Legislature(1997 - 1998)
04/08/1998 01:45 PM House FIN
| Audio | Topic |
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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
APRIL 8, 1998
1:45 P.M.
TAPE HFC 98 - 96, Side 1
TAPE HFC 98 - 96, Side 2
TAPE HFC 98 - 97, Side 1
TAPE HFC 98 - 97, Side 2
TAPE HFC 98 - 98, Side 1
CALL TO ORDER
Co-Chair Hanley called the House Finance Committee meeting
to order at 1:45 p.m.
PRESENT
Co-Chair Hanley Representative Kelly
Co-Chair Therriault Representative Kohring
Representative Davies Representative Martin
Representative Davis Representative Moses
Representative Foster Representative Mulder
Representative Grussendorf
ALSO PRESENT
Representative Jeannette James; Representative Scott Ogan;
Catherine Reardon, Director, Division of Occupational
Licensing, Department of Commerce and Economic Development;
Theresa Tanoury, Family Services Administrator, Division of
Family and Youth Services, Department of Health and Social
Services; Jeff Logan, Staff, Representative Green; Angela
Salerno, Executive Director, National Association of Social
Workers Alaska Chapter; Ted Popely, Legal Counsel, House and
Senate Majority, Alaska State Legislature; Ron Somerville,
Consultant, House and Senate Majority, Alaska State
Legislature; George Utermohle, Attorney, Alaska Affairs
Agency; Steve White, Assistant Attorney General, Department
of Law; Mary Pete, Director, Division of Subsistence,
Department of Fish and Game; Sam Trivette, Department of
Corrections.
The following testified via the teleconference network: Ann
Davis Hopper, National Association of Social Workers Alaska
Chapter, Fairbanks; Susan Lavelle, Social Worker, Anchorage;
Ella Craig Licensed Clinical Social Worker, Anchorage; Diana
Buffington, Kodiak.
SUMMARY
HB 272 "An Act to permit a court to order a defendant who
receives a sentence of imprisonment for a
misdemeanor to serve the sentence by electronic
monitoring; and relating to the crime of unlawful
evasion."
CSHB 272 (FIN) was REPORTED out of Committee with
a "do pass" recommendation and with a zero fiscal
note by the House Finance Committee for the
Department of Corrections.
HB 349 "An Act prohibiting the use of the title 'social
worker' without a license; relating to social
workers, licensure of social workers, and the
Board of Clinical Social Work Examiners; and
providing for an effective date."
CSHB 349 (FIN) was REPORTED out of Committee with
"no recommendation" and with a fiscal impact note
by the Department of Commerce and Economic
Development.
HB 406 "An Act relating to subsistence uses of fish and
game."
HOUSE BILL NO. 272
"An Act to permit a court to order a defendant who
receives a sentence of imprisonment for a misdemeanor
to serve the sentence by electronic monitoring; and
relating to the crime of unlawful evasion."
JEFF LOGAN, STAFF, REPRESENTATIVE GREEN discussed the fiscal
note by the Department of Corrections dated 4/7/98. The new
fiscal note showed a substantial reduction from the first
fiscal note. He explained that the fiscal note anticipates
a pilot program of electronic monitoring in Anchorage.
There are similar programs in the state of Alaska for
juvenile offenders. This would be a new program for adult
offenders. He anticipated that private sector contractors
would be involved in the administration of the program. The
Department has indicated that it does not have expertise in
this area.
Co-Chair Therriault acknowledged that the release of
prisoners on electronic monitoring would not necessarily
result in fewer guards. He Therriault anticipated that
there would be some incidental savings for food and
clothing.
SAM TRIVETTE, DEPARTMENT OF CORRECTIONS discussed the
Department's fiscal note. He noted that the primary expense
is in the contractual line. He stated that a project would
be developed for the Anchorage area, utilizing 60 offenders
in the first half of FY 99. The program would be
implemented by January 1999. The Department spends $100
dollars a day for hard beds and $57 dollars a day for
Community Residential Center (CRC) beds. He stressed that
these beds need to be reserved for the most serious
offenders. Less serious offenders could be put on
electronic monitoring. He spoke in support of the
legislation. He pointed out that high-risk offenders, such
as domestic violence offenders, would not be considered for
electronic monitoring. Offender fees will be considered.
The only state personnel will be a probation officer to
oversee the function of the program. He emphasized that the
Department is not expecting to have any empty beds as a
result of the legislation. The Department is well above its
emergency caps for prisoner population in its facilities.
Mr. Trivette stated that it costs approximately $1.42 per
meal. There would be a savings of $4.26 dollars a day for
each prisoner that is released.
Representative Mulder estimated that 60 additional prisoners
would cost the Department approximately $2.2 million dollars
annually. He pointed out that the legislation would remove
60 prisoners from the system. He observed that prisoners
are being shipped to Arizona. He maintained that there are
real cost savings from the legislation.
Mr. Trivette reiterated that the only time there will be any
major savings is if a facility or wing of a facility can be
closed.
Representative Mulder stated that the average direct cost
per institution is approximately $72 dollars a day. The
indirect costs, such as inmate health care, programs;
administrative support cost approximately $28 dollars a day
per inmate. He maintained that there should be at least a
$28 dollar a day savings.
Co-Chair Therriault questioned if the removal of 60
prisoners would reduce the number of prisoners sent to
Arizona. Mr. Trivette acknowledged that cost savings would
occur if fewer prisoners were sent out-of-state. He
pointed out that the Department is very far over its caps.
He did not think that there would be a reduction in the
number of prisoners sent to Arizona.
Co-Chair Hanley asked if the net cost of food was reduced in
the fiscal note. Mr. Trivette did not know. Co-Chair
Hanley observed that there would be a total savings of $100
thousand dollars per year.
