Legislature(1999 - 2000)
09/27/1999 01:30 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
September 27, 1999
1:30 P.M.
TAPE 2SS HFC 99 - 1, Side 1
TAPE 2SS HFC 99 - 1, Side 2
TAPE 2SS HFC 99 - 2, Side 1
TAPE 2SS HFC 99 - 2, Side 2
TAPE 2SS HFC 99 - 3, Side 1
CALL TO ORDER
Co-Chair Therriault called the House Finance Committee
meeting to order at 1:30 p.m.
PRESENT
Co-Chair Therriault Representative Foster
Co-Chair Mulder Representative Grussendorf
Vice Chair Bunde Representative Kohring
Representative Austerman Representative Moses
Representative J. Davies Representative Williams
Representative G. Davis
ALSO PRESENT
Senator Gary Wilken; Senator John Torgerson; Representative
Jim Whitaker; Representative Harold Smalley; Representative
Beth Kerttula; Representative John Cowdery; Representative
Lisa Murkowski; Representative Ethan Berkowitz;
Representative Bill Hudson; Representative Scot Ogan;
Representative Reggie Joule; Senator Jerry Ward;
Representative Jerry Sanders; Representative Kim Elton;
Representative Beverly Masek; Representative Jeannette
James; Representative Carl Morgan; Representative Gail
Phillips; Representative Sharon Cissna; Richard (Dick)
Bishop, Vice-President, Alaska Outdoor Council, Anchorage;
Bruce Botelho, Attorney General, Department of Law; Patrick
Pourchot, Governor's Legislative Office, Office of the
Governor; George Utemohle, Attorney, Legislative Legal and
Research Services, Legislative Affairs Agency; Ted Popely,
Staff, Speaker Porter; Julie Kitka, Alaska Federation of
Natives; Carol Daniel, Legal Counsel, Alaska Federation of
Natives; Sky Starkey, Attorney, Alaska Federation of
Natives;
SUMMARY
HJR 202 Proposing an amendment to the Constitution of the
State of Alaska relating to use of indigenous
subsistence resources by residents.
CSHJR 202 (FIN) was REPORTED out of Committee with
a "do pass" recommendation and with two fiscal
impact notes, one by the Department of Fish and
Game and one by the Office of the Governor, both
published on 9/27/99.
HOUSE JOINT RESOLUTION NO. 202
Proposing an amendment to the Constitution of the State
of Alaska relating to use of indigenous subsistence
resources by residents.
Co-Chair Therriault provided members with a proposed
committee substitute, #1-LS1137/K dated 9/27/99(copy on
file).
Co-Chair Mulder MOVED to ADOPT proposed committee
substitute, #1-LS1137/K dated 9/27/99. Representative
Grussendorf and Representative J. Davies OBJECTED.
Representative Grussendorf spoke against the proposed
committee substitute. He noted that the items in subsection
(b) would be of an equal standing. He pointed out that it
would be difficult for the legislative body to rank the
criteria. He noted that "customary" was removed. He pointed
out that the Alaska National Interest Lands Conservation Act
(ANILCA) has only three criteria, the first of which is
"customary". He estimated that the proposed committee
substitute would be rejected in regards to federal
compliance.
Representative J. Davies agreed with remarks by
Representative Grussendorf. He noted that the preference is
only in place during a time of shortage. He pointed out that
this is not acceptable to the federal government and
recommended that the proposed committee substitute not be
adopted.
Representative Austerman stated that the proposed committee
substitute would not fulfill federal requirements. He spoke
against the adoption of the committee substitute.
Vice Chair Bunde stated that there would be federal control
regardless of the any action in adopting legislation. He
emphasized that allocation issues would be settled in
federal court.
Co-Chair Therriault explained that he did not focus on
federal requirements in drafting the proposed committee
substitute.
Representative J. Davies pointed out that the clock is
ticking on federal takeover. He emphasized that the state
stands to lose $10 million dollars in federal assistance to
implement a state program. He stressed the need to address
federal takeover. He maintained the importance of retaining
state management of the resource.
Representative Grussendorf noted that the proposed committee
substitute would not meet the federal standards. He
recommended that the House Judiciary Committee version be
used as a vehicle for further amending.
Representative Williams stated that the state of Alaska is
long past a lasting solution.
A roll call vote was taken on the motion to adopt the
proposed committee substitute.
IN FAVOR: Williams, Austerman, Bunde, Davis, Mulder,
Therriault
OPPOSED: Foster, Grussendorf, Kohring, Moses, J. Davies
The MOTION PASSED (6-5).
