Legislature(1997 - 1998)
03/11/1998 01:15 PM House JUD
| 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 JUDICIARY STANDING COMMITTEE
March 11, 1998
1:15 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
* HOUSE JOINT RESOLUTION NO. 60
Proposing amendments to the Constitution of the State of Alaska
relating to the community dividend fund, the permanent fund, and
the budget reserve fund.
- BILL HEARING CANCELLED
* HOUSE BILL NO. 122
"An Act relating to prisoner litigation, post-conviction relief,
and sentence appeals and to execution on judgments against
prisoners' accounts; amending Alaska Rule of Administrative
Procedure 10(e), Alaska Rule of Appellate Procedure 502(b), Alaska
Rule of Civil Procedure 26, and Alaska Rule of Criminal Procedure
35; and providing for an effective date."
- BILL HEARING CANCELLED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 406
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S)
2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE
2/17/98 (H) RES AT 1:00 PM CAPITOL 124
2/17/98 (H) MINUTE(RES)
2/21/98 (H) RES AT 1:00 PM CAPITOL 124
2/21/98 (H) MINUTE(RES)
2/24/98 (H) RES AT 1:00 PM CAPITOL 124
2/24/98 (H) MINUTE(RES)
2/27/98 (H) JUD AT 1:00 PM CAPITOL 120
2/27/98 (H) MINUTE(JUD)
2/28/98 (H) RES AT 9:00 AM CAPITOL 124
2/28/98 (H) MINUTE(RES)
3/03/98 (H) RES AT 1:00 PM CAPITOL 124
3/03/98 (H) MINUTE(RES)
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
3/04/98 (H) MINUTE(JUD)
3/05/98 (H) RES AT 1:00 PM CAPITOL 124
3/05/98 (H) MINUTE(RES)
3/06/98 (H) JUD AT 1:00 PM CAPITOL 120
3/06/98 (H) MINUTE(JUD)
3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM
3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE;
3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS,
HUDSON
3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW)
3/09/98 (H) JUD AT 1:00 PM CAPITOL 120
3/09/98 (H) MINUTE(JUD)
3/11/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
Capitol Building, Room 126
Juneau, Alaska 99801
Telephone: (907) 465-3878
POSITION STATEMENT: Discussed and answered questions on
CSHB 406(RES).
GEORGE UTERMOHLE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions regarding CSHB 406(RES).
JEFF PARKER
500 "L" Street, Number 502
Anchorage, Alaska 99501
Telephone: (907) 272-6696
POSITION STATEMENT: Testified on CSHB 406(RES).
MARY BISHOP
1555 Gus's Grind
Fairbanks, Alaska 99709
Telephone: (907) 455-6151
POSITION STATEMENT: Testified on CSHB 406(RES).
HUGH DOOGAN
359 Slater Street
Fairbanks, Alaska 99701
Telephone: (907) 456-6189
POSITION STATEMENT: Testified on CSHB 406(RES).
MICHELLE SPARCK
P.O. Box 219
Bethel, Alaska 99559
Telephone: (907) 543-7342
POSITION STATEMENT: Testified on CSHB 406(RES).
RICHARD SLATTS
Chevak Traditional Council
P.O. Box 140
Chevak, Alaska 99563
Telephone: (907) 858-7252
POSITION STATEMENT: Testified against CSHB 406(RES).
BARBARA JANITSCHECK
Maniilaq Association
Box 256
Kotzebue, Alaska 99752
Telephone: (907) 442-3311
POSITION STATEMENT: Testified on CSHB 406(RES).
PETE SCHAEFFER
Box 296
Kotzebue Alaska 99752
Telephone: (907) 442-3467
POSITION STATEMENT: Testified on CSHB 406(RES).
CONNIE FRIEND
P.O. Box 724
Tok, Alaska 99780
Telephone: (907) 883-5181
POSITION STATEMENT: Testified on CSHB 406(RES).
DANNY GRANGAARD
P.O. Box 11
Tok, Alaska 99780
Telephone: (907) 883-2970
POSITION STATEMENT: Testified on CSHB 406(RES).
DONALD WESTLUND
P.O. Box 871
Ward Cove, Alaska 99928
Telephone: (907) 225-9319
POSITION STATEMENT: Testified on CSHB 406(RES).
JOE WILLIAMS
P.O. Box 6754
Ketchikan, Alaska 99901
Telephone: (907) 225-6754
POSITION STATEMENT: Testified on CSHB 406(RES).
PERRY MENDENHALL
P.O. Box 905
Nome, Alaska 99762
Telephone: (907) 443-2455
POSITION STATEMENT: Testified on CSHB 406(RES).
AUSTIN AHMASUK
Sitnasuak Native Corporation
P.O. Box 1292
Nome, Alaska 99762
Telephone: (907) 443-4026
POSITION STATEMENT: Testified on CSHB 406(RES).
DALE BONDURANT
HC-1, Box 1197
Soldotna, Alaska 99669
Telephone: (907) 262-0818
POSITION STATEMENT: Testified on CSHB 406(RES).
THEO MATTHEWS, President
United Fishermen of Alaska
Box 389
Kenai, Alaska 99611
Telephone: (907) 283-3600
POSITION STATEMENT: Testified against CSHB 406(RES).
ELAINA SPRAKER
P.O. Box 2534
Soldotna, Alaska 99669
Telephone: (907) 262-9592
POSITION STATEMENT: Testified against CSHB 406(RES).
BARBARA BROADWATER
P.O. Box 875082
Wasilla, Alaska 99687
Telephone: (Not provided)
POSITION STATEMENT: Testified on CSHB 406(RES).
DONALD BROADWATER
P.O. Box 875082
Wasilla, Alaska 99687
Telephone: (Not provided)
POSITION STATEMENT: Testified on CSHB 406(RES).
DAN SENTZ
901 McDoo Way
Wasilla, Alaska 99654
Telephone: (907) 376-4574
POSITION STATEMENT: Testified on CSHB 406(RES).
STEPHEN WHITE, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Answered questions on CSHB 406(RES).
KEVIN DELANEY, Director
Division of Sport Fish
Department of Fish and Game
P.O. Box 25526
Anchorage, Alaska 99518-1579
Telephone: (907) 267-2224
POSITION STATEMENT: Answered questions on CSHB 406(RES).
MARY PETE, Director
Division of Subsistence
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 267-2224
POSITION STATEMENT: Answered questions on CSHB 406(RES).
ROBERT WILLARD, JR.
Alaska Native Brotherhood;
Member, Executive Committee, Southeast Native
Subsistence Board
236 Third Street, Apartment A
Juneau, Alaska 99801
Telephone: (907) 586-3902
POSITION STATEMENT: Testified on CSHB 406(RES).
TOM LACKISH (ph)
(Address not provided)
Anchorage, Alaska
Telephone: (Not provided)
POSITION STATEMENT: Testified on CSHB 406.
ACTION NARRATIVE
TAPE 98-35, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:15 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter, Croft and Berkowitz.
Representative James arrived at 1:18 p.m., and Representative
Rokeberg arrived at 1:24 p.m.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
Number 0033
CHAIRMAN GREEN announced the committee would revisit HB 406, "An
Act relating to subsistence uses of fish and game." He announced
the sponsor, Representative Ogan, was present to answer questions.
Number 0116
REPRESENTATIVE CON BUNDE referred to page 7, Section 5, and said
by expanding the local fish and game advisory boards and the
regional advisory boards, he understands the interest in having
local people involved. He asked Representative Ogan if he
envisions the boards would counter or have veto power over the
scientists and biologists. Representative Bunde stated his concern
is that we're moving a step backwards into greater politicization
of fish and game management rather than keeping it based on
science.
REPRESENTATIVE SCOTT OGAN said he doesn't believe Section 5 would
politicize the process because the boards are advisory. The
ultimate decision would be retained by the Board of Fisheries
and/or the Board of Game. He said he is trying to match
requirements in the Alaska National Interest Lands Conservation Act
(ANILCA). He read a portion of Section 3116(D) of ANILCA, "Laws
establishing a system of local advisory committees and regional
advisory councils consistent with this section shall provide that
the state rule-making authority shall consider the advice and
recommendations of regional councils concerning the taking of fish
and wildlife populations on public lands within their respective
regions for subsistence uses. The regional councils may present
recommendations and evidence upon which such recommendations are
based to the state rule-making authority during the course of
administrative proceedings of such authority. The state rule-making authority
it determines is not supported by substantial evidence presented
during the course of its administrative proceedings, violates
recognized principles of fish and wildlife conservation or would be
detrimental to the satisfaction of rural subsistence needs. If the
recommendation is not adopted by the state rule-making authority,
such authority shall set forth factual basis and reasons for its
decision." Representative Ogan explained nothing in this section
requires the state to do anything more than establish various
advisory bodies and to reach defensible administrative decision.
He said nothing in Title VIII of ANILCA purports to allow the
administrating documents and agencies to do anything more than
grant a preference amongst those otherwise authorized by the state
of Alaska to hunt or fish, (indisc.) on federally owned land, and
then only when certain conditions obtain. Nothing on the basis of
this act is purported to authorize the federal government to set
seasons and bag limits for the means and methods of harvest.
Representative Ogan stated the intent is to set up basically what
we have been asked to do in ANILCA. With the proper safeguards, he
believes that can be done.
REPRESENTATIVE OGAN continued, "ANILCA appeared to create (indisc.)
or is interpreted and applied by the federal government a coercive
scheme that, in effect, gives the state the choice between
following federal mandates on how to regulate subsistence, or
allowing the state traditional state authority over fish and
wildlife be unconstitutionally usurped. And I think more
specifically ANILCA mandates that the state must adopt a scheme
that provides preferential treatment of rural residents for
subsistence taking of renewable fish and wildlife resources on
public lands or surrender the Statehood Act recognized and
constitutional authority and duty to manage such taking of fish and
wildlife on these lands. So what we're attempting to do is gain --
I believe this approach is the only approach, to date, that has
been laid on the table that does regain full state management. And
we do address -- what I think ANILCA was trying to address is the
lack of trust of rural people in involvement in the system."
REPRESENTATIVE BUNDE said his understanding of Representative
Ogan's answer is that these panels are purely advisory. If based
on good scientific judgement, the Board of Fisheries or the Board
of Game decides not to go along with it, they have the right to not
go along with it.
REPRESENTATIVE OGAN responded that is correct.
Number 0542
REPRESENTATIVE BUNDE said the current advisory boards seem to be
working, but there seems to be a lack of will in enforcement.
REPRESENTATIVE OGAN pointed out that there has to be appropriate
sideboards. The authority has been given to the boards to delegate
authority to the regional advisory boards if they wish. He said it
is unfortunate that some groups don't acknowledge that authority.
Number 0649
CHAIRMAN GREEN said the way the current version of the bill is
crafted, there would be the advisory vote on the requirements (A)
through (E) on page 24. He said as he reads the wording, there
would be two risks. One would be that you would get a favorable
advisory vote. Given that, that is a unilateral attitude from the
state. He asked Representative Ogan, "Are you of the opinion
that, even given that, that the state now agrees with this - that
we could get a change in ANILCA without a subsequent quid pro quo
from the state?" He said the legislature has been advised by
Senators Stevens and Murkowski that we need unanimity. He asked if
we have unanimity somehow, would that be enough to satisfy the
federal government.
REPRESENTATIVE OGAN referred to a letter in the committee file
addressed to Bob Penney, dated November 25, 1997, from Senator
Murkowski which says, "Some Alaskans can be granted a priority over
other Alaskans to use fish and game for subsistence purposes,
without a constitutional amendment, if the priority is granted
using criteria rationally related to the legitimate policy
objective of protecting the subsistence life style." He said it
goes on to talk about whether or not different groups would sign on
to that kind of a scenario. He said he believes the legislation
has made a very serious attempt to do that. Representative Ogan
pointed out that Senator Murkowski recognizes that we can grant a
preference and that authority comes from Article VIII, Section 4.
Number 0811
CHAIRMAN GREEN said, "There is the question of the Administration
who has openly backed the task force proposal, which includes a
constitutional amendment, somehow -- I guess what you would look
for is a mandate backup or a mandate vote on the advisory vote,
which would then maybe cause the Administration to change their
attitude because I think Senator Murkowski said that it would
require, before he could do something to change ANILCA, an
agreement between the Governor, and the Native people, and the
legislature. And without those three, he doesn't feel that there
is a chance. And Senator Stevens, even with that, says he doesn't
see that there is a chance to change. And so that's my question is
even if all of this were to work, ... do you have something that
the rest of us haven't heard that would suggest that we could get
the feds off our back?"
REPRESENTATIVE OGAN responded that there is litigation that could
possibly serve that purpose. He said he doesn't believe that it
behooves us to rely on the litigation alone. We should make every
attempt to try to work this out. Representative Ogan said Governor
Knowles is on record making campaign promises. Governor Knowles
reiterated that he kept those promises when he dropped the lawsuit
and said he would do all he could do to get a rural priority. He
indicated he believes the current version of the legislation is as
close as we can get. There is a very delicate balance in providing
for needs and there may be a need to make changes to mitigate some
of the heartburn some people have. Representative Ogan stated he
believes the legislation meets the needs of Alaskans who have lived
a subsistence life style. He would hope this could be worked out
with Alaskans. It would be much more advantageous to do that than
to rely on the courts.
Number 0958
REPRESENTATIVE ETHAN BERKOWITZ asked how does turning subsistence
into a welfare program rationally related to protecting a
subsistence life style.
REPRESENTATIVE OGAN responded that there has to be a rational basis
and rational criteria. He pointed out that the bill is basically
two-tiered. He indicated the first tier is in Section 16.16.010,
subsection (b). He said, "If there is a shortage or if the
projected level of harvest would exceed ... sustained yield, they
shall allocate with a ranking of beneficial uses towards Alaskans
first. That's the first tier. Now if there is not enough to go
around after they do that then I would envision the second tier
being the ... criteria of a $5 hunting license - and the people
that truly depend on the resource or make a decision to adopt that
life style. So I think that's a rational criteria. Rural priority
certainly isn't rational. It's simply based on zip code. And ...
here's documented cases of (indisc.), for example, that I think
their medium income is $45,000 per household, or $35,000, and ...
they're rural, Talkeetna, which is kind of similarly situated, I
think their medium income is ... under $15,000 or $16,000,
somewhere around there, and they're urban. So that's not a
rational criteria, urban and rural isn't."
