Legislature(1997 - 1998)
05/26/1998 02:15 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 2:15 p.m. in the Senate Finance Committee Room. He announced all committee members were present, as well as a number of other members of the Senate joining the committee. CHAIRMAN HALFORD announced the committee would be taking up the proposed subsistence package which includes a constitutional amendment, an extension of the sunset, as well as a governor's bill on subsistence; however, he said the committee would be concentrating on the constitutional amendment proposal and the sunset legislation. He then invited Attorney General Bruce Botelho and former Attorney General Charlie Cole to make their presentation to the committee. ATTORNEY GENERAL BOTELHO said he was appearing before the committee to represent the Knowles' Administration about subsistence, and Mr. Cole, a former attorney general, was appearing before the committee as a member of the bipartisan subsistence task force that was convened last year to try and find a solution to the subsistence dilemma. He said he and Mr. Cole would be providing an abbreviated historic and legal perspective about the subsistence issue, and would be focusing specifically on the constitutional amendment and the reasons why they think that the task force product is one that should be ultimately put before the people of Alaska. ATTORNEY GENERAL BOTELHO said probably an important start is to talk about what subsistence is. Obviously, both state and federal law provide definitions of subsistence, but in a more general sense, we're talking customary and traditional hunting, fishing, or other gathering activities that are intended for personal or family consumption. It is also quite clear in looking at what the patterns are in Alaska, that subsistence is a mainstay of life, particularly in rural Alaska. That dependency was particularly dramatically illustrated as a result of study that was completed in 1987 by the Department of Fish and Game. ATTORNEY GENERAL BOTELHO directed attention to Table 1 contained in a packet provided to the committee (See Attachment #1) which shows the annual harvest of subsistence foods by geographical area. He pointed out that of 98 communities that were surveyed around the state, going from the very largest communities to the smallest villages in Alaska, the results show that the per capita consumption ranges from a low in the Anchorage, Fairbanks and Juneau areas of 30 pounds per person to a high in the Northwest Arctic of well over 1,000 pounds. The per capita consumption of these wild game fish and other resources vary directly from the distance to the major urban centers of the State. The closer to road, rail or ferry service the less the dependence on that resource. The numbers reflect three factors: (1) job opportunities in the urban areas limit the amount of time that people can engage in hunting and fishing activities: (2) there are also alternative food sources available combined with those cash incomes in the urban centers; and (3) in urban areas there are large numbers of people who don't hunt or fish at all. ATTORNEY GENERAL BOTELHO said he thinks there are two major viewpoints that have been expressed about what the controversy of subsistence is. In one sense, the subsistence debate deals with a larger issue that was triggered by dramatic population growth within Alaska in the last decades and the consequential pressures on fish and wildlife resources. This has forced policy makers to have to constantly readdress the issue of how to go about allocating those resources when there aren't enough to satisfy every person. The other viewpoint has to do with the issue and direct result of efforts to resolve aboriginal hunting and fishing rights which actually began before statehood. Congress said that Alaska, as a state, could not regulate aboriginal hunting, fishing or other gathering inconsistent with federal law. There are two very pertinent provisions in the Statehood Act. One is the transfer in 6(e) of the Statehood Act of fish and game management from the federal government to the state. The state would be able to exercise the same degree of power that the federal government was able to. The other provision in Section 4 of the Act deals with the issue of the state being required by admission to disclaim all right and title to any lands or other property, including fishing rights, the right or title to which may be held by Alaska Natives. The U.S. Supreme Court visited that issue very early in statehood, one arising out of Metlakatla and the other out of Kake. In Kake versus Egan, the U.S. Supreme Court said the purpose of that language was to preserve the status quo with respect to any aboriginal claims so that statehood would neither interfere with extinguishing those rights or require them to be recognized as compensable. ATTORNEY GENERAL BOTELHO said in 1971, Congress addressed the issue by enacting the Alaska Native Claims Settlement Act (ANCSA), and a large part of the debate about ANCSA is specifically about the question of subsistence rights. Amendments proposed to that Act would have specifically recognized Native rights, the hunting and fishing subsistence rights, and would have also specifically directed the Secretary of Interior to withdraw lands around villages for subsistence purposes with the ability to exclude any other takers. Congress ultimately decided not to do that because the secretary had enough power to make those withdrawals without additional exercise of powers conferred by the Act. The conference committee report on ANCSA said that the committee expected both the Secretary and the State to take any action necessary to protect the subsistence needs of the Natives; however, the secretary didn't undertake any particular actions. The state of Alaska made some preliminary efforts by enacting the first subsistence statute in 1975. It allowed the Board of Game to set aside subsistence hunting areas, but the board never did it. Another Act was passed in 1976 which provided for greater public participation in that determination. The power to designate these subsistence areas was discretionary and the board decided to use its discretion. In 1978, the Legislature answered the question about subsistence priority use in legislation but didn't address the question of who the users should be. The Legislature determined that it was in the public interest to clearly establish subsistence use as a priority of Alaska's fish and game resources, and to recognize the needs, customs and traditions of Alaskan residents. While the Alaska Legislature was working on the subsistence issue, there were efforts in Congress to try and deal specifically with subsistence. At the same time, efforts were being made to pass another act which became known as the Alaska National Interest Lands Conservation Act (ANILCA). While the primary focus of that debate had to do with lands and land designations, there was no doubt that Congress, at this point, was also going to deal with subsistence. The large push at that time by the Native community and supported by federal case law, particularly from the U.S. Supreme Court, was that the subsistence priority on federal lands should be a Native priority, not a rural one, while the state of Alaska successfully pushed for a priority based on geography rather than ethnic background. ATTORNEY GENERAL BOTELHO highlighted three sections of ANILCA. In the policy section, it provides that the purpose of this title is to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so. The definitions section provides that "subsistence uses" means the customary and traditional uses by rural residents of wild renewable resources for direct personal or family consumption. The preference for subsistence users section provides that, unless otherwise provided, the taking on public lands of fish and wildlife for subsistence uses shall be accorded priority over the taking for other purposes. With ANILCA, the federal government authorized a particular regime, but it also said that the state of Alaska could take over management if it enacted laws of general applicability which provide for the definition of "rural," the preference, and the participation specified in the Act, and Congress gave the state one year within which to do so. Between 1981 and 1989, the state undertook several efforts to come into compliance. Initially, the Legislature was unable itself to enact a law, and consequently the Boards of Fish and Game adopted regulations to do so; those were rejected as being without legal basis in 1985. This led to action in the 1986 legislative session that provided for a rural preference in the taking of fish and game. In 1989, the Supreme Court struck down the rural preference. The final conclusion of the court was that the statute, which provided or required that one live in a rural area in order to participate in subsistence hunting, was violative of what is called the common use clauses of the constitution. That led to a determination that the state had no valid law that was consistent with ANILCA, the state was out of compliance, and, for the first time in several years, management was again reverted to the federal government. Since then, virtually every Legislature has had constitutional amendments introduced to try to resolve the dispute. ATTORNEY GENERAL BOTELHO reviewed four cases which he thought would help the committee in its deliberations. MCDOWELL V. STATE OF ALASKA (2) (1990) It was a challenge in 1990 to the constitutionality of ANILCA, also alleging violations or conflicts with the Statehood Act. Two years later, the Federal District Court in Anchorage concluded that the plaintiffs both lacked standing, but also looked at the merits of the case, and on each and every issue challenging the validity of ANILCA the court concluded that ANILCA stood. The plaintiffs and the federal government appealed the decision on the standing issue to the Ninth Circuit. In 1994, the Ninth Circuit vacated the District Court decision and told it to go back because they had not established standing, and it started over again. The District Court ultimately dismissed the case without prejudice to refile. The plaintiffs appealed that decision to the Ninth Circuit, and that case in front of the Ninth Circuit was voluntarily dismissed on February 9, 1998. A new case known as Olson v. United States was filed in January 1997, and it raised most of the same issues that had been in the McDowell (2) case. That was also dismissed voluntarily on March 18, 1998 in order to make way for the Legislative Council's lawsuit in Washington, D.C. That lawsuit is currently pending with motions to intervene and a pending motion to dismiss. STATE V. KENATIZE INDIAN TRIBE (1995) The case was decided in 1995, and under the 1992 subsistence law, which was enacted to respond to the McDowell case, Alaska, as a state, continued to recognize the subsistence priority and created two tiers of subsistence users. The first one was intended to reach all subsistence users and the second was intended to be able to resolve who gets to take the resource in the event that there aren't sufficient resources to cover all subsistence needs. The people who were to be eligible for this second tier of subsistence were determined based on three criteria: (1) customary and direct dependence; (2) the proximity to the resources; and (3) the availability of alternative resources if subsistence was restricted. The 1992 law also authorized the Boards of Fish and Game to set up subsistence and nonsubsistence areas in the state. That law was challenged by the Kenatizes, and the Supreme Court struck down that part of the tier two criteria which was based on proximity to the resource. Now all Alaskans qualify for subsistence, but the areas where subsistence may be taken are those to be designated by the Boards of Fish and Game. KATIE JOHN V. U.S. (1995) The case was decided by the Ninth Circuit in 1995. Katie John and others of the Mentasta Village challenged the failure of the federal government, and specifically the Federal Subsistence Board, to adopt regulations that would cover navigable waters near Mentasta. The federal government had refused to do so and the state intervened in the case. The District Court found that, in fact, the federal government did have the authority to establish regulations dealing with subsistence on navigable waters. This was appealed by the state of Alaska and in the federal court, and in 1995 the Ninth Circuit rejected the navigational servitude theory but found that the federal government did have authority to enact regulations on navigable waters of the state. The Court didn't say what waters they are, but it did say it is up to the federal managers to identify those waters. Attorney General Botelho directed attention to a map highlighting many of the water bodies the federal government intends to regulate in the event that the state of Alaska does not take management in December of this year. TOTEMOFF V. STATE (1995) The case was decided by the State Supreme Court. It arose out of the taking of a deer in the Prince William Sound area when Totemoff used spotlighting in shooting from a skiff to an island owned by the federal government. The state of Alaska prosecuted for violating the state regulation which prohibited spotlighting. Totemoff argued that this was a customary and traditional use, clearly a protected subsistence hunt. The Alaska Supreme Court concluded that ANILCA itself did not protect the use of spotlighting as a customary and traditional method of subsistence hunting, and as a consequence, there was no conflict between state and federal law, consequently the federal law did not preempt the state's ability to prosecute this particular violation on federal lands. ATTORNEY GENERAL BOTELHO, speaking to the Governor's Task Force on Subsistence, said at their first meeting the task force agreed to four principles in trying to reach resolution of the subsistence dilemma: (1) To establish effective state authority over the entire state for management of fish and game. (2) To recognize the paramount importance of the subsistence way of life in Alaska. (3) To maintain neutrality on the issue of tribal sovereignty over lands in the state. (4) To make only those changes that were necessary to accomplish the objectives of (1) and (3). The product was three-fold: changes to ANILCA, which for the most part were achieved by Senator Stevens; a constitutional amendment; and a statutory framework. Number 472 CHAIRMAN HALFORD noted that when Attorney General Botelho talked about the federal law, he said if the state were managing it then the state could comply with the federal regulations. He then asked if the "it" he was referring to is the management of fish and game or the management of subsistence. ATTORNEY GENERAL BOTELHO responded that, in the very specific, it was management of subsistence uses of fish and game on federal land. CHAIRMAN HALFORD said the reason he asked that question is because one of the most often played misconceptions is that this discussion is about the management of fish and game versus the management of subsistence harvest. He asked if the state isn't in compliance, what does the federal government manage under the management authority that is provided in Title VIII of ANILCA. ATTORNEY GENERAL BOTELHO answered the federal government is directed to manage for the subsistence use on federal lands under the terms of Title VIII of ANILCA. CHAIRMAN HALFORD said then it is definitely not opening and closing commercial seasons, nonsubsistence season, personal use seasons, etc. ATTORNEY GENERAL BOTELHO agreed that it was not directly. He said obviously what was anticipated and reflected in several parts of the Act is coordination with the state of Alaska so that the subsistence use and subsistence management or priority was reached but understood that it would work with state fish and game managers. CHAIRMAN HALFORD asked if it was correct that it was in 1986 that the state first put the rural preference in statute. ATTORNEY GENERAL BOTELHO acknowledged that was correct. Before that time it was done by regulation. CHAIRMAN HALFORD concluded that the statutory rural preference was held unconstitutional in 1989 so the state really only had that preference for a three-year period since statehood. ATTORNEY GENERAL BOTELHO agreed that was an accurate statement. SENATOR TAYLOR said Attorney General Botelho had cited the Alaska Supreme Court's definition and reference to the 1953 Submerged Lands Act, and asked if he disagrees with the Supreme Court's interpretation: that it precludes the federal government from the exercise of both its reserved water rights and other navigable reservations or claims of power by the federal government. ATTORNEY GENERAL BOTELHO responded that he thinks the real issue is that there is a conflict between the Ninth Circuit's view of authority of federal managers and the State's Supreme Court's view of it. It's a classic management conflict that is in place in terms of federal mangers being compelled to follow the directives of their management and of the Ninth Circuit decision. Under Alaska law and constitutional law generally, the Alaska Supreme Court's decision is on a par with the Ninth Circuit's decision. He added that this is not first time there has actually been that kind of direct conflict. SENATOR TAYLOR asked what side of that question he is advocating for. ATTORNEY GENERAL BOTELHO answered that his purpose in appearing before the committee is to advocate a constitutional amendment which would make it possible for the state never to face that conflict and be able to manage in all waters and lands of the state. SENATOR TAYLOR said if the State Supreme Court is correct, and he was advocating on behalf of the people of Alaska in light of our Supreme Court's decision, he would assume that he would be litigating against the federal government to take that to a higher court to defend Alaska's Constitution and the Supreme Court's interpretation of the 1953 Act. ATTORNEY GENERAL BOTELHO replied that is exactly what the state of Alaska did, but the Ninth Circuit decision stands as the law of the circuit which includes Alaska, and conversely, the Alaska Supreme Court decision stands. He said we have a direct conflict between the state and federal courts, and, consequently, direct conflicts between the authority of federal managers and the authority of state managers in managing fish and game for subsistence purposes on the navigable waters of the state. SENATOR TAYLOR asked Attorney General Botelho to explain why the state dismissed the Babbitt case. ATTORNEY GENERAL BOTELHO said the Babbitt case wasn't a challenge to the constitutionality of ANILCA. The issue raised in the Babbitt case was did the Secretary of Interior have powers to adopt regulations managing subsistence on federal lands in Alaska. That argument was advanced, even though there were general regulatory powers found in Title 8, with the expectation that if the state prevailed the default would be to state management and adoption of regulations. The District Court held that the Secretary had the power to adopt regulations and to protect subsistence, and that power was found not only in the Act but in other powers of the secretary granted in other acts of Congress. The District Court decision, which the state appealed initially before it was dropped, also made clear that the default position wasn't that the state would be able to manage, but that the federal courts would manage. That was an untenable position for the state to be fighting in the Ninth Circuit. He said what we got was, instead of the Secretary adopting regulations, the federal District Court in Anchorage managing subsistence on federal lands. SENATOR TAYLOR commented that Attorney General Botelho still hadn't answered his question as to why the case was dismissed. Number 555 SENATOR LEMAN referenced the task force's fourth principle, which is to make only those changes necessary to the law to regain full state management, and in light of that he thinks the constitutional amendment before the committee is drafted fairly broadly and could be narrowed and still be consistent with the other guiding principles of the task force. He suggested one of the ways the focus might be narrowed and still be consistent is to restrict the application to federal lands. SENATOR SHARP referenced the constitutional amendment legislation and asked if there was a detailed definition of what is meant by "other renewable natural resources." ATTORNEY GENERAL BOTELHO answered that there is not, and it is not defined in the Act itself. He also acknowledged that it could be timber, water, any natural resources which are renewable. TAPE 98-42, SIDE B FORMER ATTORNEY GENERAL CHARLIE COLE stated he was appearing before the committee as a member of the Republican-led task force appointed by Governor Knowles, and that he was not a member of Alaskans Together, he has no clients who have a basic vested interest in this issue, he has no personal friends who have a basic interest in the issue, and he has not been paid for his service on the task force, except a lunch occasionally furnished by the Governor, and air transportation to the various meetings. He also pointed out that he is not a big hunter, not a big fisherman, and the views he would be expressing are those which he has come to by virtue of his participation on the task force, by virtue of independent legal research, and by virtue of a lot of personal reflection upon what he thinks is in the best interest of the state of Alaska. MR. COLE said he has thought about the issue a lot, and he supports what is proposed in the constitutional amendment and, in general, the statutory provisions which have been introduced by the Governor. Although he doesn't agree with all of the statutory provisions, he recognizes that in order to reach some consensus, it is a give and take process. He believes everyone is searching for the same end result and that is for the state to regain and continue to manage wildlife and fish on state and federal lands. MR. COLE related that he would be directing his comments to federal power to give the committee a slightly different slant on the power structure which is involved between the United States and the state of Alaska. He thinks it is clear that the state of Alaska has legislative powers and police power over all federal lands in Alaska. The state of Alaska had those powers and has exercised those powers on both federal and state lands in Alaska. Before ANILCA was enacted, the famous Kleppe case arose and came before the U.S. Supreme Court. Kleppe was a Secretary of the Interior, and, in the circumstances of that case, the United States had enacted legislation called the "Wild and Free Roaming Horses and Burro Act." It provided, in essence, that on federal public lands it was against the law to interfere with the free roaming horses and burros running wild on federal lands in New Mexico. At the same time, New Mexico had a statute called the "New Mexico Astray Act," which gave the state of New Mexico the right to go upon state and federal lands and take possession and sell these running wild horses and burros. A cattle farmer, who had a permit for grazing his cattle on federal land, said these horses and burros were interfering with his cattle and he wanted the state of New Mexico authorities to take possession of these animals and get rid of them. The New Mexico authorities did so, however, the U.S. government told them to put the animals back. The state of New Mexico then filed a suit saying the federal government was interfering with state powers. The case went to the U.S. Supreme Court, and the Court said the property clause in the U.S. Constitution provides that Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, and Congress has acted under the power. The Court also said that while the furthest reaches of this power have yet to be defined, it has been repeatedly observed that the power over the public land thus entrusted to Congress is without limitations. However, the Supreme Court in Kleppe did not decide whether the United States had the power to go back on private lands and retrieve the burros, which had been on federal lands and been taken onto private lands, to take them back onto federal lands. In another case known as Brown versus Minnesota, a duck hunter hunting in Voyagers National Park in Minnesota was cited by a federal park ranger for carrying a loaded firearm and hunting in a national park in violation of regulations promulgated by the Secretary of the