Representative Mulder stressed that the Governor's Criminal
Justice Task Force strongly supported electronic monitoring
as a way to relieve overcrowding in the system. The Task
Force unanimously endorsed the concept of having the private
provider provide the service. They envisioned that
prisoners would pay one hour of their wage per workday to
support the program. The cost of the program would be paid
for by the inmate support.
Representative Mulder MOVED to amend the Department of
Corrections' fiscal note by shifting the fund source from
pure general fund dollars to general fund program receipts.
Mr. Trivette stated that the Department supports paying for
the program through program receipts. He did not think it
was realistic to expect the program to be totally funded
through program receipts. He pointed out that programs in
other states are not wholly supported through program
receipts. He stated that the Department would look at
programs in other states.
Representative Davies MOVED to amend the amendment by
retaining the personal services line in the general fund
line. There being NO OBJECTION, it was so ordered.
There being NO OBJECTION, the Committee adopted an amended
House Finance Committee fiscal note for the Department of
Corrections:
$30 thousand dollars for personal services in general
funds and $100.3 thousand dollars in general fund
program receipts for FY 99; and
$60 thousand dollars for personal services in general
funds and $195.6 thousand dollars in general fund
program receipts for FY 00 - FY 04.
Representative Davies provided members with Amendment 1
(copy on file). He expressed concern that prisoners that do
not have resources not be excluded from participating in the
program. Amendment 1 would add "but only if the
commissioner determines that the prisoner has sufficient
financial resources to pay the costs or a portion of the
costs" on line 28, page 3.
Co-Chair Hanley expressed concern that the amendment would
provide a statutory defense for prisoners that does not want
to pay.
Representative Davies stated that the determination to pay
could be made based on their public defender circumstance.
Representative Martin spoke against the amendment.
Representative Davies MOVED to amend the amendment, by
deleting " the commissioner determines that". He argued
that the current language provides that a prisoner either
pay all of the cost of 50 percent of the cost. He
emphasized that some prisoners may not be able to pay 50
percent of the cost.
There being NO OBJECTION, the amendment was amended to state
"but only if the prisoner has sufficient financial resources
to pay the costs or a portion of the costs".
Mr. Logan emphasized that contractors could setup a program
to allow indigents to be subsidized from the portion paid by
other prisoners. He observed that there are cases where an
indigent prisoner would be a great prospect for electronic
monitoring.
Representative Davies emphasized that the first question is
how much of the cost is each inmate expected to pay. The
second question is how much is an indigent expected to pay.
Co-Chair Therriault stated that his intent was that most
prisoners pay 100 percent and that some prisoners pay less
or nothing. Representative Davies reiterated that the
intent of the amendment is to clarify that indigents would
not be eliminated from participating in the program based on
their inability to pay.
Representative Martin OBJECTED to Amendment 1. He felt that
the amendment was confusing.
A roll call vote was taken on the motion.
IN FAVOR: Kelly, Moses, Mulder, Davies, Grussendorf, Foster,
Hanley
OPPOSED: Kohring, Martin, Therriault
Representative Davis was absent from the vote.
The MOTION PASSED (3-7).
Representative Mulder MOVED to report CSHB 272 out of
Committee with the accompanying revised fiscal note.
CSHB 272 (FIN) was REPORTED out of Committee with a "do
pass" recommendation and with a zero fiscal note by the
House Finance Committee for the Department of Corrections.
HOUSE BILL NO. 349
"An Act prohibiting the use of the title 'social
worker' without a license; relating to social workers,
licensure of social workers, and the Board of Clinical
Social Work Examiners; and providing for an effective
date."
REPRESENTATIVE JEANNETTE JAMES, SPONSOR, explained that HB
349 licenses the title of "social worker." It is title
protection not practice protection. Individuals working as
a "social worker" would be required to have a license.
There is currently licensing for clinical social workers.
A clinical social worker degree requires a master of social
work degree or two years of supervised experience. The
legislation would add two additional licensing levels.
Master's Social Worker and Bachelor's Social Worker licenses
would be created. A Master's Social Worker license would
require a Master's of Social Work degree and a Bachelor's
Social Worker license would require a Bachelors of Social
Work degree. She stressed that there are individuals doing
social work that are not licensed or educated to be a social
worker. She emphasized that there is no recourse for errors
made by unqualified social workers. Licensed individuals
have to demonstrate education, pass an examination and have
a criminal background check. Continuing education is
required to maintain their license. Failure to do their job
properly could result in loss of their license. Currently
employed state workers would be exempted as long as they
work for the State. If they leave state employment they
cannot work under the title of social worker without
obtaining a license. Individuals currently working as a
social worker that have a degree in something other than
social work would have a couple of years to pass an
examination and get a license.
Co-Chair Therriault observed that a group of people would be
allowed to continue work as social workers indefinitely.
Representative James noted that some of the people have been
in their positions for 20 years. She observed that people
would have to take time off from work to pursue a degree.
According to union rules, if employees are required to have
a degree to retain their jobs, the state of Alaska would be
required to pay for their education. She explained that
most individuals would need further education to pass the
test. In response to a question by Representative Davies,
Representative James explained that the legislation would
grandfather people in existing jobs.
Representative Davies asked for information regarding the
continuing education requirement.
ANGELA SALERNO, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF
SOCIAL WORKERS ALASKA CHAPTER explained that licensed social
workers are required to take 45 contact hours every two
years. This would not change under the legislation.
Representative Davies questioned why those that are
grandfather in under the legislation would not be required
to fulfill continuing education requirements. Ms. Salerno
observed that current workers would not be required to get a
license, but they have the option to get a license. If they
get a license they would be required to fulfill continuing
education requirements. She observed that there would be a
large fiscal impact if the state of Alaska required all
workers to met continuing education requirements. The union
indicated that the state of Alaska would either have to pay
for continuing education or renegotiate contracts.
