Legislature(2007 - 2008)BARNES 124
04/02/2007 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB203 | |
| HJR4 | |
| HB220 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 203 | TELECONFERENCED | |
| += | HJR 4 | TELECONFERENCED | |
| + | HB 132 | TELECONFERENCED | |
| *+ | HB 220 | TELECONFERENCED | |
| + | TELECONFERENCED |
HJR 4-KENAI/KASILOF SUBSISTENCE PRIORITY 2:05:58 PM CO-CHAIR GATTO announced that the next order of business would be HOUSE JOINT RESOLUTION NO. 4, Requesting the Federal Subsistence Board to reconsider its decision regarding the subsistence fishery priority given to Ninilchik residents. [Before the committee is CSHJR 4(FSH).] 2:07:03 PM CONRAD JACKSON, Staff to Representative Kurt Olson, Alaska State Legislature, explained that HJR 4 requests that the Federal Subsistence Board reconsider its November 2006 decision regarding the subsistence fishery priority given to Ninilchik, Happy Valley, Hope, and Cooper Landing residents. He noted that the committee packet should include a map illustrating the location of the aforementioned communities. The customary and traditional (C&T) use determinations provide subsistence priority to the residents of Ninilchik and Happy Valley for waters north of and including the Kenai River drainage within the Kenai National Wildlife Refuge and the Chugach National Forest as well as parts of the Kasilof River. A similar C&T determination grants the subsistence priority to the residents of Cooper Landing and Hope for the Kenai River drainage. He noted that the committee packet should include the request for reconsideration (RFR) filed by the Alaska Department of Fish & Game (ADF&G). 2:09:23 PM MR. JACKSON turned attention to the RFR for Ninilchik, and highlighted the following language from it: "Reconsideration is required because, in adopting that final rule, 'the Board's interpretation of information, applicable law, or regulation [was] in error or contrary to existing law.'" The same language is found in the RFR for Ninilchik for the Kasilof River drainage. With regard to Hope and Cooper Landing for the Kenai River drainage and waters north of the drainage, the RFR says, "Reconsideration is required because, in adopting the final rule, 'the Board's interpretation of information, applicable law, or regulation [was] in error or contrary to existing law,' and because new 'information not previously considered by the Board' demonstrates that the Board's determination was based on incorrect information and assumptions." These [RFRs] clearly illustrate that the C&T determination is flawed. Mr. Jackson informed the committee that there were some studies [referenced in the document titled "ADF&G Comments on FRFR06-02/03/08 Ninilchik C&T for the Kenai River"] that may have been misinterpreted. One such study showed that only 7 percent of the Ninilchik households claim annual use of the Upper Kenai Area fisheries and a total of 28 percent of Ninilchik residents claimed any such usage ever during their lifetime. The survey found that Ninilchik residents experienced the highest use from fisheries closest to Ninilchik, such as the Ninilchik River and Deep Creek. The sponsor, he related, agrees with ADF&G that the C&T determinations are flawed. Therefore, HJR 4 requests that the Federal Subsistence Board revisit those considerations and take a closer look at the eight criteria upon which the board is required to follow in making C&T determinations. 2:12:30 PM CO-CHAIR GATTO asked if on page 2, line 2, the intent is for the term "reconsider" to mean "reverse." He further asked if such a language change would be clearer or go too far. MR. JACKSON said use of the term "reconsider" is appropriate as the desire is to request that the board review the eight factors that it's supposed to utilize when making the C&T determinations. 2:13:38 PM DARREL WILLIAMS, Resource Officer, Environmental Scientist, Ninilchik Traditional Council, began by relating that he is a federally qualified subsistence user. He further related that he participated in the delivery of the information provided to the Federal Subsistence Board in the C&T process. Mr. Williams said that he's present today because it seems that there has been some misinformation. He noted that he provided the committee with a document [titled "HJR 4 Reasons to Oppose By Ninilchik Traditional Council"] that reviews some of the instances that have arisen through the [C&T] process. Mr. Williams pointed out that this process has gone on for seven years and he said he was sure that no one has been able to review all seven years of the documentation. The aforementioned is evidenced, he said, in discussions of the survey information and how it was used to prove or disprove or to meet the thresholds of the eight factors of the Alaska National Interest Lands Conservation Act (ANILCA). He recalled a survey performed by Jim Fall that has been held up as a reason to scrutinize [the C&T process]. One of the problems that resulted from the survey information was the use of stratification techniques to be able to determine subsistence use in various communities; these techniques were inconsistent. For example, in the community of Nicolai the survey was stratified into new believers and old believers within the same community and who would be eligible for subsistence use and who wouldn't. He recalled that in the Fall survey, the longest residency identified and surveyed was 10 years. In a community such as Ninilchik, which has written documentation back to the 1840s, that doesn't seem realistic. The target population seemed to be missed, he said. The state addressed this many times throughout the process by various staff. Since it's been one of the longest C&T processes that the Federal Subsistence Board has performed, it has been carefully done with legal counsel through the Office of the Solicitor. If the state had significant new evidence that [the C&T determination] was wrong, it would be submitted in a proposal to the Federal Subsistence Board and go through the process. Mr. Williams pointed out that during this process there have been RFRs and special action requests and has required extensive legal counsel. He further pointed out that the RFRs and special action requests have been reviewed federally and withstood the threshold of the C&T determination on the eight factors. 