GEORGE UTEMOHLE, ATTORNEY, LEGISLATIVE LEGAL AND RESEARCH
SERVICES, LEGISLATIVE AFFAIRS AGENCY provided information on
the committee substitute HJR 202 (FIN). The resolution would
amend the Constitution of the state of Alaska by adding a
new subsection to section 4. The new language would allow
the legislature to provide a preference to and among
residents of the state for a reasonable opportunity to take
fish and wildlife for subsistence uses during times when an
unusual low stock or population level occurs in an area in
which residences are characteristically dependent on that
stock or population for subsistence. The preference would be
based on the resident's traditional use, direct dependence,
availability of alternative resources, place of residence
and proximity to the resource.
The legislation also adds two new sections. Section 30 would
make the effective date dependent on action by the federal
government to amend ANILCA. The amendment to ANILCA would
repeal any authority of the Secretary of the Interior to
preempt state management. Section 31 would amend the
Constitution to provide that the legislature has the
authority to bring an action on behalf of the state of
Alaska before federal court.
Representative J. Davies asked Mr. Utemohle's estimation on
the chance that section (b) would be certified by the
Secretary of Interior to be in accordance with ANILCA. Mr.
Utemohle did not think that subsection (b) would allow the
state to come into compliance with ANILCA.
Representative J. Davies noted that the legislation would
not become effective until ANILCA is amended. Mr. Utemohle
stated that if there are no amendments to ANILCA that the
legislation would not be effective in bringing the state of
Alaska into compliance with ANILCA.
Co-Chair Therriault pointed out that the federal government
could met the state halfway. Mr. Utemohle observed that
Secretary of the Interior has indicated that the state would
not be certified as able to come into compliance with ANILCA
by the October 1, 1999 deadline.
Representative Grussendorf referred to line 16, page 1,
which lists criteria for a preference. He questioned if the
criteria would be ranked equally. Mr. Utemohle stated that
the language does not require the legislature to give the
criteria equal weight. It would require that all the
criteria be weighed.
Representative Grussendorf asked if there was discussion
regarding the deletion of the word "customary". Mr. Utemohle
could not provide information on the decision to remove
"customary" from the legislation.
Co-Chair Therriault felt that it was unnecessary to link
"customary" to "traditional". Representative Grussendorf
pointed out that the Department of Interior uses the
language "customary".
RICHARD BISHOP, VICE-PRESIDENT, ALASKA OUTDOOR COUNCIL,
ANCHORAGE spoke in support of the House Finance committee
substitute. He observed that the term "customary and
traditional use" is an important element of the state and
federal definition of subsistence use. He noted that there
is no federal definition of the term "customary and
traditional use". Judge Holland stated said that "customary
and traditional use" is essentially the practices that have
occurred in a particular resource use situation by local
people in the collective past. Other uses of the resources
must be eliminated before customary and traditional uses are
restricted beyond what has been customary and traditional.
He felt that there was a high probability of situations
where under the federal law that other uses would be
eliminated. He cautioned that there is a lack of
conservation when conforming to the federal subsistence
priority compelled by a meeting of customary and traditional
use. He noted that the use of "customary and traditional"
has lead to problems in state law.
BRUCE BOTELHO, ATTORNEY GENERAL, DEPARTMENT OF LAW urged the
committee to be careful in its choice of words. He stressed
that it is essential that every word placed in the
Constitution represent what the legislature means to convey.
He pointed out that "customary and traditional" means
something through the body of law that has occurred through
long-term usage. There should be consistent long-term state
practice. He read the definition of "customary and
traditional" in AS 16.05.940(7):
"customary and traditional" means the noncommercial,
long-term, and consistent taking of, use of, and
reliance upon fish or game in a specific area and the
use patterns of that fish or game that have been
established over a reasonable period of time taking
into consideration the availability of the fish or
game".
CAROL DANIEL, LEGAL COUNSEL, ALASKA FEDERATION OF NATIVES
(AFN) provided information on the legislation. She stated
that AFN is concerned with the change from "customary and
traditional use". Title VIII of ANILCA defines subsistence
in terms of "customary and traditional" uses of rural
Alaskan residents. She emphasized that there is a definition
of "customary and traditional uses" in state law. The
removal of "customary" would indicate that something else is
meant in the constitutional amendment than what is referred
to in federal and state law.
Attorney General Botelho reiterated that there needs to be
clear understanding in terms of the intent. He questioned if
the intention is to divert from former practices.