Co-Chair Therriault observed that licensed social workers,
who would be subject to a license challenge and required to
fulfill continuing education, would be paid the same amount
of money as an unlicensed worker. Representative James
explained that under the current contract the State is
responsible for funding education requirements. She added
that the situation is similar to the one that existed eight
years ago when clinical social workers were licensed.
Representative Davies observed that teachers pay for their
continuing education.
Ms. Salerno noted that continuing education costs
approximately $10 dollars per contact hour.
(Tape Change, HFC 98 - 96, Side 2)
ANN DAVIS HOPPER, NATIONAL ASSOCIATION OF SOCIAL WORKERS
ALASKA CHAPTER, FAIRBANKS stated that she is a licensed
social worker. She spoke in support of HB 349. She noted
that "social worker" refers to a job title. She maintained
that licensing regulations would hold people accountable.
She observed that social workers address critical matters.
A licensing board can help the state of Alaska regulate the
professional practice and conduct of social workers and
handle complaints.
DIANA BUFFINGTON, STATE COORDINATOR, CHILDREN'S RIGHTS
COUNCIL KODIAK spoke in support of HB 349. She spoke in
support of including 12 hours of substance abuse and 12
hours of domestic violence training in the biannual
educational requirements for license renewal. She observed
that most social workers are mandated reporters to the
Division of Family and Youth Services. She spoke against
the exemption for current workers. She noted that other
employees are required to pay all or part of their
continuing education, such as teachers and police officers.
She stated that most states require front line caseworkers
to be licensed. She maintained that state workers use their
public service as a stepping stone to private employment.
Representative James clarified that there are 18 state
employees working as social workers without degrees. The
exemption only applies while they are working for the
State. If they change jobs they could not use the title of
social worker without a license. New hires will have to be
licensed. Ms. Salerno reiterated that the title is the only
thing being restricted. Only current employees would be
exempted. The Department would be given a two-year grace
period. In the year 2000, they would only be able to hire
licensed social workers.
Co-Chair Therriault clarified that the previous speaker
would like the continuing education requirement for
substance abuse changed from the current six-hour
requirement to 12 hours.
Representative Foster asked how rural workers would meet
continuing education requirements. Ms. Salerno noted that
substance abuse and Alaska Native studies were added to
educational requirements ten years ago. She observed that
social workers work in different areas. She did not support
additional specifications on the continuing educational
requirements. She stated that it is a goal of the National
Social Workers Association to bring training to rural areas.
Representative Foster expressed concern that qualified local
persons would be precluded from jobs by the licensing
requirements. He expressed support for the bill, but
questioned if problems would be created for rural areas.
Representative James pointed out that the legislation would
not preclude people from using a different job title. She
emphasized that social workers are expected to have a
certain amount of education and understanding.
Representative Davies questioned if continuing education
requirements could be met by correspondence. Ms. Salerno
observed that educational requirements could be met through
correspondence.
SUSAN LAVELLE, BOARD OF DIRECTORS, NATIONAL ASSOCIATION OF
SOCIAL WORKERS, ANCHORAGE spoke in support of HB 349. She
maintained that social workers should be held accountable to
high standards of practice in order to protect consumers.
She maintained that individuals have abused and victimized
their clients or made mistakes due to a lack of training.
She acknowledged that licensing does not assure that
individuals would uphold the code of ethics. However,
clients would be allowed to raise challenges of unethical
conduct or malpractice.
ELLA CRAIG, LICENSED CLINICAL SOCIAL WORKER, ANCHORAGE spoke
in support of HB 349. She emphasized that the legislation
would provide consumer protection and accountability. She
maintained that the demand for social workers will increase.
CATHERINE REARDON, DIRECTOR, DIVISION OF OCCUPATIONAL
LICENSING, DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT
spoke in support of Amendment 1 and the amendment to
Amendment 1 (copies on file). She explained that all
licenses issued by the Division of Occupational Licensing
are for two years. Amendment 1 would allow a social worker
who was previously employed outside of Alaska to provide a
reference. She noted that the amendment would be on page 6,
lines 22 - 27, and page 7, lines 24 - 29 and page 8, lines
15 - 19. Under Amendment 1 an applicant must provide three
professional references that are acceptable to the board,
including:
(a) if the applicant was previously employed to practice
social work, reference from a person who was the
applicant's employer while practicing social work; and
(b) if the applicant is currently employed to practice
social work, a reference from the applicant's current
employer.
The amendment to Amendment 1 would add to subsection (a),
"unless the applicant demonstrates to the satisfaction of
board that the applicant is unable to satisfy the
requirement of this subparagraph through no fault of the
applicant." The intent is to allow an applicant that cannot
locate a former employer or whose employer is deceased to
pursue a license.
Representative Davies MOVED to ADOPT Amendment 1. He
questioned if "and" should be changed to "or" between (a)
and (b). Ms. Reardon thought that "and" was appropriate.
Co-Chair Therriault MOVED to adopt the amendment to
Amendment 1. There being NO OBJECTION, it was so ordered.
There being NO OBJECTION, Amendment 1 was adopted as
amended.
In response to a question by Representative Martin, Ms.
Salerno observed that the legislation allows licensing by
credentials on page 7, line 15. Ms. Reardon explained that
an applicant would have to pass the national exam.
Co-Chair Therriault suggested additional language, "has
completed the examination for a license to practice clinical
social work that is required by this state."
Co-Chair Hanley observed that an individual can get a
license without an examination if they hold a current
license to practice clinical social work in another
jurisdiction that, at the time of original issuance of the
license, had requirements for licensure equal to or more
stringent than those of this state. He observed that they
would have had to pass a test equal to that given in Alaska.
He maintained that (3) would require that the test be
repeated.
Representative Davies suggested that subsection (3), "has
satisfactorily completed the examination given by the board
for baccalaureate social worker licensing" be deleted.
Discussion ensued regarding the interpretation of subsection
(3). Co-Chair Hanley concluded that the original language
in subsection (3) should be retained, "has not failed the
examination given by the board for baccalaureate social
worker licensing."
