Legislature(1999 - 2000)
09/22/1999 06:14 PM House RES
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* first hearing in first committee of referral
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HJR 201 - CONST.AM: RURAL SUBSISTENCE PRIORITY [NOTE: Although this was a Joint House Resources Standing Committee and House Judiciary Standing Committee meeting, HJR 201 was technically only before the House Resources Standing Committee for action. Throughout, the original version of HJR 201 was referred to as the Governor's proposal or Governor's amendment.] Number 0101 CO-CHAIR OGAN announced the first order of business as 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. CHAIRMAN KOTT explained that the House Judiciary Standing Committee was at the meeting to listen to testimony and ask questions. Number 0202 REPRESENTATIVE BARNES made a motion to adopt the proposed committee substitute (CS) for HJR 201, version 1-GH1071\D, Utermohle, 9/22/99 (Version D), as a work draft. REPRESENTATIVE JOULE objected. He explained that the legislation from the Governor is clear and concise, and it passes muster with the Secretary of the Interior, who ultimately needs to sign off on this. He believes putting the proposed CS before the committee is premature, especially knowing that the resolution introduced by the Governor keeps the state in compliance with the Alaska National Interest Lands Conservation Act (ANILCA). Number 0354 REPRESENTATIVE BARNES submitted that the proposed CS is just as assured of being in compliance with ANILCA as the one proposed by the Governor. She said she didn't believe they should spend a great deal of time trying to figure out which one is in compliance with the Secretary of the Interior's wishes, but should find the one that would work without discriminating against a total body of people in Alaska. REPRESENTATIVE OGAN commented that they had debated whether they should have the hearing on the Governor's resolution, and there is support in the committee to at least discuss the proposed CS. He suggested people could comment on whether they liked the proposed CS or the Governor's version better. It is not the final action of the committee, he added. A roll call vote was taken. Representatives Barnes, Whitaker, Masek, Harris and Ogan voted in favor of accepting the proposed CS as the work draft. Representatives Morgan, Joule, Kapsner and Sanders voted against it. Therefore, the proposed CS (Version D) was before them for discussion purposes. The committee took a brief at-ease from 6:25 p.m. to 6:26 p.m. Number 0723 BRUCE BOTELHO, Attorney General, Department of Law, came forward to testify. He also introduced Frank Rue, Commissioner of the Alaska Department of Fish and Game (ADF&G). He noted that this is an historic occasion, recognizing that in eight days, if no action is taken, the federal government will formally and legally assume management of fish and game for subsistence purposes on all navigable waters in Alaska, which is unprecedented since statehood. The one law that stops that from happening right now is the amendment that United States Senator Ted Stevens achieved last year, he explained, which places on hold final adoption of regulations dealing with subsistence, if the Secretary of the Interior certifies before October 1, 1999, that a resolution has been passed by the Alaska State Legislature to amend the Constitution of the State of Alaska; that amendment, if approved by the electorate, would enable implementation of state laws of general applicability consistent with, and which provide for, the definitions, preference and participation specified in sections 803, 804 and 805 of ANILCA. ATTORNEY GENERAL BOTELHO noted that this sets the test - of both the resolution proposed by the Governor and the proposed CS - of whether the Secretary of the Interior can certify that the proposed constitutional amendment will enable implementation of statutes to provide for the definitions, preference and participation. In terms of preference, Attorney General Botelho specified that he means a rural preference in the taking of fish, game and other renewable natural resources for subsistence purposes. The Governor's resolution is very straightforward, he said, simple and short. It reads: The legislature may, consistent with the sustained yield principle, provide a priority to and among rural residents for the taking of fish and wildlife and other renewable natural resources for subsistence. ATTORNEY GENERAL BOTELHO pointed out that this language will satisfy the Secretary of the Interior when he determines whether the state legislature has enacted enabling amendments that would provide for the preference. He urged the committee to give that serious consideration. Number 0940 ATTORNEY GENERAL BOTELHO told members he hadn't come prepared to specifically review the proposed CS but would make some remarks. He informed members that he has met several times with Representative Barnes on earlier drafts, and the Administration recognizes this as a good-faith attempt to pass a constitutional amendment that would enable the preference. There are continuing concerns, however. ATTORNEY GENERAL BOTELHO explained why the Administration had proposed the language they had. The history goes back to the 1989 Alaska Supreme Court decision known as McDowell, which declared the statutory scheme unconstitutional; up to that point, the state had been found to be in compliance. That court determined that the state constitution, as written then, would not permit the state to manage a program consistent with ANILCA that provided for a rural preference, because the constitution would not allow an irrebuttable conclusion that urban residents could not participate - and that rural residents could - in the taking of subsistence resources. The Governor's current proposed amendment specifically authorizes a distinction, providing for the rural preference, which would satisfy the preference in ANILCA and therefore be certified by the Secretary of the Interior. ATTORNEY GENERAL BOTELHO questioned whether the proposed CS (Version D) accomplishes the same thing. He said he believes the language is not clear; as a lawyer, it might be difficult for him to see the development of "proximity" as equivalent to "rural" or to "place of residence." Words would be litigated for years to come, from his experience with other constitutional amendments. For example, what do "sound resource management practices" and "reasonable opportunity for residents" mean? He questioned their appropriateness in a constitutional amendment, rather than being issues to be defined in statute. He added that his primary purpose was to offer the Governor's amendment, not to focus on the proposed CS, which the Secretary of the Interior had been asked to comment upon; the Secretary's opinion should help guide the body's deliberations, he added. Number 1216 REPRESENTATIVE BARNES asked Attorney General Botelho if he could swear that the Governor's amendment would withstand the challenge in the court of other provisions of the constitution, specifically, that being equal treatment under the law. ATTORNEY GENERAL BOTELHO responded that, to the best of his ability and knowledge, he would swear that he believes this amendment will satisfy the requirements of ANILCA and would not be found inconsistent with any other part of the constitution. REPRESENTATIVE BARNES expressed surprise, stating her belief that the equal rights provision of the constitution cannot stand the challenge with the rural preference in there. ATTORNEY GENERAL BOTELHO emphasized that he wasn't being facetious when he said the Alaska Supreme Court has confronted this issue in another forum, in Article VIII of the Alaska State Constitution, when the people of Alaska amended the constitution to provide for limited entry. After that amendment passed, there was a challenge brought to its constitutionality; the specific argument was made that this violated the equal protection clauses in another part of the constitution. The supreme court concluded, however, that it was not inconsistent and that the people of Alaska, in amending this constitution, could provide for exactly that type of limited entry, which meant that some people would be able to participate in fisheries and some would not, as a means of protecting the resource. ATTORNEY GENERAL BOTELHO continued, saying while that was not entirely the same issue, it certainly dealt with the following: resource management; the recognition that there are limited resources and that there must be tools available to the state to make choices when there is scarcity; and who may or may not participate in that resource. In general terms, that is the issue presented in subsistence as well. He believes the Alaska Supreme Court would uphold a statute providing for a rural preference if the Governor's constitutional amendment passed. He indicated that the amendment would be consistent with federal law. REPRESENTATIVE BARNES referred to the