JULIE KITKA, ALASKA FEDERATION OF NATIVES pointed out that
new and undefined standards would guarantee that each one
would be litigation. She maintained that litigation would be
divisive. A new and undefined constitutional amendment that
does not exist in state law or ANILCA would not comply with
ANILCA unless the new terms are over-inclusive. There would
not be a problem with terms that were over-inclusive and
broad ranging. She felt that "traditional" without
"customary" would be under-inclusive.
Representative Austerman questioned if the proposed
committee substitute would bring the state into compliance
with the requirements of federal law.
Attorney General Botelho stated that the House Finance
committee substitute would not satisfy the ANILCA
requirements. He stated that CSHJR 202 (JUD) comes closer to
satisfying federal requirements. He read from a memorandum
by the regional solicitor, dated September 23, 1999:
"Without specific enabling language in a constitutional
amendment which would permit a subsistence priority to
be based on rural residence, the Speaker's proposed
amendment to 'establish criteria for determining
eligibility' most likely does not state the amendment's
purpose clearly and specifically enough to overcome the
previous interpretation of the state constitution by
the Alaska Supreme Court."
Attorney General Botelho noted that neither the House
Judiciary Committee of House Finance Committee versions
include the term "rural". Both versions make reference to
"reasonable opportunity". He observed that the solicitor
also stated that:
"The amendment also adopts the 'reasonable opportunity'
approach to providing the subsistence priority which
was previously contained in amendments to ANILCA
enacted by Congress in 1997, but which expired in 1998
without ever taking effect because the state
legislature did not approve a constitutional amendment
as the Act containing the amendments required."
(Tape Change, 2SS HFC 99 - 1, Side 2)
Attorney General Botelho concluded that the House Finance
Committee version would not address federal requirements.
The House Judiciary Committee version would come closer
In response to a question by Co-Chair Therriault, Attorney
General Botelho noted that the legislation focuses on
criteria that are not in federal law. The priority in terms
of reasonable opportunity only occurs in times when an
unusually low fish stock or wildlife population level occurs
in an area in which the residents of the area are
characteristically dependent on the fish stock or wildlife
population for subsistence. He presumed that the language is
an attempt to define "in times of shortage". He pointed out
that the language does not address usually low fish or
wildlife populations. The priority under ANILCA would exist
in usually low situations. The priority always exists under
ANILCA. "Its practical affect is to actually be operative at
the time that such scarcity to the resource, that not all
beneficial uses can be satisfied."
Mr. Bishop disagreed. He maintained that the priority exists
at all times under federal law. He asserted that there have
been 427 instances relating to specific species where all
rural residents were authorized for a priority to trap or
hunt on federal land. There is a determination made that all
rural residents can exercise the priority regardless of
where in the state they live. He stressed that there is no
relationship to abundance or need. He maintained that the
first issue that the Federal Subsistence Board must address
is the "customary and traditional" use of the resource in
the area. Their regulations must reflect the customary and
traditional use. Neither shortage or need is a criterion.
He added that "traditional" has been interpreted as those
uses that were in place or practice prior to the enactment
of ANILCA. He argued that the public, officials and others
have misinterpreted the definition to refer to only one set
of users.
Ms. Kitka responded to a question by Representative
Austerman. She stated that the House Judiciary Committee
(JUD) version made progress toward certification by the
Secretary of the Interior. She noted that the use of
"reasonable opportunity" remains a problem in the (JUD)
version and recommended that it be deleted. She suggested
that the addition of "subsistence use as the highest
beneficial use of wild and renewable resources" would
strengthen the (JUD) version. The absence of "rural" remains
a problem. She recommended that "rural" be added.
In response to a question by Co-Chair Therriault, Ms. Kitka
noted that AFN does not support any amendments to ANILCA.
In response to a question by Co-Chair Mulder, Attorney
General Botelho noted that suspended federal regulations
will go into full force on all navigable waters of the state
on October 1, 1999 unless the state of Alaska Legislature
"has enacted a constitutional amendment to be placed before
the voters, which if it becomes law would enable the
enactment of laws of general applicability to provide for
the definition, preference and participation found within
sections 803, 804 and 805 of ANILCA." He did not anticipate
certification of the proposed (HFC) version.
Representative Foster referred to subsection (b) He
questioned if the all the criteria would have to be met.
Attorney General Botelho responded that each item offers an
alternative basis with which to base the preference. The
legislature could use one or more of the criteria for a
preference. He noted that the criteria in state statute were
based on direct dependence, proximity and alternative
resources.
Representative Foster asked the Attorney General's
interpretation of "availability of alternative resources".
Attorney General Botelho responded that the language was
derived from ANILCA and state law as one of three criteria.