Ms. Salerno clarified that the intent was to assure that an
applicant had taken a licensing exam somewhere. She
observed that "has not failed the examination" was removed
because it could be interpreted to deny individuals that had
failed the exam from being licensed if they subsequently
passed the exam.
Representative Davies MOVED to delete subsection (3) "has
satisfactorily completed the examination given by the board
for baccalaureate social worker licensing." He observed
that the intent of subsection (3) is in subsection (1). Co-
Chair Hanley pointed out that the current law needs to also
be deleted. Representative Davies amended the amendment to
conceptually remove subsection (3) from the legislation and
current law where needed. There being NO OBJECTION, it was
so ordered.
There being NO OBJECTION, the amendment was adopted.
Ms. Salerno noted that the amendment would also pertain to
page 8, lines 13 and 14. Co-Chair Therriault observed that
amendment to page 8, lines 13 and 14 was included in the
original motion.
In response to a question by Co-Chair Hanley, Representative
James clarified that the exemption does not only apply to
state employees. Ms. Salerno stated that the legislation
only affects those working under the title of social worker.
Co-Chair Hanley stated that there is a fine line between
title protection and job protection. He noted that the
legislation would not assure better-trained people unless
the Department hires better-trained employees.
Representative James stressed that it is the Department's
intent to have better trained people.
In response to a question by Co-Chair Hanley, Representative
James observed that 70 of 109 social worker positions with
the state of Alaska have a Social Worker degree.
THERESA TANOURY, FAMILY SERVICES ADMINISTRATOR, DIVISION OF
FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL
SERVICES explained that approximately 40 percent of the
state workers working under the title of social worker
actually have the educational background. Ninety percent of
those who have the title have degrees. Approximately 50
percent have degrees other than as a social worker.
(Tape Change, HFC 98 - 97, Side 1)
Representative Martin expressed concern that individuals
that have been performing social work would be prohibited
from calling themselves social workers.
Ms. Tanoury explained that the Division is creating a
partnership with the University to recruit social workers
into rural areas and establish agency based field units and
a training academy at the University of Alaska. Current
employees have the option of going back to school for a
degree in social work. She stressed the desire to retain
employees that have been with the State for many years and
have worked hard at their jobs. She emphasized that the
legislation protects employees' hiring rights within the
agency.
In response to a question by Representative Kohring,
Representative James observed that there is no recourse for
mistakes made by persons without a license. She emphasized
the seriousness and complicated nature of decisions made by
social workers.
Ms. Tanoury explained that the legislation protects the
title of social worker. It does not restrict the practice
of paraprofessionals or others working in rural areas. She
acknowledged concerns regarding continuing education. She
stated that the Division is working on bringing training
into rural areas.
Representative Kohring asked if financial aid would be
available. Ms. Salerno noted that there are a variety of
courses offered at the University that would qualify as
continuing education. Ms. Tanoury observed that there are
opportunities for federal support through Title 4(e).
Representative Mulder MOVED to report CSHB 349 (FIN) out of
Committee with the accompanying fiscal note from the
Division of Occupational Licensing. There being NO
OBJECTION, it was so ordered.
CSHB 349 (FIN) was REPORTED out of Committee with "no
recommendation" and with a fiscal impact note by the
Department of Commerce and Economic Development.
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
TED POPELY, LEGAL COUNSEL, HOUSE AND SENATE MAJORITY, ALASKA
STATE LEGISLATURE explained that the legislation establishes
a preference for subsistence law based on presumptions. The
Boards of Fish and Game would establish stocks of
populations throughout the state of Alaska where there is a
customary and traditional dependence on the resource. The
legislation would also identify the communities and
populations around the stocks and populations that have
traditionally and customarily depended on the food. Once
this is done, the persons living within these areas would be
presumptively afforded a preference to persons living in the
current non-subsistence areas. The preference would only
apply in times of shortage. The presumptions can be
rebutted through civil standard preponderance of evidence.
The presumption, once rebutted, establishes that a person is
not entitled to the preference. The legislation is based on
an individual criteria system, subject only to presumptions.
Local advisory committees are retained. Six regional
advisory councils would be free to reject recommendations
based on established criteria. The existing state
definition of "customary", "traditional", "usual
opportunity", "subsistence use" and "customary trade" are
retained. There is no constitutional amendment envisioned
in the bill.
RON SOMERVILLE, CONSULTANT, HOUSE AND SENATE MAJORITY,
ALASKA STATE LEGISLATURE added that the establishment of
non-subsistence areas on page 5 is the same as existing law.
The Boards are given flexibility to apply and implement the
six criteria for individual dependence.
Co-Chair Therriault referred to the findings section. He
questioned how closely the legislation is aligned with the
Alaska National Interest Lands Conservation Act (ANILCA).
Mr. Popely clarified that section 1 of CSHB 406 (JUD)
reflects section 802 of ANILCA. They are not verbatim
provisions, but fairly closely parallel ANILCA.
Co-Chair Therriault referred to the use of land on page 1,
line 5. He noted concerns that this provision would
preclude possible future subsistence requirements. Mr.
Popely stated that the language came out of ANILCA. "Public
lands" is defined in ANILCA to include lands, waters and
interests therein. He observed that two additional phrases
that were added to CSHB 406 (JUD) that were not included in
ANILCA, "the use of the land is practicable" and "to have no
substantial adverse effects on subsistence users." Section
802 of ANILCA refers to the "least adverse impact possible."
There is a slight difference between the legislation and
ANILCA. He acknowledged that the concern is valid and that
the section may need to be changed.
Representative Grussendorf observed that the definition of
"rural" is included in the legislative findings on page 2,
line 10. He noted that "rural" is not used again, except in
relationship to the repeal of the term. Mr. Popely
clarified that the intent is to provide a definition of
"rural" for use in interpreting a preference for a rural
subsistence user in ANILCA. The definition of "rural" was
not included in ANILCA.
