence [regulations], that's exactly what happens here. Subsistence isn't given a complete, free rein here; there are seasons and bag limits on subsistence. It is restricted at the same time commercial and sport harvests are being allowed. So, if this was the policy, these regulations couldn't go into effect at all. These regulations dispel that theory right there. Number 1721 MR. POPELY added: There's no question about it, that the federal boards have ... generally not completely eliminated all competing uses in order to provide an absolute, limitless preference for subsistence. Steve [White] is right. But there's no question, also, that under federal case law ... the potential exists for a substantial reduction in competing uses. Whether it's an entire elimination or not, the potential is there, the precedent is there. And we've heard from the Attorney General and representatives from the Department of Interior that their mandate is to manage, for fish, for subsistence use. That, I think, is the point I think you're trying to get at, and there's no question about that. If you're going to comply with ANILCA under federal law, as written and interpreted by the courts, the priority for federal managers is to protect subsistence, first and foremost. Number 1775 CO-CHAIR OGAN called an at-ease at 3:24 p.m., then almost immediately brought the meeting back to order. He read further from page 2 of the Solicitor's memorandum, which stated: In addition, the court cautioned that any implementation of the portion of Alaska's second subsistence law that requires a "reasonable opportunity to satisfy subsistence uses" must not adversely impact the subsistence priority guaranteed by section 804 of ANILCA. Id. at 781. We agree with the district court's analysis of the plain language of the statute. CO-CHAIR OGAN said he is getting mixed signals, but if he takes this at the Solicitor's word, he has serious reservations. MR. WHITE, acknowledging the importance of that point to many people, suggested asking the Solicitor, or the Department of the Interior, if that is their policy; he noted their willingness to give opinions on other proposals, and he pointed out that it would settle, once and for all, their opinion. He again said he believes the regulations answer it, but urged getting a direct opinion. CO-CHAIR OGAN replied, "I think we have one," then suggested that if the Department of the Interior were interested in settling this, a representative would show up at these hearings. Next, he brought the committee's attention to Version S, page 2, line 16, which would add language about reasonable opportunity to the state constitution. He asked if that would in any way bind the federal constitution, laws and regulations. When clarification was requested, he asked whether the state could be ruled out of compliance for giving reasonable opportunity and not eliminating all other uses. MR. POPELY replied that it is a term that hasn't been applied under Title VIII of ANILCA. He suggested the Department of Law would probably agree that it runs a risk of being a term that could be found out of compliance under Title VIII. CO-CHAIR OGAN proposed that although it sounds good, and the state would like to do it that way, it is essentially meaningless. Number 1897 MR. POPELY responded that it is difficult to say, then explained: Really, if you want to be in compliance with Title VIII of ANILCA, there has been a substantial amount of discussion about that, and we've seen several versions of this. And you're not going to get a straight answer from any of the lawyers in the room about whether or not this is going to be viewed as complying with ANILCA. There are some terms in here that are more foreign than others to federal law. And ultimately there is a certification procedure by the Secretary of Interior, and that is ultimately going to determine whether or not compliance has been met. If you really want to comply, ... you more or less have to mirror the laws of general applicability of ANILCA. And if you don't want to comply, ... this committee has put in terms, in here, that arguably could be found by the Secretary to fall out of compliance. "Reasonable opportunity" is one of them. The addition of phrases like "indigenous subsistence resources," "harvestable surplus" and "local residence," the Tier II issue that you discussed with George Utermohle earlier, are all questionable areas where reasonable minds could disagree about whether or not those would be viewed as complying with ANILCA. And secondly, ultimately, this is merely the enabling language. What ultimately will be judged, as to whether or not it is in full compliance with ANILCA, is the statute that would have to be passed, affording ... a preference scheme and laws of general applicability. We don't have that yet. So the real question is: Would this language allow you to pass a law that is in full compliance with ANILCA? Number 2000 CO-CHAIR OGAN asked which must be satisfied, Title VIII of ANILCA or the Secretary of Interior. He further asked whether his assumption is correct