Legislature(2001 - 2002)
04/19/2002 02:01 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 29-CONST AM: SUBSISTENCE FISHING AND HUNTING [Contains testimony on HJR 11, HJR 4, HB 14, and SCR 25] CO-CHAIR MASEK announced that the first order of business would be HOUSE JOINT RESOLUTION NO. 29, "Proposing an amendment to the Constitution of the State of Alaska relating to subsistence uses of fish and wildlife." Number 0056 CO-CHAIR MASEK told the committee that due to scheduling, testimony would be limited to approximately one minute. She also recognized that Representative Davies was present during the meeting. Number 0165 REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor, testified. He said: Two or three years ago, ... Mark Hanley said, "... I'm very concerned about all the subsistence solutions that are presently being discussed, because they do not protect most or many Alaskans from their community becoming urban under the federal definition." He rightly pointed out that Dillingham, Bethel, and Barrow ... are in danger of becoming urban, and therefore disqualified. He said, "I'm not interested in a solution that doesn't protect those folks and their subsistence usage." That got me thinking about, How do we put that in our ... subsistence solution? [Former Governor] Jay Hammond has ... [said] a solution for us on the subsistence issue is one that gives the priority to the people in the area, the so- called local, as opposed to rural, solution. The bill is before you, and we're ... into several iterations of it. The bill that is before you - we've accomplished both of these - protects communities from an arbitrary classification as "urban" under federal law, and it institutes proximity and direct use for ... livelihood as the criteria for who gets the priority on use of the resource during the times when there is not enough of the resource to go around for all users. It is my hope that if we put it in our constitution, that [in] times of shortage, real subsistence is the highest and best use of the resource and trumps all others. Number 0426 REPRESENTATIVE GREEN moved to adopt CSHJR 29, version 22- LS1100\O, Utermohle, 4/6/02, as the working document before the committee. There being no objection, CSHJR 29, Version O, was before the committee. Number 0480 REPRESENTATIVE DYSON continued: If this were to become part of our constitution, we establish that in times of shortage the highest and best use is for subsistence for livelihood, and ... the folks who get the first priority ... are the ones that live closest. ... So, you'll notice ... [Section 1, subsection (b)] ... anticipates that the legislature will pass laws ... addressing how that happens; ... it's the lawful use, and it also ... puts in the constitution the sustained yield principle of management. I have talked with a number of folks around the state; ... when we marched on the subsistence march in Anchorage, ... I passed it around to several of my Native leader friends, and everyone of them said, "Yeah, that'll work"; ... two who have sat in this body said, "That's just real close to what the Hickel task force came up with." I think it has real merits. Number 0558 REPRESENTATIVE DYSON continued: There will be ... three categories of criticisms. ... It doesn't answer the rural preference in Title VIII of ANILCA [Alaska National Interest Lands Conservation Act]. There's a body of thought that says that the Secretary of the Interior could certify the proximity to the resource meets the intent and the spirit of the word "rural" in Title VIII. Now, by the time we get to Special Session, I hope to have opinions both from one of our attorneys here and from the Department of [the] Interior, and I've asked, for that, ... what are the possibilities of that happening, because ... that's a key question that we've got to get answered. If we've got a chance, I think this is one of the better solutions that's on the table, if it could be certified as meeting the intent and spirit of Title VIII of ANILCA. The other concern ... is that once you put it in the constitution, ... subsistence use in an area trumps all others. Then there's the worry by commercial fishermen - like I've been for the last 25 years - that that might be interpreted that until the last person who subsistence fishes at the end of the last creek that feeds the system that produces salmon [gets the opportunity to catch fish], ... all commercial interests will be shut down. The fishery I've been involved [in] ... only lasts about three weeks; 50 percent of the fish will go through in about three or four tides, ... and if the fishery is shut down, waiting for the last subsistence user on the last creek, ... the opportunity to harvest will be gone (indisc.). I think the managers ... have gotten quite good at it, and with our help ... any needed legislation can take care of them, but it's a legitimate concern. Number 0762 REPRESENTATIVE DYSON continued: I'm hoping that my friends in AFN [Alaska Federation of Natives] and other groups will be able to say, "You know, this is what we wanted; we always wanted subsistence ...." I think this meets that criteria, because it protects Native and other subsistence hunters and fishermen from getting arbitrarily disqualified