REPRESENTATIVE BERKOWITZ said he didn't hear an answer to the
question he asked. He again asked, "What's the link between
welfare and subsistence."
REPRESENTATIVE OGAN responded that when there is not enough to go
around in a region, after tier I has kicked in and there is still
not enough to go around, who is a have and who is a have not.
There has to be rational criteria for doing that. He referred to
somebody who lives in a rural dependent area and has a state job or
regular income, and asked if they should be a "have?" He stated he
envisions sustenance or subsistence as survival, meeting your basic
needs. Representative Ogan said there is criteria in the bill
which he believes rationally addresses that.
Number 1133
REPRESENTATIVE BERKOWITZ said the criteria to receive a subsistence
or sustenance permits would be to qualify for a $5 license, which
would mean you are essentially on welfare. He said there is no
causal linkage between being on welfare and living a subsistence
life style. He again asked, "How is the condition of being on
welfare related to leading a subsistence life style?"
REPRESENTATIVE OGAN said he believes the link is dependency. He
referred to page 4, line 28, and said, "A person is dependent on
fish and game for sustenance if they either - they have to possess
a $5 license they submit to the regional fish and game board, and
to possess a $5 license, you have make less than 'X' amount of
dollars. Anybody know the exact amount?"
CHAIRMAN GREEN responded that he believes it is $8,200.
REPRESENTATIVE OGAN continued, "$8,200 a year or receive public
assistance, and they have to be dependent on fish and game ... for
personal and family use, has either no alternative or there is an
absence of a cash-based economy, or a person makes a decision.
They make less than that amount of money and they make a decision
to adopt a fish and game dependent life style. The $5 license is
hopefully so we can have some record of the types of fish and game
that they procured. And they would have to get tags and play by
those rules like everybody else." He said the people who live in
an area that is resource dependent and if the person doesn't make
much money, they should be the people who should have a priority.
REPRESENTATIVE BERKOWITZ said the nexus isn't there for him.
REPRESENTATIVE OGAN stated reasonable people have different
opinions.
Number 1269
REPRESENTATIVE ERIC CROFT asked if it would be Representative
Ogan's opinion that rather than saying, "You live in an area, you
have the use of this resource, you already are a dependent fish and
game area, we have a shortage, should we let the local people take
it first or every welfare recipient in the state?" He asked
Representative Ogan if he thinks the second is more logical.
REPRESENTATIVE OGAN responded, "Given the parameters of our
constitution and what our supreme court has ruled, I think to do
anything otherwise would be unconstitutional."
REPRESENTATIVE CROFT said, "If that's unconstitutional, would it be
more logical? Would it be more fair?"
REPRESENTATIVE OGAN said he doesn't think it would be logical and
fair to create second class citizens out of any group of people in
this state.
REPRESENTATIVE CROFT pointed out that Representative Ogan is
dividing citizens based on whether they receive or qualify for
welfare. That is dividing citizens. He asked why it is more
logical or fair, in a time of shortage, in a fish and game
dependent area, to say every welfare recipient in the state gets it
instead of the community that is affected gets it first.
REPRESENTATIVE OGAN responded, "Because it violates equal
protection to say just the community first gets it. And we exclude
other people outside that community, it violates equal protection
and we have to amend our constitution."
Number 1369
REPRESENTATIVE CROFT referred to the dependent areas and said he is
trying to understand how it works. He said Section 16.16.010 (b)
says that everywhere the board shall have a preference for
consumptive uses - anywhere in the state. Section 16.16.020 (b),
page 4, says in dependent areas the board may adopt this specific
preference in times of shortage. This specific preference would
mean every welfare recipient, or one who qualifies, could come in
and take it first. Representative Croft questioned why that is
optional and why does it only apply to fish and game dependent
areas and not urban areas.
REPRESENTATIVE OGAN said, "Because I believe we're trying to meet
the spirit of the intent of ANILCA to provide and protect
subsistence needs of Alaskans. And in order to do that, we need to
have a rational criteria. In order to do that within the
parameters of our constitution, we cannot create one class of
people - favor one class of people over the other. Now as far as
why should other people that are on welfare from other areas be
able to come in there and hunt and fish? So we treat everybody
equally because if we say they can't come in and only the people in
the one area can, that takes a constitutional amendment because it
violates equal protection." Representative Ogan said if he is on
welfare in Wasilla or Palmer , where he lives, and there is a
shortage in Sleetmute which the board has declared, and the second
tier kicks in. He said he is not going to want to go to Sleetmute
to hunt because there is a shortage, and he probably couldn't
afford to. He pointed out he would want a reasonable opportunity
of success if he goes there, so he would probably look at some
other areas.
REPRESENTATIVE CROFT asked Representative Ogan if Palmer would be
an urban nondependent area under his formula.
REPRESENTATIVE OGAN said that would be correct.
REPRESENTATIVE CROFT said if you're on welfare in Palmer and that
area, which is not a dependent fish and game community, has a
shortage, you don't get this preference.
REPRESENTATIVE OGAN stated that is correct.
REPRESENTATIVE CROFT asked why an urban welfare recipient isn't put
in as good of position in their area as a rural welfare recipient.
REPRESENTATIVE OGAN responded because they don't fit the criteria.
He noted the criteria is based on the 14 points beginning on page
3, line 20.
REPRESENTATIVE CROFT said they fit the criteria, but the area
doesn't fit the criteria. If you're a welfare recipient in Palmer,
you don't get the same super preference in times of shortage that
you would if you lived as a welfare recipient in Sleetmute.
REPRESENTATIVE OGAN said that is correct. He noted the courts have
ruled that as long as you have a rational criteria in some of the
areas -- this is not to unsimilar to what is in place today with
tier II. He said, "We can discriminate if there is a rational
criteria."
Number 1601
REPRESENTATIVE CROFT said, "We can, I guess constitutionally. I'll
accept your argument that it qualifies there, but why does it make
sense to? Why should we?"
REPRESENTATIVE OGAN responded, "Because we want to try to protect
those people that have a dependency and that's the link. If you
have a dependency and you're low income, I think in my heart and I
think in hearts of most Alaskans, that's who - if there is a way to
rationally give it preference, that's what we need to do because I
think ... we have a more obligation to do that. Those that don't
have the ability and the income and they need to feed their
families. Let's face it they're going to ... I was in that
situation and if my family was going to go without food, it
probably wouldn't matter. I think one person said in our hearings,
'Hunger knows no law.' So those with low income that are hungry,
let's give them the ability to legally operate and give them a
preference. And I think subsistence ... under Article VIII,
Section 4 of the constitution, we can give the preference subject
to beneficial uses, and subsistence or sustenance - or whatever you
want to call it, we have the authority to give that preference and
that's what this operates under."
CHAIRMAN GREEN said, "What I'm wondering if what you're trying to
establish is that the first (b) would establish an area that would
qualify as a subsistence area, for the various uses of the material
or the stock that's there, and that the second (b) says ... within
that area then, you can establish a priority among those things.
It refers to area throughout that qualification area."
REPRESENTATIVE OGAN said that falls all within subsection (b) in
020 and not the first (b).
CHAIRMAN GREEN said if that's true, is that based on an exclusion
of people who weren't there. He asked if that opens it up to
anybody who qualifies, urban or rural. Even though it's only
talking about that particular subsistence area, all others who
qualify, who have a $5 license and have chosen that style or the
other "ors," would qualify to go to a subsistence area and have a
preference.
REPRESENTATIVE OGAN said that is correct.
Number 1479
REPRESENTATIVE BERKOWITZ said Representative Ogan indicated to
Representative Croft that Palmer would be a nondependent use area,
and he would assume that Anchorage, Fairbanks and Juneau would also
be nondependent use, which would leave selection for dependent use
areas in the rest of state. He asked if that is a fair
characterization.
REPRESENTATIVE OGAN stated he doesn't believe it's entirely fair.
He read from the bill, "Social and economic structures, the ability
of the economy, kinds of employment, amount of distribution of cash
income, cost availability of goods and services, a variety of fish
and game seasons, seasonable cycle of economic activity, percentage
who live in the area, participating in hunting and fishing
activities. He said the criteria is applied equally to every area,
whether it's rural or urban. He referred to the census figures on
medium income in some of the rural areas and said he believes there
are 50 or 60 communities that have a higher medium income than
Anchorage. It would be based on income and other criteria and it
wouldn't particularly create urban/rural.
REPRESENTATIVE BERKOWITZ asked if Anchorage could be a dependent
use area.
REPRESENTATIVE OGAN said he would doubt it very seriously.
REPRESENTATIVE BERKOWITZ said if Anchorage can't be a dependent use
area, it seems to him that there is a defacto situation where the
state would be divided between urban and rural Alaska.
REPRESENTATIVE OGAN stated he would disagree because if you apply
the criteria across the state to community by community, there will
be many communities that won't have a dependency.
REPRESENTATIVE BERKOWITZ asked Representative Ogan if he could give
an example of a community of more than 2,500 people that would
qualify as a dependent use area.
REPRESENTATIVE OGAN said he would have to get back to him on that
question.
Number 1857
REPRESENTATIVE NORMAN ROKEBERG referred to someone meeting the
licensing and other stipulated criteria and asked if in order to
qualify you would have to be a resident of a dependent use area
before you could travel anywhere in the state to harvest on a
subsistence basis.
REPRESENTATIVE OGAN said if you meet the criteria, you would be
eligible in other areas.
REPRESENTATIVE ROKEBERG asked if Anchorage, Mat-Su Valley and the
eastern portion of the Copper River would be an area. He noted he
is having trouble visualizing the area concept.
REPRESENTATIVE OGAN explained the area concept only takes into
account the areas that fit into the criteria under 020. If it fits
that criteria, then it's a dependent use area. He said, "All other
areas of the state are covered in 010, subsection (b), where the
board shall allocate - that you can't meet sustained yield -
they'll allocate the use of fish and game for personal family use
for sustenance. It's essentially two tiered, if there's not enough
to go around, then these areas that have this other criteria
qualify."
REPRESENTATIVE ROKEBERG asked Representative Ogan if he has granted
the Board of Fisheries and the Board of Game the power to draw the
lines for the areas.
REPRESENTATIVE OGAN said that is correct.
REPRESENTATIVE ROKEBERG informed the committee that he is concerned
about the person who would otherwise qualify that lives in the
heart of Spenard, that doesn't make (indisc.) for a period of 30
or 40 years with family history that has been harvesting fish and
game. He asked if the way the current version of the bill reads,
would he be prohibited from doing so.
REPRESENTATIVE OGAN stated he would qualify in area of the state,
including the areas where a shortage has been declared.
CHAIRMAN GREEN pointed out that if a person meets the criteria for
a $5 license, he would have a dependent fish and game life style.
Chairman Green said he believes that there are approximately 15,000
people who currently possess the license. In doing research, there
are approximately 45,000 people who would qualify.
Number 2079
REPRESENTATIVE OGAN informed the committee that under the proposal
he believes that more fish and game will be taken in rural resident
dependent use areas by rural dependent users than urban residents.
REPRESENTATIVE BUNDE asked if the practical application of the
regulations would allow a rural or a dependent use area preference
because they have the advantage of location and time.
REPRESENTATIVE OGAN said that is true just about all the time. He
said people that live in an area where there is fish and game, they
have a natural leg up on other people because they know when and
where to hunt and fish.
REPRESENTATIVE BUNDE said it is not the intention of the bill to
discriminate, but the common sense reality of the application of
the laws would end up with some natural discrimination by where
people choose to live.
REPRESENTATIVE OGAN said Representative Bunde is correct. He noted
that it is not intentional. He said he knows the mountains behind
his neighborhood better than the person who drives in from
Anchorage. He said he can usually get a moose before the person
from Anchorage can. He said there are people in rural Alaska that
travel by snow machine to other areas and get caribou or moose.
Representative Ogan said he doesn't think it's all exclusive as
there are a lot of people that can travel around rather
inexpensively.
Number 2242
REPRESENTATIVE BRIAN PORTER said while the result of the bill isn't
indented to be discriminatory, the natural and probable result of
its configuration is discriminatory. He said he doesn't know
whether that discrimination is legal or illegal. Representative
Porter said he is still concerned about the dependent use area and
its function. He said, "I commend your efforts to try to match it
to ANILCA. From what I read of the definitions in ANILCA, or at
least a proposed ANILCA that was just struck by Senator Stevens, it
seems to indicate that an awful lot of what is in [HB] 406 is
consistent with their definition of the area, and with the
exception of the $5 license the description of the life style or
the person. But to get to the point of probably, not necessarily
for sure but probably, not having to amend the constitution I can't
see a rational use for a dependent use area. If every subsistence
user, by this definition, can hunt anywhere that is open for
subsistence use in the time of shortage, whether an area was deemed
to be a dependent area or not, there would be a shortage and the
Board of Fish or Game would make that kind of a management decision
based on the normal considerations of everybody's use, but
recognizing subsistence as a priority. So what is the function of
the dependent area?"
REPRESENTATIVE OGAN stated the dependent area is to protect the
resource. When there is a shortage in an area, he believes you
have to have different tiers. It is an attempt to narrow down,
during times of extreme shortage, those that have the greatest
dependency.
REPRESENTATIVE PORTER asked, "Who is eliminated, in the time of
shortage, from a dependent use area any different than a
nondependent use area? Who is eliminated that can't fish or hunt."
REPRESENTATIVE OGAN responded anybody that makes over $8,200 and
isn't on welfare.
REPRESENTATIVE PORTER said, "Right, and that was the same as a
dependent use area or a nondependent use area if there is a
shortage and it's gone to tier II. So, again, what is the rational
reason for the existence of a dependent use area?"
Number 2386
REPRESENTATIVE OGAN said if we don't have a dependent use area,
then areas that aren't truly dependent on fish and game would be --
anybody could participate. He said he believes it is a management
tool. Representative Ogan said he understands what Representative
Porter is saying.