Interior. Brown pled not guilty on the grounds that the federal government had no authority over him because he was on navigable state waters. He was fined then appealed his conviction all the way up to the Eighth Circuit Court where his conviction was upheld. Approximately four years later, the issue came up again in the Eighth Circuit regarding another federal statute called the Boundary Waters Canoe Area Wilderness Act. The federal government had about 160,000 acres of submerged lands within wilderness area owned by the state of Minnesota, as well as another 120,000 acres within a state park. Congress said the state can regulate on its own lands within the areas of the park, but the regulations must be as stringent as federal regulations. Congress had said no motor boats and no snow machines within the wilderness area. It was determined that the Congress has extra territorial powers whenever action on these non federal lands and waters interfere with the fundamental purposes of the federal withdrawal. MR. COLE said he fears the application of Babbitt - the Reserved Water Rights Doctrine under the extra territorial powers of Congress - to manage for subsistence purposes. The federal government can do that under regulations promulgated by the Secretary of the Interior. He cautioned that there will be federal management of essentially all state waters by the Secretary of the Interior for subsistence purposes. He said the power to manage for subsistence purposes is vast in order to fulfill the rural priority for the taking of fish and game for subsistence purposes. The Secretary has the power to do everything that needs to be done to fulfill that right. The Secretary has said that implementation of the court's decision will result in the unprecedented expansion of federal management of Alaska's fisheries in many areas of the state and federal managers may be called on to intervene in the management of commercial harvests to assure upstream delivery of salmon to subsistence users. He emphasized that the federal government is going to be managing in numerous waters throughout the state. MR. COLE said there has been talk about dual management of wildlife, but that is not going happen. The Secretary will say the traveling herds that go back and forth between state and federal lands must be protected for subsistence users on federal lands and there will be no taking of caribou on state lands. MR. COLE questioned when anyone has ever seen the federal government not exercise the full range of its powers. He said within a few short years, the things that many people fought for in statehood are going to revert right back to the federal government. The Secretary will have the power to close hunting on state lands and in state waters until the subsistence priority is fulfilled. MR. COLE said that the fact of the matter is that the federal government has dictated a rural priority and that's what we're faced with. If the Legislature does nothing, there will be federal management on state lands and federal lands for wildlife and fishing. He questioned why the Legislature, if it really believes in the Public Trust Doctrine and as trustees has the responsibility to preserve and protect the state's natural resources, would abdicate to the federal government. In his closing comments, MR. COLE said they were not asking that the state's fundamental constitutional rights be amended and dispensed with. He said that once we regain management authority, we're sort of in the driver's seat and we can go back and tell Congress this is unfair, and make those administrative decisions and the decisions of allocation among sport and commercial users. He reiterated that if the state doesn't do that, the federal government will manage solely to protect subsistence rights, and it is his view that if the state doesn't do anything, it may never get management back again. CHAIRMAN HALFORD said the federal government has had subsistence management of game for the last eight years, and he asked if Mr. Cole knows of any case in the state where they have exercised extra territorial jurisdiction, where they have exercised any action against any other harvest other than simply provide a second set of duplicative, wasteful and sometimes unnecessary regulations. MR. COLE responded that the answer is no, but the reason he thinks they haven't is because they want these issues settled and resolved, and when they see their way clear, they will then proceed expeditiously to flex their muscles. SENATOR TAYLOR noted the Babbitt case was brought under Mr. Cole's jurisdiction as attorney general, and Attorney General Botelho has indicated the case was dismissed for political purposes. He asked if the Babbitt case and the dismissal of the case is, at this point, incorporated within the amendments Mr. Cole was advocating the Legislature adopt which precludes the state to ever again raise the issue of the power of the Secretary to enact the regulations. MR. COLE declined responding to the question because one of the policies he has followed is not to criticize his predecessors as attorney general and not to criticize his successors. SENATOR TAYLOR said he thought the last Supreme Court case that this state had a decision on was Dinkum Sands, and Sandra Day O'Connor wrote in her opinion that not only did the state of Alaska and Legislature have jurisdiction and authority over all of the submerged lands pursuant to the Submerged Lands Act, but over all of the navigable waters and the fish that swim therein. MR. COLE said Sandra Day O'Connor was correct, but she didn't put a comma there that said "except where the Congress of the United States acting under its power under the property clause has determined otherwise." He added that except for ANILCA's provision, she is absolutely correct; the state has the power to regulate fish in navigable waters. SENATOR TAYLOR asked Mr. Cole if he would agree then that you don't have a case of allocation under the property clause, that Sandra Day O'Connor just kind of forgot to consider that they had the property clause. He asked if he feels very confident that when the Supreme Court of the United States gets a case, they are just going to roll over and say that Congress has the right to allocate among the beneficiaries of this public trust. They will decide that people who live in one size of a town can hunt ducks, and the person who lives in a smaller town cannot hunt ducks, or vice versa. MR. COLE responded that his answer to that question is an unequivocal yes. SENATOR LEMAN said Mr. Cole had questioned why the Legislature would want to restrict its authority; however, he believes that it may be appropriate to do that because, from time to time, there are excesses of the Legislature's reaches of power, and when that happens, the Legislature appropriately responds. He believes the constitutional amendment can be more narrowly crafted to get what the task force's fourth principle says. He asked why it is of particular interest to the federal government about what the state does on its lands or on private lands as long as it is not affecting the resource that might get on federal lands. MR. COLE said he has thought about the possibility that the Legislature could say that it grants the priority on federal lands but not on state lands, but the problem is that this concept would not work on navigable waters because there is no way to segregate them under the Babbitt case or the Katie John case. TAPE 98-43, SIDE A Number 001 CHAIRMAN HALFORD questioned if there was no way to separate water rights, because he thought the whole next phase of the issue was going to be defining federal reserve water rights. MR. COLE replied that once the state regains management, then the reserve water rights doctrine drops out because we have management in all waters of the state so we don't need to deal with that anymore. SENATOR LINCOLN said the constitutional amendment before the committee provides that the Legislature "may" provide for a priority, etc., and she asked if the amendment were adopted but no statute follows it, how would it resolve the subsistence dilemma. MR. COLE responded that it would be necessary for the Legislature to enact a statute which grants the rural priority in order to regain management of wildlife and to preclude the federal management of fishing. So the Legislature would be, in essence, required to enact a properly implementing statute. CHAIRMAN HALFORD interjected that if the constitutional amendment passed, would not the old language that was stricken by constitutional action go back in. ATTORNEY GENERAL BOTELHO replied that if the 1992 statutes are not extended, there is a default back to 1986, but changes in ANILCA itself would still have the state out of compliance. Absent some intervening act right now, the constitutional amendment, by itself, will not bring the state into consistency with ANILCA and a default to the 1986 statute, in itself, most likely would not either, although it does provide for the rural preference. CHAIRMAN HALFORD asked if the state was out of compliance on the local participation provisions or only on the rural provisions when the McDowell case came down. ATTORNEY GENERAL BOTELHO answered the state was out of compliance with the rural provision. In the meantime, ANILCA has been amended. SENATOR ADAMS asked if language could be added to the constitutional amendment that basically ratifies the 1986 law. That language would add the definition and the subsistence preference for rural residents without having to pass a new statute to satisfy this requirement. ATTORNEY GENERAL BOTELHO replied that with the amendments, the issue that the Secretary would be faced with is determining whether there are laws of general applicability that are consistent, and he thinks there are problems with the definition, participation and the composition of regional councils. SENATOR ADAMS said the language "the Legislature may" is permissive, and he asked why not change that to "the Legislature shall." MR. COLE responded that the reason the word "may" was in there was to give the Legislature some flexibility because it was thought that perhaps at some time ANILCA may be amended and then the state would not have a mandatory rural priority. Also, if the current litigation is successful, then the Legislature would simply repeal any implementing statute. CHAIRMAN HALFORD said a portion of Senator Stevens' amendment dealt with regionalization, and those provisions represent an additional federal mandate. He asked what the task force's position is on that mandate and if there was a way to separate that mandate from the rest of the package. MR. COLE said this was one of the provisions of the proposed legislation which he has hesitation about. The reason is that these provisions came before the task force just as it was winding up its actions and they really didn't have the opportunity to take a close look at those provisions. He also said this is a federal statute and there is no way under the sun that Congress is going to say that United States District Courts do not have the right to hear and decide cases and controversies arising under a federal statute. He thinks that it is vital that there be a recognition of the strength of the Stevens' amendments, which require federal courts to give deference to state administrative agencies' decisions to the same extent it would actions of a federal administrative agency. The effect of that means that when the state administrative agencies, the Boards of Fish and Game, act that the federal district courts have to give the state the benefit of the doubt. He said if we do nothing, the federal courts are going to give the benefit of the doubt to the administrative actions of the federal agencies, so that's why it is vital to get that power for a deference to state administrative agencies. SENATOR LINCOLN asked Mr. Cole if he was suggesting that after adopting a constitutional amendment and the statutory change, the Legislature could then go back to Congress later and say this fix is unfair. MR. COLE replied that there are many Alaskans who feel that the rural priority is fundamentally unfair, and if the state regains compliance in the fashion that he has mentioned, those people who feel that way will have the right to go to Congress and seek changes in ANILCA, while at the same time, the state continues management of the fish and game. Number 248 SENATOR WILKEN made reference to the new Section 19 in SJR 101, and asked Mr. Cole why the subsistence priority has to be based on residence. MR. COLE answered that ANILCA requires subsistence priority based on place of residence. The Alaska Supreme Court has said legislation giving subsistence rights on place of residence is unconstitutional so the language "based on place of residence" was put in to get around McDowell, but it was left broad by not putting in the word "rural." SENATOR HOFFMAN asked Mr. Cole his view of the prospects for changes being made in the future to Title VIII of ANILCA, and why people of rural Alaska would want a constitutional amendment, because from his presentation it seems like their subsistence rights are going to be better protected by the federal mandates. MR. COLE said his fundamental premise was that it is virtually impossible to change Title VIII of ANILCA, and it is a waste of time to concoct statutes that don't comply with ANILCA. He said that we ought to just face that we either comply with ANILCA or we're going to pack our bags and go home because, in his view, those are the only effective choices. He said there are some people who feel very strongly about that and they should be able to exercise their rights to complain to Congress if they wish. CHAIRMAN HALFORD pointed out that it has been said that changes can't be made to ANILCA, but last fall in a 10-day period, there was a change made in the definition of "rural," there was a change in "reasonable opportunity," there was a change in limitations on "customary trade." There was a major package of changes to ANILCA that were done by the Appropriations Committee, outside of the Resources Committee, before most people really knew what was in the package. MR. COLE replied that he has been very careful to say that he doesn't think the fundamental provision of ANILCA giving priority for subsistence uses to rural Alaska residents can be changed. He personally thinks that Secretary Babbitt was stretched to the limit in going along with the so-called "Stevens' amendment." SENATOR TAYLOR asked if he was saying that we should surrender to the federal law so that at some time in the future we can go back with probably a less powerful congressional delegation than we have now and then we can change ANILCA. MR. COLE responded that he doesn't think we're surrendering; he thinks it is sort of an uneasy truce. He said the important distinction is that we've regained management. The issue is do we want to regain it at some price or not. His view is to regain as much as we can get. Then the Legislature will be in the position of power and will be managing fish and game in Alaska and not the Secretary of the Interior. SENATOR TAYLOR said the task force came up with a proposal that put in the words "arbitrary, capricious or abuse of discretion," and Mr. Cole had testified that if we had such a standard in the law, the federal courts would not only have to give due deference to state agencies, but they could not overturn those agencies unless they found arbitrary, capricious or abuse of discretions. However, that language got changed in the Stevens' amendments by adding the words "or otherwise not in accordance with law." He asked what impact that language has on this deference that we're to receive from the federal Judiciary. MR. COLE said that provision was discussed at length in the task force, and the staff recommended arbitrary, capricious, etc. He had suggested that "not in accordance with law" should be added in because it should be one of the fundamental reasons for not supporting action of a state administrative agency. There was a long debate by the task force over that issue but it was not put in; however, it was added into the Stevens' amendment. He said of all the reasons to strike state administrative agency policy, the most fundamental is if it is not in accordance with state law or federal law. SENATOR TAYLOR commented that, from his viewpoint, those words have a significant weakening effect upon the report and recommendation of the task force, and once put into law, allow the federal judiciary to disregard the words "arbitrary, capricious or abuse of discretion" and merely focus upon their personal interpretation of what ANILCA says. MR. COLE disagreed and said he thinks it was simply inserting the obvious in that provision. SENATOR TAYLOR said a witness testifying on HB 406 in the Senate Judiciary Committee wanted to know why they didn't have Native subsistence only in the bill. He asked Mr. Cole to explain, from a task force perspective, why there isn't Native subsistence only in this legislation. MR. COLE responded it is not in there because he thinks it is racist, and one thing the state does not need is more racial divisiveness in the state. He thinks it is wrong to give special preferences to one ethnic group and he is glad that it is not in there. SENATOR SHARP expressed his uneasiness with the wording of the constitutional amendment. He suggested that since Title VIII is so chiseled in concrete and it is not going to be changed, why not put rural priority in the constitutional amendment so that people know up front what they are voting for and don't have the feeling that it is based on place of residence. MR. COLE acknowledged that would be perfectly acceptable to him if that was the wisdom of the Legislature and if it thinks it might make a difference. Number 431 SENATOR WARD said Mr. Cole had said earlier none of this had a religious overtone. However, he was brought up Athabascan, and as early as he can remember, when the first subsistence was caught, they did a ceremony, and according to members of his family, this is religious to the Creator. He then asked if the Secretary of the Interior is going to abandon all the Alaska Natives that live in the wrong zip code. MR. COLE responded that he thought he said racial not religious, but he apologized if he misspoke. He said the Secretary of the Interior is required to execute the laws that Congress has enacted, and he has no freedom to be able to unilaterally change the rural preference provided for in ANILCA. SENATOR WARD commented that he is an Alaskan born Native, but according to this amendment, because a town (Anchorage) grew up around him, he would have to become a second tier as far a priority would go. MR. COLE reiterated that the decision and the problem the state is faced with is a congressional enactment, and until it is changed, that's going to be the way it is. SENATOR LEMAN said it was mentioned earlier that this was put together as a package and the constitutional amendment was linked to some changes in ANILCA, however, the proposal before the committee doesn't have that. ATTORNEY GENERAL BOTELHO responded that the linkage was satisfied in part by the congressional action. Initially, the view was to try and provide a fail safe for all sides where you got everything or nobody lost anything. With the actions by Senator Stevens, most of the congressional changes that the task force looked to were already accomplished. What remained were the constitutional amendment and statutory changes, so, to a certain extent, the linkage is still there relevant in terms of the statute and the constitutional amendment themselves. SENATOR LEMAN asked Attorney General Botelho if the Administration would oppose some linkage if it was determined that there may be some appropriate linkage, even with this constitutional amendment and some changes in ANILCA. ATTORNEY GENERAL BOTELHO replied that he doesn't know that the Administration is at a stage to say that they would oppose virtually any change. They think they have accomplished the changes that are beneficial in terms of Title VIII and to make a subsistence program that will actually work. The Administration will not, at this point, endorse any further changes to ANILCA because, in their view, the focus needs to be on the constitutional amendment and on the statutory framework. SENATOR TAYLOR said several people in the audience had been in his office during the legislative session talking about how additional changes needed to be made to ANILCA. They felt that if we would only go along with this constitutional amendment that this form of appeasement might be enough so that they would then listen to our request for some small amendments to ANILCA. He asked Attorney General Botelho if he was saying that there are going to be no more amendments, that the Legislature can forget about any linkage with Congress, and that it has to come up with a constitutional amendment and a state statute to be in compliance with the law as it is now. ATTORNEY GENERAL BOTELHO answered he was simply stating the view of the Administration. In terms of the package which the Administration has endorsed, it consisted of changes to ANILCA, a constitutional amendment and statutory changes which they propose. They believe this package satisfies the needs of a vast majority of Alaskans. He added that whatever constitutional amendment appears on the ballot is entirely beyond the control of the Administration. MR. COLE added that when the task force addressed this problem, they looked at what are some of the weaknesses in ANILCA that they would like to see remediated and that they thought they could change. So they crafted some amendments to ANILCA that they thought strengthened ANILCA from the state's standpoint, made it more palatable from the state's standpoint, and that they thought they could get enacted. Number 570 CHAIRMAN HALFORD thanked Attorney General Botelho and former Attorney General Cole for appearing before the committee. He then announced the committee would stand in recess for approximately 15 minutes. [THE COMMITTEE RECESSED AT 4:28 P.M. AND CAME BACK TO ORDER AT 4:49 P.M.] CHAIRMAN HALFORD called the Senate Resources Committee meeting back to order and stated the committee would next hear from the Department of Fish and Game. Representing the department were Commissioner Frank Rue; Deputy Commissioner Robert Bosworth; and Mary Pete, Director of the Division of Subsistence. FRANK RUE, Commissioner, Department of Fish and Game, informed the committee that Bob Clasby, Director of the Division of Commercial Fisheries; Wayne Regelin, Director of the Division of Wildlife Conservation; and Kevin Delaney, Director of the Division of Sport Fish, were also in attendance to respond to questions the committee might have. COMMISSIONER RUE said he would be focusing on problems the department is starting to see with federal management under game and what they may expect under fish. He said having the federal government managing subsistence on federal lands has basically created a dysfunctional system which will continue to get worse as they move into fisheries management. The first federal regulations were basically a Xerox of the state regulations. They have since then begun to divert from the state system and begun implementing federal regulations on federal lands which have started to cause three types of problems: an unnecessary loss of opportunity for sport and subsistence users on state land; conservation risk to the resource due to over allocation; and a far more expensive, wasteful and confusing system for people of the government, as well as the public. TAPE 98-43, SIDE B Number 600 As an example of an unnecessary loss of opportunity, COMMISSIONER RUE noted that there is a small population of musk oxen on the Seward Peninsula that goes on both state and federal lands. These resources move across all land ownership and people in different communities depend on them. There is a certain number available for harvest, and, basically, the federal board allocated all of the resource to the federal subsistence hunt which meant that the state, in order to maintain sustained yield, had to shut its hunt down on state land. The choice would have been to over harvest the populations. He said the department's concern about this is not only the conservation risk and the loss of opportunity, but what has been seen in other places like the Lower 48 where there is a different method of dealing with aboriginal hunting and fishing rights. Basically, the non-aboriginal fisheries in the state of Washington take all the