Legislature(2007 - 2008)BUTROVICH 205

05/07/2007 04:00 PM Senate RESOURCES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Time Change --
+ HB 87 CITIZEN ADVISORY COMM ON FEDERAL AREAS TELECONFERENCED
Moved CSHB 87(FIN)am Out of Committee
-- Testimony <Time Limit May Be Set> --
+= HB 220 BAN COMPUTER-ASSISTED REMOTE HUNTING TELECONFERENCED
Moved CSHB 220(JUD) Out of Committee
-- Testimony <Time Limit May Be Set> --
+= SB 57 MARINE PARKS ADDITIONS/HUNTING ALLOWED TELECONFERENCED
Moved CSSB 57(RES) Out of Committee
-- Testimony <Time Limit May Be Set> --
+= SJR 4 NATURAL GAS FOR STATE RESIDENTS TELECONFERENCED
Moved CSSJR 4(RES) Out of Committee
-- Testimony <Time Limit May Be Set> --
+= HJR 4 KENAI/KASILOF SUBSISTENCE PRIORITY TELECONFERENCED
Moved SCS CSHJR 4(RES) Out of Committee
-- Testimony <Time Limit May Be Set> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
       CSHJR  4(RLS)-KENAI/KASILOF SUBSISTENCE  PRIORITY                                                                    
                                                                                                                                
4:49:43 PM                                                                                                                    
CHAIR HUGGINS announced HJR 4  to be up for consideration. [CSHJR
4(RLS) was before the committee.]                                                                                               
                                                                                                                                
CONRAD JACKSON,  staff to Representative  Kurt Olson,  sponsor of                                                               
HJR 4,  said it had been  amended to ask the  Federal Subsistence                                                               
Board  to  rescind  its  recent  customary  and  traditional  use                                                               
determination   that  grants   subsistence   priority  for   four                                                               
communities  on the  Kenai Peninsula  -  Ninilchik, Hope,  Cooper                                                               
Landing, and Happy Valley. He  said an amendment would be offered                                                               
and the sponsor did not object.                                                                                                 
                                                                                                                                
MR. JACKSON explained that at  this point the Federal Subsistence                                                               
Board  has   ruled  against   the  state   on  its   request  for                                                               
reconsideration.                                                                                                                
                                                                                                                                
CHAIR HUGGINS asked if there was any resistance.                                                                                
                                                                                                                                
MR. CONRAD  replied that resistance  has come from  the Ninilchik                                                               
Tribal Council.                                                                                                                 
                                                                                                                                
4:50:44 PM                                                                                                                    
TINA  CUNNING, special  assistant to  the Commissioner  of Alaska                                                               
Department of  Fish and Game  (ADF&G) on subsistence  and federal                                                               
issues, supported CSHJR  4(RLS). She explained that  the State of                                                               
Alaska  was deeply  troubled by  the  recent Federal  Subsistence                                                               
Board decision  on the Kenai  Peninsula to grant  the communities                                                               
of   Ninilchik,  Happy   Valley,  Hope   and  Cooper   Landing  a                                                               
subsistence priority  in the Kenai  and Kasilof  River drainages.                                                               
She   said   the   state   has   filed   several   requests   for                                                               
reconsideration over the last year,  most recently in January and                                                               
it  was heard  again  last week.  HJR 4  is  consistent with  the                                                               
state's various appeals.                                                                                                        
                                                                                                                                
MS. CUNNING explained:                                                                                                          
                                                                                                                                
     Under state law these  communities are regarded as non-                                                                    
     rural in  nature and are part  of the Anchorage/Mat-Su,                                                                    
     Kenai non-subsistence area.  The Federal Board regarded                                                                    
     these  communities  as  rural   even  though  they  are                                                                    
     surrounded by  non-rural communities and it  found that                                                                    
     they have a customary and  traditional use of the Kenai                                                                    
     and Kasilof River drainages.                                                                                               
                                                                                                                                