2:18:13 PM MR. WILLIAMS, in response to Representative Guttenberg, opined that there tends to be fear with this particular C&T determination that there will be a large number of people taking a large amount of fish. As a comparative example, Mr. Williams inquired as to how many minutes it would take to catch 500 fish if one was commercial fishing. The 500 fish was a threshold that was taken into consideration through the C&T process. 2:20:47 PM DANIEL REYNOLDS said that Ninilchik has proven customary and traditional use on the Kenai Peninsula and has provided substantial evidence to support the C&T determination. Drawing from the meetings he attended, Mr. Reynolds said that [the Regional Advisory Council and ADF&G] had substantial time to obtain evidence to support their claims. 2:22:02 PM JOHN HILSINGER, Director, Division of Commercial Fisheries, Alaska Department of Fish & Game, stated that the state is deeply troubled by the C&T determinations that were granted to Ninilchik, Happy Valley, Hope, and Cooper Landing. As Mr. Jackson noted, the [department] has filed a RFR. Mr. Hilsinger informed the committee that the aforementioned communities, under state law, are considered nonrural and part of the Anchorage, Mat-Su, and Kenai nonsubsistence area. The Federal Subsistence Board regards these communities as rural even though they are surrounded by nonrural communities. Furthermore, the Federal Subsistence Board has found that these communities have C&T use in the Kenai and Kasilof River drainages as well as other waters in the northern portion of the Kenai Peninsula. Mr. Hilsinger opined that the Federal Subsistence Board didn't base its decisions on evidence that adequately meets the eight factors required by federal regulation for making a C&T determination. For example, the regulations require demonstration of a long-term and consistent C&T use pattern of the fish resource on federal lands by a community. As Mr. Jackson noted, the Federal Subsistence Board misused the data provided by the department and reviewed the number of people who have ever used the area in their entire lifetime. However, when one reviews the proportion that uses it any given year, it's less than 7 percent. The same pattern existed with the communities of Hope and Cooper Landing for many of the species in the area. The Fall report was well done and one must understand that the methodology utilized in that report was by random sample. Only by using a random sample, can a survey represent the usage by the entire community. Although there have been other studies performed regarding subsistence use in Ninilchik, they were targeted to certain portions of the community and certain user groups. Therefore, they don't represent the entire community. Moreover, the fact that many of those surveyed had not lived in Ninilchik for very long is a characteristic of that community. Because of the low usage of many of the stocks on federal public lands, the Federal Subsistence Board used a new definition of stock. The Federal Subsistence Board found that the stocks traditionally used by the people of Ninilchik were the same stocks that occur in the Upper Kenai River. However, the aforementioned is inconsistent with any commonly understood definition of fish stocks. The board also failed to take several factors into consideration, such as the changing demographics of the communities, the impact the available road system has on use levels, and type of use. In the case of Ninilchik, its access to and use of more common local fisheries in either the marine waters near Ninilchik or in the Ninilchik River in Deep Creek [wasn't taken into consideration]. The Federal Subsistence Board also failed to consider historical tribe use areas, which in the case of Ninilchik didn't include the Upper Kenai River. 2:26:41 PM MR. HILSINGER pointed out that when Congress established the Kenai National Wildlife Refuge under ANILCA, subsistence uses were left out of the purpose of the refuge. When all of the aforementioned is considered collectively, the state doesn't appear to support a long-term consistent pattern of community use. With regard to other issues, he highlighted that Cook Inlet fisheries are already fully allocated and the Federal Subsistence Board's decision will ultimately result in unnecessary restrictions of existing established uses, such as commercial sport and personal use. Mr. Hilsinger said that there are conservation issues involved with this. If the department felt there was additional harvest allowable of those stocks, the department would've already supported the many proposals for increased harvest. Although the recommendation that the Southcentral Regional Advisory Council is going to make on these fisheries to the Federal Subsistence Board is more conservative than the original proposal of the residents, it's not conservative enough, particularly for certain stocks such as rainbow trout and steelhead. Mr. Hilsinger then opined that the Federal Subsistence Board has failed to adopt written policies and procedures for C&T determinations and closures that have been required by the U.S. Secretary of Interior. Mr. Hilsinger said this isn't really a question of putting food on the table because the state provides a broad array of personal use, educational, and recreational fisheries that provide ample opportunity for people to harvest fish for personal and family consumption. Furthermore, in most of these communities the amount of fish harvested under those state fisheries is a small fraction of what people would be allowed to take if they took all that they were allowed. 