The questioned is who gets to take the resource when there
is insufficient quantity for all users. The criteria looks
at the availability of an alternative area that the person
or community can turn to for satisfaction of the basic need.
Co-Chair Therriault interjected that ANILCA speaks to "most
cases no practical alternative means is available to replace
the food."
Ms. Kitka reminded the Committee that the Secretary of
Interior has a fiduciary trust responsibility to protect the
interests the indigenous peoples of Alaska.
Vice Chair Bunde questioned if subsistence is an Alaskan
version of affirmative action. He questioned if Alaskan
Native peoples have a trust relationship with the federal
government. Attorney General Botelho disagreed with the
statement that subsistence is an Alaskan version of
affirmative action. The state of Alaska objected to a
resolution that would have provided for a Native preference
under law. The state pushed for a rural preference, which
was the outcome. He added that it is unfortunate that some
people have defined the issue as a conflict between Native
and western people.
Vice Chair Bunde asked if it is not an attempt to address
past wrongs. Attorney General Botelho maintained that the
issue is to fix a contract that had definite terms that were
not fulfilled, not to address a grievance.
Ms. Kitka pointed out that the federal government
acknowledges and fulfills its trust responsibility to Alaska
Natives in its support for housing and health.
Mr. Bishop disagreed that there is a trust relationship. He
acknowledged that there was language under the conference
report on the Alaska Native Claims Settlement Act (ANCSA)
saying that both the United States and the state of Alaska
were expected to see to the continued opportunity for
subsistence uses by Alaskan Natives. There was no
requirement for a Native or rural priority in ANCSA. A 1971
letter by the Secretary of Interior indicated that
corporation land selection would provide for economic
opportunity and subsistence opportunities for corporation
members. He stressed that Title VIII of ANILCA is not Indian
law, which carries a trust relationship.
Mr. Bishop stressed that the Alaska Outdoor Council supports
subsistence uses and subsistence lifestyles. The Council has
tried to raise points on sound conservation. He pointed out
that "reasonable opportunity" is part of the state
definition of "customary and traditional" use.
Mr. Bishop compared the House Finance committee substitute
to section 801 of ANILCA. Section 801 of ANILCA states that:
"The situation in Alaska is unique in that, in most
cases, no practical alternative means are available to
replace the food supplies and other items gathered
from fish and wildlife which supply rural residents
dependent on subsistence uses;
The House Finance committee substitute states:
"during a time when an unusually low fish stock or
wildlife population level occurs in an area in which
the residents of the area are characteristically
dependent upon the fish stock or wildlife population
for subsistence."
Mr. Bishop read from ANILCA: "It is hereby declared to be
the policy of Congress that (1) consistent with sound
management principles...residents who depend upon
subsistence uses of the resources" will be provided the
resources. He continued to quote from ANILCA: "nonwasteful
subsistence uses of fish and wildlife and other renewable
resources shall be the priority consumptive uses of all such
resources on the public lands of Alaska..." He pointed out
that consumptive uses were given priority over
nonconsumptive uses. He added that ANILCA refers to "the
taking on public lands of fish and wildlife for nonwasteful
subsistence uses..." He maintained that that subsection (b)
attempts to address the spirit of subsistence use in Alaska.
He stressed that sound conservation and the protection of
fish and wildlife sources are needed to continue providing
for those that are dependent on subsistence.
Representative J. Davies acknowledged that the court has
ruled that ANILCA is not Indian law, but stressed that there
could still be some basis for a trust responsibility. He
stressed that the history that led to ANILCA must be
considered to understand why a rural preference was adopted
over a Native preference.
Mr. Bishop responded that ANILCA was not a directive of
federal law to address subsistence rights by Alaskan
Natives. There was no state subsistence priority law prior
to 1978. In 1978, the state passed a law that gave
subsistence a priority, but did not establish a population
that would be given the priority. The law was intended to
serve the purpose of ANSCA, to address an accommodation of
subsistence by Alaskan Natives. The federal law that
followed inserted the word "rural" on the request of the
Alaska Federation of Natives. The state did not seek a rural
preference. He maintained that it has not worked well.
(Tape Change, 2SS HFC 99 -2, Side 1)
Mr. Bishop stated that the issue is whether the state of
Alaska is willing to except a federal solution in ANILCA or
federal allocation of the uses and management of fish and
wildlife in Alaska.