Bess decision and said she believes the test of time would prove him wrong. Number 1405 CO-CHAIR SANDERS asked Attorney General Botelho if he was saying that the legislature has free will to do anything it wants about subsistence, so long as it meets the approval of one man [Secretary of the Interior Babbitt]. Number 1428 ATTORNEY GENERAL BOTELHO pointed out that this body is free to do anything, including nothing. The consequence of doing nothing is simply that the federal government will manage for subsistence purposes on federal lands, which - because of a Ninth Circuit Court of Appeals decision that the U.S. Supreme Court refused to hear - will also extend to navigable waters of the state. The consequence is the choice about whether the state will acquiesce in that federal management or take steps to prevent federal takeover. That power resides first with the legislature and second with the people of Alaska. CO-CHAIR SANDERS asked how one could tell Natives in Juneau, for example, that they are a separate, second class apart from rural Natives. He has to explain this to his wife, he said, who is an Eskimo from Nome. Number 1503 ATTORNEY GENERAL BOTELHO answered that the preference does not absolutely exclude others from subsistence. In fact, the proposals advanced by the Administration would specifically provide for opportunities for urban residents to participate in subsistence gathering activities, hunting or fishing, either through proxy participation or through educational permits, which exist today to allow urban Natives to participate in fisheries activities. CO-CHAIR OGAN suggested that the Governor's amendment would affect equal protection, due process, the common use clause, no exclusive right to a fishery, and uniform application. No one can speculate what the supreme court will do, he said, but if they are consistent, they will also rule that it is a revision of the constitution and thus thrust the possibility of a constitutional convention on this question. He asked Attorney General Botelho if it does affect those areas of the constitution. Number 1609 ATTORNEY GENERAL BOTELHO referred members to the Bess v. Ulmer decision, indicating that it is largely based on a California Supreme Court decision regarding prisoner rights. The approach taken by the California Supreme Court, and adopted by the Alaska Supreme Court, was to distinguish between amendments and revisions. Amendments generally focus on fairly discrete topics, while revisions focus on broader topics. The court also talks about both quantitative and qualitative broadness. For example, does the amendment impact several sections of the constitution explicitly? Is it spread beyond one article? The California Supreme Court concluded that that was a form of revision because essentially it had stripped the California judiciary of the power to independently interpret its own constitution as to the rights of prisoners. Attorney General Botelho said he had referenced that because the Alaska Supreme Court did as well. He mentioned getting a sense of what is qualitatively the level that rises to a revision. ATTORNEY GENERAL BOTELHO indicated that if one looks at not only subsistence but also other issues that the Alaska Supreme Court considered, the court was willing to conclude that the amendments dealing with reapportionment - which provided for a fairly basic realignment of powers in terms of who decides to reapportion - did not rise to a level of a revision. He explained that the decision with regard to reapportionment was partly because the amendments were confined to one article, there was not a wholesale shifting of powers. In his view, a constitutional amendment dealing with subsistence is discrete and very much akin to the supreme court decision regarding limited entry. It is clearly quantitatively confined to one article, Article VIII, dealing with natural resources. ATTORNEY GENERAL BOTELHO recognized that many legislators disagree. Ultimately, he pointed out, there is a way to find out - pass a constitutional amendment. There is no dearth of people available and willing to find out whether it is a revision, Furthermore, the supreme court, by its actions this last year, has proven itself willing to make that decision. To those who would argue that it shouldn't be considered if it is possibly unconstitutional, he submitted that the legislature makes judgments all the time about what is in the public interest; although some are found unconstitutional, most are not. He expressed confidence that the court would rule on such an issue well before the November 2000 election. Number 1836 REPRESENTATIVE MASEK mentioned that if the state is not in compliance with ANILCA at any time, the federal government can come in and make sure the state complies; federal court oversight will continue. In addition, the Katie John issue hasn't really been resolved, and it stretches out to the state's navigable waters and public lands, while currently game management just applies to federal lands. Although the Governor's proposal is simple and easy to understand, she said, it doesn't get back true state management. She believes the proposed CS [Version D] is a stepping stone giving Alaskans equal rights to hunt and fish, and allowing rural residents to continue their lifestyles. Having grown up in the Bush, she knows people who hunt and fish and will continue to do so regardless of what happens here. Alaska is the only state without control over its fish and game, she said, and the federal government has a third of Alaska "locked up." She questioned whether that simple amendment would address these issues. Indicating the need to revisit ANILCA, she indicated that until there are both a new President and a new Secretary of the Interior, there won't truly be state management. She asked Attorney General Botelho to comment on the two versions of the resolution, federal oversight, and the Katie John issue. Number 2019 ATTORNEY GENERAL BOTELHO acknowledged that Representative Masek is right, in large part, in describing how ANILCA will work. However, he noted that he would characterize it differently. No matter who manages the resource - federal agencies or the Alaska Department of Fish and Game (ADF&G), along with the Board of Fisheries and the Board of Game - there is no doubt it would be subject to federal court oversight. For instance, a citizen could go into federal court, after having exhausted administrative remedies, to challenge whether the agency had somehow arbitrarily and/or capriciously denied his/her subsistence opportunity. It also shouldn't be a surprise that a federal law would provide for federal court enforcement of that law. He emphasized that although thousands of management decisions are made in any given period of time about fish and game, he could probably count on both hands the number of lawsuits filed in federal court challenging particular management practices. ATTORNEY GENERAL BOTELHO reminded members of the distinct difference between federal management on the ground by federal agencies - in particular, the federal subsistence board - and that by the ADF&G; he indicated the desirability of having the overwhelming majority of decisions being made by the state, as opposed to the federal government. He also indicated that the on-the-ground management should work from the assumption that ANILCA is not going to be changed, again emphasizing that under those circumstances, the state wants to be making those first decisions, the overwhelming number of which will never be challenged. He suggested having Commissioner Rue characterize possible differences between state and federal management under those circumstances. REPRESENTATIVE BARNES referred to the issue raised by Attorney General Botelho about access to the courts for people who felt their subsistence needs were not being granted. She asked whether, under the Governor's proposed amendment, there are no criteria other than being rural residents. She emphasized that federal management has a history of not managing for sustained yield. Noting that the proposed CS goes beyond just saying "sustained yield" as it lays out resource management practices, she submitted that under the Governor's amendment, there is a greater likelihood of losing in court repeatedly. Number 2211 ATTORNEY GENERAL BOTELHO commented that while ANILCA doesn't use the words "sustained yield principle," it is replete with references about nonwasteful uses and it talks about protecting the continued viability of all renewable resources in Alaska. Although Title VIII of ANILCA does not have the keywords that the constitutional framers provided, he believes they will find that those principles are there. He does not dispute Representative Barnes' characterization of earlier federal practices in this state and territory, he said. He believes the statutory scheme, reflected both at the federal and state levels, says the highest obligation of resource managers is sustained yield, and it yields to