Legislature(1997 - 1998)

05/01/1998 03:40 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
           HB 406 - SUBSISTENCE USES OF FISH AND GAME                          
                                                                               
MR. JIM JANSEN, President of the Lynden Companies and representing             
Alaskans Together, spoke in support of doing whatever necessary to             
avert a federal takeover. MR. JANSEN voiced his opinion that we                
have one opportunity to keep the feds out and we need to take it.              
MR. JANSEN declared a federal takeover would negatively affect all             
resource-based industries in the state and federal management of               
fish and game would be unacceptable.                                           
                                                                               
TAPE 98-37, SIDE B                                                             
Number 560                                                                     
                                                                               
CHAIRMAN TAYLOR questioned MR. JANSEN about his testimony, asking              
what benefit would be derived from passing a constitutional                    
amendment to comply with the federal law. MR. JANSEN said state                
management would allow Alaskans to keep their concerns and problems            
within the state.                                                              
                                                                               
MR. DICK BISHOP, representing the Alaska Outdoor Council, testified            
to his organization's support of the concepts within HB 406. MR.               
BISHOP suggested that with some amendments, the bill could improve             
management of subsistence uses of fish and game under state law.               
MR. BISHOP indicated relating an individual priority to the                    
reliance on food is the right way to go. He said the Outdoor                   
Council has maintained that a subsistence priority in law is not               
necessary to properly provide for subsistence uses, but if a                   
priority is to remain in law, it should be based on "how you live,             
not where you live."                                                           
                                                                               
MR. BISHOP agreed that the ability to take fish and game for food              
is a basic human right, as enunciated by the Alaska Native                     
subsistence summit and the Republican Party. MR. BISHOP said the               
Alaska Supreme Court had also validated this idea in their decision            
that said the common use of fish and game to meet the basic                    
necessities of life is a "highly important interest, running to                
each person in the state." MR. BISHOP asked how anyone can advocate            
discrimination against others if we all agree that subsistence is              
a basic human right. He recounted testimony on the House floor by              
members who pointed out that the Alaska Constitution protects                  
against discrimination. He quoted Representative Ethan Berkowitz               
who spoke of the sanctity of the  Constitution and its moral                   
imperative to treat all Alaskans as Alaskans. MR. BISHOP also                  
recalled members extolling the virtue of maintaining Alaska's                  
sovereignty.                                                                   
                                                                               
MR. BISHOP said HB 406 avoids moral and civil rights travesties by             
preserving the emphasis on the importance of Alaskans to maintain              
the ability to harvest fish and game regardless of where they live.            
He suggested this value is paramount and cuts across cultural,                 
ethnic, racial and geographic lines.                                           
                                                                               
MR. BISHOP said the criticism that HB 406 does not comply with                 
ANILCA is "just so much rhetoric." MR. BISHOP stated ANILCA is not             
a standard to aspire to; he said it institutionalizes                          
discrimination among Alaskans, compromises sound fish and game                 
management and abrogates the state's rights. MR. BISHOP explained              
that conforming to ANILCA, especially as it was amended last Fall,             
would leave the state without a legal leg to stand on in defending             
its rights afforded by statehood.                                              
                                                                               
MR. BISHOP argued the priority demanded by ANILCA is not triggered             
by a shortage and would be there all the time, mandating the                   
elimination of other uses should it be necessary to accommodate                
customary and traditional subsistence uses. MR. BISHOP also                    
reported that the need for food is not the standard in ANILCA, and             
the sale and barter of food taken for subsistence is protected in              
ANILCA. If the state agrees to ANILCA, the federal courts will                 
enforce their interpretation of that law and the manner in which               
the state administers it. This would not amount to the state                   
regaining management, according to MR. BISHOP. MR. BISHOP concluded            
that the Outdoor Council recommends that the legislature stick to              
the principles in HB 406, consider some refinements to the bill,               
and go on to seek the necessary changes to ANILCA, where the real              
problem lies.                                                                  
                                                                               