because their community gets too big, like Dillingham, Barrow, or Bethel. It also protects - it's a major concern of mine - the folks who are in the urban areas, who are very legitimately involved in subsistence hunting and fishing, and the very delightful people that I've represented for 12 years now, the Eklutna's. Under the Babbitt-Knowles-Clinton solution, they can't fish in their own fish camp, where the evidence is they've been for at least a 1,000 years, and I would argue probably at least 3,500 years. So, I hope it ... has a chance at meeting the requirements of ANILCA; it gives a great deal more protection for rural residents, and does not preclude ... people who live near urban areas or [are] participating in a legitimate subsistence activities. Thank you. Number 0866 REPRESENTATIVE GREEN mentioned that past administrations were opposed to solutions that required "easing up" of the interpretation of ANILCA. Referring to [Section 1, subsections] (a) and (b), he expressed concerns about the legal interpretations of those subsections. Those subsections, he suggested, could be interpreted to mean that subsistence would be the highest and best use. He remarked, "That I can't handle; that obviously goes against the intent of our constitution." Representative Green brought attention to a change in subsection (b) relating to the availability of alternative food [resources], and suggested the change was good. Expressing concerns about proximity, he said, "Constituents that live in my town are not going to be part of that subsistence issue, even though if we go back to traditional use, they would"; he also suggested that constituents in Anchorage - including Natives - "fail in both of these." Number 1032 REPRESENTATIVE DYSON remarked: No matter what we do, including doing nothing, we have the problem of, if we get a court decision that says anytime we have season and bag limits, you're in, ... de facto, the default position of having not enough for all beneficial users, we won't decide that; my guess is that'll be a court decision .... REPRESENTATIVE GREEN, referring to proximity, said, "If you live there and there's a shortage, ... before outsiders or others come in, you should have the right to it." Number 1147 REPRESENTATIVE DYSON remarked: Subsistence ... is doing it near where you live. ... Most of Alaska's aboriginal people went ... to fish camp in the summer, and if caribou changed their migration pattern, they'd go ... where they were at, not where they weren't at. And that all makes sense, and I'm open - if there's a way to fix that - I'm open to it; ... I'm just reluctant to go very far down the road of this all being decided based on what you have been doing. REPRESENTATIVE DYSON mentioned a friend of his who had changed his lifestyle to raise his children in a subsistence lifestyle. He remarked, "It doesn't allow somebody to make a conscious change about how they're going to do it," and he suggested that he didn't want people in those circumstances to be precluded. Number 1306 EDWARD FURMAN testified via teleconference [his testimony was read by the LIO moderator] as follows: How are the members of Congress, and Senators, and state legislators - from the President to the attorney general's office, supposed to uphold the constitutional rights when they don't even know the constitution themselves? MR. FURMAN stated, "And this is the way I feel, ... and I've heard the cry - I hear you're knocking but you can't come in." Number 1467 GARY CHARLES PATTON testified via teleconference. Indicating he is a member of the Katalla Nation, he remarked: Our territory stretches ... from the Copper River to Icy Bay out to Middleton Island; we're going to ... enter a petition of facts onto the table here for all eyes to see. We are opposed to any legislative Acts, or anything else, that should interfere with our ... exclusive economic zone west of the Copper River to Icy Bay, and we'd like to lay this petition of facts on the table here today. We'll have an affidavit that's a proof of claims; we'll have a synopsis containing the major thesis of this Katalla/Tlingit multiple-issue complaint, a bill of particulars with a conclusion, and there will be an attached complaint addendum that will go with this. The management under the regime, currently, has done a terrible job; it has allowed our resources to fall into the hands of somebody else. This land, these waters - these are for our needs; I have no problem with people who live here, but I have a problem with the resource fate [being put] into the hands of somebody else. They've done a terrible job of mismanagement. Number 1618 DON WESTLUND testified via teleconference. He said he was disappointed that Representative Dyson had removed the portion of the bill relating to the availability of the alternative food sources. He remarked, "If you have a run of sockeye salmons that don't make it up the river that year, but you have an adequate amount of chums or pinks or silvers going up the stream, why should you not be satisfied with that alternative food source to the residents?" He continued, "The state's constitution is one thing, and we still haven't proven that it needs to be changed." Mr. Westland suggested that until the matter