conservation burden. He said that is another way rather than just extra territorial reach. A federal subsistence priority can affect other users downstream by putting the conservation burden on the other users, both subsistence and sport and commercial and personal use. COMMISSIONER RUE said there is also concern with fish. It is a far more complex system because it is a resource that moves across many more jurisdictions. He believes the problems they are seeing with both conservation, loss of opportunity, as well as expense, will only increase as fisheries move into the mix. COMMISSIONER RUE stated that the proposed federal regulations, which the department has reviewed and made a number of comments on, are very intrusive; they reach into state waters, and will have a significant effect on other sport, subsistence, and commercial users in the state of Alaska. COMMISSIONER RUE pointed out that besides being dual management, being expensive, and confusing, in his opinion, management under a rural priority by the state or the fish and game in the Department of Fish and Game will not be the same as federal management. The federal board is only concerned about subsistence, not commercial, personal use, and sport fisheries, and he believes it has a very different perspective and will not try and accommodate those other users. For instance, in a place like the Yukon, many of the subsistence users are dependent on a commercial fishery to earn the income needed to also subsistence fish. For a lot of users, it is critical that the commercial, subsistence, and sport fisheries are managed by a single entity so that they can provide the maximum opportunity for subsistence, but also ensure that a commercial and a sport fishery goes on. Number 560 MARY PETE, Director, Division of Subsistence, Department of Fish and Game, said she would be directing her comments to subsistence as we know it in subsistence areas of Alaska. Fishing and hunting are important for cultures of many families in communities of Alaska, and this use exists along side other important uses of fish and game, including commercial fishing, sport fishing, personal use fishing, and general hunting. In subsistence areas, these uses are often intertwined. MS. PETE said under state law all Alaskans qualify for subsistence, and under federal law rural residents qualify. And although all Alaskans qualify, there are nonsubsistence areas which are essentially identical to federal, rural and non-rural areas. Directing the committee's attention to graphs and a handout prepared as a result of research and working in nearly 200 communities throughout the state, MS. PETE pointed out that in terms of Alaska's population in 1995, residents of subsistence areas comprise about 20 percent of the state's population, and residents of nonsubsistence areas comprise about 80 percent of the state's population. In subsistence areas, depending on the region, there are different levels of participation in harvesting and using. In all areas of the state, the highest levels are with fish. In Western Alaska, 100 percent of the households use fish. In terms of the total participation, on average, nearly 90 percent use game, and nearly 100 percent use fish by region. Figure 3 in the handout shows that the composition of the harvest by residents of subsistence areas is primarily fish: about 60 percent is fish; 20 percent is land mammals; 14 percent is marine mammals; and two percent is birds, shellfish and clams each. So federal management of subsistence fishing would affect many people. Figure 4 in the handout shows that overall, in terms of total fish and game output in the state of Alaska, on average, subsistence comprises two percent by weight, sport use comprises one percent, and commercial comprises 97 percent. Although the output for subsistence is relatively small, it provides a major part of the food supply of subsistence areas, about 44 million pounds annually. That compares with nonsubsistence that produce nearly 10 million pounds of wild foods per year. Figure 5 of the handout shows the pounds per person per year of wild food harvests in different regions in Alaska. It shows a jump from 40 pounds per person to 153 pounds per person between the highest nonsubsistence production areas and rural southcentral. In terms of the pounds per capita per person in subsistence, what people are really providing for their families is protein. On average, most all of the protein they feed families with is from wild foods. In terms of caloric output, it is 35 percent of what's needed by the subsistence communities. Figure 6, relating to replacement values of subsistence production, shows a $220 million per year of replacement value of subsistence foods. In many areas of the state, fish and game uses are highly integrated; in other words, income from commercial fishing is needed to support subsistence production. MS. PETE said in terms of the subsistence priority, the greatest effect of the priority has been to legally recognize customary and traditional harvest practices and uses in rural areas. While impacts on nonsubsistence residents have been relatively small, the impacts in rural areas have been great. She thinks that with increasing federal presence in management of hunting and fishing, the impacts will become greater to nonsubsistence users. Number 460 CHAIRMAN HALFORD asked Ms. Pete what she thought the trend would be 10 years from now in terms of subsistence use as a percentage of total harvest. MS. PETE responded that in terms of what are currently subsistence areas, they've been fairly consistent in communities where they have done resurveys as wide as 20 years apart. The proportion of fish or game may vary, but the per capita production is relatively constant, so in terms of total output, she doesn't see many changes. CHAIRMAN HALFORD explained that he is trying to understand the size of the federal threat as it relates to the size of the management mandate, which is to manage subsistence harvest. He asked if anybody is, right now, losing subsistence harvest because of nonrural harvest. MS. PETE responded the feds have as much said that the priority is by stocks and by drainage, and in order to provide the priority to upstream communities, they would look to restrictions or impacts downstream. CHAIRMAN HALFORD asked if there is any area in the state where we have a record that the subsistence harvest has somehow been diminished by a nonrural harvest. COMMISSIONER RUE responded that the federal government has not yet stepped into fisheries so the state has tried to maintain commercial, sport, and subsistence fisheries of people who are depending on state and federal lands. A future problem is looming should the federal government implement their regulations for fisheries, so there could be situations where there would be a restriction of harvest to meet either an over allocation for a federal subsistence fishery or a guarantee. CHAIRMAN HALFORD questioned if there was any area of the state where it was perceived that that over harvest is going to come from the higher population areas and affect the lower population areas, or is it going to come from other rural areas. He asked where is the population threatening subsistence harvest in the real areas of need. COMMISSIONER RUE said he thinks the folks who are dependent on federal lands for subsistence feel pretty good about federal management, and the folks who are dependent on state land and state waters for subsistence are not as sure that their subsistence rights are going to be maintained over time with federal management. ROBERT BOSWORTH, Deputy Commissioner, Department of Fish and Game, added it is the job of the Boards of Fisheries and Game to take proposals on an annual cycle from people who perceive in their areas that there is a problem that needs to be addressed by the board. The board has been taking subsistence proposals routinely for 20 years and addressing areas where people tell the board, often time with collaborating evidence from the department or other sources, that there's a problem that needs to be fixed. By and large, the laws and board system have worked enough that those problems have been addressed. There have been Tier II hunts established in areas where there were insufficient resources to meet the demand, and those Tier II hunts, by definition, favor dependent users, and, in the past, favored users who lived in rural areas adjacent to the resources. Without a rural preference, all Alaskans are eligible for subsistence, which creates a greater demand for the existing supply of the resource and leads to an additional Tier II hunt specifically to protect subsistence uses, and provide for those most dependent at the expense of other uses. He noted the Nelchina Caribou Herd used to be a drawing permit hunt and now is a Tier II hunt in which only those with a history of use and evidence of dependence would qualify. He added that the Tier II hunts are not popular in this state. Number 380 CHAIRMAN HALFORD said what he was asking is if the system is working in terms of providing the resource to the people who need it most. COMMISSIONER RUE said there hasn't been a Tier II fishery yet so they've been able to provide for subsistence under state regulations, except where they've had a resource shortage. However, there have been subsistence hunts where some of the residents of the area have had their harvest reduced compared to what it was under a rural priority, so there has been some loss. DEPUTY COMMISSIONER BOSWORTH directed attention to a handout prepared by the department relating to essential elements of a subsistence bill. He said state Boards of Fisheries and Game need straightforward practical statutory direction and legal tools to protect subsistence use of fish and game while providing maximum opportunity for other uses. He then described what the department believes to be the essential elements of a generic subsistence bill and outlined the way that the bipartisan task force addressed these issues. The four essential elements for a subsistence bill which focus on the who, where, how and what of subsistence are: 1. Who pertains to eligibility. There is a need to define a mechanism for determining who can participate in subsistence hunting and fishing. 2. Where pertains to location. There is a need to identify the areas of the state where hunting and fishing may occur under subsistence regulations. 3. How pertains to pertains to process. There is a need to identify the mechanism for developing subsistence regulations that implement the subsistence priority. The mechanism directs the actions of the board and the public advisory process on subsistence. 4. What pertains to definitions. There is a need for clarity in identifying precisely what it is that is being afforded a priority in law and when. DEPUTY COMMISSIONER BOSWORTH said one further aspect of a generic subsistence bill that is advisable is to use the existing statute as much as possible. The existing state statute is based on work that has been accomplished since 1978 by three Legislatures and a great many hours of Board of Fisheries and Board of Games deliberations. It has been refined in the course of nearly two decades of testing by the boards, the Departments of Fish and Game and Public Safety, and the courts. DEPUTY COMMISSIONER BOSWORTH said the approach taken by the bipartisan task force, in addition to protecting subsistence and providing for other uses, also seeks to regain state management on all lands and waters and recognizes the substantial dependence of rural residents on subsistence hunting and fishing. The task force proposal protects subsistence use while integrating subsistence with others uses through actions of Alaska citizens working together as members of the fish and game boards. The proposed statute provides policy direction to the boards and provides clarity in process and in definition of terms. It moves much responsibility for decision making on day-to-day hunting and fishing issues to the boards and to the citizen advisory bodies. In his closing remarks, DEPUTY COMMISSIONER BOSWORTH said the federal subsistence program has been in place for managing subsistence hunting in fresh water fishing since about 1991. The Federal Subsistence Board has responsibility for developing the federal subsistence program and passing subsistence regulations. It has no mandate to consider other uses except to restrict access to federal lands in order to provide for subsistence uses, and it would do so outside the federal areas if it believes that is needed. The federal board has a close interaction with the federal regional councils whose recommendations are very seldom not adopted. This has resulted in federal regulations that are inconsistent in many cases with state regulations, and this, along with a patchwork of land jurisdiction in the state, has led to some of the kinds of problems Commissioner Rue described earlier. Number 251 SENATOR TAYLOR said the subsistence board in his district decided that it would be appropriate to allow the hunting of does on Prince of Wales Island, while at the same time, the state Department of Fish and Game was recommending a harvest limitation on the hunting of deer. Under the federal law, the harvesting of doe went forward, and he asked, in a case like this, how would that law be somehow different by adopting a state law as opposed to the federal law. He questioned if there wouldn't be exactly the same panels as currently are provided for in federal law, made up by exactly the same people. DEPUTY COMMISSIONER BOSWORTH clarified that the proposal came from the regional council and the board did not propose that action. He said the federal standard for subsistence right now under ANILCA is different than the state standard would be under the task force proposal and under the Stevens' amendment. The concept of reasonable opportunity and the definition of "reasonable opportunity" was not used by the regional council in this case nor would it have been used by the Federal Subsistence Board in the way that the state's board, using information from the Department of Fish and Game and under the context of the Stevens' amendments, would have applied it. SENATOR TAYLOR said he is trying to understand what the practical difference will be between the "federal takeover" and the way subsistence is currently being managed or under the new law. He questioned if ANILCA can't be changed, and ANILCA establishes each of these very well defined terms, what authority do we have left within which to maneuver. DEPUTY COMMISSIONER BOSWORTH responded that he thinks there have been changes with ANILCA that bear on his question. With the Stevens' amendments, there are definitions that provide for a process that the state would follow once in compliance, and it would be a different standard than was used by the federal board. He acknowledged that the composition of the regional council would be the same, however, there is a difference in the degree of deference that would be given to the council under the task force plan and the reasons that the board might use to accept or not to accept the recommendations of the council. COMMISSIONER RUE added that the Board of Fisheries, which is a citizens' board, would be judging that advice, as well as listening to the department's biological recommendations, as opposed to a federal board which is made up of federal bureaucrats. Number 135 CHAIRMAN HALFORD said one of the things he continuously hears is that this applies in times of shortage, and he asked what does "in times of shortage" mean. DEPUTY COMMISSIONER BOSWORTH answered that the priority under the present law applies at all times. The first thing the board must do is provide a reasonable opportunity for subsistence use. CHAIRMAN HALFORD asked if the priority applies at all times under federal law, under existing state law, and under the new law. DEPUTY COMMISSIONER BOSWORTH responded that the answer to his question is yes, there's a priority that applies at all times, but it has no effect on other uses, except in times of shortage. There is no reason to restrict other uses unless there is a shortage. CHAIRMAN HALFORD referenced the Bobby case and the specific statements that came out of that case, and he asked if there can be restrictions on subsistence harvest such as seasons, bag limits, methods and means before the total elimination of all other competing harvests on the same specific resource. DEPUTY COMMISSIONER BOSWORTH replied that under state law, the answer is absolutely yes. There are numerous examples of situations where there are restrictions on other uses, as well as restrictions on subsistence that do not require other uses to be eliminated first. He added that the key in state law is that reasonable opportunity must be provided. In cases where there is more than a reasonable opportunity provided for subsistence, subsistence uses will be restricted right along with other uses. It is only when reasonable opportunity is threatened that other uses alone are the only ones to become restricted. COMMISSIONER RUE said if you look at the record where they had the same regulations for everyone versus some kind of limits on folks, during the time there was a rural priority, a large number of the hunts around the state had the same regulations for everyone, so you didn't have to restrict one user to provide for subsistence in many cases. It was only when there wasn't enough for everyone that you might have to go to a drawing permit. CHAIRMAN HALFORD said he was just going to the worst version, which is the opinion of the judge in the Bobby case, that seemed to go far beyond what anybody, including its advocates, ever expected the priority to create originally. DEPUTY COMMISSIONER BOSWORTH pointed out that in Lime Village, with regard to moose, which is the topic of the Bobby case, there are Tier II hunts. There is a definite season, a definite number of permits that are available, and a definite number of the animals that can be taken consistent with sustained yields. He said it is not a free-for-all, even though there may be language that suggests that would be the outcome. CHAIRMAN HALFORD inquired what happens to the federal promise in 1980 that they would fund this whole thing. They talked about $5 million coming to the state for the management of a subsistence priority if the state did comply. The state did comply, although marginally back and forth through that whole period. DEPUTY COMMISSIONER BOSWORTH answered that the most the state ever got was $950,000 split equally between the Division of Subsistence and the Division of Boards. He also clarified that they are currently getting nothing. Number 073 SENATOR TAYLOR asked the projected cost of enforcement of this proposed law. MS. PETE informed him that the subsistence division fiscal note was a little over $100,000, and DEPUTY COMMISSIONER BOSWORTH added that the department would provide the fiscal note with that information. SENATOR HOFFMAN asked Commissioner Rue the amount of the proposed federal budget for implementation of subsistence; if he thinks once the federal government comes in for management of subsistence they are here to stay; and if he believes that once they are here they will continue to manage our resources for subsistence as a priority first. COMMISSIONER RUE responded that the initial budget is about $17 million, with approximately 71 positions, which leads him to believe they are going to be looking over our shoulder in every fishery in the state. He thinks once they are here, they will stay, and that management of subsistence will continue as the number one priority. TAPE 98-44, SIDE A Number 005 There being no further questions, CHAIRMAN HALFORD thanked Commissioner Rue, Deputy Commissioner Bosworth and Ms. Pete for appearing before the committee. He then announced the committee would hear next from former Commissioner Carl Rosier and former Director of Wildlife Dave Kellyhouse. Number 045 CARL ROSIER, former commissioner of the Department of Fish and Game, expressed heartfelt thanks on behalf of the Territorial Sportsmen to the legislators that have stood by their oath of office and not bought into the concept that we must change the common use provisions of our State Constitution, comply with ANILCA, and forever sleep with the federal government in managing our fish and wildlife resources. He said, as a professional fish and wildlife manager in our state for over 40 years, he can't imagine a worse scenario than that particular concept. MR. ROSIER said some of the questions that were raised around the table were excellent questions that were encountered during his stint in office, like the money question in terms of almost a million dollars at the peak. He said it was interesting because what they saw occurring under those circumstances was that they basically trained the federal people, and as they got smarter and learned a little bit more about how things worked, they became very independent. The feds moved away from the state program, the influence of the state agency, the money went down, and, as a result, ultimately it went down to zero. He questioned what happens to that trained federal bureaucracy that is out there at the present time, and if they are going to be the subsistence management staff paid for by the state, or paid for by the federal government on contract to the state. He said the federal government is also cutting budgets, and he is skeptical of much of that $17 million coming to Alaska on this particular problem. MR. ROSIER said it is frustrating to hear that the important parts of ANILCA can't be changed and that the state has to mirror the ANILCA image if we are going to have the feds concurrence to give us some form of management. He said there will be major declines in the state's resources as a result of having multiple people making management decisions on these resources. MR. ROSIER stated the management programs of the state have been successful and they have been successful because the people that wrote Title 16 originally gave great authority to the people in the field. These were people that had authority to write regulations on the spot as they saw fit and as needed by the resource at that particular time, and that was reason for the successful rebuilding of many of our stocks in Alaska. MR. ROSIER said in looking at the feds and how they operate, they are consistently slow in terms of making decisions. They operate from plans, and if the plan doesn't cover it, it's a crisis. They don't react to the emergency type of situations that are encountered in fisheries management. He said you've got a federal law, you've got a federal agency that is the oversight entity, and current regulations that outline a lot of responsibilities for the Secretary of Interior. He said it isn't going to be the state people that are in fact reporting that, its going to be the federal people that are involved where the management decisions are in fact going to be made. MR. ROSIER feels that the feds are going to be muddling around on a day-to-day basis in the management of the resources in this state. He noted that at one point following passage of the marine mammals bill, the state was interested in getting back the management of walrus, but the feds hung so many strings on it that the department just finally said to forget it because there was no way that the state could manage in that particular manner. Number 190 CHAIRMAN HALFORD asked if it was a conscious decision that state management wasn't worth the federal mandate with marine mammals. DAVE KELLYHOUSE, former Director of Wildlife, Department of Fish and Game, replied that as he recalls what it came down to was that the federal government offered the state the opportunity to take back the management of walrus but they imposed a total harvest limit of 3,035. The state's marine mammal biologists concluded that if the state took management of walrus under the conditions set out by the feds, it was destined to fail, because at that point, the walrus population was going up quite rapidly and depleting mollusk food supplies. The biologists felt the harvest had to be increased beyond the federal cap. MR. KELLYHOUSE noted he went through the package of legislation before the committee, and from a practical standpoint, he can see a lot of problems with it. First of all, the very standard of management under the federal system that the state has to comply with to get management restored is the standard of customary and traditional. When that was tested in the Alaska versus Bobby case, Judge Holland came back with