Representative Grussendorf noted that individual
characteristics are being substituted for geographical
location. He questioned if it would meet the constitutional
test. Mr. Popely explained that page 2, lines 6 - 9 quote
the Alaska Supreme Court's McDowell decision. He stressed
that the Court referred to the classification scheme of
employing individual characteristics as not running afoul of
the Equal Access Clause in the Alaska State Constitution.
Representative Grussendorf observed that subsection (3) on
page 2, line 12 requests the congressional delegation to
attempt to change ANILCA. He questioned the possibility of
changing ANILCA to conform to the criteria list developed by
HB 406.
Representative Grussendorf emphasized that the list should
be available before members decide if the congressional
delegation has a chance to conform ANILCA.
Mr. Somerville acknowledged that that changes to ANILCA
would be required if CSHB 406 (JUD) is adopted. He observed
that the dependency factor would have to be modified to
comply with state law. The State would have to have
authority to establish subsistence and non-subsistence
areas. The definition of rural would have to be changed to
comply with the legislation or the reference to rural would
have to be eliminated from ANILCA.
Representative Grussendorf questioned if the legislation
would satisfy ANILCA. Mr. Somerville maintained that the
legislation meets the intent of ANILCA, but acknowledged
that it would not satisfy ANILCA. He emphasized that the
law has been significantly changed by case law since 1986.
Representative Martin observed that there is a large Native
population living in East Anchorage that is not considered
as subsistence users. He questioned if they would have
subsistence rights under the legislation. Mr. Somerville
replied that they could participate in subsistence
activities if they identify with a particular stock or
population. They would have to comply with the criteria.
In response to a question by Representative Martin, Mr.
Popely explained that state subsistence laws govern state
lands. If the Department of Interior accepts the state of
Alaska's scheme for state lands then the State would also
have the privilege of managing federal lands.
MARY PETE, DIRECTOR, SUBSISTENCE DIVISION, DEPARTMENT OF
FISH AND GAME provided an overview of the current
implementation process. The subsistence issue and how the
current law is implemented are complex and misunderstood.
She provided a handout outlining the issues. The outline
was distributed to the Board (copy on file). Whenever there
is a subsistence concern, the Board moves through the
following process:
? Non-subsistence Area Filter. Is the fish stock or
game population in question in a non-subsistence
area? If all of the fish stock or game population
is in a non-subsistence area, there is no need for
the Board to address subsistence uses--subsistence
harvests are not allowed in a non-subsistence
area. If any portion of the fish stock or game
population is outside a non-subsistence area, then
the Board goes to step 2.
? Customary and Traditional Use Determination. The
Board determines if there is a customary and
traditional use of the fish stock or game
population by applying eight criteria established
under 5AAC 99.010, considering information about
the use pattern. If there has been a previous
positive finding, then this step is unnecessary,
and the Board goes to Step 3. If there has been a
previous negative finding, there is no need to
address subsistence uses further, unless the
proposal is for reconsidering a negative finding.
Also, the Board may periodically reconsider
previous customary and traditional use findings.
? Harvestable Surplus Filter. Can a portion of the
fish stock or game populations be harvested
consistent with sustained yield, considering
biological information? If there is no
harvestable surplus, then the Board authorizes no
fisheries or hunts on the stock-population, and
there is no need to address subsistence uses
further. If there is a harvestable surplus, then
the Board goes to Step 4.
? Amount Reasonable Necessary for Subsistence. The
Board determines the amount reasonably necessary
for subsistence uses, considering information
about the subsistence use pattern. If there has
been a previous determination on the amount, then
the Board goes to Step 5. The Board may
periodically reconsider and update these
determinations.
? Subsistence Regulations and Reasonable Opportunity
A. If the harvestable portion of the stock or
population is sufficient to provide for all
consumptive uses, the Board adopts subsistence
regulations that provide a reasonable
opportunity for subsistence uses, and provide
for other uses of those stocks or populations,
subject to preferences among beneficial uses.
B. If the harvestable portion of the stock or
population is sufficient to provide for
subsistence uses, and some, but not all
consumptive uses, the Board adopts subsistence
regulations that provide a reasonable
opportunity for subsistence uses, and may adopt
regulations that provide for other uses of
those stocks or populations. The regulations
that differentiate among consumptive use shall
provide for a preference for subsistence uses.
Also, nonresident hunting for moose, caribou,
elk, and deer must be restricted before
resident hunting for these species is
restricted (AS 16.05.255d).
C. If the harvestable portion of the stock or
population is sufficient to provide for
subsistence uses, but no other consumptive
uses, the Board adopts regulations that
eliminate other consumptive uses in order to
provide a reasonable opportunity for
subsistence uses. If subsistence regulations
do not provide a reasonable opportunity for
subsistence uses after eliminating all other
uses, then the Board goes to Step 6.
? Tier II Subsistence Regulations. If the
harvestable surplus is not sufficient to provide a
reasonable opportunity for subsistence uses for
human food, the Board adopts regulations that
reduces or eliminates subsistence harvests for
other subsistence uses (such as feeding sled
dogs). If the harvestable surplus is still not
sufficient to provide a reasonable opportunity for
subsistence uses, the Board adopts regulations
providing for a Tier II fishery of the fish stock
or Tier II hunt of game population, following 5
AAC 92.062.
Ms. Pete addressed concerns and problems with CSHB 406
(JUD), which changes the current process. She noted that
the bill:
? Does not get back State management on all lands
and waters.
? Does not provide for customary and traditional
subsistence uses for communities that depend on
subsistence.
? Would require a constitutional amendment.
? Would create a costly, cumbersome bureaucracy to
provide for "qualified subsistence users".