SENATOR WARD asked MR. BISHOP what he thinks will happen if the                
state does not change its Constitution. MR. BISHOP replied that                
will depend on what the legislature does between now and then and              
how the Congressional delegation and the Secretary of the Interior             
respond to it. MR. BISHOP added if we put forward a good bill, we              
will have a good argument toward changes in ANILCA. MR. BISHOP said            
if nothing changes, he has no doubt the feds will begin propagating            
their own regulations on fish and game. MR. BISHOP also answered               
CHAIRMAN TAYLOR's question about the difference between state or               
federal management under ANILCA. He said there really is no                    
difference and he would characterize it as "shot or hung." Under               
federal management, we will have a "zip code rural priority"                   
statewide. This will be the same under the state plan, according to            
MR. BISHOP. He went on to illustrate how state and federal                     
management will amount to essentially the same thing. He added that            
federal court enforcement will be the last word in all these cases.            
                                                                               
MR. BISHOP said a federal takeover will leave us with unresolved               
legal questions surrounding fish and game management and the end of            
Alaska's constitutional protection of common use and equal access              
to fish and game uses. MR. BISHOP said the state would also cede               
any future arguments on these issues.                                          
                                                                               
CHAIRMAN TAYLOR commented that he has been asking these same                   
questions for years and a big part of his frustration is the idea              
people have that the state will be able to retain some sort of                 
management rights and make certain amendments to ANILCA. CHAIRMAN              
TAYLOR said his reading of the bill shows we won't be able to do               
anything.                                                                      
                                                                               
SENATOR WARD said this is a very important issue to him and he is              
bothered by how some people within the media and government treat              
it. He reiterated that Senator Murkowski has said he will begin                
hearings on this issue as soon as we can present him with an                   
"Alaskan solution." SENATOR WARD noted this solution does not have             
to be a constitutional amendment, and we don't have to buy into                
that rhetoric. He concluded by saying he truly believes that if we             
do not come up with an Alaskan solution, "the commercial fishing               
industry as we know it in Alaska will be gone."                                
                                                                               
CHAIRMAN TAYLOR said if the state does not surrender to the federal            
mandate and comply with ANILCA, wouldn't we retain management of               
fish and game on state and private lands, more than 150 million                
acres. MR. BISHOP replied this is correct and the federal                      
government was authorized to manage for subsistence only on federal            
lands, however, the  rules recently proposed would extend this                 
authority to make regulations off federal lands if necessary to                
protect the subsistence priority. MR. BISHOP said this authority,              
if held up under review, would impinge on the authority of the                 
state.                                                                         
                                                                               
CHAIRMAN TAYLOR advised, "if the state surrenders its sovereignty,             
complies with the federal law, amends its constitution, then we've             
handed over all of the rest of the statehood lands and all of the              
private lands in the state - we've handed those over to be                     
regulated under the federal standard and available to the federal              
courts for oversight."  So in fact, if we do not comply with the               
Babbitt-Knowles plan we at least retain our rights on our state and            
private lands, according to CHAIRMAN TAYLOR.  MR. BISHOP said that             
is correct, and that is a good additional comparison to make.                  
                                                                               
Number 278                                                                     
                                                                               
MR. DONALD WESTLUND, testifying from Ketchikan, agreed with SENATOR            
WARD, saying we should not give away any sovereign rights or we                
risk becoming a territory again. MR. WESTLUND read a summary from              
a document entitled "An Examination of Federal Authority to Manage             
Fish and Game in Alaska". MR. WESTLUND concluded that the                      
Legislature should not pass a constitutional amendment regarding               
subsistence on the basis of the argument that the state, as a                  
trustee, may not appropriate a trust asset to one class of citizens            
to the exclusion of others.                                                    
                                                                               
Number 135                                                                     
                                                                               
CHAIRMAN TAYLOR asked MR. WESTLUND if he supports the lawsuit filed            
by the Legislative Council. MR. WESTLUND indicated he does.                    
                                                                               
MR. PETE AMUNDSON testified from Ketchikan and urged the committee             
not to compromise on the subsistence issue and create another                  
Washington D.C. in Alaska. MR. AMUNDSON informed the committee he              
did not wish to be classed nor to be included in anything not                  
allowed by the State Constitution.                                             
                                                                               
MS. KAY ANDREW agreed with the previous speaker and encouraged the             
committee to enforce the position taken by Mr. Ralph Seekins                   
through support of the Legislative Council's lawsuit.                          
                                                                               