In response to a question by Co-Chair Mulder, Mr. Bishop
maintained that the only remedy would be to go to federal
court. He quoted from ANILCA:
"Sec. 807. (a) Local residents and other persons and
organizations 16 USC 3117 aggrieved by a failure of the
State or the Federal Government to provide for the
priority for subsistence uses set forth in section 804
(or with respect to the State as set forth in a State
law of general applicability if the State has fulfilled
the requirements of section 805(d)) may, upon
exhaustion of any State or Federal (as appropriate)
administrative remedies which may be available, file a
civil action in the United States District Court for
the District of Alaska to require such actions to be
taken as are necessary to provide for the priority."
Co-Chair Mulder maintained that the option to go to state
court would remain. He stressed that a key issue is the
control of navigable water. He pointed out that it is in
AFN's interest for the state of Alaska to retain management
of state waters.
Ms. Kitka acknowledged that there may be long-term conflicts
with national interest (groups). She stressed that AFN has
no choice but to accept federal implementation of the law if
the state of Alaska is unwilling to come into compliance.
She agreed with Mr. Bishop, that Title VIII was not
necessarily the logical consequence of ANCSA. She
maintained that Title VIII arouse through the lack of good
faith by the state of Alaska.
Ms. Kitka acknowledged that Title VIII of ANILCA is not
perfect. She reiterated that AFN would still not support any
amendment to ANILCA. She emphasized that there are no state
protections and concluded that ANILCA is the only protection
available.
Representative Williams MOVED to ADOPT Amendment 1:
On page 2, delete lines 3 through line 22.
Insert: Article XV, Constitution of the State of
Alaska, is amended by adding a new section to read:
Section 30. Effective Date. If section 4 of the Article
VIII, as amended, regarding wild renewable subsistence
resources, is adopted at the 2000 general election, the
amendment takes effect immediately on certification of
the election returns by the lieutenant governor.
Sec. 3. PURPOSE. The purpose of the amendments proposed
by this resolution is to provide for a preference for
subsistence uses of fish, wildlife, and other renewable
natural resources; to ensure state management of fish
and wildlife throughout the state; and to bring the
state into compliance with Title VIII, Alaska National
Interest Lands Conservation Act (P.L. 96-487).
Sec. 4. The amendment proposed by this resolution shall
be placed before the voters of the state at the next
general election in conformity with art. XIII, sec. 1,
Constitution of the State of Alaska, and the election
laws of the state.
Co-Chair Therriault OBJECTED. Representative Williams spoke
in support of Amendment 1. He spoke against tying the
legislation to amending ANILCA. He stressed that an attempt
was made to amend ANILCA. He did not believe that ANILCA
would be amended. Representative Grussendorf spoke in
support of Amendment 1.
Vice Chair Bunde questioned if renewable resources included
timber. Representative Williams estimated that fish and
wildlife would be included. Vice Chair Bunde questioned if
air and water would be included.
Co-Chair Therriault did not see a compelling reason to
contain a purpose section in the legislation. He observed
that the federal government would make a determination
regarding compliance. Co-Chair Therriault MOVED to AMEND
Amendment 1 by deleting the Purpose section:
Sec. 3. PURPOSE. The purpose of the amendments proposed
by this resolution is to provide for a preference for
subsistence uses of fish, wildlife, and other renewable
natural resources; to ensure state management of fish
and wildlife throughout the state; and to bring the
state into compliance with Title VIII, Alaska National
Interest Lands Conservation Act (P.L. 96-487).
Representative Grussendorf spoke in support of retaining
section 3. Co-Chair Therriault argued that the information
would be contained in the voting pamphlet. Representative J.
Davies spoke against the amendment to the amendment. He
argued that the language clarifies the intent. He stressed
that the intent must be clear to the Secretary of the
Interior.
Co-Chair Therriault stressed that there is an alternative
mechanism to speak to the state's population (though the
voter pamphlet). He felt that a letter of intent would be a
more appropriate way to communicate to the Secretary of
Interior.
Representative Grussendorf argued in favor of retaining the
purpose section. He emphasized that letters of intent are
normally associated with legislation, not resolutions. Co-
Chair Therriault continued to argue in support of a letter
of intent.
Ms. Daniel clarified that section 810 of ANILCA covers more
than just fish and wildlife resources. She observed that
ANILCA refers to "wild renewable resources for direct
personal or family consumption, for making and selling
handicrafts, and for barter and customary trade." She
concluded that berries would be included in this definition.
Section 804 peaks in terms of fish and wildlife for non-
wasteful subsistence uses.
Co-Chair Therriault concluded that the inclusion of the
purpose section would imply that the state of Alaska
supports the broadest interpretation of what would be
covered. Mr. Bishop agreed that the definition includes wild
renewable resources. He noted that a blueberry patch used
for subsistence purposes could prevent development.