goes to court, he didn't see [the bill] as a worthwhile alternative. Number 1718 DICK BISHOP, Lobbyist for Alaska Outdoor Council (AOC), testified via teleconference He suggested that the legislature had the opportunity to take the lead on the subsistence issue. The best alternative for the legislature, he suggested, is to take action that clearly demonstrates that subsistence uses of fish and game for personal and family consumption are provided for under the Alaska constitution without resorting to discriminatory criteria. Mr. Bishop said the legislature could help with ANILCA amendments that he believes are needed to remove the taint of discrimination, ensure sound management, and restore Alaska's equal footing with other states in the management of its fish, wildlife, and waters. He suggested that if by conforming to ANILCA none of those goals can be accomplished, then of the proposed constitutional amendments on subsistence, the only ones that would allow this to happen under their terms are HJR 11 and HJR 29. MR. BISHOP said AOC hasn't taken a formal position on the proposed CS for HJR 29 [Version O], but is very encouraged by Representative Dyson's efforts to find a fair and clearly stated approach to providing for a subsistence priority. He suggested there were several elements that would need to be included in language [being considered], and [HJR] 29 covers a lot of them. The standard, he continued, should be the same for any Alaskan who wishes to qualify for priority use; allocations to priority use should be activated by a resource shortage, not just by the existence of regulations; and the priority should only apply to fish and game. The [priority] should go to Alaskans whose self- sufficiency is linked to the uses of fish and game. He said the legislature shouldn't be tempted by the illusion that if a discriminatory rural-priority amendment is approved, then the conflict will end. It won't, he said; it'll get worse. Number 1866 CO-CHAIR SCALZI, referring to proximity of the [population], asked Mr. Bishop if he supported that section of the bill. MR. BISHOP reminded the committee that AOC had not taken a formal position on the bill. He remarked, "If you combine that element with other elements, then you aren't leaving it open to simply a rural priority, and that, I think, provides some latitude for a more rational approach." Number 1919 DENNY WEATHERS testified via teleconference. Noting that she had provided the committee with written testimony on HJR 29, HJR 11, HJR 4, and HB 14, she remarked: After viewing all three House resolutions and bills, I find that I must oppose all four. Both Representative Dyson and Davies' plans will take away the urban use of subsistence, ... which is wrong. I am a 27-year rural resident. The Alaskan people are the owners of the state's resources, not the government; Alaskan people include both rural and urban dwellers. I thought Alaska's constitution, the one that you took an oath to protect, basically stated that ... the natural resources of Alaska are to be managed as a public trust; ... the public should have the broadest possible access to the use of the state's natural resources; ... most important, management of renewable resources must be on the basis of a sustained yield. Let's not amend the constitution; let's defend it. It is time to tell the [federal government] to pack up and get out. Alaska is supposed to be a sovereign state, according to the Alaska Statehood Act, approved on July 7, 1958, and signed by the President, January 3, 1959. I would like to see more bills like SCR 25, relating to the public trust for fish and wildlife in Alaska. This is what Alaska needs, legislators that put Alaska first and foremost. Thank you for the opportunity to testify, and I also appreciate the fact that Mr. Dyson and Mr. Davies are trying to do something, but I would really like you to uphold the constitution first; are there any questions? Number 2051 DALE BONDURANT, Alaska Constitutional Legal Defense Fund, testified briefly via teleconference. He said, "We have a suit in court with the federal government over this," and noted that he was submitting additional [written] testimony. Number 2085 DELISE CALCOTE testified via teleconference, noting that her mother's [family originated] from Afognak Island near Kodiak Island, and her grandfather [originally came] from an area south of Naknek. She said she moved to the Cook Inlet area in 1969, had worked on the Exxon Valdez oil spill, and is part of the class of 700 subsistence-damaged claimants that has still not been paid. She noted that she had worked for Chickaloon [Native] Village, the Cook Inlet Marine Mammal Council, and the Cook Inlet Treaty Tribe, which she said had been working on the beluga [whale] issue with tribes in the area. Ms. Calcote remarked: We have all this information, and [have been] gathering information on damages that are occurring here in the Cook Inlet, and on the fishing, and the limitations of subsistence fishing; ... being in law, you have to go all the way back to do the research of where all this law came from; ... looking at constitutional law, ... this Article XII, Section 12; the State of Alaska, its employees and agencies still have no codes and ordnances