nothing. CO-CHAIR OGAN noted that they have a good case study with the beluga whale situation. Evidence indicates it is basically a subsistence overharvest that has threatened the species. The circuit breaker is the Endangered Species Act, under which the species has been nominated by the National Marine Fisheries Service (NMFS) as threatened. That is a good example of federal management and the system in place. ATTORNEY GENERAL BOTELHO said that is why the state doesn't need federal management. CO-CHAIR OGAN responded that the problem is that if the state amends the constitution to conform with federal law, then the federal management system has been amended into the constitution and there is no state management. Therefore, there be a federal allocation program and nothing can be done until the Endangered Species Act kicks in. Number 2300 FRANK RUE, Commissioner, Alaska Department of Fish and Game (ADF&G), came forward and disagreed. He stated that ANILCA does contain principles. For instance, the Secretary of the Interior cannot approve any recommendation from a regional council that violates recognized principles of fish and wildlife conservation. He expressed his disbelief that the state, if in compliance with a statute that is based on sustained yield, would lose in court and be forced to violate the sustained yield principle. He believed that a system with a Board of Game and a Board of Fisheries that has multiple constituents (subsistence, commercial and sport users) will have a different approach and will work differently with users than would a federal board which is only concerned about federal subsistence users. He noted the ADF&G's management capabilities regarding commercial and sport fisheries. TAPE 99-38, SIDE B Number 0001 [Begins mid-speech.] COMMISSIONER RUE mentioned discussions with an official in Washington State, where the tribes get half of the fisheries resource and management requires negotiating with some 20 tribes. He emphasized that a rural priority is a far better way to deal with the subsistence needs of rural Alaskans than would be alternatives tried in other parts of the United States. Number 0053 REPRESENTATIVE MASEK commented that there are reservations in Washington State, and she doesn't believe residents there were asked to amend their constitution for access to the resource. Alaska is different from other states because it doesn't have reservations, save one. ATTORNEY GENERAL BOTELHO stated that he wasn't sure he had addressed Representative Masek's question about the Katie John decision. He summarized that the Katie John case was a challenge by certain subsistence fishers on the Copper River against the federal government. Initially, the case was based on the federal government's refusal to allow a subsistence fishery on a tributary [of the Copper River]. He noted that the state had joined [the federal government] in that case. Judge Holland, at the district court level, concluded that the federal government wrongly denied Ms. John and others the opportunity to engage in subsistence fishing. Upon appeal, the state stayed with it, but the federal government switched sides. The Ninth Circuit then concluded that, based on a so-called reserved water right, the federal government would be obligated to provide subsistence fisheries anywhere the waters were pertinent to public lands, which would stretch to the navigable waters of this state. Without a determination as to which navigable waters or what part of them, this matter could well mean litigation in thousands of areas of the state. Therfore, the court concluded that the subsistence issue cried out for a legislative solution rather than a judicial one. ATTORNEY GENERAL BOTELHO informed members there is a lot of misunderstanding about what Katie John stood for, or the state's position. The state definitely took that appeal, and certiorari to the U.S. Supreme Court was denied. The Katie John case perhaps has caused even more concern and tension to the subsistence takeover because of its implications for fisheries around the state. The Katie John decision is a very broad decision, implicating the concept of extra-territoriality. He explained that extra-territoriality is the ability of the federal government, in providing for the priority, to reach well beyond public lands. In the state's view, it poses a risk, when dealing with migratory species, to regulate off public lands - in particular, all the navigable waters of this state. That theory of law would also apply to game. Number 0379 REPRESENTATIVE JOULE referred to the unfortunate decline of beluga whales, noting that there hasn't been recognition of the many successful instances where the opposite is true. He pointed out that much has been gained through the Eskimo Walrus Commission and the Alaska Eskimo Whaling Commission. In other parts of the state, the Alaska Beluga Whale Commission has done well, and so have those populations. He also mentioned the Migratory Bird Treaty Act of 1918. It is remiss, he said, to bring up an instance where failure is highlighted without recognizing the great strides made elsewhere, where Native hunters are allowed to hunt under the Marine Mammal Protection Act or other treaties. Alaskan Natives have real concern over the healthy stocks, he emphasized, which has been shown time and time again. Number 0536 CO-CHAIR OGAN agreed that there are success stories out there. However, when it doesn't work, the federal government falls back on the Endangered Species Act. The Endangered Species Act has affected resource development in other areas and has shut down drilling in Cook Inlet on the latest areawide lease sale. He referred to ANILCA, Sections 13 and 14(a). He asked Attorney General Botelho if he is aware that it says nothing in this Act is intended to enlarge or diminish responsibility of the authority of the State of Alaska for the management of fish and wildlife on public lands, except that may be provided for in Title VIII of ANILCA of this Act. Suggesting this is the savings clause, he said, it seems nothing is intended to diminish the state's responsibility. However, if the state doesn't capitulate to the federal demands to amend the constitution that responsibility will be diminished. He asked whether Attorney General Botelho agreed. Number 0601 ATTORNEY GENERAL BOTELHO commented that is assuming the state has that responsibility [to amend the constitution] now. Again, ANILCA provides that the state may manage if it provides - through statutes of general application - the preference, definitions and priority. This approach does not mandate the state to do anything at all; it is a choice. It is one that the supreme court has upheld as the kind of conditions that the federal system will authorize Congress to employ. He agreed that describing it as a savings clause is an appropriate characterization, and that it is simply to reflect - not expand or diminish - whatever power is there. It is also a recognition that the overriding power, in terms of management on federal lands, is a federal prerogative. It is by the sufferance of the federal government [Congress] that any state is able to manage on public lands ["federal lands"] in any given state. CO-CHAIR OGAN asked the following: was Alaska admitted to the Union on an equal footing with the rest of the states; was Alaska admitted on an equal footing under the Submerged Land Act of 1953; was the Submerged Land Act of 1953 specifically mentioned in Alaska's statehood compact; and does the right to control fishing, as the U.S. Supreme Court has said in other case law, come with the Submerged Land Act of 1953. ATTORNEY GENERAL BOTELHO, to each question, answered in the affirmative. Number 0709 CO-CHAIR OGAN expressed confusion at the apparent inconsistency, noting that it says "nothing in this Act is intended to diminish the responsibility and authority of the State of Alaska," yet the state is being told its authority will be diminished if it doesn't capitulate to Title VIII or amend the constitution. He asked Attorney General Botelho what he thinks was meant. ATTORNEY GENERAL BOTELHO emphasized that the legislature doesn't have to do anything, and the people of Alaska aren't directed to vote in any particular manner. The preeminent authority to manage federal lands and all activities on federal lands, anywhere in the Union, is with the federal government; that is a matter of constitutional law, fulfilled through acts of Congress. Congress has made a choice, specifically with federal lands in Alaska, just has it has done in other states. He referred to Kleppe v. New Mexico as another example, regarding New Mexico's prospective intrusion of the federal government in the management of wild burros. Kleppe stands for the proposition that federal government management can extend off federal lands, he said. However, it is hornbook law. ATTORNEY GENERAL BOTELHO expanded on earlier comments. The federal government owns and manages federal lands and the activities that happen on