Co-Chair Mulder argued in support of the amendment to the
amendment. He did not see the functional utility for
inclusion of a purpose section in regards to federal
certification. He did not think that the language would add
to the equation and cautioned that it could lead to
problems.
Representative Grussendorf argued in support of retaining
the purpose section. Representative G. Davis spoke in
support of retaining the purpose section.
Co-Chair Mulder questioned if the Governor's proposal
included a purpose section. He viewed the section as an
obstacle.
Vice Chair Bunde noted that the legislature has been advised
to keep the constitutional language simple. Co-Chair
Therriault acknowledged that the purpose section would not
present a legal problem but emphasized that it is
unnecessary.
Representative J. Davies pointed out that the purpose
section would not be incorporated into the Constitution. He
reiterated that it is appropriate to include a purpose
section in the legislation. He emphasized that a purpose
section has carries more weight than a letter of intent. He
noted that both the House Resource and Judiciary committees
included purpose sections.
A roll call vote was taken on the motion to delete section 3
from Amendment 1.
IN FAVOR: Kohring, Williams, Austerman, Bunde, Therriault,
Mulder
OPPOSED: Grussendorf, Moses, Davies, Davis, Foster
The MOTION PASSED (6-5).
A roll call vote was taken on the motion to adopt Amendment
1 as amended.
IN FAVOR: Moses, Williams, Austerman, Bunde, Davies, Davis,
Foster, Grussendorf, Mulder
OPPOSED: Kohring, Therriault
The MOTION PASSED (9-2).
Representative Austerman MOVED to ADOPT Amendment 2 (copy on
file).
Delete language beginning on line 10 on page 1, through
line 2 on page 2.
Insert:
(b) When the amount of a species of fish or wildlife
resource available to be taken for beneficial uses,
consistent with the sustained yield principle is not
sufficient to provide an opportunity for residents to
take the resource for all beneficial uses, the highest
beneficial use of the resource is subsistence uses. The
legislature may, consistent with the sustained yield
principle, provide a preference to and among residents
for the taking of a wild renewable resource for
subsistence uses on the basis of customary and
traditional use, direct dependence, the availability of
alternative resources, the place of residence, or
proximity to the resource.
Representative Austerman spoke in support of Amendment 2. He
emphasized that something needs to be done to retain some
sense of state management.
Co-Chair Therriault MOVED to AMEND Amendment 2 by deleting
"renewable resource" and adding "wild fish stock or wildlife
population." Representative J. Davies OBJECTED. He observed
that the term "wild renewable resource" is used in ANILCA
and modified by "customary and traditional use." He felt
that the amendment to the amendment would narrow the
language too far.
Representative G. Davis questioned if "game" could replace
"wildlife". Representative Grussendorf spoke against the
amendment to the amendment and in support of the broader
interpretation.
Mr. Bishop stated that the terms "game" and "wildlife" have
been used interchangeably. Vice Chair Bunde noted that
wildlife is more encompassing than "game".
Representative J. Davies pointed out that the reference
encompasses the entire legislation and follows the word
"may".
Mr. Bishop stressed that the state needs to be in compliance
with sections 804 - 806 of ANILCA. He noted that 804 speaks
to the taking on public lands of "fish and wildlife" for
non-wasteful subsistence uses. He maintained that the
language would comply with ANILCA. Ms. Daniel observed that
section 803 refers to "wild, renewable resources."
SEC. 803. As used in this Act, the term "subsistence
uses" means 16 USC 3113 the customary and traditional
uses by rural Alaska residents of wild, renewable
resources for direct personal or family consumption as
food, shelter, fuel, clothing, tools, or
transportation; for the making and selling of
handicraft articles out of nonedible byproducts of fish
and wildlife resources taken for personal or family
consumption; for barter, or sharing for personal or
family consumption; and for customary trade.
Ms. Daniel continued by noting that section 804, which sets
up a priority in times of shortage speaks in terms of fish
and wildlife.
SEC. 804. Except as otherwise provided in this Act and
other 11 USC 3114 Federal laws, the taking on public
lands of fish and wildlife for nonwasteful subsistence
uses shall be accorded priority over the taking on such
lands of fish and wildlife for other purposes.
Ms. Daniel stressed that the broader term would be
applicable in the definition. She maintained that the use of
"wild renewable resources" in subsection (b) would track the
definition of subsistence uses in section 803.
(Tape Change, 2SS HFC 99 - 2, Side 2)
In response to a question by Vice Chair Bunde, Ms. Daniel
explained that regulations have to accommodate customary and
traditional subsistence uses at all time. Section 804 refers
to fish and wildlife when there is not enough resources for
all rural subsistence uses.