REPRESENTATIVE PORTER said he thinks it is left over from a local
preference. He said, "It serves a function. If you're going to
say that in a time of a shortage, in an area that has been
determined to be an area that is a dependent use area, where more
than 50 percent of the folks are dependent and need that for a
sustenance of themselves and their family, then it's very logical
to say -- and since there is a shortage there that only the folks
that reside there are going to have a preference to hunt or fish in
that area. But if everybody that is in the same criteria as a
subsistence user can come into it, it's the same as any other place
in the state with the same level of shortage - so regardless of the
life style of that particular area."
REPRESENTATIVE OGAN said the boards have controlled use area. He
said, "We're establishing a criteria or a dependent use areas. And
they don't limit necessarily people that can participate, but they
certainly make it more difficult. And if I can't drive a four-wheeler into an
tools to be able to manage and we're...."
TAPE 98-35, SIDE B
Number 0001
REPRESENTATIVE OGAN continued, "...of the fish and game ... is what
we're after. I believe it would give them another tool to, at
their discretion, to use. It doesn't require them to do it, but
simply as a management tool."
REPRESENTATIVE PORTER said, "By regulation, any area of dependent
use can be managed through restrictions on time of the year, time
of day, method and means, can create a situation where it's more
likely that the local residents are going to have a successful hunt
or fish than somebody from Spenard."
REPRESENTATIVE OGAN said that is correct and we currently do that.
He continued to give an example using caribou. He said these tools
are what the board uses, at their discretion, to manage. He
believes this is one more tool and a vast majority of low income
people will be from the areas that we are trying to protect.
REPRESENTATIVE PORTER said, "Just an observation I guess. I
understand, and certainly no disrespect for the sponsor and those
folks that think that ... the most important thing here is to not
have to amend the constitution. But I don't think we both agree
with what we're trying to accomplish here. I don't think most of
the folks in the state would disagree with that as allottable goal.
And if we can do it without the manipulation, I guess, if you will,
of things rather than just do it straight forward and say, 'That's
what we're going to do,' I think most of the folks in the state
would say they don't particularly like it, but we understand it and
we'll do it."
Number 0140
REPRESENTATIVE BUNDE said he wonders if there is a relationship
between the establishment of a dependent use area and the
establishment of the subsistence advisory committee.
REPRESENTATIVE OGAN said the advisory committees are already in
place. He pointed out they would be creating the regional boards.
The main fish and game boards would be allowed to delegate
authority to the regional boards as they see appropriate. If there
is an area shortage, they could delegate closure authority to them.
REPRESENTATIVE BUNDE asked if there is a relationship between
establishing a dependent use area and the regional boards that will
be established. He asked, "You don't have to have one to have the
other?"
REPRESENTATIVE OGAN said a person that appeals who has a difference
of opinion as to whether or not they qualify under 020 can appeal
that decision to the regional board. He indicated that it would
ultimately be decided by the main boards.
Number 0169
REPRESENTATIVE BUNDE said, "One of the criteria that someone might
appeal to this regional board is that they live in a dependent
area. So there is, in my mind then, some relationship - gives them
some further standing in their appeal by establishing a dependent
area."
REPRESENTATIVE OGAN responded, "I believe that if they either live
in it or they don't ... I think Title 16, 'domicile residency'
would probably be the appropriate ... barometer of that domicile
being defined in Blacks Law Dictionary and all that other good
stuff."
Number 0203
REPRESENTATIVE JEANNETTE JAMES said she tends to agree with
Representative Porter in that there really isn't any real need for
a dependent use area except to draw another line. Drawing lines is
already the problem that exists relating to rural. Representative
James said it appears to her that the main criteria in ANILCA is
customary and traditional. She asked if that is in the
legislation.
REPRESENTATIVE OGAN responded, "It's not specifically addressed,
customary and traditional. However, I think it's addressed by the
criteria."
REPRESENTATIVE JAMES said, "Throughout this whole piece of
legislation you're referring to 'sustenance,' however, as opposed
to 'subsistence,' and I understand your rationale for that. But do
we have customary and traditional sustenance? Or is it a
subsistence life style, as indicated in Senator Murkowski's letter,
that we're supposed to protect. Then following up on that
question, if we're going to try to describe this need, which there
is a need or we wouldn't be dealing with this issue, I mean I think
there is a need that needs to be met, ... if there weren't, we
wouldn't be having this problem. But would it be the wisest to
start out with customary and traditional?"
Number 0280
REPRESENTATIVE OGAN referred the committee to page 5, line 8, "(ii)
the person's decision to adopt a fish and game dependent life
style", and said that is probably as close as we can get to
customary and traditional. He referred the committee to page 4,
line 10, and said, "Historical, social, economic value associated
with taking and use of fish and game would probably adequately
describe it. And for the record, if I might, Mr. Chairman, I think
the defacto priority that they were talking about was - in
discussion - if I recall correctly - discussion to the part that
was amended out of the bill of the use it where you shoot it."
REPRESENTATIVE JAMES said she thinks this does the same thing as it
is similar in nature.
Number 0322
REPRESENTATIVE PORTER said in ANILCA customary and traditional uses
means noncommercial, long-term and consistent taking of use of or
reliance upon fish and wildlife in a specific area, and patterns
and practices of taking of fish and wildlife established over a
reasonable time, taking into consideration availability of fish and
game. He said it sounds as if sustained yield is fine as there is
a pattern and practice of taking. In terms of saying "subsistence
uses," they use customary and traditional and say that the term
"subsistence uses" means, "customary and traditional uses by rural
Alaskan residents, of fish and wildlife for direct personal or
family consumption as food, shelter, fuel, clothes, tools, or
transportation, for the making and selling of handicraft articles
out of non-edible by products of fish and wildlife resources taken
for personal and family consumption for barter or sharing for
personal family consumption, or for customary trade." He said the
emphasis is so much on consumption and he doesn't think that the
intent of ANILCA is diametrically opposed to where the committee is
trying to go with the bill.
Number 0389
REPRESENTATIVE OGAN said, "Personal family use for subsistence is
already established - recognized use to common property resources
in AS 16.05.940(32), 'Limits subsistence uses to uses for direct
and personal family consumption for customary trade, barter or
sharing for personal and family consumption.'"
REPRESENTATIVE BERKOWITZ stated, "Those are repealed under this
bill, including customary and traditional which is provided in
Section 7 of [AS] 16.05.940. And your bill in Section 32, on page
22, repeals customary and traditional."
REPRESENTATIVE OGAN said that it does repeal customary and
traditional, but it is redefined in other ways that meet the same
intent.
REPRESENTATIVE CROFT asked where the repeal is located.
REPRESENTATIVE BERKOWITZ responded that it is on page 22, lines 2
and 3, Section 32.
Number 0443
REPRESENTATIVE OGAN stated the intent of that has been addressed in
the bill.
REPRESENTATIVE PORTER asked where the customary and traditional
definition is.
REPRESENTATIVE BUNDE said it is item (10) on page 4.
REPRESENTATIVE CROFT asked, "Are we in the area section or the
individual section?"
REPRESENTATIVE OGAN said, "We're in the area section."
REPRESENTATIVE CROFT said, "So it doesn't protect a customary and
traditional use. It may have some flavor of it in the area, but it
doesn't protect the customary and traditional use."
REPRESENTATIVE OGAN stated in 010, it certainly does. He read from
page 2, line 28, "The harvest of fish and game for personal and
family use for sustenance by residents is the highest and best use
of fish and game." He said the board shall manage and give a
preference for consumptive use (indisc.) personal and family use
for sustenance over other uses. Representative Ogan said, "That's
pretty customary and traditional to me. And furthermore, in
subsection (b), if we don't meet sustained yield that the boards
shall allocate with the highest use being to feed Alaskans first.
Now I don't think that gets anymore customary and traditional than
that."
Number 0539
REPRESENTATIVE CROFT said, "I think it could get somewhat more
customary and traditional if we said it. I mean I don't know how
it does it. Sustenance use can be a sport use right? Can be a
noncustomary, nontraditional, but I eat it."
REPRESENTATIVE OGAN referred the committee to page 17, line 5,
"(37) 'fish and game dependent uses' means the noncommercial,
historical uses of fish and game by a resident for direct personal
or family consumption as food, shelter, fuel clothing, tools or
transportation...." He said he believes it is addressed in the
bill.
CHAIRMAN GREEN asked if that was the intent of Section 37.
REPRESENTATIVE OGAN said it is a fair assessment that they rename
customary and traditional to fish and game dependent uses.
REPRESENTATIVE JAMES said, "My understanding, on that point, that
we're still talking about the area. We're still not talking about
people."
Number 0604
REPRESENTATIVE BERKOWITZ said, "But you have gone to great pains to
use the word 'sustenance,' the term 'sustenance' instead of
'subsistence.'" He asked Representative Ogan how he defines
"sustenance," and why.
REPRESENTATIVE OGAN referred the committee to page 17, line 5, and
said he would define sustenance as fish and game dependent use.
Representative Ogan said probably the best definition would be in
the dictionary.
REPRESENTATIVE BERKOWITZ responded that he did and the synonym is
"subsistence." He asked Representative Ogan why he went to such
great lengths not use the word "subsistence."
REPRESENTATIVE OGAN responded it pretty much means the same thing,
but it's a less political term.
Number 0665
REPRESENTATIVE JAMES said "subsistence" is more than "sustenance."
She said as she reads the dictionary, a subsistence life style is
depending upon other than a cash economy. She said, "And we know
that you can't totally depend on that because there is other things
to living. You have food, shelter and clothing; it's not just
eating. And subsistence is all of that."
REPRESENTATIVE OGAN said Representative James is correct. He said
that is why he has identified the fish and wildlife dependency
areas.
Number 0698
CHAIRMAN GREEN said, "But if you use, in this definition, 'animal
parts,' doesn't that smack more of the definition that we just
heard about subsistence rather than just sustenance? If we go away
from just the consumption aspect of it..."
REPRESENTATIVE OGAN said there are people that have traditional
uses for more than just meat.
REPRESENTATIVE PORTER referred to the definition on page 17 of
"fish and game dependent uses," and asked what use of fish and game
dependent use does it define. He asked where is it in the rest of
the text.
REPRESENTATIVE OGAN said, "I don't have it highlighted where fish
and game dependent uses is used throughout the rest of the text."
REPRESENTATIVE PORTER noted the only one he can find is under the
dependent use area. He said he doesn't think you can get customary
and traditional, in the full sense of the word - use of the
resource unless you're in a dependent use area. Representative
Porter said, "Under general terms, a subsistence user, who
otherwise qualified under the bill, but lives in Spenard, would not
be able to do his customary and traditional -- the extent of
customary and traditional unless he or she went to a dependent use
area. And I don't think that's what you're trying to do."
Number 0822
REPRESENTATIVE OGAN said he would have to disagree. He informed
the committee that he thinks the primary objective of the bill is
spelled out in Section 2....
REPRESENTATIVE PORTER interjected, "If it turns out that the
specific wording of this bill creates that, you wouldn't mind if
that that were altered."
REPRESENTATIVE OGAN responded, "Before I say that, I'd like to
fully understand it. Let me go back and look at the video tape and
I'll give you an answer to that one."
REPRESENTATIVE PORTER said there is no doubt, in his opinion, that
they will write up anything that is going to make everybody in the
state happy. He said, "What I see from the definitions of ANILCA,
and the definitions that you have in here, I don't think you're too
far apart."
Number 0909
REPRESENTATIVE BERKOWITZ said even with all this, there is no
recognition that subsistence has a spiritual component at all.
Even in the definition of "subsistence," there is a recognition
that there is such a thing as spiritual sustenance. That not being
present in the bill is more than somewhat troublesome to him.
Representative Berkowitz said he has been told that there is a zero
fiscal note.
REPRESENTATIVE OGAN indicated it is a zero fiscal note because the
Resources Committee didn't receive the appropriate fiscal notes
from the agencies because the bill had been changing so quickly.
He said he wrote a zero fiscal note so that the bill could move.
REPRESENTATIVE BERKOWITZ said there is an extremely large
bureaucracy that is going to be spawned out of this bill. Given
that there are competing interests over a finite amount of state
dollars, he is sure the people, even in rural Alaska, would rather
see that money spent on education than on creating on this
bureaucracy.
REPRESENTATIVE OGAN responded that if the feds would come through
with the $4 million or $5 million that the promised to fund this
program to match ANILCA, we probably wouldn't have a problem with
it. He pointed out that he does recognize, in findings and intent,
on page 1, line 11, that there are Native and non-Native Alaskans
who have traditional, (indisc.) or cultural relationship and
dependence on wild renewable resources. He said he believes it is
unconstitutional to incorporate any type of spiritual or religious
preferences in statutes.
REPRESENTATIVE BERKOWITZ stated that we do make exemptions in laws
related to alcohol use that there is an exception to allow minors
to drink if there is a religious component to it. It is also part
of Section 4 of the Constitution of Alaska that we're not going to
make any laws that impede anyone's religious practices. He
referred to the fiscal note and said, "We're creating a situation
here where 15,000, and now I learned possibly 45,000 people are
eligible, which means 45,000 people are going to have to be
processed through some form of bureaucracy, which means there are
going to be a certain number of folks who are disgruntled with the
outcome. And when they're disgruntled with the outcome, they're
going to run the course of appeals through these game boards and,
what's not recognized here, up to the district or probably through
the superior court. That's necessarily going to involve a cost.
And I would feel more comfortable with this bill, not that I'm
comfortable with it at all, but I would feel more comfortable with
it if I knew what the cost associated with it were."
REPRESENTATIVE OGAN said his point is well taken, and that's why
they simplified the criteria from the original version in the
Resources Committee.
Number 1129
REPRESENTATIVE ROKEBERG noted he has been working with the drafter
of the bill and the sponsor to overcome the fiscal note and the
burden and the administrative problems revolving around the way the
bill is currently drafted.
REPRESENTATIVE BERKOWITZ said, "It would seem to be very difficult
that any individual-based criteria to get past any bureaucratic
formation. So there will be a large fiscal note attached."