a foreboding ruling which basically said that any management authority had to be extremely cautious in restricting customary and traditional practices; that it wasn't based on need, it was just based on customary and traditional. This translated into extremely long seasons and ridiculous bag limits. He said should that management system, with a standard of customary and traditional be adopted into state law in lieu of our sustained yield and common use mandates, it doesn't take a rocket scientist to see what's going to happen. At some point in the future with finite resource capabilities, a rural population that continues to grow with the only basis for qualification to be where a person lives, and few or no constraints on taking because there is no needs test, the result is inevitable and it will have a negative effect on the people that live in Juneau, Ketchikan, Fairbanks and Anchorage. He is concerned that the sustained yield mandate, that the conservation of the resource base upon which all uses depend, remains intact and protected. MR. KELLYHOUSE said he is also convinced, having served as director and working with the Board of Game for four years, that the concept of sharing between user groups is also integral to good game conservation. MR. KELLYHOUSE pointed out to the rural legislators, that Title VIII of ANILCA only gives preference for subsistence uses over consumptive uses. Very carefully they voided giving any preference for subsistence uses over consumptive uses or nonconsumptive uses. Another concern about federal management is the regional subsistence councils. As he understands the draft statutory language that the Governor has proposed, there will be a minimum of six councils which together cover all lands and waters in the state. He noted the state already has a system of 80 local fish and game advisory committees that provide advice and recommendations to the Boards of Fisheries and Games. These committees can submit regulation proposals directly to the boards for their consideration. Under the new system, it would have to go through the regional councils for review and could not go directly to the Boards of Fisheries and Game until it had been reviewed by the regional councils. He said there is nothing in the legislation that says the regional councils must review a proposal and, if they choose not to review one, it is conceivable that it wouldn't be considered at all. He also has concern with the composition of the regional councils. In conclusion, MR. KELLYHOUSE referenced Alaska's Constitution and the statement that all persons are equal and entitled to equal rights, opportunities, and protection under the law. He said there is a reason that was put in the constitution, and there has to be equality and cooperation in the management of wildlife resources or the whole system breaks down. Number 317 MR. ROSIER also voiced his concern with the composition of the regional councils. If there is one group that is specifically assigned the responsibility for subsistence and then there is another system that is responsible for recreational, commercial, etc., management begins going in separate directions. Even if there is a preference or priority for the subsistence operation, people in one group are going to want to know what's going on in the other groups. In his opinion, there will be a duplication involved in that kind of system, and it is a system that will disenfranchise a lot of the population in the user groups other than the subsistence user and the commercial person. Number 351 CHAIRMAN HALFORD asked what do we have if a constitutional amendment is passed, if the legislation proposed by the Administration is passed, and if the Stevens' amendments take effect. MR. ROSIER responded that it will be a mess that probably will cost the state its resource in the long term. He said we are going from what he considers to be a well thought out, well organized management program for the resources of this state that has been very successful in maintaining and rebuilding the those resources to something that we don't know the answer to. Number 390 CHAIRMAN HALFORD asked Mr. Rosier, in the time frame that he served as deputy commissioner and then commissioner, did he see any cases where there was ever a significant loss or any loss at all to subsistence users under the state system. MR. ROSIER answered at that particular point in time, he was primarily associated with fish, and in the late fifties and early sixties when there were extremely poor runs, there was never a time that subsistence was, in fact, not accommodated by the salmon runs. They had major closures in commercial and they had closures on recreational fisheries, but there was never a time that personal use and subsistence was closed. There was always enough fish for subsistence. He pointed out that today there are runs of 150 million fish versus 30 million fish statewide back in those days. MR. KELLYHOUSE, speaking to the wildlife side, said it was more a case of difficulty in harvesting where a person would have to spend more time and didn't really like non-local competition. He said he hasn't seen the state system really fail in providing a subsistence preference or ability and, although the current system is cumbersome, at least you have to demonstrate a need and a dependency to qualify for a Tier II permit. MR. KELLYHOUSE pointed out that Deputy Commissioner Bosworth said we don't have to worry in the future because now the federal law has a "reasonable opportunity." However, the definition of "reasonable opportunity" has customary and traditional in it, so his fear is that with the no season, no bag limit, no restriction until all other uses are eliminated, is a problem as long as that customary and traditional standard is embodied within the definition of "reasonable opportunity." CHAIRMAN HALFORD commented that the question that always comes to mind is, does "customary and traditional" include the customary and traditional harvest outside of any season or bag limit. MR. ROSIER said one of the issues that has been associated with subsistence has been the involvement of local people in the management of those resources. Under the federal law, it is quite possible for the federal government to, in fact, let contracts to people outside of the agency to involve in data collection. Some federal entities have indicated to him that they could have let contracts for actual management in some cases, however, they didn't do that, at least during his stint in the department, but that provision is there in federal law. Number 455 SENATOR KELLY said Mr. Rosier indicated that if the task force proposal is adopted, things will be in a real mess, but he questioned if it would not be equally as bad a mess if nothing was done and we allow the federal management. MR. ROSIER replied it was his view that the only real solution to this is the changes to ANILCA. What he is saying is that you're going to have the feds either way you go and, at least for the time being, depending on what happens, you may at least continue to control management on state and private lands on this. He believes that ultimately this mess is going to have to be sorted out, probably in the Federal Supreme Court. He emphasized that as an interim step, the state should not give up its prerogatives of management on state and private lands because once that is done, it is gone for good. Number 477 SENATOR ADAMS said Mr. Rosier had said the solution to this dilemma was changes to ANILCA, but he doesn't think that is going to happen. He asked what was his preference would be between having federal oversight or having dual management with federal management within our state system. He also questioned where the equality was when the people of Alaska voted regarding Article 8, Section 15, relating to limited entry permits. MR. ROSIER responded that he doesn't think the problem can be solved in one fell swoop. He said there are good resources statewide at the present time and, as far as he knows, nobody is being short changed on subsistence harvest. He reiterated that, at this point, to give up the state's prerogatives as far as state and private lands doesn't make sense because once the state is under the ANILCA umbrella, it is there to stay. He questioned why there has to be a change in the constitution in order to keep the federal government from allocating resources in Alaska. He said he doesn't think any other state in the Union has to deal with that kind of a scenario, especially when we've got a lot of resource. SENATOR HOFFMAN said it has been testified that we haven't had shortages or that people have had to have subsistence, but the great concern of people in rural Alaska is that the state of Alaska continues to change and the population of the state today isn't going to be the same as it will be 20 years from now. As a state, we have been able to manage our resources and there has been the abundance so we haven't had to kick in the subsistence priority, but if is turned over the feds we'll see more and more people being denied access to resources because the subsistence provisions are going to kick in. He said he agreed that we shouldn't give up state management, and we should consider a constitutional amendment as a mandatory option for rural residents. MR. KELLYHOUSE stated that he thinks the biggest misrepresentation is that if we adopt a rural constitutional amendment, that we will have state management. He stressed that we will not, we will have federal management. He added that right now the federal government's authority is constrained to federal public lands and they've tried to reach out into some navigable waters. He emphasized that if we come into compliance with the federal law, we will have federal management on all lands and waters. If we do not amend the constitution to put in a rural priority at this time, we will defend state management on state and private lands. Number 556 SENATOR LINCOLN said she thinks since 1990 and in a ten-year period, the population in Alaska will have grown in excess of 100,000 people, and her concern with statements that subsistence needs are being met and they haven't ever been denied is that no one talks about time of plenty anymore. She doesn't think that anyone can say with all assurance that subsistence needs will always be met, as we see it now, because of the population growth and possible decline of the resources in the state. She believes a constitutional amendment and coming into compliance is the future. She asked Mr. Rosier if looking out into the future of the next two generations, can he in all honesty say that if the federal government comes in and takes over, that all of the subsistence needs will be met. MR. ROSIER answered that there are no guarantees in fish and wildlife populations. He agreed that the population is going to increase in the state, but he questioned if someone who comes to a rural area of this state from another state should have subsistence rights. He thinks that individual has to be treated differently than the person who is born and raised in this state and has lived a subsistence lifestyle. TAPE 98-44, SIDE B Number 575 SENATOR TAYLOR asked if there was any ability for the state of Alaska to provide for its own unique management style should that style be different from what others may interpret ANILCA to require in the future. MR. KELLYHOUSE replied that if he understands correctly, his answer would be no. His understanding is that the federal government is becoming more and more protective of nonconsumptive uses on federal lands and less and less tolerant of consumptive uses. He can see the federal government going along that same course and becoming more and more anti use; he doesn't see that with the state of Alaska. Number 551 SENATOR LEMAN inquired if it was either Mr. Rosier's or Mr. Kellyhouse's opinion that the general applicability is, as was interpreted by Attorney General Botelho and Mr. Cole, that any law would have to apply to all lands and not just the federal lands. MR. KELLYHOUSE responded that was his understanding. He said, if he were a rural person, he would really be concerned if the state and private lands and corporate lands in his rural area were to fall under federal judicial review and the standard of customary and traditional instead of sustained yield and common use. Number 520 SENATOR WARD said the concern of a lot of people in his district who are commercial fishermen is that the people who eat fish will have a preference and, to the commercial fishermen's detriment, they will have to take less of a catch in order that the subsistence quota be filled for people that want to have personal consumption. He asked for Mr. Rosier comments, as a former commissioner, on this issue. MR. ROSIER responded that there is little question in his mind that there will be some reallocation of harvest, but he pointed out that the commercial fishery probably takes something in the neighborhood of 90 percent of the harvest statewide. With runs that have increased from 30 million to 150 million statewide, he thinks there are enough fish to go around. It may cause some reallocation of resources, but it is hard to project that at the present time. He thinks that the limited entry system has worked fairly well , and, in his view, it was a better system than the wide open fishery. He reminded him that the limited entry system came into effect at a time when the state's resources were at a much lower level and the system was designed around that type of run. However, one thing he thinks that was left out when the limited entry system came into being was the economics of the fisheries, and even with the limited entry system that is in place today, the value of that catch in the last few years has been going down dramatically. SENATOR TAYLOR asked Mr. Rosier if the False Pass fishery is not shut down under state management, does he anticipate that it will go through the court process and end up with a federal judge shutting it down. MR. ROSIER agreed that would probably happen. Number 456 SENATOR LINCOLN asked Mr. Rosier his objection to allowing the public to vote on a constitutional amendment. MR. ROSIER replied, from his perspective, the most significant objection would be to what he considers to be the less than truthful information that has been in the news in regards to the rural priority and the lack of options for the public to look at. The image a lot of the public has of subsistence is the image that was there 30 or 40 years ago, and there has been change in subsistence since that time. He related that he is not opposed to a well-informed public voting, but there has been so much misinformation on this issue that he is not sure the public can be recovered in terms of their knowledge levels on voting on the issue. MR. KELLYHOUSE agreed that the public is confused on this issue. He said he would be afraid to see the rights that are guaranteed to all Alaskans in the constitution put up to a public vote because those people that have a very special interest and have large cash reserves that they've dedicated to winning would make it a one- sided vote. Number 400 CHAIRMAN HALFORD thanked Mr. Rosier and Mr. Kellyhouse for appearing before the committee. He then announced the committee would take an approximate 15-minute break. [THE COMMITTEE RECESSED AT 6:50 P.M. AND CAME BACK TO ORDER AT 7:35 P.M.] TAPE 98-45, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting back to order and announced the committee would next hear from Julie Kitka. JULIE KITKA, President, Alaska Federation of Natives, expressed her appreciation for the opportunity to testify on behalf of the Alaska Federation of Natives. She said she would first address the process issue, and she requested that the committee consider extending the hearing to include testimony over the teleconference from individuals from throughout the state and the rural communities, as well as individuals who were still arriving in town. She said these people have a vital interest at stake in the decisions the committee would be making. MS. KITKA then read the following testimony into the record: "The state of Alaska now stands at the crossroads of history. The conflict between state and federal subsistence laws has divided Alaskans for more than eight years; and these divisions will inevitably worsen if the Legislature fails to resolve the impasse now. The way in which subsistence is dealt with in 1998 will have a greater impact on the future of Alaska, in my opinion, than any other issue in state politics. "Because so much of this debate has focused on Title VIII of ANILCA, let's keep in mind why that legislation was enacted in the first place. In 1971, Congress had passed the Alaska Native Claims Settlement Act, the primary purpose of which was to clarify land ownership. But subsistence had also pervaded the ANCSA process. Congressional findings in the final Senate bill emphasized protection of "...Native subsistence hunting, fishing, trapping and gathering rights..." If enacted, that bill would have required the Secretary of Interior to designate public lands around Native villages as subsistence use areas and, under certain circumstances, to close them to non-subsistence use areas. "Why did the ANCSA conference committee drop the subsistence provisions from the final Act? Basically, its our view because the Congress was unwilling to delay the land settlement and construction of the pipeline in order to work out such a complex resource issue. Accordingly, Section 4(B) of ANCSA extinguished Natives' aboriginal hunting and fishing rights, as well as our aboriginal title to the land. But the conference report articulated the United States Government's concern for Native subsistence in the absence of the aboriginal rights. And it mandated responsibility: 'The conference committee expects both the Secretary and the state to take any action necessary to protect the subsistence needs of the Natives.' "But congressional expectation of state cooperation went unfulfilled during the 1970's. The pipeline boom produced an enormous non-Native migration into Alaska and a 36 percent population increase in nine years, creating fierce competition among user groups for limited fish and game resources. How did the state government react to that? 1. The 1972 Marine Mammal Protection Act protected Native hunting, a policy that works effectively to the present day. The state did nothing about marine mammals in the 1970's, except to oppose that federal action. 2. In 1976, the Northwest Arctic Caribou Herd crashed. The Governor declared a disaster area, and food was flown in to keep people alive. But when the Board of Game tried to provide for a very limited harvest by local residents, a group of Fairbanks hunters sued, claiming that their rights have been violated. And they won in state court. 3. In 1978, the state arrested three agreed Athabaskan elders for operating subsistence fishwheels during an opening for sport dipnetting. 4. Also in 1978, the state enacted a statutory preference for subsistence over competing uses but failed to distinguish among competing users, which was always the real question. "The 1970's, a decade of neglect and obstructionism, led directly to enactment of Title VIII of ANILCA. By 1980, Congress reluctantly concluded that it had no choice but to protect subsistence by federal law, pursuant to its plenary authority to regulate Indian affairs. But by then, Congress made every attempt to accommodate the state's needs. ANILCA's subsistence preference was based on the differing socio-economic circumstances of rural and urban Alaska, not on race or ethnicity. The state objected to a Native preference because it wanted a standard that it could enforce under its constitution. All parties assumed that "rural" would work, and the Native community accepted that compromise in order to get a preference that the state could implement. "Moreover, Title VIII offered the state the option of continuing to regulate subsistence on federal public lands and waters if the Legislature would enact a state law giving the same rural preference statewide. This was not an example of "federal compulsion," as some have argued. On the contrary, the United States could have proceeded to enforce the rural preference solely within its own domain, creating a permanent system of dual management. Instead, the federal government made a good-faith offer to create cooperative, unitary management of highly mobile species on a checkerboard of state, Native, private and federal lands. This was unprecedented in the general history of federal land law. (Ms. Kitka added that if the committee was interested, she could outline the series of committee reports that led up to ANILCA and the specific cites report after report that the Congress had and their interest needs of the Native people and how the key policy decisions got decide in regard to ANILCA.) "It is our view rural residents did their part to make the ANILCA system work, but the state of Alaska did not. Its regulatory bodies frustrated implementation of the preference and refused to regulate consistently with customary and traditional subsistence practices. It never fully funded or empowered regional advisory councils. More than once, rural residents found it necessary to go to court to enforce the law on a state that was determined to sidestep it. "But the behavior of the state boards was very different from what the people of Alaska thought. In the 1982 general election, a ballot initiative to remove the rural preference from state law was soundly defeated - 58.4 percent against and 41.6 percent for. That result became the real reason why legislative majorities have refused ever to trust the voters with this issue again. They know perfectly well what the people will do, if they ever get the chance. If legislative majorities during this period had any expectation that the electorate would vote it down, they would have put a constitutional amendment on the ballot years ago. Having failed with the voters, the 1982 initiative's sponsors then turned to the State Judiciary; and in 1989, the Alaska Supreme Court threw the rural preference out of state law. Since then, for eight and a half years, legislative majorities have refused to allow their own voters to consider a constitutional amendment. "This sad chronology lies at the heart of the distrust that so many rural people feel for the state of Alaska and has been a prime cause of the growth of the tribal movement among Natives as a protection against a permanently hostile state government. Nothing has done more damage to state authority and to the social fabric of Alaska than the agony of the conflict over subsistence. And the ultimate irony, in our view, is that it was all self-inflicted. The cause wasn't the federal government; it wasn't the liberals; and it wasn't the Natives. The state government has no one to blame for this but itself. "Faced with this historical crisis, we would do well to cut through a few myths that have accumulated over the years. The first is the assumption that what this is really about is "who manages." That's not true. The core question has always been about whether the rural subsistence preference itself is a proper policy for Alaska, regardless of the uniform worn by the implementing manager. But anti-subsistence forces have avoided that debate - because it is so hard to argue against letting people eat in times of shortage. So, the principle of states' rights against the federal government has become the evasion of choice - as if all this were somehow a clash between Alaska and the United States, instead of between two Alaskas. "Remember, state's rights is the bedrock of American federalism, and we ignore that principle at our peril. But it is also true that, throughout the Nation's history, states' rights have been used as means to advance purposes that are truly destructive. There was a time when states' rights was a defense for racial segregation. "Further, I submit to you that, if federal law were opposed to a rural preference, and state law required it, instead of the other way around, anti-subsistence interests would turn their backs on the state of Alaska in a heartbeat. They would mouth the rhetoric of states' rights to the extent that they can get something out of it - in this case, someone else's food. But a principle is something you defend because it is right, not because you get paid for it. The American federal system deserves better than to be trotted out as a defense of every local exploitation, and it should not be used in modern Alaska to distract