Vice Chair Bunde questioned who would be the final
arbitrator in regards to the state of Alaska's compliance.
Ms. Daniel stated that the Secretary of the Interior would
make the decision on the amendment.
Representative Grussendorf emphasized that the amendment
would allow the legislature to distinguish between
commercial and other uses. Mr. Bishop noted that subsistence
resources have been marketed commercially and condoned by
the federal court. The language does not preclude the use of
subsistence resources for commercial uses.
A roll call vote was taken on the motion to amend Amendment
2.
IN FAVOR: Moses, Williams, Austerman, Davies, Davis, Foster,
Grussendorf
OPPOSED: Bunde, Therriault, Mulder
The MOTION FAILED (3-7).
Co-Chair Therriault MOVED to AMEND Amendment 2 by changing
"or" to "and" in the last sentence. He noted that it would
be his intent that all of the criteria would have to be
satisfied. Representative J. Davies OBJECTED. He emphasized
that all the criteria would have to be evoked. He stressed
that the legislature could require all the criteria to be
met. He maintained that "or" allows the maximum flexibility.
Co-Chair Therriault stressed that the pressure from the
federal government would remain.
Vice Chair Bunde questioned if "and" would prevent persons
from one subsistence area from hunting in another
subsistence community. Ms. Daniel responded that "and" would
require consideration of all the factors. All factors would
have to apply. She noted that case law relating to Tier II
has demonstrated that equal weight would have to be given to
all factors.
SKY STARKEY, ATTORNEY, ALASKA FEDERATION OF NATIVES provided
information on the legislation. He clarified that "customary
and traditional" use is determined by stock or population.
This is generally done through game management units. A
village may have customary and traditional use of a
particular caribou population that extends a significant
distance from their home. They would not have the same use
of a salmon population that is equally distant from their
home. They would use the salmon stock that is nearest their
village. He emphasized that the amendment to "and" would
reduce flexibility.
Vice Chair Bunde questioned if "or" would allow greater
flexibility. Mr. Starkey stated that with "or" the
legislature could chose one or all, but cautioned that if
the statute does not have the criteria required by Tier II
of ANILCA the state would not be in compliance. Vice Chair
Bunde questioned if compliance required "and". Mr. Starkey
stated that the requirement is that all persons in a rural
community have access to stocks and populations used in a
customary and traditional use. Neighboring villages could
both have customary and traditional use of the same moose
population under Tier I. In a Tier II situation where there
is not enough resource to meet the subsistence needs of both
villages the determination would be made on the three
criteria in Tier II, direct dependency, availability of
alternative resource and the proximity to the resource.
"And" is used with the criteria at the Tier II level but not
at the Tier I level. The state must be in compliance with
both Tier I and II.
Representative Grussendorf questioned if the intent is to
make subsistence a welfare program based on need. He spoke
against connecting subsistence to need. Co-Chair Therriault
stated that it is not his intent to make subsistence a
welfare program. He stated that he is willing to make the
distinction between Alaskans who have traditionally relied
on a resource, direct dependence on the resource and who do
not have availability of alternative resources and are from
the area.
A roll call vote was taken on the motion to amend Amendment2
by changing "or" to "and".
IN FAVOR: Bunde, Mulder, Therriault
OPPOSED: Williams, Austerman, Davies, Davis, Foster,
Grussendorf, Kohring, Moses
The MOTION FAILED (3-8).
Representative J. Davies MOVED to AMEND Amendment 2 by
deleting "species of" in the first sentence.
(b) When the amount of a (species of) fish or wildlife
resource available to be taken for beneficial uses,
consistent with the sustained yield principle is not
sufficient to provide an opportunity for residents to
take the resource for all beneficial uses, the highest
beneficial use of the resource is subsistence uses. The
legislature may, consistent with the sustained yield
principle, provide a preference to and among residents
for the taking of a wild renewable resource for
subsistence uses on the basis of customary and
traditional use, direct dependence, the availability of
alternative resources, the place of residence, or
proximity to the resource.
Mr. Bishop stated that the amendment to the amendment would
not detract from the intent. Ms. Daniel agreed.
Representative J. Davies spoke in support of the amendment
to the amendment. Representative Grussendorf spoke in
support.
There being NO OBJECTION, "species of" was deleted from
Amendment 2.
Co-Chair Mulder MOVED to AMEND Amendment 2, delete "the
highest beneficial use of the resource is subsistence uses"
and insert "other beneficial uses shall be reduced or
eliminated to protect subsistence uses." There being NO
OBJECTION, it was so ordered.