it, he said. It is by act of Congress that states are given the prerogative to manage wild resources. The state's ability to manage wildlife resources on federal lands is a matter of sufferance, not of constitutional right; it is not a matter of equal footing or the Submerged Land Act that grants the state the ability to manage wild resources on federal lands. The state's ability to manage wildlife resources on federal lands is by act of Congress, and in this particular case it is Title VIII of ANILCA. It doesn't require the state to do anything. It simply says the State of Alaska may manage - just as other states manage - if willing to follow three conditions of management: 1) to use federal definitions; 2) to provide for the rural preference; and 3) to allow for the degree of participation that Congress requires its own federal agencies to follow. "Take it or leave it," he added. CO-CHAIR OGAN emphasized that that is on federal lands, whereas submerged lands are state lands. ATTORNEY GENERAL BOTELHO concurred. CO-CHAIR OGAN turned the gavel over to Chairman Kott, thanking the House Judiciary Standing Committee members for their patience. Number 0909 CHAIRMAN KOTT thanked the Administration for providing the "Subsistence Handbook," dated September 1999. He asked Commissioner Rue what preliminary activities or actions have occurred between the federal government and the state, in preparing for federal takeover if this legislature does not act. Number 0944 COMMISSIONER RUE first said he assumes that is for fisheries, as the federal government has been managing wildlife for a number of years. He then replied that the state recommended, in its comments on the federal regulations, if there is a dual management system, that the federal government and the federal board establish a set of regulations much like the North Pacific Fishery Management Council (NPFMC) does in order to provide general guidance to the state boards and/or the ADF&G, which would manage in-season to deliver these general objectives. The ADF&G had suggested this would maximize cooperation and minimize impacts to other users, such as non-federally qualified subsistence users, et cetera. In those discussions, the federal board has not been particularly interested in using that paradigm of the NPFMC and the Board of Fisheries, in which there is a general management plan and then the state manages within those general parameters. COMMISSIONER RUE informed members that ADF&G has had initial conversations with the federal board in anticipation of federal fisheries management. The response has been that the federal government wants to manage it themselves. Although the state may work on some cooperative research projects - which they do right now, where the U.S. Fish and Wildlife Service or other agencies might put in a weir to amplify the state's information on a fishery, for example - there has not been much interest in seeing the state delegate authority or responsibility to the state board or the department. Number 1065 REPRESENTATIVE GREEN asked Attorney General Botelho: If the state adopts the Governor's proposal, would they still be able to establish nonsubsistence areas? ATTORNEY GENERAL BOTELHO replied yes, and noted that he doesn't believe that is affected at all by identifying classes of users. As he understands it, that is true for either the Governor's proposal or the proposed CS. The focus of the amendment is on the users, not where the use takes place. REPRESENTATIVE GREEN asked whether, under the Governor's proposal, that would revert to allow management of game as well as fish. ATTORNEY GENERAL BOTELHO answered that ultimately, presuming the legislature enacts statutes consistent with the amendment, it would mean full resumption of management for game as well as fish. However, he doesn't believe it is a matter of course. The first step is passing the constitutional amendment, putting on hold the federal takeover. Eventually - and it isn't clear from the amendment itself whether it has to happen simultaneously, before, or shortly thereafter - the next step is to actually enact those laws of general applicability that provide for the definition, preference and participation. Once that happens, there is full relinquishment of the management role of the federal government to the state. Number 1187 REPRESENTATIVE GREEN asked: If we acquiesce and accept the resolution, do we have an opportunity to wait until the vote in November [2000], or is there a requirement that the accompanying legislation be enacted as a precedent condition? ATTORNEY GENERAL BOTELHO said he doesn't believe the amendment addresses that issue, and there is no answer in black and white that he can look to. His best judgment is there is a reasonable transition period after enactment of the constitutional amendment by the people, at which time the legislature would be expected to have enacted a statutory scheme; failing that, the state would go back again to the question of noncompliance. REPRESENTATIVE GREEN suggested that if that were the case, the legislation would have to come forth in two months because that is the potential end of the tenure of the Secretary of the Interior. He asked what would happen if the Secretary wasn't pleased with the legislation, what if the Secretary believed it didn't seem to follow what they had indicated, or what if it didn't get passed until after the current Secretary had left office. ATTORNEY GENERAL BOTELHO replied that he couldn't answer that. He believes there is a rule of reason, absent any express language in ANILCA or the amendment passed by U.S. Senator Stevens, that directs by what time the statutes must be in place. His own judgment is that a prudent person would allow the legislature reasonable time; he interpreted that to mean by the conclusion of the first session of the legislature's next meeting after the constitutional amendment has been adopted by the people. Number 1332 REPRESENTATIVE ROKEBERG noted that the Governor's amendment has the term "other renewable resources" in it, whereas the proposed CS does not specifically speak to other resources. He asked if there would be a problem meeting the various sections of ANILCA that are required under the current law. ATTORNEY GENERAL BOTELHO answered that the reason for "other renewable resources" is that it specifically ties back to ANILCA, which provides for the preference for fish, game and other renewable natural resources. It refers primarily to such things as berries, roots and other edibles, and he doesn't believe that is a dispute for anyone in terms of the ability of local people to gather those resources. He is not in a position to say whether that is a "swing issue" for the Secretary of the Interior. The primary controversy in the state has always been reflected in fish and game. In response to Representative Rokeberg's request, Attorney General Botelho said he would get back to him on that issue. Number 1416 REPRESENTATIVE ROKEBERG noted that U.S. Senator Stevens, in enacting the 1998 moratorium, had deleted a number of amendments he'd made the previous year to ANILCA. He believed that many of those amendments had the support of a vast majority of the people of Alaska. He asked whether Attorney General Botelho had considered, in making recommendations to the Governor or this legislature, putting some provision in the constitutional amendment that tie into some ANILCA changes. ATTORNEY GENERAL BOTELHO answered that, generally, they'd had great concerns in the last special session, when the other body had developed a "laundry list" of conditions that would be precedent to the actual effective date of the constitutional amendment. He said there is no reason to change their view about that. If the overriding goal is certification by the Secretary of the Interior, quite apart from the merits, his own strong concern is that it would not pass muster because alone it doesn't lead to the clear enactment of laws of general applicability. He acknowledged that arguments could be made to the contrary. However, the concern is having a clean, unambiguous constitutional amendment, and removing any doubt about the Secretary of the Interior's ability in good faith to certify it. REPRESENTATIVE ROKEBERG suggested that one of the House's duties is to get the votes in the Senate. Number 1552 REPRESENTATIVE CROFT pointed out that he hadn't commented on the Resources Committee's adoption of the proposed CS because it is not his committee. However, they are dealing with something that most of them only saw 15 minutes ago. ATTORNEY GENERAL BOTELHO said he himself had seen earlier versions and had an opportunity to discuss them with Representative Barnes. REPRESENTATIVE CROFT noted that many testifiers were prepared to talk about the original version, but they now had to address the proposed CS, which he believes is poor treatment of the people as well as a poor process. The two key questions are whether the CS complies with ANILCA and how it affects commercial