REPRESENTATIVE OGAN said there is something called strict liability
that is similar to when you fill out your fish and game license,
you say, under oath, that you qualify. If you're investigated by
a police officer and if he has reason to believe that you aren't
qualified, he can look into it. If you're guilty, it would be a
violation. He noted that was dealt with in the residency bill two
years ago.
REPRESENTATIVE CROFT said the residency bill can do that because
it's relatively easier to say where one's residence is. Meeting
all the other criteria in the bill is tougher. Representative
Croft said Representative Porter's question was well taken in that
it doesn't seem like the dependent use areas have much function
anymore, but the way it was left in the bill they seem to have a
small residual function. He said, "There is a general overlying
preference for everyone, and then only in fish and game dependent
areas do we get this time line of dependent area. A shortage comes
in, welfare uses from across the state can come in and take the
first crack - be first in line. It leaves unsaid what happens in
nondependent fish and game areas, and I take it from that, that
this time line of welfare recipients from the whole state wouldn't
come in. Do they or don't they? And if they do, why is
distinguished between the two? Do you see what I mean? I mean why
just say in dependent fish and game use areas, 'crises' means
welfare recipients get first crack? Why not say in everywhere
welfare recipients get first crack?"
REPRESENTATIVE OGAN said he doesn't think it is necessary. If the
board manages under criteria 010(b), they can allocate enough fish
and game for Alaskans first. If there is a shortage in a game
management area, that is when the board can narrow it down to the
second tier.
Number 1453
CHAIRMAN GREEN said, "Correct me where I'm wrong here that in a
subsistence use area there are two people, one who makes $12,000 a
year and one who makes $7,800 a year. So one of the those would
qualify, the other would not, but someone just outside this area
who makes $7,800 would have a preference over the person who lives
there because he doesn't qualify as a subsistence priority
recipient, and yet he may be. It's just that he ... is just above
that dollar value hurdle. So you could have a significant number
of in-subsistence area residents being shoved away from the
subsistence by out of area qualifiers."
REPRESENTATIVE OGAN informed the committee that could possibly
happen.
REPRESENTATIVE PORTER referred to a nondependent area and asked if
there is a shortage, and HB 406 were law, would the board of game
or fish be able to establish a preference for subsistence use only?
REPRESENTATIVE OGAN referred the committee to 101(b) and said they
would be able to establish a preference under Article VIII, Section
4, of the use of fish and game. He said, "We're asking them to
allocate ... in accordance with the ranking of beneficial uses -
the use of the fish and game resource. So yes, absolutely, they
can provide a subsistence or sustenance...."
REPRESENTATIVE PORTER interjected, "Over personal use."
REPRESENTATIVE OGAN replied, "Well, they're grouped together in
this bill, personal and family use for sustenance."
REPRESENTATIVE PORTER asked what the classifications of permits or
licenses are for taking game under the current version of the bill.
REPRESENTATIVE OGAN said he isn't aware of that is specifically
addressed.
REPRESENTATIVE PORTER said, "There is a guide, there is a
commercial use, there is sport use, there is personal use, and
there is subsistence use, I guess. What of all those are left?"
Number 1727
REPRESENTATIVE OGAN responded, "It's specified in Section [AS]
16.05.251(e), and notwithstanding that and that the Board of
Fisheries may allocate ... the different uses that they may
allocate are specified in existing statute under 251(e)."
REPRESENTATIVE PORTER said, "If I understand the answer then, in
this nondependent area, or I mean in this area that is not a
dependent use area, in the time of a shortage, because of
16.010(b), a board of game or fish could restrict use down to those
folks that qualify for subsistence."
REPRESENTATIVE OGAN said that is absolutely correct. He said the
board "shall" allocate, notwithstanding 251(e).
REPRESENTATIVE PORTER stated personal use is the same as
subsistence or sustenance.
REPRESENTATIVE OGAN said that is correct.
REPRESENTATIVE PORTER said he would guess that they could even
differentiate between personal use and subsistence use if the
shortage was great enough.
REPRESENTATIVE OGAN said he doesn't believe so under the bill
because they're lumped together.
Number 1877
REPRESENTATIVE CROFT gave a scenario, "We're both Alaskans, you
don't meet the income criteria - I do, Palmer and Spenard. You've
got a sport license, therefore, you don't get this $5 one, and I
get my $5 and I'm a subsistence or sustenance or whatever user. We
are equal or I have a preference to go and get the mythical moose
in your back yard?"
REPRESENTATIVE OGAN responded, "We're absolutely equal."
REPRESENTATIVE PORTER stated that puts a totally different picture
on a dependent use area.
Number 1937
REPRESENTATIVE BUNDE said there are specific personal use fisheries
that are different than sport fisheries and subsistence. He
pointed out there is a criteria called personal use and currently
it is only in fisheries.
CHAIRMAN GREEN said the committee just heard that they would be
equal and that there is not differentiation.
REPRESENTATIVE OGAN informed the committee that Mr. Utermohle was
present.
REPRESENTATIVE BERKOWITZ said the definition of "dependent" might
be useful.
Number 2041
REPRESENTATIVE PORTER stated the bill establishes dependent use
areas and presumes that the rest of the areas of the state that are
legal to hunt and fish in are not dependent use areas. He asked if
there is a fish shortage in an area that has not been defined as a
dependent use area, can the Board of Fisheries reduce the taking in
that area down to those folks that qualify under the bill as
subsistence users.
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, came before the committee.
He said he does not see that the board would have authority, under
the bill, to limit entry into a fishery where a shortage exists in
an area outside of a fish and game dependent use area. He stated
in a nonsubsistence area, CSHB 406(RES) would not allow the board
to establish a criteria such as requiring the $5 license and a
history of dependence. He stated that what the bill does do is
requires the board to establish a series of allocations in giving
preference to user groups. It gives the highest preference to
those user groups of personal consumption. The boards, at that
time. could limit access into that area where the shortage exists
to those persons who will take the game for consumption.
Therefore, it essentially eliminates trophy hunting versus hunting
for food. The board does not have the authority to restrict that
further.
REPRESENTATIVE PORTER pointed out that there isn't a personal use
license, but there are personal use areas. He said if wanted to go
and get a license that would allow him to take advantage of that
situation in a nondependent area or a nonsubsistence area where
there was a shortage, it would just be a sport license.
MR. UTERMOHLE confirmed that the only license provided under law
for the purpose of hunting is a sport license.
REPRESENTATIVE PORTER asked if the board, under this law, would be
restricted in a nonsubsistence area and would not be able to
differentiate between a sport license and a subsistence license.
If they were both taking it for personal consumption, they would
both have equal access in the time of a shortage to that resource.
Number 2295
MR. UTERMOHLE said he believes that is the case. He said it is
possible that the board might attempt to expand its existing
authority, or utilize its existing authority to the fullest, to
develop some criteria such as a lottery.
REPRESENTATIVE CROFT said he had understood that it created a
possible difference between dependent use and nondependent use
areas, but he didn't know it was that dramatic. He said,
"Urban/poor can come out to rural dependence areas with a priority,
but rural/poor can't come into urban areas and get a priority
because there ain't any. And isn't that creating a urban rural
distinction - a distinction of more weight than I though between
nondependence and dependence use areas, and one biased the opposite
way."
MR. UTERMOHLE stated that is a value judgement and he can't address
that.
TAPE 98-36, SIDE A
Number 0001
REPRESENTATIVE OGAN pointed out that the village of Eyak has a
medium income of $150,000, which is the highest paid community in
Alaska. He noted he is reading from the 1990 U.S. Census data.
Representative Ogan said Juneau is number 38, Anchorage 61,
Ketchikan is 75.
CHAIRMAN GREEN asked if he was reading from a tabulation of average
incomes per community.
REPRESENTATIVE OGAN said that is correct. He stated, "I guess my
point is, Mr. Chairman, Representative Croft, it's not necessarily
that rural hunters won't be able to come into urban areas if
(indisc.) that kind of a nonsubsistence -- in a nonsubsistence
areas, it's because I think some of these areas, because of the
medium income could very well not be classified as subsistence
areas when you have $150,000 per household income, that's certainly
not subsistence economy."
REPRESENTATIVE CROFT stated he understands the law correctly. From
what Mr. Utermohle said, a poor person, that is a person who meets
this welfare or welfare criteria, in nondependent zones can go out
to rural Alaska in a time of shortage and get a preference. They
can go out a dependent use area in a time shortage and get a
preference, but a poor resident in a dependent use zone, i.e.,
rural but not always, cannot come into a urban nondependent zone
and get that same preference because there isn't a preference in
those zones. He asked if that legally correct.
Number 0279
MR. UTERMOHLE stated the scheme Representative Croft just described
is legal and is permissible. That is what the bill does and is
what the current subsistence system does under state law. He said
that has been challenged and has been upheld. He stated the
Kenaitze Indian Tribe case in the Alaska Supreme Court addressed
two issues. One issue was access to fish and game for tier II.
The court struck down the notion that if you live near the resource
you have a greater right to the resource. There is no geographic
preference in the state under the Alaska Constitution. The other
thing the court didn't strike down, but upheld was the
establishment of subsistence and nonsubsistence areas. The court
held that there was no unconstitutional burden placed on the Alaska
resident who is entitled to subsist, as we all are, just because he
lived in a nonsubsistence area he had to go to a subsistence area.
The court considered that an inconvenience and not rising to a
constitutional significance. He stated that similar scheme is
carried forward in the bill.
Number 0397
REPRESENTATIVE OGAN said he would like to state, for the record,
that Fairbanks is 121 with an income level of $32,000 a year.
Number 0421
REPRESENTATIVE ROKEBERG asked Representative Ogan to describe what,
if any, impacts the bill may have on commercial fishing, hunting
and guiding.
REPRESENTATIVE OGAN said, "I believe the board determines that
there is, based on previous levels of harvest, that there is not
enough to sustain a species that they may give a preference - they
shall give a preference to personal family use for sustenance. I
would also like to state, for the record, that over and over and
over again I've heard that various meanings on another bill which
I won't bring up, but that ... the allocation authority should
remain with the board and that's exactly what this bill does."
REPRESENTATIVE ROKEBERG referred to Section 40, page 23, and said
it is the enabling language, after the advisory vote, which speaks
to the changes of Title VIII of ANILCA. He asked Representative
Ogan if he has spoken to somebody in either Senator Murkowski's
office or Senator Stevens' office about what type of direction they
would like to see in the level of specificity in the legislation to
give direction to the congressional delegation.
REPRESENTATIVE OGAN indicated he has had personal conversations
with Senator Murkowski. He said, "He has indicated a willingness
to make whole hearings on changes to ANILCA when the state makes
its recommendations and there are certainly caveats of that that he
would like a consensus. Senator Stevens has been a little bit less
cooperative, but however, I think he's left the door open in
deferring to Senator Murkowski and Representative Young's
committees as the appropriate committees for this to happen."
Number 0611
REPRESENTATIVE ROKEBERG stated his concern is whether we would be
presumptuous of making specific suggestions as to the actual
changes in ANILCA. He said he doesn't think we would.
Representative Rokeberg stated he has talked to the Senator about
that, but then the question becomes, "How far do we go?" He said
he is concerned that the provisions currently in the bill are
relatively general in nature and may not be quite specific enough.
He said he would like some feedback. Representative Rokeberg
suggested a conceptual amendment to change the word "sustenance"
back to "subsistence."
CHAIRMAN GREEN said he would prefer not to do that now as the
meeting is an informational meeting. He indicated changes to the
bill could be made the following week.
REPRESENTATIVE ROKEBERG said if the sponsor doesn't object, maybe
a CS could correct that. He said you can't simply change that
word. You need to look at the context of all the language. It may
even help clarify some of the issues.
CHAIRMAN GREEN said it would be a fairly laborious process to do
that.
REPRESENTATIVE ROKEBERG said the logistics of it may have some
merit.
REPRESENTATIVE OGAN indicated he just wants to try and get the
issue resolved. He said, "You guys can call it whatever you like
as long as it makes -- if it gives people in rural Alaska some more
comfort, I'm not going to lose any sleep over it. So lets --
defined closely, you know. Representative Berkowitz pointed out
that he looked it up in the dictionary and ... 'sustenance' meant
'subsistence.' I think 'subsistence' is a little bit -- I think
maybe we all ought to get out our dictionaries and look at what
they mean and define the appropriate term."
REPRESENTATIVE ROKEBERG suggested that the sponsor be directed to
come back with a committee substitute if that's the sense of the
committee. He said, "If he doesn't object and is willing to do
that, it gives him the ability to draft it like you would like to
make sure it's...."
CHAIRMAN GREEN asked Representative Rokeberg if he is offing an
amendment.
Number 0930
REPRESENTATIVE ROKEBERG said he would make a conceptual amendment
that the bill be amended to utilize the word "subsistence" where
appropriate, subject to the sponsor's desire.
CHAIRMAN GREEN objected for the purpose of discussion.
REPRESENTATIVE BUNDE said he would offer an amendment to the
conceptual amendment that all reference to subsistence be struck
and be replaced with "personal use," because in his opinion there
is no subsistence in Alaska. It's all personal use.
CHAIRMAN GREEN said, "Is that a friendly amendment or are you
just...."
REPRESENTATIVE BUNDE said, "I would strongly object to
continuing...."
CHAIRMAN GREEN said, "It's an objection rather than an amendment to
the amendment."
REPRESENTATIVE BUNDE responded, "Yeah, let's just call it that."
Number 0979
REPRESENTATIVE PORTER spoke against the amendment to the amendment,
and the amendment. It is a little bit untimely at this point as
the committee hasn't even heard testimony on the bill. He pointed
out that there may be a desire to make a lot of changes, and how
the amendment would relate to other changes the committee won't
know until that process is started. That process won't be started
until testimony is heard. Representative Porter said, "As I think
in another context we said once, discrimination isn't illegal,
illegal discrimination is illegal, and it is illegal because you've
defined it that way. And sustenance or subsistence doesn't mean
anything that we don't say it means in here, and if we've left that
a question we have failed. So whatever we call it, it's up to our
definition to hopefully import what it means clearly."