Amendment 2 was amended to read:
(b) When the amount of a fish or wildlife resource
available to be taken for beneficial uses, consistent
with the sustained yield principle is not sufficient to
provide an opportunity for residents to take the
resource for all beneficial uses, other beneficial uses
shall be reduced or eliminated to protect subsistence
uses. The legislature may, consistent with the
sustained yield principle, provide a preference to and
among residents for the taking of a wild renewable
resource for subsistence uses on the basis of customary
and traditional use, direct dependence, the
availability of alternative resources, the place of
residence, or proximity to the resource.
Co-Chair Therriault MOVED to AMEND Amendment 2, delete "When
the amount of a species of fish or wildlife resource" and
insert "When the harvestable surplus of a fish stock or
wildlife population".
Representative Williams spoke against the amendment to the
amendment.
Representative J. Davies spoke against placing "harvestable
surplus" in the Constitution. Ms. Daniel agreed that it
would be preferable to leave the language out of the
Constitution.
Mr. Bishop spoke in support of the amendment to the
amendment. He felt that it would be beneficial to clarify
that the interpretation is more specific. Vice-Chair Bunde
spoke in support of the amendment to the amendment.
Representative J. Davies emphasized that the issue is to
consider sufficiency for all beneficial uses. Co-Chair
Mulder pointed out that sustained yield is not going to
necessarily allow for the growth of the herd. "Harvestable
surplus" can provide for the growth of the herd.
Representative J. Davies argued that the Constitution
already provides that directive in another place.
Representatives Austerman and Williams spoke against the
amendment to the amendment.
A roll call vote was taken on the motion.
IN FAVOR: Bunde, Mulder, Therriault
OPPOSED: Davies, Davis, Foster, Grussendorf, Kohring,
Moses, Williams, Austerman
The MOTION FAILED (3-8).
Representative J. Davies MOVED to AMEND Amendment 2 by
adding "stock" and population" and deleting "resource". The
amendment would read:
(b) When the amount of a fish stock or wildlife
population available to be taken for beneficial
uses, consistent with the sustained yield
principle, is not sufficient to provide an
opportunity for residents to take the resource for
all beneficial uses, other beneficial uses shall
be reduced or eliminated to protect subsistence
uses. The legislature may, consistent with the
sustained yield principle, provide a preference to
and among residents for the taking of a wild
renewable resource for subsistence uses on the
basis of customary and traditional use, direct
dependence, the availability of alternative
resources, the place of residence, or proximity to
the resource.
(Tape Change, 2SS HFC 99 -3, Side 1)
A roll call vote was taken on the motion.
IN FAVOR: Williams, Austerman, Bunde, Davies, Davis, Foster,
Grussendorf, Moses
OPPOSED: Kohring, Therriault, Mulder
The MOTION PASSED (8-3).
Co-Chair Therriault reviewed the fiscal notes. Vice Chair
Bunde questioned the affect on all funds. Representative J.
Davies pointed out that no funds would need to be cut since
the additional $10 million dollars would be federal funds.
Vice-Chair Bunde stated that the $10 million in federal
dollars would go to the Department of Fish and Game.
Representative Foster MOVED to report CSHJR 202 (FIN) out of
Committee with the accompanying fiscal notes. Co-Chair
Therriault OBJECTED.
Representative Kohring spoke against the inclusion of a
place of residence. Co-Chair Therriault stated that he did
not believe that the state was without options.
Representative J. Davies spoke in support of moving the
legislation. He stressed that the issue is beyond simple
negotiations with the federal government. Representative
Austerman agreed that the state must act.
Vice-Chair Bunde stated that he would support moving the
legislation from committee in order to allow the public to
vote on the issue. Representative G. Davis felt that the
federal government would welcome state action.
Representative Williams questioned how the federal
government could manage Alaska lands. He maintained that the
federal government is directing the state of Alaska.
Co-Chair Therriault stressed that there are still major
concerns with the legislation.
A roll call vote was taken on the motion to move CSHJR 202
(FIN) from Committee.
IN FAVOR: Davis, Foster, Grussendorf, Moses, Williams,
Austerman, Bunde, J. Davies, Mulder
OPPOSED: Kohring, Therriault
The MOTION PASSED (9-2).
CSHJR 202 (FIN) was REPORTED out of Committee with a "do
pass" recommendation and with two fiscal impact notes, one
by the Department of Fish and Game and one by the Office of
the Governor, both published on 9/27/99.
ADJOURNMENT
The meeting adjourned at 5:44 p.m.
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