     The  state  argues that  the  board  did not  base  its                                                                    
     decisions on evidence that  fulfills the eight criteria                                                                    
     required  by   federal  regulations  for   making  such                                                                    
     customary  and  traditional   use  determinations.  For                                                                    
     example,  the regulations  require  demonstration of  a                                                                    
     long-term   customary   and  traditional   pattern   of                                                                    
     consistent use by  a community of the  fish resource on                                                                    
     federal land.  Instead, the  board ignored  and misused                                                                    
     the  available  data indicating  that  at  most a  very                                                                    
     small  percentage -  up  to 7  percent  - of  Ninilchik                                                                    
     residents  had  fished  in the  area  of  the  proposed                                                                    
     subsistence  fishery in  the study  year. The  data did                                                                    
     not  demonstrate  that  required long-term  pattern  of                                                                    
     community use.                                                                                                             
                                                                                                                                
     The board  also neglected to take  several factors into                                                                    
     consideration  such  as  the changing  demographics  of                                                                    
     Ninilchik,  the impact  that Ninilchik's  connection to                                                                    
     the available  road system  has on  use levels  and the                                                                    
     type  of  use  -  such as  sport  fishing,  Ninilchik's                                                                    
     access to  and more  common use  of local  fisheries on                                                                    
     their doorstep,  historical tribal use areas,  which do                                                                    
     not  include  the  Upper  Kenai  River  area,  and  the                                                                    
     purposes of Kenai Refuge.                                                                                                  
                                                                                                                                
     Considered  collectively, these  factors do  not appear                                                                    
     to support a long-term  consistent pattern of community                                                                    
     use.  The  state  is  concerned  that  the  Cook  Inlet                                                                    
     fisheries are  already fully allocated and  the board's                                                                    
     decision   will   eventually  result   in   unnecessary                                                                    
     restriction  of  existing  established  uses,  such  as                                                                    
     commercial, sport, and personal  use fishing. The state                                                                    
     is  also  concerned that  the  Federal  Board does  not                                                                    
     consistently   apply  the   eight  criteria   with  the                                                                    
     substantial  evidence  required  by  regulation  before                                                                    
     making  its   C&T  determination,  does   not  consider                                                                    
     impacts of  its decisions  on other beneficial  uses as                                                                    
     required by  the Ninth Circuit Court  decision in 2000,                                                                    
     has  not adopted  an  applied  criteria in  regulations                                                                    
     that require  substantial evidence  before implementing                                                                    
     restrictions    on    closures   on    state-authorized                                                                    
     fisheries.                                                                                                                 
                                                                                                                                
     This issue before  us is not about putting  food on the                                                                    
     table; the  state provides substantial  opportunity for                                                                    
     personal  and family  consumption through  personal use                                                                    
     fisheries  and for  cultural  and educational  purposes                                                                    
     through  our educational  fishery  permits, which  also                                                                    
     provide for  consumption. The  amounts of  fish allowed                                                                    
     to be  taken under the  state fisheries far  exceed the                                                                    
     numbers  actually  taken  by  the  residents  of  Hope,                                                                    
     Cooper Landing, and Ninilchik.                                                                                             
                                                                                                                                
4:54:19 PM                                                                                                                    
SENATOR WAGONER  asked if  - due to  the federal  board's blatant                                                               
disregard for  its own criteria  - this  would open up  an avenue                                                               
for the state to bring legal action against it.                                                                                 
                                                                                                                                
MS. CUNNING answered that she believed so.                                                                                      
                                                                                                                                
4:54:48 PM                                                                                                                    
MIKE  SEWRIGHT, Assistant  Attorney General,  Department of  Law,                                                               
said he wondered if the question  was in the context of suing the                                                               
federal government for  some type of damages or  pursuing a court                                                               
action  to the  effect  that the  customary  and traditional  use                                                               
determinations are illegal and invalid.                                                                                         
                                                                                                                                
SENATOR WAGONER said  the reason he asked is that  he thought the                                                               
only community that really should  have any subsistence claims is                                                               
Ninilchik and more  likely than not, probably  just the Ninilchik                                                               
Tribe. For instance,  Hope was a community that  was developed at                                                               
the turn  of the twentieth  century as  a gold mine  town. Cooper                                                               
Landing was  developed far later  than that as was  Happy Valley.                                                               
This is  what happens  when the federal  government comes  in and                                                               
decides  what is  rural based  on zip  codes. He  urged that  the                                                               
state bring legal action against the board.                                                                                     
                                                                                                                                