us from the real policy question. "Another myth is that ANILCA's rural preference is in force at all times, rather than only in times of shortage. That is not true. The preference over other uses and users that is granted to rural residents who have established customary and traditional uses of specific fish stocks and game populations takes effect only in a Tier I or Tier II shortage. Title VIII also mandates that the boards may not manipulate such things as seasons, bag limits, methods and means so as to disrupt customary and traditional subsistence patterns, even in times of plenty. This is not unlike commercial and sport fishing regulations, in which a system of seasons, gear, bag limits, etc., must be in place, whether there is a shortage or not. Both the preference in times of shortage and the general customary and traditional protections at all times are provisions of a federal statute whose purpose is to ensure that regulatory mechanisms do not harm subsistence in order to satisfy other demands. "A third myth that needs to be debunked is that this is all about "equality" versus "discrimination." In our view, here's an honest answer to that: Does Title VIII of ANILCA make a discrimination between classes of citizens in Alaska? Here's an honest answer: Of course it does; that is why it is in the federal statute. And in that, ANILCA is no different than any other law ever passed. "All laws distinguish between classes of citizens. Show me any act or appropriation by the United States Congress, the Alaska Legislature, the Municipality of Anchorage, or the British House of Commons and I will show you a measure that hands to one group of citizens some benefit that it withholds from the others. Medicare for older persons? Medicaid for poor people? The original issuance of limited entry permits? Permanent fund dividends? The old longevity bonus program? Veterans' benefits? The entire FY 1999 budget just passed by the Legislature? Even voters' rights? Does any of these policies treat every Alaskan the same? No. That is impossible. The great question in democracies has never been whether laws treat all people identically. It has always been whether the distinctions that any law obviously makes are reasonable, whether they advance a valid policy goal - in short, whether the people believe them to be fair. "As you know, a clear majority of Alaskans believes that a state law containing a rural subsistence preference is a fair and justifiable social policy. They see it as morally right because the whole basis of life in Alaska's villages is now threatened, and because it is utterly perverse to wipe out human communities for no reason other than a false dream of equality. They see it as historically smart because, if the economies and cultures of Bush villages are dismantled by distant policy decisions, every Alaskan will suffer the consequences; and our children, who will pay that price more than we can imagine, will never forgive us for what our generation did to this beautiful place at the end of the 20th Century. "To date, the best that the 20th Alaska Legislature has been able to do is House Bill 406. That legislation is diametrically opposed to Title VIII of ANILCA. In order for the state to regain management, it requires massive amendments to the federal law in order to replace the rural preference with an individualized, needs-based system. "Our written testimony outlines our concerns with House Bill 406, and we're hoping that the Governor will veto that and get that off the table. We adamantly oppose an individualized needs-based system. "The subsistence position of the Alaska Federation of Natives, most recently confirmed in February, has been clear and consistent for eight years. We seek a return to a reliable rural preference in both state and federal laws, accompanied by four much-needed improvements of the pre-McDowell system. "We therefore urge this Legislature to do its part by enacting a statute that complies with Title VIII as it was written in 1980, and to add an "intent" sentence to the constitutional amendment telling the public and the state courts that the purpose of the amendment is to allow the state to have a law with a rural preference - or to allow the state to comply with Title VIII - or to reinstate the 1986 state law. That last option would still leave us with the problem of reconciling state and federal definitions of "rural" - a task in which we would gladly cooperate. Another way of doing the same thing is to reenact the 1986 law now and accompany it with a constitutional amendment. "The four systemic improvements needed by rural Alaskans are the following: 1. Mandatory federal-state-tribal co-management arrangements - to give the people most affected a real role in the subsistence regulatory system; 2. Better protections of "formerly rural" Native groups and communities that have been surrounded by non-Native settlement entry and taken out of the preference through no fault of their own; 3. Reform and restructuring of the state board system to ensure that we are not simply returning to a political environment permanently rigged against subsistence and Alaska Natives; and 4. The ability of any subsistence user to employ a subsistence defense in court. "If these improvements are combined with reinstatement of the state law that worked perfectly well before McDowell, the concerns articulated by the Native summit and the AFN convention will have been satisfied. "I am certain, Mr. Chairman, that someone from the other side of the issue will try to exploit the differences between the task force's package and the AFN position. We can expect an exercise in doublethink, claiming, for example, that the AFN position should be ignored because it is somehow unreasonable and that the Governor's proposal should be ignored because it is not supported by all the Natives. "Such arguments conveniently ignore the fact that both proposals require a constitutional amendment for a rural preference and a state law complying with ANILCA. The only differences between them are: 1) Natives want additional improvements in ANILCA; 2) Natives do not support the ANILCA amendments of last September; and 3) Natives want a constitutional amendment which is mandatory and ensures that the statute cannot be overturned by other provisions of the constitution. And if you'd like a good example on how we feel that you can tighten up the constitutional amendment, I urge you to look at last session's Senate Joint Resolution 2 and five criteria that were outlined in the constitutional amendment. Those five criteria, which we think would greatly improve the constitutional amendment approach, is customary and traditional uses; cultural tradition; direct dependence; local residence; or availability of alternative resources. In addition, at the summit, two other constitutional concerns that were raised was: recognize the religious and spiritual aspects of subsistence and additional practices of subsistence. "Basically, the real reason why we are testifying is we hope that you will not dodge this conflict. That you will spend the time and the energy to accomplish a resolution to this issue in this special session, and let the voters have an opportunity to vote in November on a constitutional amendment, which our people, as well as other Alaskans can fully support. I urge you to not be afraid of the time it takes to work out what needs to be done to get the constitutional amendment on the ballot. I'm very cautiously optimistic that there is the political will in this Legislature during the special session to do it, and I urge you to spend the time and do it, do it right, and lets get this issue out to the voters and hear what they have to say, and get this conflict behind us. "And with that, I'd be glad to answer any questions. I have, in my testimony, submitted the resolution that came out of our Native Subsistence Summit for your consideration, the AFN position on subsistence adopted by our board of February 11 urging a constitutional amendment, and Senate Joint Resolution No. 2, the sample constitutional amendment, which we think can be a good starting point to resolve this issue at this time." Number 300 CHAIRMAN HALFORD said Ms. Kitka stated that Natives want a constitutional amendment, which is mandatory and insures that the statute cannot be overturned by other provisions of the constitution, and he asked what she meant by "overturned by other provisions of the constitution." MS. KITKA responded that AFN has three serious concerns with the constitutional amendment language that has been introduced to date. Their first concern is that it may not override the equal protection guarantees of Article I. Their second concern is that the constitutional amendment is based on a place of residence rather than rural residence or the five criteria that was contained in SJR 2 and HJR 3. Their third concern is that it is permissive rather than mandatory. On the permissive versus mandatory, they'd like a resolution that resolves this issue for the long term and just doesn't kick it from one legislative session to the other, depending on the whims of politics. She asked that Norman Cohen address the equal protection issue. Number 318 NORMAN COHEN, Counsel for the Alaska Federation of Natives, said the concern is to make sure that the statute is able to withstand further constitutional challenge. There is concurring opinion in the McDowell case that raises other constitutional problems. The object is not to say that equal protection does not apply to the subsistence rules, but to make sure that this particular scheme that is set up in the current statutes or future subsistence statutes are able to be upheld. The basic idea is to try to make sure that the constitutional amendment states that and to allow for a statute that is consistent with ANILCA so that the Court will interpret it as valid. He said it is not the intent to say the equal protection doesn't apply; nobody is trying to eliminate the equal protection clause from the implementation of subsistence. The issue is that the Supreme Court be given a direction that it is going to implement the law and to find a way to be able to do that. The suggestion on how to do that is to use more criteria for what the Legislature could make distinctions on, as well as an intent statement to tell the Supreme Court what it is that the people are voting on. MS. KITKA explained the reason why AFN is suggesting five criteria rather than just the one that is the amendment is because this constitutional amendment is giving flexibility to the Legislature to enact laws. She said it doesn't make sense to only give the Legislature flexibility in one specific area when several of these will actually give the Legislature flexibility now, as well as over time, as we deal with new situations in the state. CHAIRMAN HALFORD noted the seventh principle of AFN's guiding principles is recognition that subsistence is a basic human right, and he said he assumes that is still a basic guiding principle of the AFN position. MS. KITKA responded that basically, the ability of the Native people in the state of Alaska to continue their customs and traditions, just like indigenous people all over the world, is a basic human right. Subsistence is an integral part of their culture and tradition. SENATOR LEMAN noted that in her written testimony Ms. Kitka expressed opposition to House Bill 406, and he said it seems like some of the reasons for her criticism are incorporated in SJR 2 because it appears by listing the five criteria areas, it may get to an individualized type system. MR. COHEN replied in terms of initial eligibility for subsistence, the position is clear: opposed to individual criteria. However, in certain Tier II situations, it may necessitate eligibility on an individual basis. When all other uses are removed and when all subsistence users from the area cannot participate, at that point, it may be required to go into individual criteria, but only at that very unusual situation. Number 406 SENATOR LEMAN said Ms. Kitka's testimony made reference to anti- subsistence interests who would turn their backs on the state of Alaska in a heartbeat, and he questioned who these anti-subsistence interests are because they haven't made themselves known to him in the time he has been in the Legislature. MS. KITKA replied she thought it would probably be fair to characterize some of the people that have litigated this issue as not being supportive of subsistence or the Title VII ANILCA priority. SENATOR LEMAN reiterated that he doesn't know anyone who is opposed to subsistence harvesting. MR. COHEN interjected a good example would be a piece of legislation that basically cut out three-quarters or four-fifths of the land mass of rural Alaska from participating in subsistence. There have been bills like that around that people have supported, and it is that kind of thing that leads people to believe that they're anti-subsistence forces. Number 432 SENATOR TAYLOR asked if AFN has prepared any amendments on the Governor's proposal or the constitutional amendment for the committee's consideration. MS. KITKA responded that the five criteria contained in SJR 2 or some variation with that criteria could be an amendment. MR. COHEN added that in the Ostrosky case, which related to limited entry, it was very important that the constitutional amendment was very clear as to what it intended. He suggested that if there is not going to be a statute that goes along to the voters with this constitutional amendment, it is at least more important that there be an intent statement as to what's intended to be accomplished here, and they do have some language in that regard. SENATOR TAYLOR noted that Senate President Mike Miller had written a letter to Representative Al Kookesh, one of AFN's co-chairman, and asked if he would contact legislative drafting and have a bill drafted so that the Legislature could have an AFN plan to compare with the Governor's plan and to hold a hearing on it. He said, to this date, there has not been a response to this letter, and he can't understand why because he thought AFN had specific concerns they wanted addressed. MS. KITKA said she had not seen that letter. However, when AFN had their subsistence summit, they invited the Legislature to hold hearings during the summit to hear input and the Legislature declined to do that. Number 485 SENATOR WARD said he and his relatives live in the largest Native village in Alaska, Anchorage, and he asked Ms. Kitka where do they get the protection to where they have the same right to go subsistence hunting and fishing as anybody else in Alaska. MS. KITKA answered that AFN thinks there is an amendment that can be made to the Governor's bill that deals with that issue of communities that are surrounded by urban growth, as well as other concerns they've outlined as improvements to the legislation. She added that there a lot of good things in the Governor's bill and in the constitutional amendment, but they just think there are some improvements that could tighten that up. SENATOR WARD pointed out that right now, everybody in his Senate district, whether Native or non-Native, does not qualify for a subsistence preference. He said he finds it hard to say that it is anywhere fair that he and the people he represents should be second-class citizens. MS. KITKA responded that some of that is a policy choice that the Congress made. When AFN was working with the Congress at the time of ANILCA, they wanted a Native subsistence, and the state was the one that said that there wasn't the ability in our constitution to do it so lets do rural, and that was the compromise that came out of ANILCA. She said her people would prefer to have a Native priority, but they don't see the likelihood of Congress taking that up. SENATOR WARD asked if AFN has ever given consideration to making subsistence the absolute highest priority for any citizens in the state of Alaska that want it, regardless of race, residence, etc. MS. KITKA replied that there was a constitutional amendment that had subsistence as the highest and best use that came out in one of the previous special sessions, but it did not generate any support in the Legislature. Number 537 ROSITA WORL, a member of the Board of Directors of Sealaska Corporation and chair of the Alaska Federation of Natives Subsistence Committee, stated that AFN has taken its position from Alaska Native people throughout the state, and she would be addressing subsistence from a cultural and historical perspective from the Native view. MS. WORL directed attention to a map and five geographic regions representing the Yupik, Inupiat, Athabaskan, Aleut, and the Southeast Natives. The Alaska Native people lived, hunted, and fished off of those lands, sustaining themselves from the resources, and when the Europeans arrived, they welcomed them and they were happy to be engaged in commerce with them. That went on for a number of years, but when Alaska was sold to the United States, that is when the Alaska Natives protested. They met in council and took the position that they are the real owners of Alaska, and, if the United States wanted to buy Alaska, then they should come to the real owners. They hired a lawyer and sent that individual to Washington, D.C. to present their claims about what they saw for the future and to try to protect their lands, their resources, and their rights. MS. WORL said the Alaska Native people placed their faith in those Western institutions and the laws of the United States, and that is what they have done with the Alaska Native Claims Settlement Act and ANILCA. They placed their faith and hope in those pieces of legislation. The Native people wanted to protect Alaska subsistence rights, however, they were told at the time that there was no way that they are going to achieve an Alaska Native subsistence priority. At that time, they began to compromise and that compromise was rural. Even though it cut out probably 80 percent of Alaska Natives from rural subsistence, AFN still went on record to try to protect the lifestyle, the culture, the economy of rural Alaskans. MS. WORL the rural subsistence economy is a good economy, it is a good cultural lifestyle, and at this particular point in time, it is the only thing they have going out there. If they did not have subsistence economies and subsistence cultures, the state of Alaska would have to step forward and probably pour some welfare money into rural Alaska. She said that is not what her people want; they want the right to be able to maintain their lifestyles, their culture, and their economy. TAPE 98-45, SIDE B Number 010 MS. WORL said Alaska Natives are not asking for welfare. They are asking the legislators to do the right thing for Alaskans, to do the right thing for Alaska Natives by helping them in protecting their way of life, their economies, and their culture. She urged letting Alaskans deal with this issue by allowing them to vote on it. SENATOR WARD commented that it was his goal to broaden this legislation, because right now, people who do not live in a particular zip code are not treated equally. He believes that anybody who wants to live off the land should have that right. MS. WORL agreed with Senator Ward, and said they would very much support an expanded subsistence hunt and fish if that could be accomplished. She noted that the Department of Fish and Game testified that subsistence takes less than two percent of all of the fisheries and all of the wildlife. Number 551 SENATOR LEMAN asked Ms. Worl if she was promoting something like SJR 2 with the different criteria listed, or at least have this concept of not only location but to broaden it to also include the concept of dependence, whether it is identified as customary and traditional use, or cultural tradition, etc. MS. WORL acknowledged that is the position of both the Alaska Federation of Natives and Sealaska Corporation. SENATOR LEMAN said he has always thought that the concept of dependence ought to be a part of this, as well as location. He said he thought this exercise has been constructive, and he expressed his appreciation to Ms. Worl for her testimony. MR. COHEN related that there is a nutritional dependency in the Stevens' amendments that is required in order to be a subsistence eligible community, so there is a dependence element to it right now if the task force proposal went through. MS. KITKA noted that when they were revisiting the legislative history of ANILCA and how this came about, it became very clear to them that what the Congress did in allowing the opportunity for the state to manage, if they had a law of general applicability, was very unprecedented. It is very unusual for the Congress to allow a state to manage federal public lands. She said it would be very sad if this Legislature, by inaction, without putting a constitutional amendment to the people, gave up on that unprecedented opportunity and allowed the federal takeover to occur. AFN believes there is a very short window of opportunity and that the Alaskan people want to vote. SENATOR GREEN asked if was AFN's opinion that SJR 2 meets all the criteria for getting back into compliance. MR. COHEN answered that they believe it is better to be safe than sorry. If a constitutional amendment is adopted by the voters, and then a portion of the subsistence that is on the books is thrown out because there wasn't enough in the amendment, then everybody has gone through an incredible agony for no purpose. The reason to have all the criteria in the legislation is to take a look at all of the things that are in the statutes and all of the reasons why the Legislature tells the boards to make distinctions so that the statute is upheld by the Supreme Court. SENATOR TAYLOR made reference to the AFN's seventh guiding principle, which is subsistence is a basic human right, and he said he has not met anyone in this Legislature that has not told him they believe that. He then asked Ms. Kitka how do you allocate a basic human right between Senator Ward living in Anchorage, who has the basic human right to subsistence, and Senator Adams living in Kotzebue, who also has a basic human right to subsistence. MS. KITKA replied that in discussing a basic human right at their subsistence summit, they were talking about the right of indigenous people in this world to go forward with their cultures and traditions and develop themselves as a people at the speed and to the extent that they want to do that. What they are saying with "it is a basic human right," is that people are going to continue to do that regardless of the legal structure, and they are urging the Legislature to make what goes on legal and to give itself the flexibility in the constitution to pass laws so that the state can have the management authority. She also said it is important to recognize that there is a special trust responsibility between Alaska Natives and the federal government that goes all the way back to the U.S. Constitution, and she doesn't see people having problems with the nearly half a billion dollars in federal health care money that comes into this state that supplements and keeps their people alive. She said there is continuing federal relationship between Alaska Natives and the federal government, and subsistence is no different. SENATOR TAYLOR thanked Ms. Kitka for clarifying that "basic human right," as discussed at the subsistence summit, applies to indigenous peoples and not to every person living in Alaska. MS. WORL said she wanted to make it clear that the Alaska Federation of Natives supports rural subsistence economies for Native and non-Native people, and they are saying that the right to maintain a subsistence lifestyle is a human right. She added that you can't just take that principle in insolation without looking at all of the other principles. SENATOR LINCOLN said at the beginning of her testimony Ms. Kitka had urged that the committee allow public participation in the meeting via teleconference because there were many people who wanted to testify but were unable to come to Juneau, and she asked Ms. Kitka if there were people that were anticipating that they would be able to participate via teleconference in the process. MS. KITKA responded that she thinks people are absolutely shocked that this would be the only hearing and the only opportunity. The people she represents throughout the state are expecting some open process where they can express their views on some specific proposal. SENATOR WARD pointed out that Nondalton has a hired a teacher from Arkansas, so this lady would have more of a basic human