Ms. Pete maintained that HB 406, as currently written, is
basically an "anti-subsistence" bill. It would dismantle
the process described above and place a vague, cumbersome
and costly system that is very difficult for the Department
of Fish and Game to manage and enforce.
? It mandates a "substantial increase" in non-
subsistence areas.
? It would require all uses (not just subsistence)
be provided a reasonable opportunity. This has
allocation implications.
? It would set up vague criteria and procedures for
determining "qualified subsistence users" for both
residents within and outside of customarily and
traditionally dependent areas.
? Individuals and areas will have to qualify on a
species, stock and population basis.
? The last two points have the Department working
under one scenario where a minimum of 120 thousand
applications would have to be adjudicated each
year.
? It is unclear if the license application and
adjudication processes will be required of
individuals each year. If they were awarded
annually, then it would be common for adjudication
to take more than the hunting and fishing season
lasts. A huge backlog of interim licenses or
permits would make in-season management very
difficult.
? Each Board adjudicates the rebuttals and
challenges for qualification, on top of everything
else they have to do.
? The license and adjudication process will require
a considerable bureaucracy. Using Bethel as an
example: If Bethel were determined to be non-
subsistence, hunters and fishers in a family, that
for generations participated in the common
subsistence hunting and fishing activities, would
now have to appeal their disqualification for
salmon fishing in their fish camp, moose hunting,
caribou hunting, spring water fowl hunting and
whitefish fishing-5 separate appeals for each
harvester in that family.
Representative Hanley asked if a resident of Anchorage, who
did not depend on subsistence, would be able to hunt or fish
under any of these areas? Ms. Pete stated under current
law, they would not qualified. Subsistence uses are open to
all Alaska residents, but within Anchorage and other non-
subsistence use areas, there are no subsistence uses.
Representative Hanley pointed out that he could go to Bethel
under current law. Ms. Pete stated that was correct.
Representative Hanley acknowledged that he would be
"squeezed out" under Tier II.
Representative Hanley asked, under current State law, are
there people who have not been able to obtain subsistence
resources? Ms. Pete said no. Representative Hanley noted
that there is not a problem under state law with people
getting access to state resources. Ms. Pete replied that
was correct. There has been an increase in Tier II hunts,
because all Alaskans qualify. There are game populations
that can't possibly satisfy all subsistence users, since all
Alaskans qualify. There has been a proliferation of Tier II
hunts under current law.
Representative Hanley noted that true subsistence users have
been able to get the resources short of areas not having
enough. Ms. Pete agreed, barring crashes such as the 1993-
chum crash.
Representative Hanley observed that the State manages by
giving equal access to almost everyone. There is a problem
with some people not being able to get subsistence resources
under federal law. He observed that there are people under
state law who could subsist, that under the federal law, as
it currently gives rural preference, could not, if applied
to all state lands. Ms. Pete acknowledged that there is a
potential for qualified subsistence issues under state law
that would not be qualified in federal hunts on federal
lands.
Representative Hanley stated that Alaska has a better system
then would be implemented under federal law. It guarantees
more people subsistence resources in a fair manner, without
discrimination based on drawing a line.
Representative Hanley stated that he likes Alaska's current
system. He maintained that it is better than the federal
law. It protects rural people in many cases better than the
federal law does. "We are trying to change the system to
something that is going to create problems." He observed
that, under the current federal definition of rural and
continued growth, Bethel could find itself no longer in a
rural subsistence area. Ms. Pete agreed. Representative
Hanley voiced his frustration in trying to create a system
that is less fair and less successful for rural residents,
and will create more problems because of federal law that
was not thought out well. He observed that the intent was
to protect the subsistence use.
Ms. Pete stated that "if the State does comply with
Ninilchak, we would be able to use our system on all state
lands and waters. Not just on non-federal lands and
waters." Representative Hanley stressed that his concern
was that the Legislature should work to change federal law
to conform with state law since it protects rural resident's
rights. He suggested that the current state law is more
beneficial to rural residents.
Co-Chair Therriault questioned why regulations would be
adopted when the population is sufficient to provide for all
consumptive uses. Ms. Pete explained that two standards
used are. The first standard is to provide a reasonable
opportunity. The second standard is that subsistence uses
must be customary and traditional. If the customary and
traditional pattern is a longer season or bigger bag limit,
it makes sense to distinguish subsistence uses from non-
subsistence uses.
Representative Martin questioned why a constitutional
amendment would still be needed. He added that Anchorage
Natives would prefer to be dependent on subsistence rather
than be dependent on welfare. Ms. Pete observed that most
hunting activities by Anchorage residents occur within non-
subsistence areas. Ms. Pete acknowledged that Anchorage
Natives do not have subsistence rights under current law.
Representative Martin expressed concern that constituents in
his district have been denied their subsistence rights.
Representative Grussendorf questioned how challenges and
petitions would work. Ms. Pete clarified that anyone can
offer a challenge to a petition. A person can bring an
appeal on his or her own disqualification. She estimated
that staff to implement the adjudication process would cost
approximately $2 million dollars. There are potentials for
four levels of qualification. There would be about five
hearing officers for five different regions in the state.
Representative Grussendorf referred to page 7, line 19. He
asked if concerns have been expressed regarding
representation of the regional councils. Ms. Pete expressed
concern that the regional advisory councils are able to
comment on all of the Board's proposals.
STEVE WHITE, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW
reviewed legal issues relating to HB CSHB 406 (JUD). He
discussed constitutional concerns. A presumption is given
on page 4, subsection (d), based on residency. The
presumption can be rebutted. A resident in an area that is
determined by the appropriate board to be customarily and
traditionally dependent on the stock or population is
presumed to be a qualified subsistence user. A person
living outside of an area that is determined by the
appropriate board to be customarily and traditionally
dependent on the stock or population is presumed not to be a
qualified subsistence user. He maintained that the access
is based on residency. He asserted that this runs afoul of
Article VIII of the Alaska State Constitution. He noted
that the McDowell decision stated that residents could not
be distinguished based on rural and urban residency. The
Alaska Supreme Court ruled in the Kenaitze decision that
subsistence priority could not be based on proximity to the
resource. He quoted from the Kenaitze decision:
"residency based criteria are not permissible. People
who reside near a fish or game population do not have a
higher claim to that population than state residents
whose domiciles are more distant."