4:56:43 PM                                                                                                                    
ROD ARNO,  Executive Director, Alaska Outdoor  Council, supported                                                               
HJR 4  saying he  has been attending  the federal  board meetings                                                               
for years and he  was at the last one when  it denied the state's                                                               
request for  reconsideration. He also  agreed that the  board had                                                               
been inconsistent  in following its  own regulations and  the C&T                                                               
regulations were just one example of that.                                                                                      
                                                                                                                                
However, Mr. Arno said he thought  HJR 4 would be strengthened by                                                               
adding a  clause that  speaks to  the intended  use of  the Kenai                                                               
National  Wildlife Refuge.  This refuge  was created  by Congress                                                               
and was renamed  from the Kenai National Moose  Range when ANILCA                                                               
was  passed.  In ANILCA  Congress  established  nine new  refuges                                                               
across the state and every one  of them except the Kenai included                                                               
in its  purpose the  priority for  continued subsistence  uses by                                                               
local residents  as a  use. The one  refuge that  Congress didn't                                                               
include  was the  Kenai Refuge  and  Congress did  not treat  the                                                               
Kenai Refuge different by accident.                                                                                             
                                                                                                                                
MR. ARNO  said the questions on  the purpose of the  refuges were                                                               
exhausted in  (d)(2) debates in  the late 1970s.  A preponderance                                                               
of the  testimony then was  the fact that these  people recreated                                                               
on the Kenai.  With that in mind, while  language for subsistence                                                               
in the Kenai Refuge was purposely  left out of section 303 (b)(5)                                                               
of ANILCA, language  listed as a use "the  opportunities for fish                                                               
and wildlife recreation." He explained:                                                                                         
                                                                                                                                
     That  language  was  included,  Mr.  Chairman,  because                                                                    
     Congress  recognized  that  while subsistence  uses  of                                                                    
     local residents  in the Kenai National  Wildlife Refuge                                                                    
     was  no  longer  characteristic  of  the  area  or  its                                                                    
     people, recreational and personal  use - taking of wild                                                                    
     fish  and  game  by  all the  residents,  470,000,  was                                                                    
     highly characteristic of the  area. The Outdoor Council                                                                    
     believes  that  providing  that opportunity  for  1,800                                                                    
     residents that  qualify for  that would  be detrimental                                                                    
     to Alaska....                                                                                                              
                                                                                                                                
5:00:53 PM                                                                                                                    
CHAIR HUGGINS moved Amendment 1.                                                                                                
                                                                                                                                
                                                      25-LS0201\O.1                                                             
                                                                                                                                
                          AMENDMENT 1                                                                                       
                                                                                                                                
OFFERED IN THE SENATE                        BY SENATOR HUGGINS                                                                 
     TO:  CSHJR 4(RLS)                                                                                                          
Page 1, line 15, following "priority;":                                                                                         
     Insert "and                                                                                                                
     WHEREAS the United States Congress determined that, unlike                                                             
purposes of other federal refuges  established or expanded by the                                                               
Alaska  National  Interest  Lands  Conservation  Act,  the  rural                                                               
subsistence priority was not an  appropriate purpose of the Kenai                                                               
National  Wildlife Refuge,  and, therefore,  purposefully omitted                                                               
"continued subsistence  uses by  local rural residents"  from the                                                               
list of purposes of the Kenai National Wildlife Refuge; and                                                                     
     WHEREAS, unlike its determination of purposes for other                                                                
federal refuges, the  United States Congress chose  to make fish-                                                               
and  wildlife-oriented recreational  opportunities  a purpose  of                                                               
the Kenai National Wildlife Refuge;"                                                                                            
                                                                                                                                
CHAIR  HUGGINS  pointed out  that  Amendment  1 consists  of  two                                                               
elements.  The  first part  is  that  Congress expressly  omitted                                                               
continued subsistence uses by local  rural residents on the Kenai                                                               
Refuge and secondly, it chose  to make fish and wildlife-oriented                                                               
recreation  opportunities   a  purpose  of  the   Kenai  National                                                               
Wildlife Refuge.                                                                                                                
                                                                                                                                
There were no objections and Amendment 1 was adopted.                                                                           
                                                                                                                                
5:01:45 PM                                                                                                                    
SENATOR STEVENS  moved to pass  from committee  CS for HJR  4, as                                                               
amended,  with  individual  recommendations and  attached  fiscal                                                               
note. There  were no objections  and SCS CSHJR 4(RES)  moved from                                                               
committee.                                                                                                                      

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