Number 1028
REPRESENTATIVE ROKEBERG indicated he doesn't want to create any
problems, and then stated he would withdraw his amendment.
REPRESENTATIVE BUNDE said, "There was just one point that I'd like
to correct, for the record, and I don't think Mr. Utermohle
intended that, but there was some discussion about in a certain
event trophy hunting would be stopped and it would only be hunting
for food. And obviously there is no trophy hunting in Alaska. You
must salvage the meat and to not do so is currently against the
law. I'm not sure what the intent of the discussion was, but I
just wanted to clarify that there isn't any trophy hunting in
Alaska per se."
Number 1115
REPRESENTATIVE JAMES said she objects to the fact that there is no
trophy hunting, there is trophy hunting. People go out and hunt,
they take a lot of moose and they donate it to the villages. So
there is trophy hunting. Representative James indicated she is
still puzzled with dependent use areas. She asked, "Are you, in
describing a dependent use area, describing an area that has a
certain population of game or are you describing the area where
people live?"
MR. UTERMOHLE explained that the bill describes a dependent use
area as an area where a certain use of fish and game occurs.
REPRESENTATIVE JAMES said, "It's my evaluation, that being the
case, that by opening the door to all these people all over the
state to participate in subsistence or sustenance hunting and
fishing as long as they qualify with this issue, that if we start
defining these areas -- and that seems to be everyone can go there,
that the amount of fish and game that needs to be taken to meet
this need, to find a reasonable opportunity for people to hunt,
would something be something that the game board would have to know
that that is so they could know when there is a shortage. And it
appears to me there would always be one, and that the only hunting
and fishing that's left is for sustenance."
REPRESENTATIVE OGAN said he would have to disagree that it would
create a massive influx of people into an area that would over use
or would really reduce fish and game for the people that live in
the area. He said in a practical aspect, he is not going to want
to go hunting, even if he's qualified under the low income
criteria, into an area where there is a shortage. He indicated he
would go to an area where he would have a reasonable opportunity of
success. If people flock to an area where there is a shortage,
they'll be disappointed and leave.
Number 1271
REPRESENTATIVE JAMES explained that she doesn't see any place in
the identification of a dependent use area that it only defines
"dependent use area" when there is a shortage. It's is a dependent
use area because of the nature of the use there. Representative
James questioned why they should recognize it.
REPRESENTATIVE OGAN indicated he would get back to Representative
James regarding that question.
Number 1319
REPRESENTATIVE BERKOWITZ asked Representative Ogan to get back to
him regarding his question. He said he is looking for a definition
of "dependent" or "dependence." Representative Berkowitz said he
is curious to know what the impact of this scheme would be on Cook
Inlet fisheries. He asked if you could have dependent use for game
and nondependent use for fisheries in the same area. He also
asked, "I'm also curious, in the larger scheme, to know what the
impact is on personal use - how is that defined? Is that rod and
reel? Is there more to it than that? And commercial fisheries?"
CHAIRMAN GREEN indicated the committee would take public testimony.
Number 1370
JEFF PARKER testified via teleconference from Anchorage. He
informed the committee members he was legal counsel to the Senate
State Affairs Committee in 1985 and 1986. He said he believes the
current version of the bill would have the same constitutional type
of problems as what was drafted in 1986. The current version of
the bill creates a closed class just as much as rural did. He
said, "In here the class would be for dependent use and it would be
defined based on income or welfare dependency. Whereas in rural it
was defined as -- with class was closed but defined by residency.
I think it's very important to understand why the bill (indisc.)
the rural criteria unconstitutional and did so because it was a
closed class. And of course perspective, this is really
substituting one closed class for another, and I think in that
sense we have recreated a different version of the same problem and
may also fail constitutional muster for that reason." Mr. Parker
said Representative James made an excellent point. The bill really
puts all fishing and hunting into the category of sustenance
because on almost - on any fish and game stocks in this state we
don't have sufficient resources in order to have longer extensive
seasons. What this will mean is a reduction of seasons and bag
limits in any place in which you have methods and means regulations
that restrict the ability to harvest, and therefore, increase the
ability to have a longer season. He explained a scenario using
catch and release trout fisheries and antler regulations on moose.
Mr. Parker said another problem is with the definition of
"sustained yield." He pointed out that the boards are flexible
with what sustained yield means in order to tailor it to different
situations and social demands. Therefore, you have, for example,
catch and release fisheries or antler regulations. The current
version of the bill would drive everything towards a strict maximum
harvest kind of regime and would shorten seasons and decrease a lot
of opportunities.
Number 1581
MARY BISHOP was next to address the committee via teleconference
from Fairbanks. She said she believes the committee is moving in
the right direction, but there still needs to be a lot of fine
tuning. She informed the committee that the McDowell decision
specifically suggests that a preference based on individual needs
would be acceptable by the constitution, but the rural/urban
criteria is extremely crude. She said she would be happy to
provide the committee with those quotes. Ms. Bishop referred to
the dependent use areas and suggested the committee consider taking
out the "dependent use areas" and insert the "eat it where you
harvest" provision. That might provide a more equitable situation
for everyone. She urged the committee not to use the wording
"customary and traditional use," as those words could cause legal
disputes. It could raise the issue of water fowl swans being shot
with guns by moonlight. It was argued that it was customary and
traditional. She referred to the Totemoff case where shining deer
was argued to be customary and traditional. Ms. Bishop questioned
whether fish traps would be customary and traditional. She
continued to give the committee other examples of what could happen
if the wording customary and traditional is used. Ms. Bishop
continued to discuss her concerns with ANILCA.
CHAIRMAN GREEN informed Ms. Bishop he would probably contact her
with some questions.
Number 1791
HUGH DOOGAN testified via teleconference from Fairbanks. He
informed the committee members he is a senior citizen and has a $5
senior citizen license. He suggested the committee review a House
Journal that includes discussion between Representative Charlie
Parr from Fairbanks and Nels Anderson of Dillingham. He also
suggested the committee obtain a Kodiak court case, Madison v.
State of Alaska. He said Mr. Madison took a deer out of season for
subsistence use. Mr. Doogan thanked the committee members for all
the work they're doing.
Number 1831
REPRESENTATIVE CROFT asked Mr. Doogan if his $5 license is a
special senior license. He asked him whether he was on welfare or
if he earns more than $8,200.
MR. DOOGAN stated he is a senior citizen. He said the state of
Alaska sold him the license for $5 when he turned 65 years old. He
said it is a lifetime license for fish and game.
REPRESENTATIVE CROFT said, "As I read it, you wouldn't be covered
under this if that was the question."
MR. DOOGAN said that is what he is trying to bring up, he isn't
covered, but he paid $5. He stated he believes there would be
discrimination against a class of people.
Number 1886
MICHELLE SPARCK testified via teleconference from Bethel. She
stated, "The subsistence users of the Yukon-Kuskokwim Delta have
awaited the Alaska legislature to find a suitable solution to the
state's debate on satisfying the federal mandate under ANILCA. In
the meantime the funding for such management has been categorically
reduced in years. It has lead to ADF&G [Alaska Department of Fish
and Game], especially the Division of Subsistence, to cut critical
management programs. The boards of fish and game are made up of
appointments, not elections. That wouldn't guarantee fair and
equal representation among stakeholders. To the state and federal
government, this issue comes down to a question of control, but I
would like to testify on (indisc.) nature in which the author of
this bill has been treating our way of life. It is essentially to
us a matter of life. Despite a demonstrated history of customary
and traditional use of our fish and wildlife, our people have been
held in limbo over who gets control over our subsistence harvest
runs. Mr. Ogan would like to belittle our dependence on
subsistence to a case of need. I would hope that his fellow
colleagues would not make the same mistake for our practice of
subsistence isn't so much a need, but a clear right to the taking
of the sacrament. In the taking of wild animal we honor in spirit
for being put on an earth to feed and clothe us, for sustaining us
in such harsh environment. We are the last of the great hunters
and gathers of North America. We practice our birth right and
legacy every day and seasons change, so does our fresh diets. Our
practice take us well beyond the parameters that Mr. Ogan's bill
would designate as user areas because our (indisc.) yielding has
different characteristics from village into the next. If an elder
from the coastal village of Chevak wakes up one day with a
hankering for caribou meat, every (indisc.) mountain 200 miles
away." Ms. Sparck said HB 406 also orders them to prove themselves
indigent in order to qualify for their subsistence rights for the
sustenance of their families. She informed the committee she will
be submitting a resolution passed by 56 Yukon-Kuskokwim villages
that urges state lawmakers to not vote for HB 406.
Number 2193
REPRESENTATIVE BUNDE said he understands that subsistence has been
a tradition for many generations. He asked if there is some point
that the tradition would stop or change. He asked if a child that
is born today would be expected to have the same tradition and
subsistence rights when they are 60 or 70 years old. He also asked
Ms. Sparck how many generations does she anticipate that this would
go forward.
MS. SPARCK stated it will go forward as long as the state doesn't
prevent them from doing so.
REPRESENTATIVE BUNDE pointed out that three generations back his
family was involved in a subsistence life style, but he has
changed. He said he would suggest that three generations into the
future, Alaska will be far different than it is now.
MS. SPARCK indicated her mother lived in fish camps before the
missionaries started sending them to school. Her mother makes a
very good living now because she had a college education, but she
still practices the subsistence way of life. They will practice
the subsistence way of life because it defines their culture.
Number 2261
RICHARD SLATTS, Chevak Traditional Council, testified via
teleconference from Chevak. He noted he also works under the
Chevak Tribal Courts. Mr. Slatts referred to the subsistence way
of life and said it was handed down by his father as his father
taught him and his father before him. This life style is not
afforded and it's not a weekend get-a-way camping trip. It is a
way of life and it is a necessity for their very existence. It has
been a long standing role to protect any and all inherent rights of
their tribe. Mr. Slatts referred to CSHB 406(RES) and explained it
may be in violation of ANILCA. Mr. Slatts discussed the
traditional and cultural life styles in rural areas and villages in
the state.
TAPE 98-36, SIDE B
Number 0001
MR. SLATTS explained subsistence resources aren't just for food,
but also for clothing, tools and many other things. He said
customary and traditional also means that the customary and
traditional users have to learn to preserve their food for hard
times; it's their delicacy. He urged the committee to not pass
CSHB 406(RES).
Number 0095
BARBARA JANITSCHECK testified via teleconference from Kotzebue.
She said she is offering her testimony on behalf of the Maniilaq
Association and its member villages. She stated the proposed
sustenance users of fish and game provide that the resources are
equally available to any user no matter where they live in the
state. It appears that the proposed language that the user, either
rich or poor, can hunt or fish in any area that is determined to be
a dependent use area. This scenario causes extreme concern and
alarm to their villages because of the competition that it creates
for the available resources in the dependent use areas. Ms.
Janitschek explained her understanding is that this means: (1) As
long as a urban hunter purchases a $5 permit and submits a written
statement that the individual or his family demonstrates that they
eat and game that is caught; (2) that they live in a economically
depressed area and need to provide food from the catch for their
family; and (3) because they simply want to adopt this life style,
they would be permitted to carry out their activity in any
dependent use area. This scenario and the problems that it will
create is exactly the reason while Title VIII of ANILCA provisions
were enacted. She said the proposed language, "in a time of
shortage of fish and game resources the appropriate board may
(indisc.) be preference among the beneficial uses of fish and game
in a region or area," should be printed from "may" to "shall." Ms.
Janitschek said the changes in the House Resources Committee did
not include cultural and traditional use, but (indisc.) was offered
by testimony from throughout rural Alaska. Cultural sharing of
fish and game is one of the most important functions that sustains
the immediate family, extended family and the community. Without
this sharing, it can be concluded that Native people would not have
survived these generations. This is still true today. Food
gatherers, fishermen and hunters in rural Alaska continue to share
their food with those who are in need no matter how limited or
extreme the need is. The proposed advisory vote on preference for
use of fish and game for personal or family use for sustenance is
structured in a way that is actually two different questions to the
public with only one allowable answer, "yes" or "no." An
individual might answer "yes" to question number one and no to
question number two, but is forced to select a "yes" or "no"
response to address both questions. She said they suggest that it
be broken out to allow an individual to answer both questions
without conflict or confusion (indisc.) to their answer. In 1958,
there came statehood. Alaskans were required to agree to a number
of provisions in the Statehood Act, including in a compact language
an agreement with the United States that Alaskans forever to claim
all right to the titles to the lands and other property, including
fishing rights held by the United States for (indisc.) and for the
Alaska people. Alaskans acknowledged that all such lands or other
property, including fishing rights, would remain under the absolute
jurisdiction and control of the United States. It has been argued
that in 1971, Native people gave up their rights to aboriginal
claims on fish and game. If both the state and Native people gave
up these rights then it is better to say that only Congress of the
United States holds these rights. In 1980, ANILCA, Title VIII, was
passed by congressional action and signed into law providing for a
rural preference after hearing about the problems Native people
were experiencing under a state system. The issue so often raised
by everyone is that the state constitution does not allow a rural
preference. Congress said that if the state cannot manage the fish
and game resources the way it intended, then the federal government
will take over the management scheme. Alaskans have nine months
left to resolve this issue. House Bill 406, even with the small
changes that the House Resources Committee made, does not meet the
level of protection rural Alaska subsistence users enjoyed under
Title VIII of ANILCA and defeats the trust responsibility that
Congress has (indisc.) the Alaska Native people. She encouraged
the committee to focus on the issue and to come up with a plan that
will satisfy all parties and bring closure to the issue.
Number 0305
PETE SCHAEFFER testified via teleconference from Kotzebue. He said
he thinks the main problem with the bill is that it is the needs-based scenario
those needs-based requirements would be met. Mr. Schaeffer said he
wonders in terms of the administrative (indisc.) to do that, if it
is just transforming the now disappearing welfare program into
another one. He referred to the issue of changing the word
"subsistence" to "sustenance" raises a potential (indisc.). He
said, "An amendment to ANILCA, which actually does not require
either this language to change or the federal language to change in
regards to the definition of subsistence, and I think it probably
creates more problems then it's intended to fix. He referred to
the question in the bill on page 23, lines 14 through 22, (indisc.)