that the Secretary has been given absolute authority under the latest extension of time, and that it is simply an administrative decision as to whether the state is in compliance. MR. WHITE affirmed that it is the Secretary's interpretation of ANILCA that will govern whether or not this passes muster. Number 2029 REPRESENTATIVE JAMES referred to the September 23, 1999, memorandum from the Department of the Interior regarding the issue of "reasonable opportunity." She indicated the "reasonable opportunity" approach to providing a subsistence priority was in the amendments last year, which had expired. She noted that the memorandum says that by focusing on criteria like these, which are not in the federal law, the proposal risks creating new conflicts. Representative James referred to both the Katie John case and the Bobby case. She said it seems that managing fishing and hunting in one fell swoop is difficult, and that different rules would be needed for each. She asked Mr. White if that is his assumption as well, and whether those would, then, be found in statute. MR. WHITE agreed that the challenges of managing fish and game are different. Although the state has a statutory scheme for doing that, which speaks generally about sustained yield and so forth, the boards enact the actual regulations, he added. Number 2095 REPRESENTATIVE JAMES said her concern in drafting a constitutional amendment is what it allows the state to do, rather than what it says. If it contains "reasonable opportunity," which has been used for game, on its face this constitutional amendment would seem to allow the state to draw up a statute that would mirror the opportunities of ANILCA. She asked Mr. White to comment. MR. WHITE replied that the Department of the Interior memorandum says there is a risk by putting unnecessary language in the constitution, because unnecessary language always leads to disputes and litigation. If it isn't necessary to include "reasonable opportunity" to achieve the desired goal - the ability to comply with ANILCA - then from a drafter's standpoint, and from a lawyer's standpoint, it probably isn't the best thing to do. Number 2145 REPRESENTATIVE JAMES responded that she doesn't call it superfluous language. She suggested the state is assuming, by regulations "and little things that have happened here and there and yon," that reasonable opportunity is implicit in ANILCA. She also suggested it would be imperative to include it here. "And if it's implicit in ANILCA and it's specific in our constitution, it seems to me like that's not a problem, unless a person wants to make a problem out of it," she concluded. MR. WHITE referred to the language from ANILCA contained at page 66 of the "Subsistence Handbook," dated September 1999, which had been provided to members by the Administration at the beginning of the special session. He noted that it talks about when it is necessary to provide the subsistence priority for residents. It has no trigger event, or standards, about when that is supposed to happen, he pointed out, or at least it doesn't have one that speaks about reasonable opportunity. He further explained: When we went to implement our state law with a subsistence priority, our legislature chose the term "reasonable opportunity." And that's the thing that triggers the priority of subsistence over other uses. When there's not enough ... reasonable opportunity for subsistence users, that's when the other uses have to be diminished. ... It's a term that triggers the subsistence priority in our statute. We could do that even though "reasonable opportunity" was not in our constitution. Number 2200 CO-CHAIR OGAN made the following announcement: Ladies and gentlemen, I'm really troubled with the process, because I think what we're doing here is simply spinning our wheels, and the path that we're headed down in a path that is like trying to suture up a deep wound that's infected. And I believe the deep wound ... is the heart of Alaska. And with these kind of provisions in the federal law and a lack of willingness, I think, ... to work on a resolution that both sides can agree with it, I've really been searching my heart on this, and I think what I would like to do would be to hand the gavel over to my co-chairman. I don't think I can continue to be ... part of a process that I think will ultimately hurt the people of the state, and I don't think I want to chair it anymore. And I will pick up the gavel again when there is a heartfelt, honest effort ... on the part of everybody that will come to the table and earnestly work for a solution that both sides can live with. With that, I'm going to hand the gavel over to my co-chairman. Number 2176 CO-CHAIR SANDERS recessed the meeting of the House Resources Standing Committee at 3:38 p.m., indicating it was recessed to the call of the chair. [There were no subsequent hearings on HJR 201 during this special session; a new resolution, HJR 202, was introduced but was not referred to the House Resources Standing Committee.]
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