right for subsistence than he, as an Athabascan Indian, would because he happens to live in the wrong zip code. He asked Ms. Kitka if that was the position of AFN. MS. KITKA replied AFN's position is that they would prefer a Native priority, however, what we're dealing with is rural priority and that's a congressional decision. She said AFN would like to be at the table to help the state regain its management ability to come into compliance with that federal law if the state and the state Legislature is interested in doing that. Number 377 CHAIRMAN HALFORD, speaking to Senator Lincoln's question relating to hearings on subsistence, related that Senator Kelly requested a research report on the number of hearings that have been held on subsistence. That report shows that since the McDowell case there have been 103 hearings, with testimony from 239 public officials and 1,128 individuals. Just this year there have been numerous hearings in large communities and small communities all across the state. He said it was this committee's intent to try to hear from groups and people representing groups so that the process can go forward. SENATOR ADAMS said there has been debate about urban subsistence users versus rural subsistence users, and he pointed out that urban subsistence users are eligible to get fish and game either by a proxy harvest or they can participate in the educational opportunity. People in urban areas can also participate in sport, recreational, commercial and personal use, and there are times in urban areas where an individual with a personal use permit can get more fish than he could as a subsistence user. He asked Mr. Cohen if he would agree that there is no evidence that urban residents are lacking necessary fish and resources at this particular point. MR. COHEN agreed with Senator Adams' assessment. Number 330 CHAIRMAN HALFORD thanked Ms. Kitka, Ms. Worl, and Mr. Cohen for appearing before the committee and then invited Tom Tilden to the table to make his presentation. TOM TILDEN of Dillingham representing the Bristol Bay Native Association as its president, said he was the former mayor of Dillingham, as well as a former council member. He pointed out that Bristol Bay has one of the world's largest salmon runs, with people coming from everywhere to fish those salmon. This has impacted their salmon tremendously and they are seeing a restriction on the fishery. MR. TILDEN recalled growing up in a village where in 1963 they ran out of food. He said if he could take the committee members back to that time, then they would be able to see the significance and the importance of subsistence to himself and his people. He said when the killed the moose, ducks and geese out of season they subsisted. MR. TILDEN also recalled 1997 when the Bristol Bay run failed and they saw the failure of all of the salmon in Southwest Alaska. He said they have been paying taxes to the state coffers for years, but when they came to the state and asked for help, that help was very slow in coming. He said many of their people would be sick and dying now if it wasn't for subsistence pulling them through. MR. TILDEN said Alaska is a great state to himself and to all the people that live in his area, but he also pointed out the discrimination against the Alaska Native people that was part of its history. He doesn't think his people are asking for too much when they ask for subsistence. He remembers when ANCSA passed in 1971 and he thought the Alaska Natives had reason to celebrate because they finally had some land and money, but now that he looks back after all those years, he had nothing to celebrate because it took years for that land to get conveyed to the people, and there was a structure put in place to take care of that money. Ten years later ANILCA passed and they were told they would have subsistence on federal land, but they still don't have subsistence. He predicted that subsistence will happen, maybe not today, maybe not tomorrow, but it will happen. Concluding his testimony, MR. TILDEN urged that when the committee members get the opportunity to vote on subsistence, to vote on it because it is the right thing to do, because subsistence is right, and because the voters of the state are going to go to the polls with that in mind. CHAIRMAN HALFORD thanked Mr. Tilden for his testimony and then invited Loretta Bullard, Robert Keith and Caleb Pungowiyi, representing Kawerak, Inc., to the table to testify. LORETTA BULLARD, President of Kawerak, Inc., a regional nonprofit providing services throughout the Bering Straits Region, said her board has gone on record in support of and encouraging the Alaska Legislature to place a constitutional amendment on the ballot which will protect rural Alaskans' priority use of subsistence resources during times of shortage. Alaska state law says that subsistence is the highest priority for use of natural resources, but state court decisions have decided that everyone in Alaska is a subsistence user. In reality, there is no protection for subsistence users under state law. MS. BULLARD said the Nome subdistrict in northern Norton Sound is a good example of an area that has been heavily impacted by subsistence closures. Their commercial fisheries have been closed for 10 years, and their subsistence fisheries have been severely restricted or curtailed and closed for the last five to six years. For the past 35 years, her family has had a camp on the Pilgrim River, and for the last 20 years, they've had subsistence restrictions on their take of subsistence on the rivers in the Seward Peninsula. MS. BULLARD said Alaska Native cultures are based on hunting and fishing activities, and these activities have sustained them as distinct people for thousands of years. If their ability to live off the land is not protected, their entire way of life will be regulated out of existence. MS. BULLARD reiterated Kawerak, Inc.'s support for a constitutional amendment for subsistence. They would like to see a constitutional amendment introduced which contains language that a rural preference shall be provided and that would strengthen rural and Native subsistence protections. She said they also recognize that there is a need to reform the state fish and game board selection process and the oversight and management processes. MS. BULLARD stated that if the federal government steps in to manage fish, it will because the Alaska Legislature has refused to address this issue for the past eight years. The subsistence issue has turned into a political football, and it has been an enormous energy, time, and resource drain to the state. She encouraged the Legislature to bring this issue to closure whereby the subsistence needs of rural Alaskans are met now and in the future. Number 037 ROBERT KEITH, Chairman of the Kawerak, Inc. Board of Directors and President of Elim Native Corporation, said, in essence, he wears three hats: according to the U.S. Constitution he is a citizen; he is also a citizen of a tribe, the Native village of Elim, which has had a constitution since 1938; and since 1959, a citizen of the state of Alaska. TAPE 98-46, SIDE A Number 001 MR. KEITH observed that the logistics of getting any kind of changes in ANILCA at this point in time, based on the time lines, would be nearly impossible. MR. KEITH said Mr. Rosier spoke to an abundance of fish, but since the mid 50's, there has been a decline of chum salmon, and they are starting to see declines in coho in his village and in surrounding villages. He noted that during Mr. Rosier's time as commissioner, Elim, Kawerak and the Nome Eskimo community filed a lawsuit because of their serious declines in chum salmon. Not long after that, there was a collapse on the Yukon and Kuskokwim Rivers, and there have been persistent problems regarding the return of fish. MR. KEITH said he would like to see the people in the villages have as much input into whatever management regime comes about. Based on some of the scenarios that have been presented, he thinks it is going to be somewhat of a nightmare to have dual management. He pointed out that in the Seward Peninsula area, there is very little federal land, so it doesn't really matter whether the feds take over because the state is still going to be managing the majority of the Seward Peninsula. In the Shishmaref area, there is one river where they will have dual management. He said he has suggested to the federal people that they need stronger co- management principles built into their advisory scheme just in case they do take over because that will provide some opportunity for the state to have input. MR. KEITH said he thought Mr. Cole's painting of a worst possible scenario is probably somewhat valid because the Department of Interior has some underlying principles of wanting to have as much control as possible. However, control usually requires funds to implement federal bureaucratic policies, and he doesn't see the stance of the current congressional delegation, or other congressional people, to be pouring more money into Alaska for the feds to take over. Number 112 CALEB PUNGOWIYI, Director of Natural Resources for Kawerak, Inc., said he is originally from Savoonga and currently living in Nome. MR. PUNGOWIYI said it took many years for the Board of Game, the Board of Fish, as well as the Department of Fish and Game, to implement some of the requirements of ANILCA. In 1997, the salmon in Norton Sound were given customary and traditional determination, which is 17 years since the enactment of ANILCA. There is also some fallacy in terms of how use is implemented under state law. In his region, they have to go before the Board of Game or the Board of Fish and present documentation and backup to prove that there is customary and traditional use. Once that is accepted by the boards, regulations are adopted to implement the subsistence priority. However, when it becomes a time of shortage, anybody in Alaska can come in and apply for a subsistence priority without having to prove by documentation a customary and traditional use, which is not equal when they are required to prove something, but others are not. Speaking to the Marine Mammals Protection Act, MR. PUNGOWIYI said it is a protection act, not a management act, which prohibits the taking of all marine mammals in the jurisdiction of the United States, but it does provide an exemption to only Alaska Natives. In 1976, the federal government agreed that the state of Alaska had the necessary tools to manage walrus and gave their management to the state. The Board of Game and the Department of Fish and Game decided that the people of Togiak could not take walrus, and they, in turn, sued the state of Alaska. The state then turned the management back to the federal government. He said, in some ways, his people are comfortable with federal management because of the relationship they have established with the federal government. MR. PUNGOWIYI said earlier in the meeting concern was raised that there might be too many Native people serving on regional councils, and he questioned why it would be so fearful that they would have some involvement in the decision-making process. He noted his people have been taking marine mammals for 26 years for subsistence, and the system has worked well because they realize the importance of conservation. He said the real issue that needs to be addressed is that, if there are issues of conservation concerns, their advisory committees, the regional councils, and the Board of Game and Board of Fish can all work together to come up with something that will benefit all Alaskans. Number 227 BERT GREIST of Selawik, a professional hunter and trapper by trade, related that he administered the land claims act for all the village corporations and the regional corporations in the Kotzebue area pursuant to ANCSA. He has worked on ANILCA lands, on ANCSA lands, on state lands, virtually everything that has to do with land and water issues in his area. He was an eight-year member of the Kotzebue Fish and Game Advisory Committee, and a 10-year member of the Regional Subsistence Advisory Council under ANILCA. Right now under ANILCA, his area has guiding, sport hunting, and sport fishing. He said the management system under ANILCA does not give them a rural priority, per se; it kicks in only when there is a resource shortage. He said it is not like his people have more rights than other Alaskans. Mr. Greist voiced his support for the testimony presented by the Alaska Federation of Natives and Kawerak, Inc., and for a constitutional amendment with a rural priority. Number 292 JOHN BORBRIDGE, presented and submitted the following testimony for the record on behalf of the Alaska Federation of Natives: "As the committees of the Alaska State Senate and House held hearings on subsistence and discussed the details of provisions and language set forth in various proposed bills, certain basic principles that undergrid the subsistence position of Alaska Native subsistence users were raised. One principle that I will discuss today is what I call the "Duality of Alaska Native Status." A failure to understand the legal and policy reasons for this "duality" can lead, unfortunately, to an unnecessary and unwarranted fear and resentment by non-Natives. Alaska Natives, like non-Native Alaskans, are fellow citizens of the state of Alaska and the United States. Where we Alaska Natives differ from non-Native Alaskans is that we enjoy a unique and special trust relationship with the federal government. It is this trust relationship that underlies the opportunities that we now have under Title VIII of ANILCA to enjoy and to protect our subsistence lifestyle. "It is beyond argument that the United States Congress has the power to set up a resource management regimen for the Alaska Natives and confirm their right to subsist on the public lands of Alaska owned by the people of the United States. The Indians, Eskimos, and Aleuts and non-Natives are simultaneously fellow Alaskans and fellow U.S. citizens and a people who, as Alaska Natives and Native Americans/American Indians, enjoy a special and unique relationship with the federal government. This relationship has been little understood, sometimes ignored, and attacked as "racist" by those who lack a complete understanding of the provisions of the U.S. Constitution which give Indians a unique status. "The federal government owes the Native Americans, of whom the Alaska Natives are a part, the obligation of its trusteeship, not because of our poverty or the government's wrongdoing in the past, but because within the federal system, the government's relationship with the Native Americans is of the highest legal standing, established through solemn treaties and a series of judicial decisions and legislative actions. This responsibility originated largely from the following three sources: 1. The treaties negotiated with Indian tribes in which the United States acquired vast areas of land in exchange for its solemn commitment to protect the members of the tribes and their property from encroachment by U.S. citizens. 2. Statutory enactment, dating from the Continental Congress to the present, regulating transactions between U.S. citizens and members of the Indian tribes. 3. Innumerable transactions in which, in the latter half of the 19th Century, the United States imposed a complex and vast array of regulatory authority over Indians and their property coincident with its assumption of control over the people and property of the Indians tribes. The assumption of this authority over Indian people was accompanied by a responsibility to the Indian people. "Despite the foregoing, litigants have erroneously argued that federal laws singling out Indians as a class violate the equal protection standard of the Fifth Amendment. Others have erroneously contended that state actions recognizing the distinct status of Indians or particular tribes under federal laws and treaties violate the Equal Protection Clause of the Fourteenth Amendment. "The power of Congress to enact legislation singling out Indian lands or Indian rights for special treatment was upheld in Morton v. Mancari (1974), in which the U.S. Supreme Court held, unanimously, that, "the plenary power of Congress to deal with the special problems of the Indian is drawn both explicitly and implicitly from the constitution itself." Additionally, the Court said that, "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgements will not be disturbed." That was largely upheld, in slightly different words, in United States v. Antelope (1977). "In all cases where either Congress, the Courts, or the Indian Claims Commission ultimately settles any Indian claims based on aboriginal title, the aboriginal rights asserted are extinguished as an integral part of the overall settlement with the sovereign government. Congress followed this pattern when ANCSA was enacted, and Sections 4(b) and (c) ANCSA accomplished at the extinguishment of all aboriginal rights asserted by the Alaska Native. However, Congress also followed the usual pattern by creating new rights and new land titles for the aboriginal rights, which were canceled as part of the general settlement. For example, it extinguished the aboriginal land title, but, in return, confirmed to the Natives fee simple title to 40 million acres of Alaska land; and while with one hand it extinguished all aboriginal use rights, including the aboriginal right to hunt and fish, with the other hand, it took steps to confirm the existing subsistence rights of the Alaska Natives by directing the Secretary of the Interior to take 'any action necessary to protect the subsistence needs of the Natives.' "The legislative history of ANCSA further reveals that it was anticipated that the state of Alaska could, and would, assist the Secretary in evolving policies which would likewise protect the subsistence activities of Natives on the lands granted to the state under the Alaska Statehood Act. "At the direction of Senate Interior and Insular Affairs Committee Chairman Henry Jackson, the Federal Field Committee for Development Planning in Alaska compiled a massive document, "Alaska Natives and the Land,"(1968) which offered the conclusion that: 'There is no dispute that the right of Alaska Natives to go upon federal lands for the purpose of taking fish and game should continue.' "When evaluating the many settlement proposals advanced during the years 1967 to 1971, Congress looked long and hard at the subsistence question. Senate Bill 35, the final bill considered by the Senate in 1971, contained subsistence provisions. The Senate committee report concluded that the Natives did not need to own the land they used to harvest subsistence resources, and likewise determined that one of the reasons these lands should remain in federal ownership was to ensure the protection of Native subsistence rights. Clearly, the Senate believed that it would not be difficult to protect the existing subsistence rights of the Alaska Natives, and it was clearly stated in its report. "There were important differences, however, between the Senate's proposals and the approach taken by the House of Representatives. The House committee felt the subsistence question did not need to be resolved in the Settlement Act. Instead, it anticipated that subsistence would be achieved by and through other means. The House committee report concluded: 'There will be little incentive the Natives to select lands for subsistence use because during the foreseeable future the natives will be able to continue their present subsistence uses regardless of whether the lands are in federal or state ownership.' "These differences were ultimately resolved in the conference between the two bodies when, in haste to produce a settlement before the end of a session of Congress, the Senate yielded to the House position that no legislation was needed because the Secretary of the Interior had authority through existing administrative powers to protect the rights of the Natives. "Since the Alaska Natives use subsistence resources to supply both physical and cultural needs, Congress clearly has the authority to set up a subsistence system giving preference to the Natives which satisfies the U.S. Constitution and is 'tied nationally to the fulfillment of Congress's unique obligation toward the Indian.' Particularly, there can be no doubt, when this authority is combined with the plenary power Congress also has under the property clause to regulate the use of the renewable resources of the public lands in Alaska. "From the outset, Alaska Natives insisted on the inclusion of three primary objectives in an Alaska Native Claims Settlement Act: land, subsistence, and compensation. The Natives of Alaska never agreed to give up their subsistence lifestyle in return for settlement of their land claims. The title to lands due the Alaska Natives under the terms of ANCSA is being processed. The ANCSA compensation has been paid. Subsistence is the unfinished chapter. We are seeking the fulfillment of the promise set forth in the ANCSA Conference Committee Report and reaffirmed in Title VIII of ANILCA. "Mr. Chairman, I would like to touch on some points, but I will omit, for the purposes of time, the citations, but I would ask your permission to provide a copy of this later with a complete citation. Point 1. Subsistence could be limited to Alaska Natives exclusively. However, the Natives agreed in their lobbying to settle for the language of rural Alaskans. Point 2. The federal government could assume exclusive jurisdiction over regulation of subsistence uses on public lands. This ties in with Kleppe case. Point 3. The Act established a legislative preference for subsistence use. The subsistence title established a legislative preference for subsistence use in the state. This section requires both the state and the federal government to accord non-wasteful subsistence uses by rural residents a preference over the taking of such resources for other purposes on the public lands under certain circumstances. Point 4. The preferential right to subsistence use is limited to rural Alaska residents. The definition of "subsistence uses" is intended to include all Alaska residents who utilize renewable resources for direct personal or family consumption. Point 5. The term "local rural residents" refers to traditional use, not residents in the area. The term "local" is intended to include those rural residents that have traditionally and customarily hunted in the area, and it is not limited to the residents of the area. Point 6. The statute guarantees the right to use the resources wherever they are located. The committee intends that access to fish and wildlife populations shall be provided to rural residents engaged in subsistence uses regardless of where such population may be located in the future, except that the section does not authorize subsistence uses of wildlife in national parks and monuments which were permanently closed to such uses on January 1, 1978. Point 7. The federal government made a considered choice to permit state, rather than federal regulation. Point 8. It should be stressed that section 704 (confirming the role of the state to regulate subsistence uses) represents an unprecedented statutory expression by Congress regarding a state's authority to regulate the taking of fish and wildlife on public lands. Point 9. There were advantages to state regulation. The committee believes that state regulation has a number of advantages. One of the most important of these is that it allows for a decentralized administrative structure which can respond more effectively than could a federal structure to the differing forms that subsistence uses take in different parts of Alaska. Point 10. There is no state role in subsistence use of plants. Point 11. The Secretary of the Interior is required to play an active role. Ultimate responsibility for administering entry and use of the public lands necessarily rests with the federal government; therefore, the committee, which expects the Secretary to respond more vigorously to the 1971 admonition of the Alaska Native Claims Settlement Act Conference Committee than has been the case to date, has gone further in stressing throughout the bill the federal duty of protecting the viability of subsistence resources and continuing the opportunity for subsistence uses on public lands by local residents, including such uses within conservation system units, which were allowed as of the date of enactment. Point 12. The technology used for subsistence may change. This recognizes that we are in 1998, and we are still talking about protection