fisheries. He commented that he and other members of the Judiciary Committee care deeply whether this regains state management. All the constitutional amendment would do is enable the legislature to write a statute that would comply with ANILCA. He doesn't see how the proposed CS (Version D) allows a statute that could comply. ATTORNEY GENERAL BOTELHO indicated his desire to make sure he had not misunderstood Representative Barnes. He takes it from her comments about the Governor's amendment that if they are to discern from the proposed CS that a rural preference could not be granted, then it cannot comply with ANILCA. REPRESENTATIVE CROFT said that was his reading of it as well, on the legal analysis. On the practical analysis, he expressed concern that the proposed CS, by talking about the proximity of residents to the resource as a primary factor - and by not limiting it to rural areas - would mean that any fisheries resource that goes proximate to a large urban center could have a dramatic effect on commercial fisheries. He asked Commissioner Rue to comment. Number 1753 COMMISSIONER RUE answered that if proximity is the only criterion and there are no nonsubsistence areas, then he agrees with Representative Croft's conclusion. If proximity is the priority, then he assumes Anchorage would get all the resources next to Anchorage. REPRESENTATIVE CROFT asked what that does to Cook Inlet commercial fishing. COMMISSIONER RUE answered that it does significant damage to it. Then again, federal management also may [do significant damage]. REPRESENTATIVE CROFT noted that under the proposed CS, there would be both. COMMISSIONER RUE indicated he hadn't seen the proposed CS for long, so it is hard to discern exactly what the implications are. CHAIRMAN KOTT reminded Representative Croft that while he thinks this is a poor process, it is the process. The Resources Committee earlier had indicated that in order to even discuss the proposed CS, they would have to adopt it and bring it before the committee. Whether it is the final outcome of the legislature in this special session remains to be seen. It would have been entirely disingenuous if the Resources Committee had not adopted this, had passed out the Governor's version, and in a later committee the proposed CS were adopted. The public would not have had any opportunity to participate in the discussion. CHAIRMAN KOTT reminded members of the three problems they are addressing internally as they deal with the subsistence dilemma: the legislature only has eight days to accomplish what has not been accomplished in the previous decade; there must be 41 votes; and then there must be voter approval on whatever the legislature passes. The only one the legislature can do something about is getting the 41 votes. REPRESENTATIVE BARNES asked Attorney General Botelho if the state has a Tier II system recognized under the law today, and if this proposed constitutional amendment goes directly to the scheme presently used in Tier II. Number 1917 ATTORNEY GENERAL BOTELHO agreed that "proximity" reaches Tier II. There may be situations, after eliminating all other beneficial users - commercial, sport and personal use - when there are still not enough resources for all subsistence users. In which case, the state needs to decide who among subsistence users gets the resource; that is Tier II. The legislature before had identified three criteria in sorting out who gets it and who doesn't: customary and traditional dependence on a resource, the availability or lack of it of other resources, and proximity to the resource. In a separate decision after McDowell, the Alaska Supreme Court struck down the proximity criterion, saying that it is an unconstitutional basis for determining who should have the Tier II access. The language representing proximity is appropriate language in terms of reinstating that criterion for Tier II. REPRESENTATIVE MURKOWSKI asked how much latitude both the legislature and the Secretary of the Interior have. Number 2052 ATTORNEY GENERAL BOTELHO answered that the choice is not between the proposed CS and the Governor's resolution; the latter has the known advantage of passing the Secretary of the Interior's muster. Although the Governor's resolution is not the only formulation, time is the limiting factor in the legislature's deliberations. He believes the Secretary of the Interior's discretion is very broad, and the legislation leaves it in the sole discretion of the Secretary to make the certification. It is true not only in the context of U.S. Senator Stevens' amendment, but it was also the case from the inception of ANILCA, which provided for the Secretary to certify that the state had laws of general applicability. Attorney General Botelho said that the Secretary has been given plenary authority to make that decision; short of its being arbitrary or capricious, with no basis in law, it will stand. It is a call that Congress has invested in the Secretary to make. Number 2126 REPRESENTATIVE MURKOWSKI understood that if the legislature passes something out of both houses, without the Secretary's blessing, the Secretary could determine that the state is out of compliance. If that situation occurred after October 1, the [legislature] would be "dead in the water" and there would be federal management. ATTORNEY GENERAL BOTELHO said that is correct. Number 2150 REPRESENTATIVE KERTTULA clarified that just having Tier II, as the proposed CS apparently tries to do, isn't going to solve their problem with takeover because "proximity" doesn't equal "rural." ATTORNEY GENERAL BOTELHO concurred, specifying that it solves a state supreme court decision called Kenaitze; however, it doesn't satisfy the participation requirement of ANILCA, which is having a constitutional amendment that will enable a rural preference. He informed the committee of his understanding, which is largely derived from Representative Barnes' comments about the Governor's proposal and its clash with equal protection, is that Representative Barnes' proposed CS would not permit the legislature to reach that result. If he is wrong, in terms of his interpretation, it is important to make sure the proposed CS is clarified in that realm. The crucial issue that the Secretary will look at, as he reviews the language, is whether the language enables this legislature to enact statutes that provide for a rural preference. REPRESENTATIVE BARNES commented that he is wrong. REPRESENTATIVE KERTTULA questioned why the "proximity" language is being used, if the attempt is to comply with ANILCA, the proposed CS does not do it. CHAIRMAN KOTT suggested she would get that clarification as time moves on. Number 2254 REPRESENTATIVE JAMES said there are people in her district who are just as rural as those in Bethel, but who don't qualify because they don't live in the right place. To her, that is wrong. She emphasized that she would never deny anyone the right of subsistence for the use of fish and game for their survival. The issue is not to satisfy the Secretary, but to satisfy the people who benefit from the rural priority. She expressed concerned that if the state continues into the future with a flawed law, the current conflict will continue and get worse. TAPE 99-39, SIDE A Number 0001 REPRESENTATIVE JAMES commented that although they have been operating with seasons and bag limits, there is no such requirement. She questioned whether seasons and bag limits would apply in a real shortage. COMMISSIONER RUE replied that he doesn't believe there is any prohibition of seasons and bag limits, which he believes the principles in ANILCA would confirm. They cannot be arbitrary or capricious, however, and must have some basis in reason or fact. REPRESENTATIVE JAMES referred to Lime Village and asked about the decision in the Bobby case. COMMISSIONER RUE stated his understanding that it required the board to have a rationale for limiting participation in subsistence. He pointed out that many subsistence activities under state law, both for fish and wildlife, have seasons, bag limits or other limitations. He sees no prohibition there, he added. Number 0111 REPRESENTATIVE JAMES noted that although in Washington State the Native tribes get half of the resources, as Representative Masek had pointed out, Alaska doesn't have the same system or treaty. She herself believes two types of people support the "rural" subsistence priority: Natives in rural areas and/or people "scared to death" of federal takeover. However, she has been told that more than half of those living in rural areas, as defined by federal law, are non-Native. She suggested the problem would be simplified if the federal government changed the way it recognizes rural people. Number 0236 ATTORNEY GENERAL BOTELHO referred to the Boldt decision in Washington State, saying it was more to illustrate the intrusion, sometimes broad, of federal law in fish and game management in discrete areas of the country, not just in Alaska. Rather than being an example of a way