ANILCA amendment already on the table. Senator Stevens has done
some work there. He said he was wondering if the intention is to
have further amendments to ANILCA. He said he doesn't believe
there is enough time for an advisory vote if December 1 is truly
the cutoff date. Perhaps there should be some consideration as to
whether or not it should change from an advisory vote on preference
to a natural vote on preference.
REPRESENTATIVE CROFT said the advisory vote would indicate
substantial new changes to ANILCA which are listed on page 24. He
noted he has the congressional schedule which shows Congress has a
target adjournment of October 9. We certify the primary election
sometime late in September, ten days after any possible challenge.
He said he believes Congress would have a week to two weeks to act
if we got the vote.
Number 0462
CONNIE FRIEND testified via teleconference from Tok. She explained
she has strong concerns with the language in the bill. Decisions
are being made about a way of life that is uniquely rural and
uniquely Native. Those decisions are being made without a true
understanding of issues involved and the depth of the issue. She
said she believes that Native people, for hundreds of thousands of
years, have been closely related to the land and animals. There is
a depth to it that isn't acknowledged, respected or considered.
Ms. Friend said she believes that ANILCA was intended to protect
that right that Native people have in that cultural and traditional
history that goes back thousands of years. Ms. Friend indicated
subsistence is a way of life and many people depend on these
resources in an interdependent kind of way. She said urban people
really don't have a claim to a subsistence life style because
they're not living it. It is only 3 percent of a resource. She
suggested that if it is possible, the committee should invite
Native elders and rural people who are actually living a
subsistence life style and ask questions. The knowledge is in the
rural areas. It obvious that there is a big, big gap in rural
perspectives and the perspective of people in Juneau.
Number 0645
DANNY GRANGAARD testified via teleconference from Tok. He stated
that the has a problem with the $5 license as he believes it is
just another welfare program. He said he thought the state of
Alaska was trying to get people off the welfare role. Mr.
Grangaard said anybody that makes under $8,700, or receives any
federal or state aid, would still qualify for that license,
approximately 14,000 people. He indicated he believes the
enforcement will be real difficult. Mr. Grangaard informed the
committee members that in the Tok area, they only harvest about 150
moose a year. If there was a time of shortage and 14,000 people
descended on Tok, the season probably wouldn't open again. He
said, "I don't see why just because you're on food stamps that ...
automatically qualifies you to be a subsistence hunter. There is
other things that qualify subsistence hunters. If you get food
stamps, nobody is going to starve."
CHAIRMAN GREEN said, "If there were a way that in the small areas
that we would anticipate ever qualifying as a subsistence-only
area, the people living in that area were ... the only ones
eligible during that whatever length of time that subsistence issue
would be up -- would that transcend many of the concerns that
you've expressed?"
MR. GRANGAARD respond a little bit. He stated he thinks there is
still potential of having problems down the road as it is a very
complicated issue.
Number 0851
DONALD WESTLUND testified via teleconference from Ketchikan. He
said he believes that there is a big misunderstanding as the bill
is not a welfare bill. It is a bill that is privilege to people in
times of shortage. You can't use customary and traditional uses in
a place of shortage as the populations will not support it. The
bill is a real easy bill to understand that in times of shortage it
means the people that need to have sustenance gets a priority. It
is not a subsistence bill, it's a sustenance bill. It means that
people who need to eat need to have priority for that sustenance
for whatever game and for whatever area that it's in. Mr. Westlund
explained that under federal management, people of Klawock will
have subsistence rights. He pointed out that they have a community
airport, fish and game (indisc.), hatchery, cannery and logging.
There is a lot of work there, but they would have subsistence
rights under federal law. He referred to the Saxman area and half
of Pennock Island, which is a half a mile away by water, has
subsistence rights under federal law and so does Saxman. He urged
that the people of Alaska be able to vote on this issue.
Number 1019
JOE WILLIAMS was next to testify via teleconference from Ketchikan.
He said, "In addressing the particular issue of -- I really find it
rather interesting that once again we're changing the name to
protect the innocent. We've been talking about subsistence and
(indisc.) since I was a little boy. Now we're all of a sudden
talking sustenance. ...We're actually really only talking about 3
percent of the resources. My recommendation to this committee is
to go back to what ANILCA initially stated. ... It's what we
Native people of Alaska gave up. We gave up our traditional rights
to all these (indisc.) to all the land that once belonged to our
forefathers for, in our cases, as far as Saxman is concerned, we're
(indisc.) 3,000 acres." He said you cannot deny the fact that
ANILCA language is there. Mr. Williams referred to the current
version of the bill and said it seems no consideration has been
given ANILCA. He urged the committee to review ANILCA and come
back with a bill that will support ANILCA.
REPRESENTATIVE BUNDE asked what he means by going back to ANILCA.
MR. WILLIAMS responded, "Well from the conference committee report
to write ANILCA. ANILCA was intended to protect and the conference
committee report has clearly stated - was there to protect the
Natives of Alaska. It has nothing to do with rural communities."
REPRESENTATIVE BUNDE said he just wanted to know if Mr. Williams
was advocating for Native rights or rural rights. Obviously, it's
the conference committee and Native rights that he is advocating.
MR. WILLIAMS stated that is correct.
Number 1246
PERRY MENDENHALL testified via teleconference from Nome. He
referred to Section 16.16.020(c) and said it states that person
submits to the regional fish and game board, for the region in
which he lives, a signed and written statement for either condition
(A) and/or (B). He said, "This would (indisc.) a special police
action committee (indisc.) files based on customary and traditional
use of rural fish and game resources which once was Alaska Native's
taken for granted freedom for existence. There is no guarantee
here as to how these newly created files will be used or be shared
other than for (indisc.) needed. Is it not enough to just to have
the ANCSA [Alaska Native Claims Settlement Act] files of our
shareholders and our future descendants? What we eat or gather -
do we have to put a yellow star over our heart to show that we have
the right to subsist? It's not a welfare system. I believe that
under state management, the walrus population was defined, it was
turned over to the federal management to where we now have the
Eskimo Walrus Commission. There is no more decline of the walrus.
The same goes for the whales. When the Eskimo Whaling Commission
was created, the whales multiplied. It does of speak of local
control on a regional and statewide, as well as on an international
scale as big as Alaska. (Indisc.) it does show that we can manage
resources. Just as there was a fish crash for nearly ten years in
our region under the present state system, the state government has
not responded in a timely manner until it became a crises to both
commercial and subsistence users." Mr. Mendenhall said HB 406
questions the federal bill ANILCA to be put on a state ballot to
be amended. He said he doesn't want ANILCA to be touched or
amended as he fears other amendments may be added by outside
interests. Let's put the trust back into the state system through
a constitutional amendment. The question should be on a ballot
before the people. House Bill 406 is a mandate bill to fix a
complex rural Alaska lifestyle of dependency on fish and game. Mr.
Mendenhall informed the committee members that the Bering Straits
Region has been an economic depressed area since statehood and is
dependent upon the subsistence menu. He continued to give
testimony regarding CSHB 406(RES).
Number 1465
AUSTIN AHMASUK, Sitnasuak Native Corporation, was next to testify
via teleconference from Nome. He informed the committee members
that he commends the practices that his forefathers used in taking
game, and he still continues to take fish and game in a traditional
manner. He urged Native people of Alaska, as well as state
government, to seek a constitutional amendment. Mr. Ahmasuk
pointed out that he has not favored the legislative action of this
state regarding Native people. The state of Alaska has refused to
acknowledge subsistence resources and subsistence use. He said he
is fearful that the present state government is falling way short
of what Native people want. Native people want to live the life
that they have been living since (indisc.). Mr. Ahmasuk continued
to discuss the relationship between Native people and animals. He
thanked the committee for allowing him to testify.
Number 1773
DALE BONDURANT testified via teleconference from Kenai. He stated
that there is no question as to the authority and responsibility of
the legislature to constitutionally manage the common property
public trust fish, wildlife and water resource. He said he
believes it is incredulous that the legislature, as a body, has not
explicitly demanded that their body of responsibility, as trustees
of the public trust, resources, be employed. The Alaska public, as
equal beneficiaries of these replenishable resources, deserve more
addressing responsibility by the legislative trustees. Mr.
Bondurant said he has not once heard that it is way past time to
demand self-imposed leadership for the immediate implementation of
this state authority, which is a police power as practiced and
accepted in all other equal states of our nation. He said the
Alaska Supreme Court has found that the state, not the federal
government, has the trustee authority to manage Alaska's public
resources. Mr. Bondurant continued to give testimony citing court
cases where he believes Alaska has responsible management authority
to manage resources. Public equal protection rights are still
being threatened by proposed constitutional amendments. It would
appear that the legislature's judicial committee would have a
logical purpose to be cognizant of such important related judicial
findings. He said politics has no logic.
Number 2031
THEO MATTHEWS, President, United Fishermen of Alaska (UFA), was
next to testify via teleconference from Kenai. He noted he is also
chairman of the UFA Subsistence Committee and is one of the eight
members of the Hickel Subsistence Advisory Task Force, which
essentially drafted much of the current state statutes. He
informed the committee he had submitted written testimony to the
Resources Committee. He said, "Since 1992, UFA has held a position
calling for technical amendments to ANILCA, combining with a
constitutional amendment linked together to follow this (indisc.)
problem. Every year since then, we have basically been told by one
side or the other that we'll never get a constitutional amendment
or we'll never get ANILCA changes. I submit to this committee that
we are at a historic crossroad where both of those things are now
possible. And if we don't take the opportunity to resolve this,
the day may go by us. In response to House Bill 406, we are
opposed to this legislation for several reasons, primarily policy-wise, it does
and the federal dilemma. To reallocate our fish and game resources
has far-reaching implications for all user groups. Allocation
legislation creates a new form of statewide consumptive preference,
which is not based on need." Mr. Matthews continued to give
testimony saying the bill will not allow the Board of Fisheries to
accommodate and treat all users fairly. He said Section
16.16.020(b) does attempt to address the issue of what do you do in
a time of shortage in a dependent area. They find that preference
there is no more than the boards currently have, and as written, it
appears that there is even less preference in dependent areas than
in nondependent areas. Mr. Matthews stated the UFA feels the
legislation creates many new problems and really resolves none. He
said UFA's written comments of March 10, have suggested (indisc.)
items that they think will constructively help resolve the problem.
We need to identify and require technical amendments to ANILCA. We
need then to provide for the passage of a constitutional amendment
which is linked to the passage of the agreed technical amendments.
We need to assure all Alaskans that we are not reallocating fish
and game from one user group to another, and if we don't do that we
won't get everyone to the table. We need to retain flexibility for
the Board of Fisheries and the Board of Game to manage and need to
provide a package plan to submit to the voters this fall.
REPRESENTATIVE CROFT referred to page 3, line 3, (b), and said, "If
the Board of Fisheries determines that the projected level of a
fish stock would exceed the sustainable level of harvest, the
appropriate board shall allocate it with the highest preference to
consumptive uses." He said that appears to be a stock-by-stock
analysis. He asked Mr. Matthews, "Can you give us some idea of
what that preference, putting consumptive use on every fisheries
stock, could have in some commercial fisheries - the impact it
could have on some commercial fisheries."
MR. MATTHEWS said this is a major policy issue that is involved in
any kind of preference, whether it be subsistence in rural areas or
if he got a commercial fishing preference in (indisc.). He said,
"If it is a stock specific preference you are going to eliminate
all other uses. (Indisc.) commercial, tourism, sports."
TAPE 98-37, SIDE A
Number 0010
REPRESENTATIVE BUNDE said we frequently hear that only 3 percent of
the fishing harvest goes to subsistence. He asked what UFA's
opinion is on that.
MR. MATTHEWS responded that he thinks that 3 percent number is
probably accurate in terms of total aggregate harvest, but once
again, that statement ignores the fact that it is a stock specific
preference. He said, "So within any given stock, no matter how
small the subsistence harvest, if the shortage comes in then
they're all recalled to eliminate all other uses. It doesn't
really matter how many of those fish are being harvested for
subsistence. So the stock-specific nature of this preference, once
again, is something that everyone needs to be aware of."
Number 0056
REPRESENTATIVE BERKOWITZ said if there were a shortage of King
salmon in the Kenai River, the entire Cook Inlet fishery could be
shut down.
MR. MATTHEWS said that would be the case.
REPRESENTATIVE BERKOWITZ asked Mr. Matthews in the reading of the
bill, how would he characterize Cook Inlet in that would it be one
of those dependent or non-dependent use areas.
MR. MATTHEWS said in his mind it would be a non-dependent use area
with a priority put in place that would eliminate just about all
recreational and commercial uses.
REPRESENTATIVE BERKOWITZ said the consequences for sport fishermen
from Anchorage and the Kenai would be somewhat calamitous.
MR. MATTHEWS responded it would be somewhat calamitous on all
stocks.
Number 0209
ELAINA SPRAKER was the next person to testify via teleconference
from Kenai. She when she first became interested in this issue,
she was one that did not want to, under any circumstance, amend the
constitution. Through a long learning process, she has come to the
conclusion that the only way this issue is going to be resolved is
with the concept of technical amendments to ANILCA, an amendment to
the constitution, and changes in state statutory regulations. Ms.
Spraker said she believes Congress will not concur with HB 406
because it doesn't follow the parameters in which the intent of
ANILCA was passed in 1980. She said the legislation is a big waste
of time. She indicated she is concerned with the power that would
be given to the regional boards as it will break down the
regulatory process. We have a good system in place. It's not a
perfect system, it can be improved on. She referred to the all
Alaskan preference in CSHB 406 and said there is not enough fish
and game to go around. Ms. Spraker stated the concept of a
solution is simple and she encouraged the committee to go forward
with it.
CHAIRMAN GREEN said, "If this type of a bill as it's written now
were to become law, do you see a -- you've indicated that there ...
aren't enough game animals to go around, sometimes fish is a
question. But do you see a rash of problems, perhaps litigation
the fact that there are limits imposed that we would possibly be
forced to go into this kind of a program in every stock?"