of, continuation of the subsistence lifestyle, and that a part of that necessarily recognizes that there will be certain improvements in technology, and that the Natives are not to be frozen in time to the way things were done at an earlier time. They are seeking to protect and to perpetuate the lifestyle that has always been theirs. Point 13. The pace of change from subsistence economy to cash economy was to be determined by the Native Alaskans. This legislation recognizes the long-standing and historic use of the Alaska Native people of large areas of land around their historic villages for hunting, trapping, fishing, berry gathering, and other subsistence uses and purposes. This Act is not, however, predicated on the philosophy that the historic way of life of the Native people of Alaska can, or will, or should be perpetuated into the future for all time by the actions taken by this Congress; western "civilization" came to Alaska and to virtually all of the Native people many years ago. But what this Congress is stressing and what Title VIII in large part is, is a tool by which the Native people will have the right and the opportunity to determine what that pace of change will be." CHAIRMAN HALFORD thanked Mr. Borbridge for his presentation and then invited Gabe Sam and Mike Walleri, representing the Tanana Chiefs Conference, to the table to testify. Number 542 GABE SAM, Director of Wildlife, Tanana Chiefs Conference (TCC), said he has testified many times that under ANILCA subsistence would be for a rural preference. Senator Taylor asked him if he could find that preference in ANILCA, and, to his surprise, he was unable to find it, however, he believes it was the intent of ANILCA. MR. SAM said TCC is still in support of the proclamation that was passed last year on its guiding principles. One of the principles is to not amend ANILCA, only if it was to make it stronger. He noted a poll conducted by Dittman found that 87 percent of the people of Alaska want to vote on subsistence. That figure has now gone up to 92 percent. TCC supports the right of the people to vote because they believe that the people of the state of Alaska are educated enough to understand the issue, and that they will vote to keep Alaska as unique as it is. What makes Alaska unique is the Native people that live in it. TAPE 98-46, SIDE B MR. SAM said when growing up, he learned from his elders his people's way of life, their traditions, their beliefs. People that live in the villages truly live a subsistence lifestyle, which is very different than the lifestyle of people who live in urban Alaska. People in the villages don't consider hunting and fishing as sports activities; they hunt and fish to put food on the table for their families. MR. SAM said the number of hunters in Alaska is growing every year. For example, on the Koyukuk River, it was growing at the rate of 100 hunters per year. Alaska is growing, but the resource is not growing, and he does not believe it can sustain much more hunter pressure than it already has. In closing, MR. SAM stated TCC has some concerns with the proposed legislation before the committee. SENATOR WARD asked if TCC supports the Governor's bill. MIKE WALLERI, Legal Counsel, Tanana Chiefs Conference, replied that TCC has historically taken the position, beginning prior to ANILCA, that it favored a Native preference, and it has continued to express support for the passage of laws which would implement the promises of the Alaska Native Land Claims to protect Native subsistence. Recognizing the various compromises that they've had to address, TCC has historically interfaced with the state and the federal government to explore various options. MR. WALLERI said there are a lot of ways to address the need to protect Native subsistence rights and the Governor's proposal is one such way of addressing those needs. However, TCC has three concerns with the proposal: (1) they think that the constitutional amendment should be "shall;" (2) they believe that it should provide for a rural preference; and (3) they share some of the concerns that AFN outlined in terms of whether or not it will specifically address the concerns of an equal protection override. An additional concern is that the 1997 amendments to ANILCA also provide that there be a statutory provision adopted by the Legislature in order to bring the state into compliance, and TCC thinks the body should seriously consider that need. MR. WALLERI stated that, fundamentally, TCC's position is that despite the fact that they've long held a position of supporting Native preference, they do believe that the people of the state of Alaska should have the right to vote on this and the Legislature should allow that vote. MR. WALLERI noted a lot of concern had been expressed about human rights. He said there is nothing in the U.S. Constitution or the Alaska Constitution which says that subsistence is a basic fundamental human right. That language primarily comes from the United Nation's covenant on political, social and economic rights, and it has a long history which talks about the cultural basis of the right of subsistence, that it is culturally defined, and that is what people are talking about when they are talking about basic human rights. He said for most of the people in the state, including himself, our traditions and cultures do not define the hunting and fishing in the way that Alaska Natives practice subsistence. It is unique, it is treasured, and it has a substantial sacred capacity to it. CHAIRMAN HALFORD asked if subsistence is a fundamental human right for Alaska Natives, is it a fundamental human right for urban Alaska Natives. MR. WALLERI answered that the position of Tanana Chiefs has always been to protect Native subsistence rights. It wasn't TCC that proposed the rural solution. It was something that they basically sought to protect. He said we are talking about a people who have a culture, a lifestyle, a tie to this land which has gone on long before any of us got here, and, as Senator Ward and Senator Leman have pointed out, those things are something that we need to protect in order to preserve our identity as Alaska and Alaska people. SENATOR TAYLOR said to summarize it, TCC doesn't support certain provisions within the bill, they would like to have those provisions amended, but they do want people to be able to vote on something that they don't support. MR. WALLERI responded that life is compromise. SENATOR TAYLOR said he believes that, as drafted, the amendment currently before the committee will fail when brought up against the equal protection clause of the 14th Amendment of the U.S. Constitution. Last October he asked that question of Charlie Cole, Julian Mason and the rest of the group that put together the proposed language. They promised to get back to him, but they have never bothered to respond. He said he agrees with TCC that if this amendment is going to be submitted to the voters, it has to be submitted with significant additional modifiers within it; however, even then it may fail. MR. WALLERI responded that he thought Senator Taylor misunderstood his position. He said what we are talking about is the Alaska Constitutional provision, and, as Mr. Cohen outlined, we need a legislative record that basically tells the courts what the Legislature is trying to do, which can be done in a number of different ways. Number 408 SENATOR TAYLOR commented that he doesn't know that the language can be drafted sufficiently tight so as to accomplish the type of Native rural preference that they want. He pointed out that earlier in the hearing he had asked Charlie Cole why the Governor's Task Force had failed to insert "Native preference only." MR. WALLERI said he thought it was a political decision made because there was a strong feeling within the state that has been articulated over and over again that the Native preference is a racial preference. However, as Mr. Borbridge explained, the Indian people have a unique status under the U.S. Constitution; it is not a racial status, it is a political status. SENATOR TAYLOR asked Mr. Walleri if he thought it was possible to redraft the language so that it doesn't violate the equal protection clause. MR. WALLERI replied that it is possible, and probably the way to do that is to simply say something along the lines of "the state constitution would recognize Native fishing rights that may be created by Congress." He said that would solve the problem, and then it would be up to Congress as to whether or not it would recognize Native hunting and fishing rights. He added that there is a lot of case law which would basically support that position. In that regard, there is no question that TCC would support that and find it much more desirable than what was presently before the committee. CHAIRMAN HALFORD thanked Mr. Sam and Mr. Walleri for appearing on behalf of the Tanana Chiefs Conference, and he then invited Bob Penney to the table to make his presentation. Number 282 BOB PENNEY, Co-chairman, Alaskans Together, said four former governors want to do the same thing their organization wants to do, which is vote on a constitutional amendment that would keep the management of fish and game in Alaska by Alaskans, and they encourage the Legislature to allow that vote. He noted they have been running such ads in the newspapers and on TV and radio across the whole state. Responding to a question from Chairman Halford, MR. PENNEY explained that Alaskans Together is a group of about 28 people from across the state formed last year that is comprised of a cross- section of Native and urban people. MR. PENNEY said he doesn't think people realize the far-reaching effect a federal takeover will have. Economically, it will affect every single business in the state in a negative manner. He said Alaska will be back like it was before statehood. He questioned why Alaska got statehood if it wasn't to control its destiny. MR. PENNEY said what bothers him the most is this aversion to having a rural preference, because since before statehood, since statehood, and since statutes in 1978, today the state of Alaska, by law and by regulation, manages for preference for subsistence fishing in rural Alaska. CHAIRMAN HALFORD interjected that it is a subsistence priority, but it is not a rural priority; it is a court ruling that came down by the Supreme Court. MR. PENNEY said it is still living off the land, so he doesn't understand what the difference is, because, in all practically, a state statute and state regulations are going to be turned into a constitutional amendment that is basically going to do the same thing, which is to provide a rural priority. He said he would like to have someone clarify to him how it is going to any different than it is today. MR. PENNEY said the reason he has been working so hard on this issue is because he wants the opportunity for his children and his grandchildren to enjoy the same kind of life and lifestyle as he has within the state of Alaska. MR. PENNEY urged that a constitutional amendment be passed by the Legislature so that the people can vote on the issue and to keep the feds out of the state's management of fish and game. SENATOR LINCOLN noted that Mr. Rosier and Mr. Kellyhouse testified that the people of Alaska really don't understand the issue enough to vote on it, and she asked Mr. Penney if he thought the people of Alaska really don't understand the issue and are not educated enough to vote on it. MR. PENNEY replied that he thinks the people want to see the issue go away. He said before his group started their ads or did anything it was clear nobody that he knows wanted to see the feds come back. He believes the people want to vote on a constitutional amendment that will keep the feds out. SENATOR LINCOLN also asked if Alaskans Together believes that there also needs to be a statutory fix, as well as a constitutional amendment, in order to be in compliance. MR. PENNEY acknowledged that it correct. He added that he has been told by both Senator Stevens and Attorney General Botelho that it will take both the constitutional amendment and a statutory fix. Personally, he doesn't see why the Legislature can't just do the constitutional amendment now, see how it flies, and then deal with a statutory change at a later date. Number 051 SENATOR WILKEN commented that he took great exception to a recent misplaced, ill-advised ad placed in newspapers by Alaskans Together and that he had expressed his displeasure in a letter to that group. He noted that he would be meeting with Mr. Penney the following day to discuss the composition of his group, as well as the financial backing. SENATOR WARD asked Mr. Penney if he could provide that information to the committee right now. MR. PENNEY responded that he didn't have the financial information with him, but he would be providing that information, as well as the membership of the organization, in writing, the following day. TAPE 98-47, SIDE A Number 020 SENATOR WARD pointed out that the Legislature now has an opportunity to change it to where everybody will share in a subsistence lifestyle equally in this state, and he asked Mr. Penney if he was opposed to that option. MR. PENNEY replied that he wasn't prepared to address that because he doesn't know what the impact would be on the resource. SENATOR WARD commented that he would imagine it would have an impact upon those who catch fish for the purpose of selling them. Number 120 CHAIRMAN HALFORD thanked Mr. Penney for appearing before the committee and then invited Theo Matthews to make his presentation. THEO MATTHEWS, President, United Fishermen of Alaska (UFA) and chair of its subsistence committee, said during the 1990 special session on subsistence, UFA testified in opposition to a constitutional amendment at that time, stating that it was part of the problem, that it would not solve the problem without a package solution. UFA has always been active and tried to be an honest and fair partner in this debate since the eighties. They've maintained contacts with Native groups, recreational hunting groups, and sport fishing groups. They've never had a hidden agenda; they often argued that the real issue is how do Alaskans learn to live into the future with this policy that essentially was adopted by the federal government that the state has, in large part, adopted in its own state statutes. Throughout UFA's participation in this issue, they have stressed that, given there is a state policy that the Legislature adopted or that the Congress adopted in ANILCA, someone really needs to look at this and see how to make it work to the benefit of all Alaskans. He said UFA seems to be the only group that feels prepared to stress the nature of this preference. It is not simply the right to subsist and feed the family, it has evolved into a legal preference. MR. MATTHEWS said even for those residents of this state who receive this preference, there is a burden with it. The ideal world is for good management by this state to allow for differential bag limits, perhaps larger bag limits, perhaps larger seasons, but not to require the priority that counts to kick in, the one that requires the automatic elimination of all other uses to maintain existing subsistence uses. What is often overlooked and what UFA feels is the heart of matter is that those uses that are eliminated are your own, even if you have the preference. For example, if an individual has created a lodge on a river in Bristol Bay or on the Kuskokwim or Yukon, he can't bring in his clients anymore if his subsistence preference kicks in for him. When that subsistence priority over other uses kicks in, a large part of that individual's social and economic lifestyle is in peril. UFA has always recognized that this burden is there under state or federal law. UFA has consistently refused to accept just a constitutional amendment, because it is their opinion that the federal government does not have the incentive to do the good management job that the Department of Fish and Game does. UFA testified before the Governor's Subsistence Task Force on September 12,1997, and their comments are just as valid today as they were then. UFA's position is that equality is being represented. He said we have a state subsistence law that is identical to the federal ANILCA. The major exception is that the state's law says all Alaskans will have this preference to accommodate our constitution in essentially rural areas outside of non-subsistence areas. The federal law mandates that only rural residents will be afforded that preference. However, he said the state has the same law that requires the same criteria as federal law. The Legislature wrote a good law, a law that the boards could understand how to enforce, and it gave them some good definitions. On one hand, there is a federal law that is terribly written and has no definitions or guidance, but it has a rural preference. So in terms of equality and what really happens in terms of management, the fact is a rural preference will give more management options because there will be fewer people to accommodate with the preference. All other aspects of the state law are identical to what's required by ANILCA. MR. MATTHEWS said UFA suggests using the current 1992 statute as the basis for any provisions because it has worked and it has guidance to various people. They also suggest keeping the non- subsistence area concept because it is not necessary to delete that concept to accommodate a rural preference. They think it gives more guidance and makes it clearer where the Legislature intends this preference to be. It is also suggested to add the word "rural" or some synonym or some definition of "rural" to the existing state statutes. It is further suggested to insert the important definitions that they think are vital in ANILCA securely into the law such as "customary and traditional," "customary trade," "reasonable opportunity," "stock," etc. UFA also recommends not attempting to define the words "sustained yields" because the Board of Fish and Board of Game need the flexibility to deal with stock sizes on a stock-by-stock basis. MR. MATTHEWS said, in commenting to the Governor's Task Force on regional councils, UFA felt that it went way beyond the requirements of ANILCA in terms of what kind of deference was required. In his final comments on the constitutional amendment, MR. MATTHEWS said UFA agrees, in a sense, with the comments of the AFN lawyer and the Tanana Chief's lawyer. The current language, which talks about place of residence, is not specific enough to tell the public, in terms of policy, what it really means. UFA has always felt that the best thing was to use the definition of "rural" that the Legislature has already adopted. Number 355 SENATOR TAYLOR said the package before the committee becomes kind of a take it or leave it deal. He questioned if somebody has a commitment that the Secretary of the Interior has bought off on this thing in the way it is worded. MR. MATTHEWS responded that the Legislature has already defined most of these things, they are just not in the statute. His suggestion was to put the definitions into the statute, not necessarily to change past definitions. He said if it is a take it or leave it situation, UFA would support the task force package because it accomplishes all the major goals they have set. It primarily requires the ANILCA definitions so the courts can't run amuck. SENATOR TAYLOR asked if UFA understands that the False Pass fishery will go down if this legislation passes. MR. MATTHEWS stated he didn't agree with that conclusion. That fishery in question at False Pass does not spawn on federal lands in any event, so the feds won't have anything to say about it. SENATOR ADAMS inquired as to the total number of commercial fishermen in the state and how many of them are represented by UFA. MR. MATTHEWS related, in terms of salmon fishermen, there are 13,000 permits and, of those, approximately 74 percent are state residents. There are 20 groups from Ketchikan through Area M that are current board members of UFA. He represents the United Cook Inlet Drift Association, and there approximately 600 permits in the Inlet with about 300 of them as members. There are also several groups of halibut fishermen, long line fishermen, and crab fishermen in UFA. He added that UFA knows that this is a complex issue and that they do not speak for every fishermen in the state of Alaska, commercial or otherwise. They've always tried to look at it as an issue that has to be resolved in the interest of all users, recognizing this priority for the legal problem that it is. Number 430 DICK BISHOP, Vice President, Alaska Outdoor Council, said he was sorry to hear the proclamation in earlier testimony that subsistence is a basic human right that doesn't apply to all of us. He said with regard to Mr. Cole's analysis of federal authority, he gave a very good advocacy statement, but he suggested getting a second opinion, particularly on the questions relating to the property clause of the federal law, because it seems apparent to him that fish and game are not federal property. MR. BISHOP said the comment made that the state of Alaska advocated a rural priority in ANILCA is absolutely not true. He was there when the deal was made on that, and the deal with made as an ultimatum from the Alaska Federation of Natives by their general counsel. Also, the statement was made that ANILCA was an unprecedented comprise in allowing state management of federal lands, but that is not what ANILCA does. It has nothing to do with the management of federal lands; that authority is retained by the federal government and it will be there regardless of what becomes of the subsistence priority. They have the authority to manage those federal lands and the federal properties, if, in fact, Congress has given them that authority. He added that is questionable because even Judge Holland, with regard to fish and game, couldn't find that Congress had given the federal government that authority. MR. BISHOP said the Legislature is being challenged again to adopt a law that will guarantee the perpetuation of a culture. He cautioned not to accept that responsibility for guaranteeing the survival of a culture because there isn't any law that can be passed that can do that. He said that's very much dependent on the values of the people that live that culture, and, if those values change, that culture will not survive and the Legislature will be the scapegoat. MR. BISHOP referenced various distinguished people who have participated in the hearing and have in various ways over the years and in various capacities, official or otherwise, advocated, implemented, and defended the principles of fairness and equal protection under the Constitution of the State of Alaska and of the United States for all Alaskans. The paradox he sees is that among these champions of equal protection, some of them are demanding that Alaskan civil rights, the equal standing before the law regarding the opportunity to fish, hunt and trap, be cast aside in favor of a zip code priority that the Alaska Supreme Court has condemned as being an extremely crude tool that unfairly restricts non-rural people's opportunities. MR. BISHOP said this debate is simply about a couple of things. One is a political strategy to accomplish a couple of objectives: rescue the Governor's campaign promise to get a rural priority; and to save Senator Stevens any further political embarrassment on the issue. The second is money. The Alaskans Together Campaign is spawned in the Anchorage Chamber of Commerce with the apparent idea of insuring continued lucrative commerce with rural consumers and regional Native corporations. He concluded there is nothing wrong with that as long as the price is not the equal access protection of the majority of Alaskans. He said there simply is no longer any question that cash from diverse sources drives rural, as well as urban economies, nor is there any question that the matter of rural urban commerce has occupied the Anchorage Chamber of Commerce for many months. MR. BISHOP said the Legislature is being asked to let the people vote on a constitutional amendment providing for a subsistence priority. He said it should come as no surprise that although many people apparently are saying they would like to vote on the matter, very few know what that vote entails. They are being told that a vote on a constitutional amendment will keep the feds out, but it is perfectly obvious that's not true. Assuming that a rural residency amendment passed and the state conformed to federal law, the state would be