behind that. We have never given up. ... We didn't get to vote for statehood, and if P.L. [Public Law] 280 was attached to it, there was a little provision section that said that we all should've voted in every village, and had it certified by Secretary of [the] Interior - that never happened. Number 2173 MS. CALCOTE continued: If we had the Indian citizenship rights of the 1920s, then why didn't we get to vote for it, and why was [there] that little provision that we had to vote, have to speak English, and write English in order to vote for [the] constitution? We didn't get to vote for ANCSA [Alaska Native Claims Settlement Act], ANILCA, and to diminish us ... as ... an ethnic minority in our own land. I don't want to even see any kind of a vote on the constitution, because for us to even go and vote at this time, when we didn't get to vote for it in the first place, is just a sham, and an attempt for everybody to think that we really are having our rights represented. We have international rights; we have never ever given up; we have never voted, and I don't want to see one Alaska Native vote for this. Number 2246 MARY BISHOP testified via teleconference, noting that she would submit alternative language for HJR 29. She said she believed [the alternative language] was identical in meaning, but was easier to read and understand, and she suggested it was really critical in a constitutional amendment. She recommended using the term "depleted resource", which she said makes it clear that the shortage is not due to regulations. Ms. Bishop suggested that subsistence is a holy word and remarked, "Government cannot decide who holds which values or who belongs to which religion, and no government can tell a person whether he or she is a subsistence user." These are personal identities, she said, often strongly held, often poorly defined, and in the case of subsistence, with multiple definitions. She remarked that it is "the state, the [federal government], and everyone's separate personal definition." MS. BISHOP asked, if Katie John moved to Fairbanks, whether the federal government could logically tell her that she was no longer a subsistence user. She said she has spent 25 years listening to and participating in the subsistence debate, and she has come to some conclusions, which she would offer in the hope that it can help resolve or at least move "us" toward some better understanding of one another, and a possible solution. Ms. Bishop remarked, "I think HJR 29 is a move toward that because it recognizes that subsistence is something that all of us can do, but that 'priority' is not, and I think that's what we have to recognize." She continued, "Subsistence is a holy word, priority use is not"; she noted that she would submit the remainder of her testimony in writing. Number 2409 CO-CHAIR SCALZI turned attention to Section 1, subsection (b), and suggested amending the section for clarity by adding the word "resource" to the word "population". REPRESENTATIVE DYSON said the bill was technically accurate in the way that it's written, but was confusing to read. He said he thought about adding the phrase "fish and game" before "population", and remarked, "This bill does not talk about gathering, and we thought about that, and we didn't want to get into the logging issue particularly." He suggested that it is fish and game where the issues are, and remarked, "It is not my sense that we need to ... protect berry gathering, which really comes to mind in the same way, first of all because those things are not subject to management." Representative Dyson remarked, "One of the folks that called in and testified didn't like the fact that [in Version O] we had taken out the phrase ["availability to alternative food resources"]; what we were thinking when we took that out was access to grocery stores." He said the thought was not about the fish and game population, but about people not being disqualified because they live too close to [a village]. Number 2539 REPRESENTATIVE McGUIRE offered a conceptual amendment [Amendment 1], inserting the language "fish and game" before the word "population" on lines 7-10 and 13-16. Number 2581 CO-CHAIR MASEK asked if there was any objection to [Amendment 1]. There being no objection, she announced that Amendment 1 was adopted. Number 2590 REPRESENTATIVE KAPSNER pointed out that for consistency line 13 should be changed, because it referred to "fish or wildlife". REPRESENTATIVE DYSON said, "It already says fish and wildlife, and probably we ought to ... make it consistent and make it fish and wildlife all the way through." CO-CHAIR MASEK again asked if there was any objection to [Amendment 1]. There being no objection, it was so ordered. Number 2638 CO-CHAIR MASEK indicated HJR 29 would be held for further consideration. Number 2690 REPRESENTATIVE DYSON, sponsor, withdrew his request to have HJR 11 heard by the committee. He explained: This was my first attempt, and I believe that what you have just heard HJR 29 supersedes the need for this. If there's some wording in here that strengthens the case, I'd be open to it, maybe as a subsequent discussion, ... but ... I withdraw my request for you to hear HJR 11.
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