MS. SPRAKER responded in the affirmative.
Number 0517
REPRESENTATIVE BERKOWITZ said if CSHB 406(RES) falls short of
ANILCA, it seems that it would bring in federal management on
December 1. He asked if she could comment on the consequence to
commercial fisheries.
MS. SPRAKER stated Mr. Matthews' expertise is in commercial
fisheries. She said, "I'm a handful of people that went through
the process with the feds and got (indisc.). And I have some real
intimate knowledge. And trust me, if there is anything that I can
tell you today, you don't want federal management - work hard."
Number 0593
MR. MATTHEWS also responded to Representative Berkowitz's question.
He stated, "The opinion that UFA has drawn, and I totally concur
with this, is initially federal management will first impact the
recreational fisheries. Over time, with them being restricted,
there will of course be a (indisc.) to reach out into salt water
and impact the commercial fisheries. The biggest problem with
federal management is they have only one - it's not even one
client, they have only one use that they care about and that's the
subsistence use. And the thing I really hope this committee will
concentrate on this. This preference is given to the use so it
could hurt -- even someone that has the preference can be hurt when
it kicks in. For example, a Yukon River commercial fisherman -
when a subsistence preference kicks in, he can no longer commercial
fish and it is a vital part of his activity ... and life style. So
the biggest problem with federal management is they don't care,
they have one use that they're dictated to manage for."
REPRESENTATIVE BUNDE said from his perspective, Mr. Matthews
addressed allocation issues. He said he can't understand how
allocation issues will not be fought out in federal court no matter
what we do.
MR. MATTHEWS responded that the only allocation issue the courts
will take up is subsistence use. They will not deal with sport or
commercial allocation. If we only manage to provide enough
critters for subsistence or sustenance use, there won't be enough
for other uses and that's vital to our culture and our economy.
REPRESENTATIVE BUNDE said people up the Yukon River fighting with
people at False Pass will be on federal land, the fish will go
through federal waters. He asked if that won't be decided in
federal court.
MR. MATTHEWS indicated there are two legal opinions. One is that
the Yukon chums don't spawn on federal lands, so it wouldn't be an
issue. He said, "I'm sure that we can take to federal court at a
subsistence issue. Yes, I concur with that."
Number 0814
BARBARA BROADWATER testified via teleconference from Mat-Su. She
referred the committee members to page 4, line 28, "A person
dependent on fish and game for personal and family use for
sustenance if the person...." She said this would eliminate
individuals such as disabled veterans that have a permanent sports
license. She said she believes these individuals should also be
included as well as (indisc.). There are many individuals that are
over 50 years old, who have permanent hunting licenses, that needs
to be addressed also because they're either on fixed incomes or
their life style is where they live off the meat. They should be
able to have an opportunity. Ms. Broadwater indicated there is
situation in Unit 14 where the Department of Fish and Game
allocates antlerless (ph) moose hunts, as well as any bull hunts to
nonresidents. She said they have a problem with their resources
dwindling. We have to realize that these are nonresidents. Either
the fees have to go up so that it makes it harder for them to be
able to hunt. We should start allocating our resources for
Alaskans. Commercial fishermen should be Alaskans. Alaskans
should look out for Alaskans and make it harder for nonresidents to
take our resources.
Number 0964
DONALD BROADWATER, also testifying via teleconference from Mat-Su,
said, "You legislators are supposed to be working for Alaskans.
Now why don't you keep an eye on fish and game." He explained his
concerns about people coming up from the Lower 48 to hunt Alaskan
resources.
Number 1014
DAN SENTZ testified via teleconference from Mat-Su. He stated he
appreciates a lot of the comments he has heard during the meeting,
but there is a theme that the ANILCA legislation has to do with the
rural preference. It is not a Native preference and that should be
kept in focus. Mr. Sentz said he understands customary and
traditional use and that goes for all people who have operated in
that life style. He believes that the problem is with ANILCA as it
includes language that we have to have a rural preference. He said
he believes it is important that the legislature operate under the
premise that we have to provide to all Alaskans that trusteeship,
and that nobody is going to be disenfranchise by any legislation
that comes out of Juneau. He said, "Also, we have to bear in mind
that it's competing uses, it's not competing people. And I think
that this bill, [CSHB] 406, if anything it makes that clear that
it's a competing use. And I, for one, believe that anybody who has
a need for that sustenance, if you want to call it subsistence or
sustenance, that they should have the first opportunity for it.
There is no legislation that protects that level of subsistence.
And I would like to see this bill go forward in the idea that
nobody is disenfranchised and that it provides a protection for
those who need the sustenance and that it's a product of competing
uses."
CHAIRMAN GREEN asked, "Do you feel that we're bargaining from a
position that would allow us to require, or request at least,
changes to ANILCA without giving up something?"
MR. SENTZ responded, "Well I think our position is stronger in the
past few weeks because there is less to give up because of the
Venetie case. You know I think there is going to ramifications
from that. And also I just heard today that the lawsuit on the
state managing its own resources is going to be held in Washington.
I think there is a very strong chance that we can win at that. I
think if we do anything that is too premature to compromise our
position prior to that lawsuit being done, then I think we may have
to give more. But I think if there is anything that we can give,
it needs to be on the side of the management of the game and the
projection of the resource, not the dividing up of the people."
Number 1261
CHAIRMAN GREEN asked Mr. Sentz if he feels there is a reasonable
expectation that we would get the results of the litigation in time
to meet the deadline that we're facing.
MR. SENTZ responded that he doubts it. He said if we're stampeded,
as a state, into settling for something that will not serve our
people well, it may not be in the best interest of the state. He
said, "I think if the federal government wants to manage our
resource that bad rather than change ANILCA, I think that we should
take the $41 million windfall and use it for the 8 or 10 or 6
months, or 12 months, that they want to try to manage it. I think
even if they're managing, ... as a state we can always come back
and lean on them and have them make the necessary changes so they
can unload that management to the state where it belongs. I for
one would rather sweat it out then to settle for something that is
irrevocable and then only to find that we could have done better."
Number 1350
REPRESENTATIVE PORTER asked Mr. Sentz if he would qualify as a
dependent use person under the bill.
MR. SENTZ responded that he probably wouldn't qualify in terms of
need. He noted he would qualify to assume that life style if he so
chooses.
REPRESENTATIVE PORTER asked if under his current situation, would
he feel disenfranchised if he was prohibited from being able to
hunt in a resource dependent area.
MR. SENTZ said he would if it was based upon where he currently
lives.
REPRESENTATIVE PORTER pointed out, "I'm saying under the bill."
MR. SENTZ stated he isn't sure he understands the question.
REPRESENTATIVE PORTER stated, "In the time of a shortage would be
the only time, under the bill, that there would be a limitation in
a dependent use area to just people qualified under the criteria in
the bill for subsistence use or use of sustenance. If you
currently do not qualify for that, my question is, 'Why are you not
feeling disenfranchised for not having that opportunity?'"
MR. SENTZ said he wouldn't feel disenfranchised. The opportunity
would still be there for him to qualify based on criteria that is
not specific, either by nationality, race or zip code. He said he
could go with the guidelines in the bill. Mr. Sentz referred to
the tier II drawings and said there are times that he isn't
selected. If he isn't selected, it doesn't have anything to do
with his race or where he lives. It has to do with other selected
factors.
REPRESENTATIVE PORTER asked Mr. Sentz if he was in Alaska prior to
statehood.
MR. SENTZ informed him he wasn't. He has been in Alaska about 19
years.
REPRESENTATIVE PORTER said, "You ought to talk to somebody that was
in terms of whether you think the feds would be manageable and
would leave if we asked them to."
MR. SENTZ stated, "I believe a very strong case can be made for
'Hell on Earth,' and that's probably the best description of it -
that one can give, is having federal management. I've heard older
people, who have been around, talk about it and I don't have an
answer for it but I think it's important that we, as a state,
operate in one voice to our legislator - legislators and that we
operate as one people. And the tyranny, if you will, and the
pressure of the federal government is really not gaining them any
points."
Number 1572
REPRESENTATIVE CROFT explained he is an urban resident who doesn't
qualify under the criteria in the bill. He pointed out that he
feels disenfranchised by the bill as the alternatives under the
bill are to essentially go on welfare or get an income level that
would qualify him for welfare. Under the Governor's proposal, it
would be move out to rural Alaska. Representative Croft said it
seems that if he moves to rural Alaska and lives the life style, he
will always have the option open. Under CSHB 406(RES), he would
have to go on welfare to do it. He asked, "Why isn't [CSHB] 406 a
worse disenfranchisement of me?"
MR. SENTZ informed the Representative Croft that he doesn't
understand the bill that way. He said it's his understanding that
only in times of shortage are those criterions used. The regional
groups or committees are a selection process, but where an
individual lives is only part of the criteria. Mr. Sentz referred
to having some Native friends who spend a lot of time in the larger
cities during the winter and during the summers they're at fish
camp. He asked if their residence was in Anchorage, would they be
denied from going home to help with the family fish camp.
CHAIRMAN GREEN said, "Resident's establishment might be a bit of a
problem." He indicated there were no further people to testify via
teleconference. He noted there were some people in Juneau who
would like to testify.
Number 1674
STEPHEN WHITE, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, came before the
committee. He explained he testified on CSHB 406(RES) the previous
Thursday before the House Resources Committee. He stated he
testified about one particularly troublesome constitutional issue
which has been removed. Mr. White said he would comment on a
couple of other constitutional issues. He indicated those issues
were pointed out by other people in the Department of Law that are
more versed in that area of law than he is. Mr. White referred to
the advisory vote, which appears in Section 37, and said it raises
three issues. He said, "The first legal issue presented by this
advisory vote basically which ... would have the (indisc.) of the
public comment on this bill and the changes to ANILCA is presented
under the constitution because the constitution prohibits a
delegation of lawmaking powers. Now whether this is a delegation
of lawmaking power is unclear at this point. In 1980, we wrote
some opinions concluding that an advisory vote of this nature would
probably not offend the constitution. However, since that time,
there has been several supreme court decisions that have reflected
on our ability - the public's ability to put forth legislation
through initiatives and referendums that seem to suggest that maybe
our court is - would be leaning in the other direction. So I think
that before we can make a conclusion about whether the advisory
vote violates that particular part of the constitution, we would
have to make an analysis based upon later court decisions and
determine whether this is one that would escape the prohibition or
whether there would be problems with it. And, again, I can't make
a conclusion at that point, but that's something we'll be looking
at...."
CHAIRMAN GREEN interjected that the legislature would be taking an
extended weekend. He said the committee would reconvene in a week.
He asked Mr. White if it would be possible for him to look into
that aspect and then come before the committee the following week.
MR. WHITE said he believes that Representative Berkowitz has asked
the author of the two opinions to update them.
Number 1829
MR. WHITE explained another attorney has said that the advisory
vote might have to be reviewed or be approved by the Justice
Department under the Voting Rights Act. He noted he isn't sure
what that would require. Mr. White explained the third concern has
to do with the language in the question that is actually presented.
There is an Alaska statute that says that any ballot propositions
have to be clear, concise and readable. That is a policy of the
state in AS 15.60.005. There is actually a test in that statute in
which you can take the language of anything that's deferred to the
public and score it to determine how clear the language is. Mr.
White pointed out that the attorney that is familiar with this area
subjected the language to a test and it came out with a score of
20. The state policy is have a score of at least 60 in order to
pass the policy expressed in that statute. He said he would
recommend that the language be more simple, clarified and concise
so the policy standards can be met in that statute.
CHAIRMAN GREEN asked if the score was 20 because it was too
complex.
MR. WHITE responded in the affirmative. He said the formula looks
at things like the number of large words and how many words are in
it. He said it is a compound question, so it loses points. It
looks at various factors. If the score is over 60, you would meet
the intent of that statute and if it's under 60, you don't. He
said it doesn't mean it would fail for any reason, it just doesn't
meet the policy. Mr. White said another point he wanted to raise
was that there are provisions in Section 12, page 13, which deals
with the legislature's confirmation of the members of the new
original boards. Under the constitution, the legislature may
specifically confirm members to only boards that have regulatory
and quasi judicial powers. In other words, boards would adopt
regulations (indisc.) which do some judicial function. He said he
believes the regional boards just have an advisory function. For
example, they look at subsistence proposals and applications for
people who wish to be subsistence users and merely pass on the
recommendations to the Board of Fisheries and the Board of Game,
who finally acts on them. In that sense, if they don't have
regulatory and judicial powers, then it would be improper for the
bill to provide that the legislature have confirmation powers over
those people. He noted it is fairly technical, but it was pointed
out to him and he decided to share it with the committee.
CHAIRMAN GREEN said if the bill were to pass in its current form,
it would require that in order for it to become an act we would
need to have all of the issues on page 24 approved by the
government. He asked Mr. White if any one of the issues were to
fail, would the whole thing fail.
MR. WHITE said because there is the word "and," he believes every
one of the conditions would have to be met in order for the
legislation to become effective.
Number 2050
CHAIRMAN GREEN said, "Having familiarity with ANILCA and the
conversations that we've had with our congressional delegates, do
you think there is a reasonable likelihood that we could get those
things done with the bill as it is drafted now? I know you can't
speak for the federal government but..."
MR. WHITE responded that a lot of those things are a result of
political events in Washington, which he couldn't predict at this
point.
Number 2080
REPRESENTATIVE JAMES said, "On the advisory vote issue and the fact
that, Mr. Chairman and Mr. White, the advisory question as to
whether or not we can do that to make law, which this does. In
other words, it says it isn't effective ... unless it passes muster
with the voters, is it possible to just have an effective date at
sometime after the election or at some later time whereby we could
take the advisory vote and then move on in an advisory capacity on
this piece of legislation? Having it failed, then we would
probably try to do something else."
MR. WHITE responded, "I think the problem comes when you actually
delegate, to the public, your legislative function, but if you go
to the public and ask them a question and then you later go back,
based upon what you hear, then you take the legislative function
back, I think that there is less of a problem in that regard."
REPRESENTATIVE JAMES asked if there is anything wrong with putting
out an advisory vote to the public. It's not the final decision,
it's just advisory.