Mr. White concluded that the presumption would be
unconstitutional unless the Equal Access Clause is amended.
Mr. White reviewed differences between ANILCA and CSHB 406
(JUD). He emphasized that the State can resume management
of federal lands if state law is consistent in the
definitions, preference and participation under ANILCA. The
preference under ANILCA, establishes a preference for
subsistence uses over all other uses. He observed that CSHB
406 (JUD) does not give subsistence priority over all other
uses until the resource has decreased to a certain degree.
If there is enough for some uses but not all uses,
subsistence receives an advantage. Subsistence use is given
priority when there is only enough resource for subsistence
use.
Mr. White added that, under ANILCA, rural residents have
subsistence priority. "Rural resident" has been interpreted
by federal boards as residents of communities in areas that
are customarily and traditionally dependent on the stock or
population. He observed that CSHB 406 (JUD) establishes an
individual criteria basis. He stated that how the
individual criteria and the presumptions based on residency
work together in CSHB 406 (JUD) is confusing. Individual
criteria are substantially different than the criteria used
in ANILCA.
Mr. White stated that there are also differences in the
regional subsistence advisory councils and local advisory
committees. Both call for six regional subsistence regions.
There is a significant difference in how members are
selected. Under ANILCA, the governor selects members.
Under CSHB 406 (JUD), the Board selects members. The only
qualification, under CSHB 406 (JUD), is that members be well
informed. Under ANILCA, regional advisory councils only
give recommendations and advice on subsistence issues.
Under CSHB 406 (JUD), they can give advice and
recommendations on any issues in their area. Under ANILCA,
the state boards can reject a recommendation by a regional
council for one of three reasons. He observed that CSHB 406
(JUD) includes the three reasons and adds an additional
ground for rejection. He concluded that these areas must be
conformed in order to regain management by December 1, 1998.
Mr. White discussed ambiguities in CSHB 406 (JUD). He
questioned if the individual criteria are part of or
separate from the presumption process. He asked who decides
the application. How long a permit would be available?
Would applications be for specific stock and populations or
be for any stock or population identified by the board? He
noted that if there is sufficient resource to provide for
all consumptive uses, that all users shall have reasonable
opportunity for all uses of the stock or population. He
questioned the use of "reasonable opportunity" in relation
to commercial fishing.
In response to a question by Representative Kelly, Mr. White
explained that ANILCA provides that subsistence uses are
automatically given priority when harvest is restricted to
protect the resource. The legislation does not give a
priority to subsistence if there is enough for all uses.
The next step is when there is enough for some, but not all
uses. Then subsistence is given an advantage, not an
absolute priority. When there is just enough for
subsistence level the legislation parallels ANILCA.
Mr. White observed that the Court recognized that there is a
difference from distinguishing among users based on their
qualification to hunt or fish and distinguishing between
beneficial uses. The Court said that Article IV allows the
state of Alaska to distinguish between beneficial uses.
Therefore the State can allocate between different uses. As
long as reasonable criteria is used there does not have to
be an equal allocation between uses. Problem with the Equal
Access Clause occurs when there is qualification within the
use. Rural residency cannot be used as the criteria. He
explained that the Constitution would have to be amended to
give a presumption based on residency. A constitutional
amendment could be crafted to allow an urban/rural priority
or a presumption based on residency. He did not think that
CSHB 406 (JUD) sufficiently moves toward ANILCA. He
stressed that the biggest difference between CSHB 406 (JUD)
and ANILCA is who qualifies. They qualify two different
groups of people. For the court to find CSHB 406 (JUD)
consistent with ANILCA they would have to qualify the same
groups of people. He observed that the state of Alaska was
sued because its definition of rural wasn't the same as the
federal definition of rural. The state of Alaska's
definition described rural in terms of socio-economic
characteristics. The Court ruled that "rural" is not
defined by the socio-economic characteristics of an area.
The Court held that "rural" referred to population density.
Representative Grussendorf summarized that the legislation
could conform to ANILCA, or ANILCA could be conformed to the
legislation. He stressed that the state constitutional test
would not be met by the use of individual characteristics.
(Tape Change, HFC 98 -98, Side 1)
Mr. White clarified that there is not a constitutional
problem with the individual criteria. He explained that the
presumptions in favor and against people based on residency
create a constitutional problem. He maintained that
individual criteria could stand a constitutional challenge
as long as they are well drafted.
Co-Chair Therriault summarized that, under current law, the
subsistence priority is always in effect because there are
no conditions where there are no restricts on the resource.
Mr. White agreed. He added that it is not implemented until
the resource is in such low abundance that other uses are
curtailed.
Co-Chair Therriault questioned why an absolute subsistence
priority is needed when there are enough resources to cover
all the uses.
Ms. Pete explained that the priority is needed because the
law states that subsistence uses are customary and
traditional uses. To comply with the reasonable opportunity
standard the traditional and customary pattern must be
included. She pointed out that it has been traditional and
customary for subsistence hunters to take moose while they
swim across the river at Onion Portage. Taking moose while
swimming is prohibited everywhere in the State except at
Onion Portage. To honor the traditional and customary
patterns subsistence is provided for all the time. Other
uses are not eliminated until there is a shortage. She
emphasized that it is more than harvest levels. Methods,
means and season bag limits have to comply with the
customary and traditional use pattern.
In response to a question by Representative Grussendorf, Mr.