it should be done, it illustrates the over-arching rule and supremacy of federal law in terms of activities dealing with fish and game in individual states. Number 0299 REPRESENTATIVE JAMES asked which must be drafted first, the constitutional amendment or the statutory language. While she believes the intent of ANILCA could be met under the existing constitution, she added, that is not the case if the specific verbiage in ANILCA must be addressed. She asked about the ability to decide which version of HJR 201 is preferable without knowing what the statutory language would look like. Number 0381 ATTORNEY GENERAL BOTELHO explained that the October 1 deadline is tied to a constitutional amendment, which merely must authorize the legislature to provide the priority in ANILCA; it suggests that the statutory framework can happen later. The statutes themselves ultimately either will or won't provide for the definitions of preference and participation; if they don't, the state will again face the question of federal management. He offered his view that the legislature would focus now primarily on a constitutional amendment. ATTORNEY GENERAL BOTELHO noted that the McDowell decision had foreclosed a simple state statutory "fix" to bring the state into compliance with ANILCA. It said, under our constitution as it exists today and after 1989, that the legislature cannot enact a rural preference that would bar the participation of urban residents. That was the specific issue before the court, and it was what brought the state out of compliance. Attorney General Botelho said that leads him to conclude that the hurdle to overcome is the Alaska Supreme Court decision that says our basic law would prohibit what the federal government says it will require if the state wants to manage: a rural preference. Number 0527 REPRESENTATIVE JAMES asked whether Attorney General Botelho believes that the verbiage in ANILCA could be changed and still meet the intent of ANILCA. When asked, she said she was referring specifically to the rural priority. ATTORNEY GENERAL BOTELHO replied that as he looks at the findings of the Act itself, he believes the rural preference is integral to what represents the deal - the compromise, the agreement - embodied in ANILCA. He suggested there were some basic principles that may not have had to rely on "rural." One, clearly considered, was a Native preference. However, the agreement reflected in Title VIII of ANILCA revolves around a rural preference, recognizing that it will encompass both Native and non-Native values and participants. He believes it is core to Title VIII as it was ultimately constructed, although some other formulation might have served the state well. Number 0562 REPRESENTATIVE GREEN asked what the action of the Secretary of the Interior would be if an amendment were put out to a vote that failed, or if it were found to be unconstitutional. ATTORNEY GENERAL BOTELHO said he believes the federal government would move to take over. Number 0687 REPRESENTATIVE GREEN inquired as to whether problems would arise if the legislators tried to change the constitution against the will of the majority of the people. ATTORNEY GENERAL BOTELHO responded that he didn't believe so. One fundamental element of almost any constitutional framework is the right to amend based on circumstances and the judgment of legislative bodies. That is not unique to the system in the United States; in fact, in most parliamentary systems, the parliament itself amends the constitution, without a vote of the people. He doesn't believe it is inconsistent with legislative duties for legislators to consider constitutional amendments that might fail by a vote in a general election, nor is it a dereliction of duty or violation of oath for legislators to pass a constitutional amendment that is ultimately determined to be unconstitutional. CHAIRMAN KOTT returned the gavel to Co-Chair Ogan. Number 0854 REPRESENTATIVE BARNES referred to the proposed CS, page 1, beginning at line 11, which read, "is not sufficient to provide a reasonable opportunity for residents to take the resource for all beneficial uses". She asked Attorney General Botelho what that means to him. ATTORNEY GENERAL BOTELHO said it means to him that if there isn't enough to go around to some group of people - in this case, residents - something would happen. REPRESENTATIVE BARNES suggested Tier II would kick in, and there would be an allocation decision then, such as through seasons and bag limits; according to the proposed CS, the highest beneficial use would be subsistence use. ATTORNEY GENERAL BOTELHO said he wouldn't describe it as Tier II, however, but Tier I. REPRESENTATIVE BARNES responded, "Oh, not yet. But we're getting there, right?" She then read from page 1, beginning at line 13, which stated, "The legislature may establish criteria for determining eligibility for a resident to take a resource for subsistence use." She proposed an example where there isn't enough caribou for all the different uses in Sleetmute. She asked Attorney General Botelho whether, at that point, under the language in the proposed CS, a determining factor for a Sleetmute resident, whether rural or not, would be proximity to the resource. ATTORNEY GENERAL BOTELHO said he believes that is right, and this language provides for Tier II. He questioned, however, whether it adequately deals with Tier I. REPRESENTATIVE BARNES continued reading from page 1, beginning at line 15: "Those criteria may include proximity of residence to the resource as a primary factor for determining eligibility." She noted that under ANILCA and the present scheme for addressing subsistence in the state, there are other criteria, such as availability of alternative resources, customary and traditional use, and dependence upon the resource as a mainstay of one's livelihood. She asked for confirmation that all of those would kick in under this language. ATTORNEY GENERAL BOTELHO affirmed that, saying that with respect to Tier II, the language in the proposed CS that provides for proximity as a primary factor is appropriate. However, the real question is whether it authorizes a rural preference, the first criterion under ANILCA. Specifically, does it authorize Tier I to be based on rural residence? Number 1154 REPRESENTATIVE BARNES referred back to the phrase, "is not sufficient to provide a reasonable opportunity for residents to take the resources for all beneficial uses". She again asked whether that doesn't allow Tier I to kick in, with the proximity of the people who live in that area being the determining factor, along with the other three or four characteristics. ATTORNEY GENERAL BOTELHO replied that he reads it not that way, but as a laudable principle: If there isn't enough to satisfy all uses, subsistence clearly is the highest beneficial use; all others, including commercial, sports and personal use, would be subordinate. He himself had heard no legislator in either house say that subsistence shouldn't be the highest use, he added. The fundamental issue now is how to distinguish between users; ANILCA requires that distinction to be based on place of residence, and in particular, that it be for rural residents. If the state wants to manage, that is the scheme it must have in place. Attorney General Botelho told members: The state had a scheme that did that and went a step further and said that even as among rural residents, if there's not enough to go around, how do you decide, again, who among these rural users ... gets the right? And the committee substitute addresses that question. It satisfies the Kenaitze decision, which threw out proximity as a criterion. ... That's my dogfight here, because we would like to see proximity reinserted for Tier II. The question is: Does this language meet the preference required by ANILCA at Tier I? Will it authorize you, as a legislature, to enact a rural preference? And my understanding, from comments made tonight in this hearing, [is] that this amendment is not intended to do that; it is intended to deal with something more local, and that is proximity to any given resource, not based on rural or place of residence in that context, which is ultimately what you need to enact if we want to avoid federal on-the-ground management. Number 1347 REPRESENTATIVE BARNES stated her belief that the proposed CS is far more reasonable than the Governor's version, and that it allows, when there isn't enough to go around, going to the area where there is a shortage. "And that is in a rural area of the state," she said. "That's the proximity issue." She expressed concern that using the word "rural" discriminates, adding that if that word was included, she wouldn't vote to move it out of committee. ATTORNEY GENERAL BOTELHO emphasized that the question that must be confronted, though, is passing language that would authorize a rural preference; that is what ANILCA provides for. If "proximity" is a euphemism for "rural," it must be stated, because if it isn't