2:29:38 PM CO-CHAIR GATTO asked if the eight factors that have to be met are clear. MR. HILSINGER said that the eight factors mainly refer to the patterns of use. For example, the first factor is a long-term consistent pattern of use, excluding interruptions beyond the control of the community. The second factor is a pattern of use recurring in specific seasons for many years. Mr. Hilsinger said that the eight factors "refer not only to the pattern of use but the handling, preparation, preservation, handing down knowledge." Therefore, [the department] looks for the background information that supports that the community has met each of these patterns. The [department] believes that it should be substantial information because a preference that restricts other users is being provided. Therefore, the information supporting that should be fairly clear. 2:31:22 PM ROD ARNO, Executive Director, Alaska Outdoor Council (AOC), related that the AOC supports passage of HJR 4. He highlighted that the intent of ANILCA was not to have a subsistence priority on the Kenai Peninsula. There is no provision in the Kenai National Wildlife Refuge to provide for a subsistence opportunity. "Instead, unlike all the others, it's to provide in a manner compatible with these purposes, opportunities for fish- and wildlife-oriented recreation. And also, unlike any of the other parks created by ANILCA, the Kenai Fjords National Park does not have a provision for subsistence priority in that national park," he related. He then reminded the committee that the state designates the Kenai Peninsula as a nonsubsistence area. 2:32:59 PM CO-CHAIR GATTO asked if ANILCA established parks, refuges, or both. MR. ARNO answered that ANILCA established both parks and refuges. He noted that the Kenai National Wildlife Refuge was an extension under Title 3. Under Title 2 of ANILCA falls the establishment of new parks, under which the Kenai Fjords National Park was established. Both of those exclude a priority for subsistence. Mr. Arno related that in the late 1970s he attended the meetings on ANILCA that U.S. Representative Mo Udall had and recalled that over 70 percent of the Alaskans that testified at the Anchorage meeting said that the Kenai Peninsula was the area at which they recreationally hunted and fished. In response to Co-Chair Gatto, Mr. Arno confirmed that U.S. Representative Udall was involved with the lands referenced in Section 17(d)(2) of Alaska Native Claims Settlement Act (ANCSA). 2:34:55 PM JOHN SKY STARKEY testified in opposition to HJR 4. Mr. Starkey related that the bill addresses the C&T determination for Ninilchik. After checking with the solicitor, he said that although he didn't get a clear answer, he isn't sure that it includes Happy Valley. With regard to the Kenai Peninsula being different from the rest of Alaska as far as ANILCA is concerned, he related that notion has been legally rejected many times. He said the solicitor's opinion, the Katie John decision, and other decisions by courts are based on public lands, which are on the Kenai Peninsula and have nothing to do with whether or not the refuge itself was set aside for subsistence. Mr. Starkey then recalled that part of the sponsor statement and ADF&G's justification of this resolution is that there would be a crippling impact on the Kenai Peninsula that may result in the shutting down of other fisheries. In the tribe's opinion, this is a counterproductive way to approach the issue and has caused much fear. In fact, there have been threats against Ninilchik people on the Kenai Peninsula. The fact is that a couple of weeks ago, the Southcentral Regional Council forwarded a recommendation to the Federal Subsistence Board, which won't impact any other fisheries. According to Office of Subsistence Management fisheries staff and wildlife fisheries staff, there aren't conservation problems. Therefore, he encouraged a more productive approach, rather than the fear-mongering that's occurring. Mr. Starkey pointed out that many of the arguments are legally based, such as whether there's substantial evidence and whether the Federal Subsistence Board has followed its regulations. If the aforementioned is what needs to be addressed, then the board or the courts will decide. However, the legislature is being asked to weigh-in because it's a policy matter. The legislature is being asked to use its political clout to ask the board to do something. From the standpoint of the Native community, it seems a bit unbalanced that the legislature would weigh-in against the tribe that has established C&T use rather than letting the process go through the normal legal channels, he opined. For example, if the legislature wanted to become involved in policy issues on an equal basis, the community of Saxman has recently been found to be nonrural by the