White observed that subsistence as an advantage first
appeared in CSHB 406 (JUD). He observed that there is a
difference between "reasonable opportunity" as contained in
the legislation and in ANILCA. The legislation refers to
normally diligent hunter or fisherman as a qualification of
"reasonable opportunity."
REPRESENTATIVE SCOTT OGAN maintained that ANILCA is not
rational. He stated that it is arbitrary.
In response to a question by Representative Kelly, Mr.
Popely noted that the terms "in time of shortage" is not
contained in ANILCA. He observed that CSHB 406 (JUD) was
drafted to apply the priority only when all consumptive uses
cannot be met. He explained that case law is not delineated
in a way that gives a clear path to whether CSHB 406 (JUD)
would be constitutional. He did not believe that the
legislation would require a constitutional amendment. He
noted that it is most likely to run afoul of the Uniform
Application Clause, under Article VIII, Section 17. This
section provides that residents of the state will be treated
equally in respect to the state's natural resources. He
argued that the residence criteria is used only for
presumption. The McDowell case discussed residency as an
exclusive bar to participation in the preference scheme. He
quoted from the McDowell case:
"We do not imply that the Constitution bars all methods
of exclusion. Exclusion is required for species
protection reasons. We hold only that the residency
criteria used in the 1986 Act, which conclusively
excludes all urban residents from subsistence hunting
and fishing, regardless of their individual
characteristics, is unconstitutional."
Mr. Popely concluded that the Court would look favorably on
some exclusionary scheme, based on individual
characteristics, as opposed to open and closed classes
through which one cannot move. He acknowledged that the
presumption uses place of residence, but it does not give
anyone an automatic right to participate or automatically
exclude anyone. It is merely an administrative means to
afford the preference on an individual basis.
Mr. Popely quoted from the Kenaitze case:
"Inconvenience is in no sense the equivalent of a bar
to eligibility for participation in subsistence hunting
and fishing and does not suffice to trigger an analysis
under the equal access clauses."
Mr. Popely argued that the presumption is merely a
convenience and would not trigger a uniform application
challenge that would make it fatal under the Constitution.
The court looks at the individual interest that is at stake.
In this case it would be the equal access to natural
resources in the state of Alaska. If a law threatens that
right, the court asks if there is a legitimate purpose for
the law. The purpose is weighed against the right. The
court asks if it is a tight enough fit. He reiterated that
the legislation does not require equal access provisions to
be changed.
Co-Chair Therriault questioned if the Court found that the
state law was not tight enough because "rural" was a blanket
line. He observed that the line is not firm under the
presumption.
GEORGE UTERMOHLE, ATTORNEY, ALASKA AFFAIRS AGENCY stressed
that CSHB 406 (JUD) does not raise the same kinds of issues
that caused the prior rural preference to be struck down.
He acknowledged that eligibility cannot be based on
geographical location. He observed that under CSHB 406
(JUD), eligibility for subsistence is limited to people that
show a customary and traditional dependence on the resource.
The legislation provides that certain people, who reside in
an area, which has also shown a customary and traditional
dependence on the resource, have a presumption of satisfying
the criteria. The individual's ultimate ability to
participate is not determined by the presumption. He
acknowledged that the presumptions would be subject to
review, under the uniform application section. The value of
the presumption will be balanced against the ability of
residents to get into a subsistence group on a reasonable
basis. The court will determine if the state of Alaska's
interest prevails over the individual interests. The court
will then determine if the means the State has chosen to
achieve its goal of administrative convenience is
sufficiently tailored to achieve the end. He stressed that
the court's decision is undeterminable.
In response to a question by Representative Kelly, Mr.
Utermohle did not see any negative impacts from the adoption
of a constitutional amendment. He observed that HJR 66
would provided for a subsistence preference in the state
Constitution. He observed that HJR 66 would not amend other
provisions of the Constitution that would be at tension with
a subsistence preference based on proximity of the resource.
He noted that HJR 66 would be confined strictly to
subsistence. The Equal Access Clause, the Due Process
Clause, the Common Use Clause, and the Fishery Clause would
be implicitly amended to the extent necessary to provide for
the constitutional subsistence preference.
Representative Ogan pointed out that Mr. Utermohle issued a
legal opinion regarding a constitutional amendment, dated
3/27/98 (copy on file).
Mr. Utermohle reiterated that the preference, established in
CSHB 406 (JUD), meets constitutional requirements by
providing individual criteria. The constitutional issue is
how significant is the presumption given to determining who
is entitled to the preference. If the presumptions were
struck down, the criteria for individual users would still
remain valid.
In response to a question by Representative Mulder, Mr.
Utermohle observed that the procedure that the Boards now
follow is pursuant to current subsistence law. The Boards
would develop a procedure to implement CSHB 406 (JUD). He
anticipated that current law would be amended to conform to
CSHB 406 (JUD).
In response to a question by Representative Grussendorf, Mr.
Utermohle agreed that the Common Use Clause allows people to
use the resources of the state in common where they occur.
Representative Grussendorf asked how an advantage could be
given to particular individuals over others. Mr. Utermohle
explained that the state of Alaska, under the Common Use
Clause, has the ability to limit access to the resource to
achieve a sustained yield. Limitations cannot be strictly
based on residence.
Co-Chair Therriault observed that the Common Use is linked
to maintenance of the sustained yield principle. Mr.
Utermohle agreed that complementary constitutional
provisions must be balanced.
Co-Chair Therriault stressed that sustained yield will
always receive priority because if the resource is depleted
there is nothing to divide.
REPRESENTATIVE CON BUNDE asked for clarification regarding
when the subsistence priority takes place. Co-Chair
Therriault summarized that the priority exists all the time
under ANILCA. The access to the resource is not impacted
until there is a shortage. The priority is in place
whenever there is any restriction to the resource. If state
law were amended to conform to ANILCA, there would always be
a subsistence priority.
HB 406 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting adjourned at 5:25 p.m.
DRAFT HFC 10 4/08/98
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