clear here, it certainly won't be clear to the Secretary of the Interior or the state supreme court. He suggested the decision is whether the state wants to manage under ANILCA or not, then added: I'm not suggesting that the Governor's language is the only language. It's convenient because it's the language we know will pass muster; there are other alternatives that have been floated in the past, and there may be formulations ... yet to be considered by this body that will do so, as well. But I suggest again that the test has got to be that: Is it language which will lead to statutory changes that can provide for the definition, preference and participation that is found in ANILCA and written today? It does or doesn't. Number 1488 CO-CHAIR OGAN referred to McDowell and asked, "If proximity to a resource was in the constitution, do you think that the supreme court would have ruled the rural priority law unconstitutional?" ATTORNEY GENERAL BOTELHO replied that he would have to reflect on it. He added that although "proximity," if in the constitution, may satisfy state law, the question is whether it would satisfy federal law. There are two different "sieves" in terms of management, and McDowell showed that the statutory scheme in place didn't satisfy the "sieve" that is the constitution. He stated: There's no doubt that if ... it had been in the constitution, we would not have had a Kenaitze issue, but I'm not sure we would have been certified. Again, I don't know the answer to how the Secretary [of the Interior] will rule on proximity. But I'm concerned that ... if the sponsor of the resolution does not see proximity, or her amendment, as authorizing a specific rural preference at a Tier I level, that it's going to meet ANILCA. ... And we don't have a dispute over Tier II. I'm in complete agreement with her that her language would satisfy Tier II. Number 1617 CO-CHAIR OGAN asked that Attorney General Botelho ponder the question of whether McDowell would have, in his opinion, been tossed out by the Alaska Supreme Court if proximity to [the resource] had been in the constitution at the time. ATTORNEY GENERAL BOTELHO agreed to provide an opinion. REPRESENTATIVE BARNES asked him also to ponder whether it gives the legislature authority to set up any scheme relating to a resident in any particular rural area of the state where there is a shortage. For example, if there were a shortage in Sleetmute, wouldn't it allow legislative authority to set up that scheme for a Sleetmute resident to take that caribou? ATTORNEY GENERAL BOTELHO said he understood the "homework assignment." CO-CHAIR OGAN then asked George Utermohle's opinion on whether, if "proximity to the resource" were in the constitution when McDowell was decided, the supreme court would have ruled the rural priority out of compliance with the constitution. Number 1724 GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, answered that he, too, would have to ponder that. His first response, however, would be that a rural subsistence preference is not a local subsistence preference, and there is a chance the court may have come down the same as it did in McDowell. REPRESENTATIVE BARNES asked whether Mr. Utermohle believes the Governor's version would stand the constitutional test under the Bess decision. MR. UTERMOHLE replied that he couldn't really say, although he had read the preliminary order and decision in the Bess case, and the supreme court decision. "Based on the standards they presented in that case, and based on their handling of the issues before them - the three amendments that they were considering - I can't really tell you what standards they use or would use in the future," he explained, noting that a proposed subsistence amendment such as the Governor's implicates a number of provisions of the constitution besides those in Article VIII. He stated: There is indeed a risk that the Bess decision might come into play, and it might be found to be a revision. It will be largely in the eyes of the court, in their subjective eyes, to make the determination as to how important those rights being affected by the proposed amendment are in regard to the number of provisions that are being affected. The different decisions that the supreme court came down, in regard to the amendment dealing with prisoners' rights and the amendment dealing with redistricting or ... reapportionment, heightens the lack of certainty as to where they might come down on this issue. Number 1840 REPRESENTATIVE BARNES referred to a written opinion by Mr. Utermohle that, to her recollection, indicated he believed this amendment by the Governor affects 8 to 11 other provisions of the constitution. MR. UTERMOHLE said he would have to consult his prior memoranda. He added that there certainly are the three equal access rights in Article VIII, the equal rights provision under Article I, and due process rights; conceivably, freedom of religion is an issue, and there have been supreme court cases relating to the rights of freedom to practice religion and subsistence practices; and there may be some implication with the disclaimer of rights clause in Article XII. It depends on the attorney making the case, he said. CO-CHAIR OGAN mentioned "uniform application," to which Mr. Utermohle agreed. Co-Chair Ogan also mentioned "no exclusive right to fishery." He said he recalled the memorandum pretty well that Mr. Utermohle had given him, which referenced five primary areas: equal protection, due process, common use, no exclusive right to a fishery, and uniform application. He added, "Then you said, 'And other people could easily read more.'" MR. UTERMOHLE said that sounds right, then agreed to provide those opinions. Number 1935 REPRESENTATIVE KERTTULA requested copies for the entire committee. She then recalled that "we had Tier II under McDowell; the court ruled on 'rural'; and then we went into Kenaitze, and that's when Tier II proximity got struck." She asked if that is Mr. Utermohle's recollection as well. MR. UTERMOHLE replied that clearly the McDowell case struck down the rural subsistence provision. In the decision, the court seemed to leave open the possibility that proximity to the resource, though not a significant factor to be used in determining eligibility, in some part of the subsistence process might be available, but not necessarily as the sole criteria. However, in considering that issue in the Kenaitze Indian Tribe case, the court determined that clearly, even under its decision in McDowell, a "proximity to the resource" provision could not stand, either as a single criterion or as one of many criteria. Number 2037 CHAIRMAN KOTT asked whether, in some "mystical way," perhaps the phrase "proximity of the residence to the resource" could be construed to mean "rural," enabling a statutory scheme that would fit that category. MR. UTERMOHLE suggested it would require the legislature, in formulating this amendment, to expressly say in the record that "proximity" means "rural." Hopefully, the court would, in interpreting such an amendment, go behind the words of the amendment and look to what the legislature intended when it put that issue before the voters; that is the only way he sees that the court would buy it. Number 2100 REPRESENTATIVE BARNES said each time the Administration had, in discussions, asked her to put in the word "rural," they'd also asked her to change "proximity" to "place of residence." She inquired what the difference would be if they replaced "proximity" with "place of residence." MR. UTERMOHLE explained that "proximity" refers to the relationship of the distance between the person and the resource, whereas "place of residence" relates to where that person lives. REPRESENTATIVE BARNES, using Sleetmute as an example, asked: If the beneficial use had kicked in, with subsistence the highest use, and proximity to that resource is one determining characteristic, what is the difference between that and place of residence? She added, "The only way you're going to get to the proximity of that resource is to have your residence there, right?" MR. UTERMOHLE said yes, but he believes the Attorney General's concern is that a resident of downtown Anchorage has proximity to certain resources; it would enable an urban resident to participate in subsistence use of resources. "Residence" would give the legislature the ability to discriminate between persons in rural areas and those in urban areas, whereas "proximity" would allow a statewide subsistence preference or access to a subsistence resource, which is not consistent with complying with ANILCA, the goal of the Attorney General. In answer to a question by Representative Barnes, Mr. Utermohle clarified that an Anchorage resident wouldn't necessarily have access to the particular caribou in the village of Sleetmute, but would have access to resources in the vicinity of Anchorage, on a subsistence basis. REPRESENTATIVE BARNES said this goes back to the present management scheme of subsistence and