Federal Subsistence Board. However, the legislature isn't weighing in and asking the Federal Subsistence Board to review what's occurring in Saxman. Mr. Starkey opined that [the legislature is involved] because the Kenai Peninsula has always been a controversial area regarding subsistence. In fact, this controversy started years ago and the eight criteria were developed because of the controversy on the Kenai Peninsula. At a joint meeting of the Board of Fisheries and the Board of Game, the eight criteria were used to deny C&T use throughout the Kenai Peninsula. The state was sued in the Kenaitze Indian Tribe vs. State of Alaska based on the findings that no one on the Kenai Peninsula was entitled to subsistence. In that case, the Ninth Circuit Court found that the State of Alaska was not following the law. The history was reviewed by a federal judge last March. The judge found that the Ninilchik Indian Tribe had been poorly treated for 50 years and it was time to do something administratively to allow the Ninilchik Indian Tribe subsistence use. The most important criteria of the eight criteria, is the long-established pattern of use of the resource. He said it was important to note that the criteria includes an essential aspect that says that the Federal Subsistence Board must consider interruptions beyond the control of the community when making such a determination. "It's beyond dispute that Ninilchik has been denied for 50 years ... their opportunity for a traditional subsistence fishery on the Kenai Rivers ... because of commercial and sports fishing and conservation reasons for one reason or another the State of Alaska and the federal government have denied them that use," he opined. Therefore, the Ninilchik Indian Tribe has had to survive for 50 years, catching what they can to maintain their way life. The Federal Subsistence Board reviewed the current pattern of use and how the 50-year period of regulatory prohibition of their way of life impacted things. The Fall report was reviewed in detail by the Federal Subsistence Board and people disagreed about the outcome, he said. 2:41:57 PM MR. ARNO highlighted that a federal judge said that the intent was that all federal land would be used for subsistence. However, that's not what's on the record with regard to the intent of ANILCA when the Kenai National Wildlife Refuge was created, as there was a specific exclusion for the priority for subsistence use on the refuge. Furthermore, the specific exclusion for subsistence hunting in the Kenai Fjords National Park was based on the testimony gathered prior to the passage of ANILCA. 2:42:56 PM MR. STARKEY clarified that nothing in ANILCA says that subsistence isn't allowed on the Kenai Peninsula. 2:43:31 PM CO-CHAIR GATTO, upon determining no one else wished to testify, closed public testimony. 2:43:55 PM REPRESENTATIVE SEATON moved to report CSHJR 4(FSH) out of committee with individual recommendations and the accompanying fiscal notes. 2:44:05 PM REPRESENTATIVE GUTTENBERG objected. Representative Guttenberg said that for him it boils down to the following statement by Mr. Hilsinger: "Cook Inlet resources are already all allocated." Representative Guttenberg related his understanding that Mr. Hilsinger is saying that the matter has been taken care of and [the department] likes the result. However, there are other processes that allow, through the Federal Subsistence Board, others to have input. This resolution seems to relate that [the legislature] doesn't want to consider [other processes]. He opined that the aforementioned is inappropriate. Representative Guttenberg said he viewed this as an opportunity outside of the state's Board of Fish and Board of Game. 2:46:02 PM REPRESENTATIVE WILSON opined that this is difficult because one side says the eight factors have been met and one side says they have not. 2:46:54 PM REPRESENTATIVE KAWASAKI noted his agreement with Representative Wilson that there's a lot of information, but there isn't information with regard to the original language from the Federal Subsistence Board regarding the claim that the eight factors have been met. Therefore, he suggested that more information and time is necessary. In response to Co-Chair Gatto, Representative Kawasaki said that he was in favor of holding HJR 4. 2:47:31 PM REPRESENTATIVE ROSES reminded the committee that ADF&G had already filed an appeal, which is going forward whether the legislature takes action or not on HJR 4. He remarked that he sees validity on both sides of the issue, which makes it difficult to come to a decision. 2:48:21 PM REPRESENTATIVE SEATON related his understanding that there is quite a bit of data regarding that the eight criteria were not met and that the written policies required by the U.S. Secretary of Interior weren't adopted. Furthermore, there wasn't a road to the area on the Kenai Peninsula where the C&T expansion is desired until 1952, and until that time it has been by sport methods and means. Therefore, Representative Seaton said he feels comfortable requesting that the Federal Subsistence Board review the criteria and policies and reconsider the decision. He pointed out that this isn't overriding the decision of the Federal Subsistence Board. He characterized this as a logical step rather than going straight to court. 2:50:14 PM CO-CHAIR GATTO announced that HJR 4 is being held for another day and that it will possibly be taken up at the next committee meeting. [The objection to the motion to report CSHJR 4(FSH) from committee was left pending.]
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