bound to (1) a zip code priority as approved by federal judges; (2) a priority for subsistence on renewable resources, not just fish and game; (3) a rural/tribal biased regional subsistence council system; (4) regulations that reflect customary and traditional uses, slightly modified by reasonable opportunity, which has been interpreted in federal court as whatever was done in the past even if that means no closed season and no bag limit if that would constrain customary and traditional uses; (5) sale of commercial harvest limited by the state boards as approved by federal judges; (6) federal court enforcement; (7) the end of Alaska's constitutional protection of equal rights and common use regarding fish and game uses; and (7) no legal basis for future arguments about state versus federal laws regarding equal protection, common use, or the state's rights to manage fish and game. MR. BISHOP stated that with the ANILCA amendments obtained by Senator Stevens, the federal power grab is more intrusive than under the original ANILCA because the Secretary's authority is expanded and the Katie John decision is taken as undisputed in the findings of those amendments, and the state, having embraced ANILCA, can no longer challenge the unwarranted federal usurpation of the state's rights. MR. BISHOP further stated it is the Alaska Outdoor Council's view that the right thing for the Legislature to do is to clearly provide for the accommodation of subsistence uses for food within the bounds of the existing constitution and to challenge Washington, D.C. collectively to honor the terms of Alaska's Constitution, which years ago they approved, instead of playing favorites among Alaskans and patronizing the claims for special privileges in law that are sought by some. He said the Legislature has no obligation to put a lousy law on the ballot. TAPE 98-47, SIDE B Number 592 SENATOR LINCOLN said Mr. Bishop had stated that it was not the legislators' responsibility, as lawmakers, for the perpetuation of a culture. She said that bothers her a bit because she thinks, as lawmakers, we should not also be a party to the demise of a culture. It has been testified over and over how critical subsistence is to the culture, to the lifestyle, and that this legislation is critical to that culture. She said she does view that as part of her responsibility for Alaskans. MR. BISHOP clarified that what he was addressing was a considerable doubt that any government body can pass a law that will guarantee or ensure the perpetuation or survival of a culture. He said he thinks it is equally incumbent upon any government body to insure that the laws that they create or enforce are not detrimental to cultures. In other words, there should not be cultural discrimination through statutes, that the laws passed should make sure that there is every opportunity for all cultures to survive and prosper in a very tolerant atmosphere. But he thinks to take on the additional responsibility of saying that you will guarantee their survival is hopelessly unrealistic because the survival of any culture depends solely upon the values which the people of that culture place upon it. He added that it is his personal opinion that there are numerous factors in Alaska today that have a much greater effect on the survival of Alaska Native cultures than whether there is a subsistence priority law. Number 549 SENATOR ADAMS asked Mr. Bishop the Outdoor Council's solution to the potential problem of dual management in Alaska without a vote of a constitutional amendment. MR. BISHOP responded the solution the Outdoor Council has favored and advocated in the past is that first of all they don't think there needs to be a priority in order to provide for subsistence uses. It has been done in the past through conventional regulations of various kinds. But if the political will is that there be a priority, then he thinks it should be done consistent with the Alaska State Constitution and the decision of the Supreme Court that elaborated on that. He said there is absolutely no question, having gone through this drill on Governor Hickel's Subsistence Advisory Council, that it can be done within the bounds of the existing constitution and that subsistence uses can be adequately provided for without a constitutional amendment. SENATOR ADAMS noted the Legislative Council has filed a lawsuit in hopes that there won't be dual management, and he asked Mr. Bishop if his group would gamble on that particular lawsuit. MR. BISHOP answered that the Outdoor Council has filed as an intervener in that lawsuit, and the principle reason being is because they feel one of the major factors driving this lack of resolution is the lack of clarity about the interpretation of federal law. He thinks it is absolutely essential that there be a serious effort made to determine what the reality of federal law is in relation to the state's authorities and responsibilities. Unless and until that is cleared up, there is always going to be uncertainty, but that does not necessarily deny, though, reaching a political compromise if that compromise was fair and just to all Alaskans. Number 520 SENATOR HOFFMAN said he didn't think anybody was saying that the reason that we're voting for a rural priority is to perpetuate any culture, and he thinks that if anybody uses that as an excuse for not voting for this they are highly mistaken. He said what we are saying is that there is a lifestyle that is unique to Alaska, and as several people testified, they came to Alaska and moved out to rural Alaska and lived a subsistence lifestyle. In order for that to happen, we have had to address the rural preference in order to give them, in times of shortage, the means to survive. He also pointed out that when there are over 90 percent of the people saying that they want to vote on something, then he thinks they've done their research and are highly educated on the issue because it has been around for so many years. MR. BISHOP disagreed, saying that his comment that the subsistence priority is available in times of shortage is one of the most persistent myths about the mandate of the federal law that exists today. He said it reflects the pervasiveness of the errors that have been perpetuated on the Alaskan people via the legislators or otherwise. He said most of the Alaskan people don't have a clue about the what the baggage is that comes with the federal rural priority and the state obligating itself to administer that law. Number 480 CHAIRMAN HALFORD thanked Mr. Bishop for appearing before the committee and then invited Peter Page to the table to make his presentation. PETER PAGE, representing the Stikine Sportsmen's Association, noted the majority of its members live in the Wrangell area, and he thinks it is important to express their views on the issues before the Legislature, in part, because Wrangell, by definition, is rural and the members of the organization who live there would receive the benefits of a rural preference to the extent that benefits attach to it. Their position is that they believe that the subsistence gathering of resources is and always should be a part of the Alaskan lifestyle and they would deny it to no one. They feel that the rural preference does not work fairly, is flawed in its application, and should not be the criteria and before the people of Alaska. MR. PAGE stated the Association objects to the constitutional amendment before the Legislature because it has the effect of under cutting the equal protection provisions that are found in four different places in the Alaska Constitution. He said we should remember that the constitutional provisions that are in the constitution were crafted during a period of time when equal protection was for many Americans, including Alaska Native Americans, nothing more than a prayer of hope on their list. Since then, it has become a cornerstone of our constitutional provision that governs all of us. He thinks it is something that should not be lightly tampered with, and to suggest that we can vote on it and come up with a change is true, but as earlier stated, the Association would be most reluctant to submit to a vote of the populace on a change that might deprive us of the other fundamental rights. He observed that, in his view, the provisions for equal protection, equal rights and responsibilities, are as sacred now as the day they were ratified and they should not be tampered with. MR. PAGE said the Wrangell members of the Association recognize the dangers if the preference should kick in, to their very tenuous economy where all commercial fishing, all commercial processing, all commercial entertainment of visitors who want to come there to fish and hunt would die, and with it, probably the economy of the City of Wrangell. MR. PAGE stated the members of the Association believe that the Legislature can provide adequately for the subsistence rights of all Alaskans by adjustments of seasons, bag limits, and regional regulation and that it should do that. Then the Legislature should turn its efforts towards persuading Congress that ANILCA, as drafted, is flawed and should be changed. CHAIRMAN HALFORD thanked Mr. Page for his presentation and then invited Tom Scarborough to the table to testify. Number 407 TOM SCARBOROUGH of Fairbanks said as an individual who has been deeply in the subsistence debate for the past 20 years, it is inevitable that this day would come again. Those being discriminated against will be unhappy just as those having their rights deprived will also be unhappy. The beneficiaries of the discrimination will also be unhappy because they believe they are not getting enough, so we are dealing with a lose/lose proposition. MR. SCARBOROUGH said the U.S. Constitution and its management system was put together on a basis of equality, which has permitted this nation to become the most powerful country in the world. This understanding of equality has permeated all aspects of our society, except for one facet, and that is how we have dealt with Native Americans. When the Native issue was attempted to be settled in Alaska with ANCSA, the Native people of Alaska were to be equal with everyone else. On top of that, ANCSA extinguished all aboriginal hunting and fishing rights. Special privileges from the federal government were put in place by ANILCA for rural residents, which, he said, was not Indian law. The state of Alaska proceeded on that same course, using equality, in the state constitution, and then passed a subsistence law in 1986. MR. SCARBOROUGH said the request to institutionalize the discrimination option is before the Legislature once again. He said he agreed with Senator Taylor that the 14th Amendment of the U.S. Constitution absolutely prohibits a state from passing a law or putting something in their constitution which discriminates or violates the rights of other U.S. citizens. He suggested the only solution is to take this question to the U.S. Supreme Court and determine where the sovereign powers start and stop. He said the Legislature, collectively, has already put this question before the Court, and he urged continuation of that effort, as well as requesting an injunction to put any further action on hold until a decision is made by the Supreme Court. MR. SCARBOROUGH referenced Section 810 of Title VIII, and he said this section provides that the federal government would have to determine if any action taken by the state, whether it is paving a highway, building a road, etc., is going to affect somebody's subsistence rights. He said this is economic control and this is what the issue is really all about. What the Legislature is toying with is turning the total economic future of Alaska over to a minority of 15 percent, where the urban residents will have no say in what the outcome is. Number 288 SENATOR TAYLOR asked Mr. Scarborough if he had any idea why the Governor wouldn't support the Legislature in it lawsuit, because he has told the people he really wants to keep the federal government out of Alaska and he is fighting to prevent a federal takeover of the state's fish and game management. MR. SCARBOROUGH replied that he thought it was to his benefit to maintain the controversy, it may help him get elected. Number 274 CHAIRMAN HALFORD thanked Mr. Scarborough for appearing before the committee and then invited Bill Hagar to the table to make his presentation to the committee. BILL HAGAR, a 40-year resident of Fairbanks, commented he is very proud of this state, the Legislature, and the departments, and he believes everyone has, for quite some time, gone the extra mile to conform and contribute to the demands of the subsistence issue. However, he believes that equal protection is at risk, not the subsistence issue. MR. HAGAR directed attention to a research document prepared by himself and four other individuals on the Supreme Court's handling of the subsistence issue. He said they did the document out of defense and discovery, and they feel the Administration has not disclosed and refuses to disclose all of the information available to the public to consider any kind of vote on any position that is presently before it. They have discovered there is a national constitution and a state constitution, and these are the people's constitutions. The main thing they have discovered is that administrations, congressional people, and legislative and administrative people being at a state or a federal level, must act within constraints of the constitution. He said they do recognize the existence of opposing pressures and opinions, and have equal respect for both. He said they feel we all may be searching for a compromise in lieu of an impasse, and he suggested it is time for a third party. MR. HAGAR said he would advocate for the Legislature to take action on the constitutional amendment by voting it down, calling a time out, and putting our trust in the highest authority we can seek out in the land, which he has identified as the Supreme Court as perhaps an arbitrator or a final solution to this dilemma. CHAIRMAN HALFORD thanked Mr. Hagar for his testimony and then invited Lynn Levengood to the table to address the committee. Number 134 LYNN LEVENGOOD, a Fairbanks resident serving on the executive board of the Alaska Wildlife Conservation Association, stated he believes that there is no acceptable substitute for equality, and he firmly believes that the equal protection clauses of the U.S. Constitution and Alaska's Constitution are at risk if the proposed constitutional amendment is pursued. He said he listened to most of the previous testimony and that he respectfully disagrees with many of the answers provided by former Attorney General Cole and the current Attorney General. However, he thinks there are some common threads in which there is some unanimity of opinion. First of all this should not be a political issue, but, unfortunately it has been politicized by the current Administration, and the reason for this dilemma today is because the Babbitt suit was dropped for political reasons, causing the current stalemate. MR. LEVENGOOD observed that all of the individual rights found in the federal constitution, as well as equal treatment, equal protection under the law, and the common use and ownership of all wildlife resources is guaranteed to each individual Alaskan, past, present and in the future. The legislative body of Alaska has the trust responsibility of protecting that right for future Alaskans, and one of the trust responsibilities is that of impartiality. So to try to discriminate among Alaskans for the allocations when there is no shortage, is a violation if its trust responsibilities. MR. LEVENGOOD said it has been testified that Alaskans just want to vote on the issue, but just wanting to vote is not enough because we are a country of individual guaranteed rights; there are certain rights, individual rights that are not subject to majority rule. Alaskans have been told they are going to vote to keep out the federal government, but under the legislation before the Legislature, the federal government is not going to be kept out. Alaskans are not being told that the vote they are going to be given is a vote to take away the rights of other Alaskans. TAPE 98-48, SIDE A Number 001 MR. LEVENGOOD believes that Alaskans are united in that they want final resolution, and that final resolution is required and will be required before all Alaska's people can be united under law as one people. He urged that no solution be attempted if it violates any of these principles. Addressing the Stevens' amendments to ANILCA, MR. LEVENGOOD said they would give up our sovereign ability to challenge this package of legislation, which he believes would be a grave mistake. The legislation before the committee does not provide finality, and he suggested to get finality is to seek final resolution on the merits with the U.S. Supreme Court. He agrees with previous speakers that the constitutional amendment and the statutory legislation should be voted down by the Legislature, and then to ask that the Administration join the Legislature in seeking an injunction to provide a time out to allow for judicial finality. Considering the state sovereignty issues are at issue and the difference of opinion between the legal conflict of laws issue, he believes a federal court would provide such a moratorium to allow legal finality. When such a time out is provided, Alaska should then assert its 10th and 11th amendment rights in a direct action lawsuit taking the issue directly to the U.S. Supreme Court. With such a suit, the Supreme Court is obligated to take the case and finality would occur within one Supreme Court cycle. In closing remarks, MR. LEVENGOOD said he believes a preference can be crafted broadly defining "subsistence" as "the reliance on Alaska's wildlife resources for basic sustenance." If subsistence is defined that way and provides a preference in times of shortage, then Alaska state law would protect rural residents who relied upon wildlife resources for their basic sustenance, as well as other residents who relied upon wildlife resources for their sustenance. State law would protect the class of people that federal law protects, and the state would be in compliance with ANILCA without changing the state constitution. CHAIRMAN HALFORD thanked Mr. Levengood for his testimony and then invited Mary Bishop to the table to make her presentation to the committee. MARY BISHOP of Fairbanks, representing the Golden North Archery Association and the Interior Alaska Air Boat Association, stated she thinks the basic assumptions made by Mr. Cole and Mr. Penney are wrong. The first assumption was that the most important thing is to get back fish and game management, and the second is that we cannot change ANILCA. She agrees it is important to get back fish and game management, but it is not the most important thing. The most important thing is a resolution of this issue that won't tear apart the people of Alaska. A zip code priority tears apart the people of this state. The second assumption is that ANILCA cannot be changed, but Senator Stevens changed it almost overnight with his amendments. Senator Murkowski has said the Legislature has the opportunity to provide him with recommendations on amendments to ANILCA, and his intention is to conduct hearings on those recommendations and to legislate any additional changes to ANILCA. Also, Mr. Penney and others have indicated that if the state were to comply with federal law, the results would be innocuous. She referenced the Bobby case as an example of complying with federal law, which she said is the kind of innocuous thing we are working toward if we accept a rural priority with customary and traditional use as the basic formula that has to be met. MS. BISHOP stated that if the Governor and the state's congressional delegation really want state management, then they should agree to make efforts to substantially amend ANILCA so that we have a result that won't tear apart the people of this state. Number 415 There being no further witnesses to appear before the committee, Chairman Halford closed the public hearing portion of the meeting. CHAIRMAN HALFORD stated SJR 101 - CONST AM:SUBSIST. PREF.BASED ON RESIDENCE was before the committee for its consideration. SENATOR LINCOLN offered and moved adoption of Amendment No. 1. She explained the amendment deletes the language in Section 19 and replaces it with language from SJR 2, which contains the five criteria for subsistence eligibility. In discussion on the amendment, SENATOR TAYLOR expressed his fear that in expanding the list, it also expands the opportunities for challenge to this list on the equal protection clause of both the U.S. Constitution and the Alaska Constitution because they probably all lack sufficient definition. SENATOR TORGERSON objected to the adoption of Amendment No. 1. A roll call vote was taken with the following result: Senator Lincoln voted "Yea" and Senators Green, Leman, Sharp, Taylor, Torgerson and Halford voted "Nay." CHAIRMAN HALFORD stated Amendment No. l failed on a 1-6 vote. SENATOR LINCOLN offered and moved adoption of Amendment No. 2, which on line 7 deletes the word "may" and inserts "shall" in its place. SENATOR GREEN objected to the adoption of Amendment No. 2. A roll call vote was taken with the following result: Senator Lincoln voted "Yea" and Senators Leman, Sharp, Taylor, Torgerson, Green and Halford voted "Nay." CHAIRMAN HALFORD stated Amendment No. 2 failed on a 1-6 vote. SENATOR LINCOLN offered and moved adoption of Amendment No. 3, which on line 9 deletes "place of residence" and inserts "rural preference" in its place. She explained this change will make it clear to the general public what they are voting on, especially since it is in conjunction with a statutory change that speaks to the preference being a rural preference. SENATOR TORGERSON objected to the adoption of Amendment No. 3. A roll call vote was taken with the following result: Senator Lincoln voted "Yea" and Senators Sharp, Taylor, Torgerson, Green, Leman and Halford voted "Nay." CHAIRMAN HALFORD stated Amendment No. 2 failed on a 1-6 vote. There being no further amendments, CHAIRMAN HALFORD requested a motion on SJR 101. SENATOR TORGERSON moved SJR 101 pass out of committee with individual recommendations. SENATOR LEMAN objected for the purpose of stating that he believes there are some amendments that can be made to the resolution to narrow the scope and that he would like to offer them to the body when the legislation is on the Senate floor. He then removed his objection. There being no further objection, CHAIRMAN HALFORD stated SJR 101 moved from committee with individual recommendations. CHAIRMAN HALFORD brought SB 1002 - EXTEND CURRENT SUBSISTENCE LAW before the committee. He explained the legislation was introduced by the Senate Rules Committee at the request of the Senate President, and it simply extended the sunset date on the 1992 law for one year. He directed attention to a Resources CS which repeals that sunset provision so that 1992 law would go on. He said when it was passed originally, it was thought it needed another review, but just continuously extending the sunset date one year at a time doesn't seem to make a lot of sense. SENATOR GREEN moved the adoption of CSSB 1002(RES). SENATOR LINCOLN objected, stating she wasn't sure what was being repealed. CHAIRMAN HALFORD explained the section in the session law contains a repealer which was being amended from 1998 to 1999, and instead of extending that by one year, the committee substitute is repealing the repealer, which, in effect, makes it permanent law, but it is not changing the existing law. He stated he would make sure that a side-by-side analysis of the session law and the committee substitute is included in the members' packets when the legislation goes to the Senate floor. A roll call vote was taken on Senator Green's motion to adopt the Resources CS with the following result: Senators Taylor, Torgerson, Sharp, Leman, Green and Halford voted "Yea" and Senator Lincoln voted "Nay." CHAIRMAN HALFORD stated the motion to adopt CSSB 1002(RES) carried on a 6-1 vote. SENATOR LEMAN moved CSSB 1002(RES) be passed out of committee with individual recommendations. SENATOR LINCOLN objected. The roll was taken with the following result: Senators Torgerson, Taylor, Sharp, Leman, Green and Halford voted "Yea" and Senator Lincoln voted "Nay." CHAIRMAN HALFORD stated the motion to move CSSB 1002(RES) carried on a 6-1 vote. There being no further business to come before the committee, the meeting adjourned at 1:10 a.m., Wednesday, May 27.