nonsubsistence use areas, with the latter being Anchorage, Fairbanks, Juneau, Ketchikan, and so forth. She asked, "How in the world do you reach in there and pull Anchorage out of the hat?" MR. UTERMOHLE referred to the proposed CS, paraphrasing that it provides in a time of shortage. REPRESENTATIVE BARNES interjected, "We took that out." MR. UTERMOHLE acknowledged that, saying it was replaced with a longer phrase that is similar; when that situation exists, there is a preference, statewide, for subsistence use of that resource. Number 2320 CO-CHAIR OGAN called upon Mary Pete and Stephen White, asking whether, as part of Tier II, there isn't already a "proximity to resource" criterion. STEPHEN WHITE, Assistant Attorney General, Natural Resources Section, Civil Division (Juneau), Department of Law, answered that in 1995 the supreme court struck that down as a permissible criterion for Tier II, and the state can no longer ask people about their proximity in order to get Tier II permits. MARY PETE, Director, Division of Subsistence, Alaska Department of Fish and Game (ADF&G), affirmed that; all questions relating to proximity to the resource in Tier II applications have been purged. TAPE 99-39, SIDE B Number 0001 EDDIE GRASSER, Legislative Assistant to Representative Beverly Masek, Alaska State Legislature, came forward. In answer to questions by Co-Chair Ogan, he said he had filled out a Tier II permit application for Nelchina caribou that year. One part of the form asks where the applicant lives, and the form states that part of the point system is based on where the person lives. CO-CHAIR OGAN requested that someone from the ADF&G bring in an application, as his understanding is that a person receives increasingly more points the closer he or she lives to the resource. Number 0102 MS. PETE explained that the questions about where one lives relate to points for lack of alternative resources, which certainly will differ for Wasilla and Sleetmute residents. They are not designed to measure how close one is to the resource. REPRESENTATIVE BARNES responded that there is a way in the ADF&G point system, then, to reach the guy that lives in Sleetmute, and to discriminate against the one who lives in Anchorage. MS. PETE agreed, emphasizing that it has to do with dependence on that particular resource, not on proximity to it. In response to a question from Representative Rokeberg, she explained that Tier I is all residents who qualify for subsistence; if there is enough for all subsistence users, that is Tier I. Number 0241 CO-CHAIR OGAN asked Ms. Pete, for the record: What percentage is the subsistence take of Alaska's total fish harvest? MS. PETE answered that for fish and game, it ranges from 2 to 4 percent; that depends on the size of the commercial harvest of salmon, in particular. CO-CHAIR OGAN inquired about areas that don't receive enough for subsistence, predominantly the upper Yukon-Kuskokwim and maybe some areas near Nome. He further asked whether the commercial harvest there has been cut back to accommodate subsistence. MS. PETE replied, "Our understanding, from monitoring projects that we have every year - this year, the subsistence harvest needs were met in the Yukon and Kuskokwim, by and large. The Nome subdistrict never opened for any sort of fishery: Tier II subsistence, commercial, sport. Their return was so low that all fisheries were closed in the Nome subdistrict for salmon. So, no needs were met." CO-CHAIR OGAN asked whether every other subsistence need was met in the state, for the most part. MS. PETE said yes, for salmon, according to preliminary information. Number 0361 REPRESENTATIVE MORGAN, speaking about his own region, where there has been a disaster for the last three years, noted that this year was the worst on record for escapement on the Kuskokwim River. There was one commercial opening. For a person from Aniak to get subsistence needs met, a person had to spend more money and do twice as much work; he knows because he did it. He asked why it is only hitting a local area, and he emphasized that it is being managed by the state. MS. PETE replied that the chum returns to Western Alaska north of Bristol Bay all were very poor; escapements weren't met in parts of the Yukon River, the Kuskokwim River, and certainly Norton Sound. In reply to Representative Morgan's question about why it is local, not hurting Bristol Bay, Cook Inlet or Southeast Alaska, Ms. Pete said it is a good question; however, the ADF&G doesn't know. Number 0490 CO-CHAIR OGAN referred Ms. Pete to page 1, line 13, of the proposed CS (Version D). He mentioned deleting all the wording in subsection (b) after "is subsistence use," leaving it to read: "When the amount of an indigenous species of a fish or wildlife resource available to be taken for beneficial uses, consistent with the sustained yield principle and sound resource management practices, is not sufficient to provide a reasonable opportunity for residents to take the resource for all beneficial uses, the highest beneficial use of the resource is subsistence use." He asked Ms. Pete, hypothetically, the following: If such a constitutional amendment passed, would there be an allocation scenario mandated by the constitution, enforceable in the Alaska Supreme Court, that people on the Kuskokwim River could shut down Area M, the commercial intercept fishery, to ensure adequate escapement to meet subsistence needs, the highest priority? MS. PETE answered that the Board of Fisheries did establish a management plan whereby conservation concerns in Western Alaska would trigger certain harvest thresholds in the Area M fishery. More directly, the ADF&G implemented the subsistence priority law this year, as they have every year. As soon as they saw that there was, or could be, a problem with escapement, they curtailed commercial fishing. There was one very short commercial period for chum salmon and one for coho salmon, and they preserved the remainder of the harvestable surplus for subsistence. There were no restrictions on subsistence. There was a closure on commercial and sport fishing, to allow the priority to be realized. Number 0656 CO-CHAIR OGAN asked Mr. White about a hypothetical situation where subsistence is protected as the highest use in this scenario, which equates to times of shortage or if there is not enough to go around for reasonable opportunity for residents to take the resource [for all beneficial uses]. He asked: Would subsistence use be the highest preference, and would Representative Morgan or his neighbors be able to go and court and say, "My subsistence needs aren't being met, and the constitution guarantees that subsistence is the highest use," and the courts would force the board to make sure that escapement was there for subsistence? MR. WHITE stated his belief that the subsistence statute provides exactly this, that subsistence is the highest use. It cuts off other uses once subsistence [users] don't have reasonable opportunity. Whether in the constitution or the statute, as it is, he isn't sure the result would be any different, he said, because the cause and effect between interceptions in fish back to a localized area in some instances hasn't been shown. So, even though there is a statutory or constitutional subsistence priority, one would have to find that those intercept fisheries actually are harming that opportunity for subsistence before a court would change the picture. Number 0790 REPRESENTATIVE GREEN commented that there is presently a federal court interpretation that customary trade in Title VIII includes commercial sale of subsistence-caught resources. He asked: If the Governor's amendment were approved, in order to be in compliance with ANILCA, would it apply to state land as well as federal land that subsistence-caught fish could be commercialized? CO-CHAIR OGAN said he believes that is the Peratrovich case. MR. WHITE replied that he doesn't know the answer; however, he knows that under state law it would be prohibited. It is hard to say whether the state would have to broaden its law to allow commercial sales. He noted that one of the technical amendments that United States Senator Stevens had proposed would have brought the two systems together. Mr. White agreed to look into it, then suggested Ms. Pete might have an answer. Number 0927 MS. PETE explained that under state management now, customary trade is prohibited unless provided for in regulation; in contrast, customary trade is allowed under federal management unless prohibited. As she recalls, U.S. Senator Stevens' amendments would have made the process the same as the state process. Number 0984 CO-CHAIR OGAN asked if any testifier couldn't come back the next day, emphasizing that public testimony would be taken the next morning beginning at 10 a.m., when the meeting resumed. He then recessed the joint meeting of the House Resources Standing Committee and the House Judiciary Standing Committee at 8:51 p.m.
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