TAPE 98-38, SIDE A                                                             
Number 001                                                                     
                                                                               
MR. ROB BOSWORTH, Deputy Commissioner of the Department of Fish and            
Game (ADF&G), outlined problems the department sees with HB 406.               
First, the bill will not avert a federal takeover. Second, HB 406              
will not protect subsistence uses in Alaska, as the standard for a             
non-subsistence economy requires a cash based economy, present in              
many rural areas. For example, under this bill Bristol Bay and the             
North Slope would not be considered subsistence areas. Third, MR.              
BOSWORTH said HB 406 would be enormously costly and nearly                     
impossible for ADF&G to manage. MR. BOSWORTH concluded that the                
concept of identifying users dependent on subsistence is attractive            
but unworkable.                                                                
                                                                               
Number 100                                                                     
                                                                               
CHAIRMAN TAYLOR asked MR. BOSWORTH how subsistence could be                    
structured without violating Alaska's Constitution. MR. BOSWORTH               
replied that he is working with his fourth Governor on this issue              
and there really is nothing new under the sun. He has concluded                
that the rural distinction works.                                              
                                                                               
Number 153                                                                     
                                                                               
SENATOR WARD remarked that he has a problem with the zip code                  
approach which will take hunting and fishing rights from one half              
of Alaska natives. MR. BOSWORTH responded that access would be                 
impaired only in times of shortage. SENATOR WARD stated that a                 
rural preference would still be unfair to people like him, around              
whom Anchorage grew up; he suggested the Governor should instead               
pursue the lawsuit filed by the Legislative Council.                           
                                                                               
Number 219                                                                     
                                                                               
MR. BOSWORTH conceded that the rural preference plan is imperfect.             
The plan is both over inclusive and under inclusive in regard to               
people who should receive subsistence rights in times of shortage.             
He maintained that the plan is the best compromise.                            
                                                                               
CHAIRMAN TAYLOR asked if there wasn't a third plan, allowing the               
feds to take over federal lands and leaving state managers to                  
manage state and private lands. MR. BOSWORTH agreed this was                   
possible with some qualifications.                                             
                                                                               
Number 347                                                                     
                                                                               
CHAIRMAN TAYLOR cited some examples in which federal regulations               
would supersede state management even if Alaska did change the                 
constitution. MR. BOSWORTH remarked that a state regional council,             
much like the federal regional council, would be used under the                
task force proposal. CHAIRMAN TAYLOR argued that any challenges to             
the state board would be taken to a federal judge. MR. BOSWORTH                
insisted that management by the state's expert biologists could be             
supported in court and is preferable to management from outside.               
                                                                               
Number 411                                                                     
                                                                               
CHAIRMAN TAYLOR thanked MR. BOSWORTH for his help and invited his              
further input on amending HB 406.                                              
                                                                               
MR. STEVE WHITE, Assistant District Attorney for the Department of             
Law, testified that the vast majority of subsistence challenges                
stay in state court. MR. WHITE also observed that the amendments               
proposed bring ANILCA closer to state law and in fact benefit                  
Alaska.                                                                        
                                                                               
CHAIRMAN TAYLOR expressed his concern for the sustainability of the            
resource. MR. WHITE said that the state board is a multi-user board            
and will be able to manage for multiple use. He feared the federal             
government may not have the concern nor the resources to manage for            
multiple use. CHAIRMAN TAYLOR interjected that the feds only have              
the authority to manage for subsistence and MR. WHITE replied that             
is true but this management will also affect other uses. CHAIRMAN              
TAYLOR countered that if the last person up the stream attempting              
to get at the resource is unsatisfied, they can go to federal court            
and the court will regulate all other users in an attempt to                   
satisfy that one person. MR. WHITE concluded that he has confidence            
in state management and fears federal management. CHAIRMAN TAYLOR              
expressed his interest in working further on HB 406. He asked MR.              
WHITE for his continued help.                                                  
                                                                               
TAPE 98-38, SIDE B                                                             
Number 001                                                                     
                                                                               
CHAIRMAN TAYLOR asked if there was anyone else wishing to testify              
on HB 406. Hearing none, CHAIRMAN TAYLOR adjourned the meeting at              
7:30 p.m.                                                                      

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