MR. WHITE responded, "Right, I think, again, I'm speaking outside
my expertise, but it seems to me that if you're just seeking the
public's opinion on something, then you're going to use your
legislative power to act on it, you escape a lot of problems than
taking a legislative act and then saying, 'Well, it's going to
become effective or not depending on how the public later votes on
it.'"
REPRESENTATIVE JAMES referred to the problem with the word "rural"
and said it draws lines not necessarily where all the need is. It
sometimes captures the need that is not there on issues.
Representative James said "dependent use areas" is defined in the
bill which she believes draws lines. She explained George
Utermohle, the drafter of the legislation, said that the reason it
is constitutional is because even though they set up the dependent
use areas, and then they defined the shortage in that area at which
time it kicks in the priority, that anyone in the state can go to
the dependent use area and hunt. She said, "We heard your
testimony on the eat it where you shoot it issue where you believed
it was unconstitutional because defacto, it was also giving a
preference where they lived. And I'd like to have your opinion on
this other dependent use area because it seems to me like similar
because these welfare people, or those people with ... little money
could not go to these dependent use areas. So they probably
wouldn't be able to. Then the defacto fact of the matter is then
that we have given a preference to those people who live in the
area. You don't have to answer that for me right now, but is the
same issue and is that a problem?"
MR. WHITE said he guesses it's a matter of degree. He stated his
problem with the eat it where you shoot it provision is that he
thinks it would bar people who lived outside the area. They would
have no way at all to use the resource. On the other hand, the
supreme court in the Kenaitze decision said that when you have an
area where you exclude a certain use, a subsistence and a
nonsubsistence use areas, it makes it less convenient for people
living there to participate in subsistence because they have to go
outside the area to subsistence use elsewhere. The supreme court
did not equate that with being disqualified from the user group.
They just have to travel further and, therefore, they're not
prevented from using the resource because it's in some other area.
Mr. White said, "My problem with the other situation was it was not
just inconvenient and practically speaking they ... could not
participate in hunts, fishery because they could not take it
outside the area. Again, it's a matter of degree. When you get
past the degree, we're actually functionally preventing a person
from using the resource because of where they live. I was worried
the constitution...."
Number 2281
REPRESENTATIVE JAMES said a question brought to her by Jeffrey
Parker is he wanted to know whether the legislature can declare
constitutional law such as by stating that the taking of fish and
game for person sustenance is a fundamental right, which would
indicate that it's a constitutional basic right, which can't be put
in statute. She questioned what the consequences would be.
MR. WHITE responded, "I think I testified in the last committee
that when you establish it as a fundamental right, use of
subsistence for example, then you later attempt to qualify some
people and not qualify other people. Once the courts see it's a
fundamental right, they're going to be a lot less tolerant of the
lines that you draw, which comes to mind, for example, the income
level. ... The courts will look at that with very strict scrutiny
and ... measure that income issue against what the real purpose of
what subsistence is. And if there is not a good rational
relationship between the two, it's likely to have problems. So
that's the problem by defining something as that high of a right.
The courts really get in and say, 'We will allow that type of
discrimination, but only if that's the only discrimination that one
can think of that will accomplish the purpose that you have in mind
for it.'"
Number 2418
REPRESENTATIVE PORTER said another question that came up was
whether or not we have an equal protection problem, under the bill,
in relation to two people, one living in an urban area and one
living in a dependent use area, who would both qualify for
subsistence use under the criteria. Again, the rationale being
defacto, the poor person in Spenard is not going to be able to get
to Sleetmute. So he must compete in his area with all personal use
sport people under the bill, but there is a preference for the same
category of people in the dependent use area. He asked if that
would present a constitutional issue.
MR. WHITE responded, "Well, I think in practical application, if a
person in a - let's call it a urban nondependent area, because of
their income limitation which qualifies them for the use...."
TAPE 98-37, SIDE B
Number 0001
MR. WHITE continued, "....whatever in fish and game statistics you
see that that's the result, then someone could come in and say,
'Well, on the face of it, it looks fine, but practical application
discriminates us based upon our residency through our income
limitation and, therefore, you have a constitutional problem,' -
either equal protection or equal access, it doesn't matter they
both use the same kind of analysis."
Number 0020
CHAIRMAN GREEN asked, "If we were to pass the bill as it is now and
it gets by without a constitutional amendment, in your opinion
would you see where regulation ... where in order to accomplish
what we think we want to get done that you might have a statute
that passes muster, but the enabling regs to do it may have to
drift to the point where we would then be in a dilemma that maybe
we would be unconstitutional?"
MR. WHITE explained the Department of Law reviews all the
regulations and they look to see whether they are consistent with
the statute. They then make a second call on their
constitutionality; it's like a fail safe system. If anything
waivers towards unconstitutionality, even if it was arguably within
the intent of the bill, they would recommend that the boards not
adopt it. That is not to say that they wouldn't, but if they did
the department would try to defend it. It is sort of a two level
process.
Number 0088
KEVIN DELANEY, Director, Division of Sport Fish, Department of Fish
and Game, was next to come before the committee. He noted that
Mary Pete, Director, Division of Subsistence, was also with him.
Mr. Delaney said he would focus on Section 16.16.010, "Preferred
use of fish and game." He stated, "By statute, we're giving a
allocative preference on the use of fish and wildlife to...."
CHAIRMAN GREEN asked him what page that section is on.
MR. DELANEY said, "Page 2, the very bottom of page 2 at the very
beginning of the bill -- where a preference is given for personal
and family use for sustenance by residents - it's highest and best
use of the fish and game, established by statute herein and
instructions to the boards of fish and game to implement that
allocative priority, at any time that the harvestable surplus is
less than needed to accommodate all uses, which would include
sport, which in this case would be not predominately necessary, but
a high proportion of that use would be by nonresidents. It would
include guided sport. It would include commercial fishing in that
case." Mr. Delaney indicated he would be focusing on the practical
implications of trying to implement this in the nonsubsistence
zones. He informed the committee the nonsubsistence zones include
the Anchorage, Mat-Su, Kenai, Fairbanks, Juneau, Ketchikan, Valdez
areas. Mr. Delaney stated that he would focus on the Anchorage,
Mat-Su, Kenai nonsubsistence zone. Since the subsistence priority
is not addressed specifically in the bill, he can only lean back on
the way the boards have dealt with it in the past, which is on a
sock by stock basis. He referred to trying to implement that on a
stock by stock basis and said he would review the ones that are
going to have the most severe implications or would result in the
most change from the way things currently happen in Cook Inlet. He
noted that with fisheries, king salmon tops that list.
MR. DELANEY said, "The harvest potential of Alaskan residents to
take and consume king salmon is larger than the harvestable surplus
of king salmon in Cook Inlet today. Because of that, and because
of the board's desire, over years, to allow commercial harvest of
that species to some extent, and to allow nonresident to come and
participate in both our tourism industry and our guided sport
fisheries, we have regulations in place that limit the annual
harvest of Chinook salmon, by all anglers, to two fish on the Kenai
River, no more than five in Cook Inlet total, to only two out
Anchor, Deep Ninilchik, for the near-shore marine waters adjacent
there. The northern district commercial setnet fishery is allowing
anywhere from one to three or four periods early in the year with
a quota of no more than 12,500 fish. The central district
commercial fishery doesn't begin until essentially July 1, and
there is a management plan that governs what happens there in
response to the abundance of king salmon. What could happen there?
It is very likely that personal consumptive use by Alaskan
residents is going to drive all other uses out of business in a
very short period of time, if not immediately. The order in which
they would fall, I can't tell you, but certainly it's not only a
possibility - it's highly likely I would say. It's almost
improbable that would not occur. Rainbow trout, another species
that we manage for very, very limited yields - catch and release
fisheries, size limits, annual limit of no more than two fish over
20 inches. They cannot be taken commercially, they cannot be sold.
In a case like this, the personal consumptive fishery that could
occur by allowing all Alaskan residents to use these fish for food
would again jeopardize all other uses of these fish, which in this
case would be primarily the sport fishery that occurs is
participated in by nonresidents and guided fishermen. But just the
consumptive use alone could result in the shortening or closure of
most of these fisheries just to provide the harvestable surplus all
for harvest and for consumption."
Number 0312
MR. DELANEY referred to game and said there are antler restrictions
on moose. The purpose for those restrictions is to allow for all
beneficial uses to continue - spite fork are 50 inches and above.
He stated it is very easy to see if the entire harvestable surplus
moose in the Anchorage, Mat-Su, Kenai areas were allocated to just
feeing to Alaskan residents, they could make a case of, "Why should
I not be able to shoot moose that are between spike fork and 50?"
If that occurred, that would take an additional proportion of that
harvestable surplus, probably a large enough proportion over time,
that any guided hunting by nonresidents would cease to be allowed.
MR. DELANEY pointed out that another species is sheep. There are
full curl sheep restrictions in most of the hunts, in some there
are not. If this species was intended to be used to only feed
residents, a case could be made that, "If it's to eat, why should
we wait until they're all full curl rams? Why can't we take them
at some other point in their life?" Mr. Delaney said it is easy to
see, in that case, that the harvestable surplus would not be
sufficient to provide for food for all of our residents. It
certainly wouldn't be sufficient to allow for any guided hunting.
Mr. Delaney said, "That's the focus of my comments to you, it's not
intended to place a value on whether it's good or bad. It's just
to discuss with you and lay out for you what I believe what the
practical implications are of trying to put in statute a preference
for resident consumptive use."
Number 0398
REPRESENTATIVE BUNDE explained that what Mr. Delaney has said is
that by saying, "personal consumptive uses highest and best," and
asked if it would undermine current commercial sport use.
MR. DELANEY responded that under the current urban situation, the
definition of "nonsubsistence zones" speaks to a diversified
economy. Within that diversified economy exists diverse uses of
our fish and wildlife resources. People use them to eat. People
use them as the currency that we use to generate commerce. Some
people take people fishing, some people commercial fish and sell
the fish. These people then pay for their life styles and put
their children through college, et cetera, on the benefits that
they get through making use of our resources in that manner. Mr.
Delaney said he thinks it's this diversification that makes the
urban areas or nonsubsistence zones different. The boards have
struggled, but they have consistently attempted to balance these
competing uses while keeping them all in the game. Mr. Delaney
said a statutory preference for one removes the flexibility that
the boards have had and have struggled to use, but have used
nonetheless, to keep everybody in the game and produce diverse
benefits.
REPRESENTATIVE BUNDE said "A statutory provision for one, in this
case that you're discussing best and highest use, but would your
concerns also broaden out you say a statutory provision for one
group. Would this also impact our traditional management
patterns?"
MR. DELANEY responded in the affirmative. He pointed out that on
a stock by stock basis, which is the way that the subsistence
priority has been implemented in the rural areas of the state, you
would lose flexibility. It would destroy competing uses in the
urban areas.
REPRESENTATIVE BUNDE said, "Were we to have a rural preference, and
still the stock by stock management, this still would, in your
words, destroy the management system we've used?"
MR. DELANEY responded that it could. It would depend on how many
users were afforded the preference. There is in the current system
and under a number of the proposals the ability to modify the size
and shape of the nonsubsistence zones or the non-dependent use
areas. If careful attention was paid there, you could end up with
a situation where very few of the other uses were jeopardized. You
may compromise some ability to participate in subsistence
activities at the same time, but this is the balancing act that the
boards have attempted to accomplish over the years.
Number 0590
REPRESENTATIVE BUNDE said it has been postulated that there is
plenty of opportunity for subsistence fish now. There is just a
lack of fish in some areas. What we have is an allocation problem
and not an opportunity problem. It has been contended that these
allocation issues, particularly where you have migratory species
that cross federal, state and private land, would be argued in
federal court. We would essentially have the federal courts
deciding allocation, which is a major portion of management. He
asked if there is a merit to that point.
MR. DELANEY stated his sense is that if we allow the federal
government to begin management of subsistence fisheries on December
2, that is certain to occur. If we are somehow able to find our
way through this mine field and create a system that we can defend
in federal court, which is a legitimate question, then we'll be
arguing that out in our own board system. He noted he has a lot
more faith in that system.
Number 0685
MARY PETE, Director, Division of Subsistence, Department of Fish
and Game, came before the committee. She stated that CSHB 406(RES)
doesn't comply with ANILCA, so it wouldn't return unitary
management of Alaska lands and waters to the state. The major
criteria for qualification, the possession of a $5 hardship
license, would disqualify many rural residents that currently
engage in subsistence hunting and fishing, which runs counter to
ANILCA. Ms. Pete said she believes it would really undermine
subsistence economies. Subsistence economies are engaged in by
families and communities, not necessarily by individuals. They're
efficient, and in order to be efficient, you find able-bodied
people that can produce a lot in a short period of time. The whole
value of subsistence is being efficient to produce a lot of food
for the winter. So it's not just the act of harvesting, it's
processing and putting it away for the winter.
Number 0742
MS. PETE stated that finding an income level is very arbitrary
because there is no income level at which subsistence stops. There
is certainly preponderance of subsistence production among certain
income levels. The very wealthy in rural areas don't generally
engage in subsistence as they are busy doing their jobs, or they're
are a few highly paid seasonal jobs such as school teaching. She
said, "We found what we consider to be a 70/30 split in rural
communities. The 70/30 split means that 70 percent of the
subsistence output for the year, or the subsistence production for
the year is generate by 30 percent of the households. And in those
30 percent of the households, you have the most active hunters and
fishers that, by in large, have wherewithal - have the equipment,
the means, the money or their money is shared with them to produce
- to be high producers. And I would bet that many of the high
producers would fall above the poverty line. So any income level
is very arbitrary. It would destroy these well maintained
production consumption sharing patterns."
CHAIRMAN GREEN said, "If they were able to transfer the allotments,
would that still impact -- if I exceed the need because I may fall
above that line, but I take three or four allotments because of
infirman (ph) people or something else. Would that still cause
this problem with the concept that you've been giving us?"
MS. PETE responded that she supposes it depend on how that proxy
system was established. She explained that currently, high
producers share with infirm, elderly or those that can't hunt or
fish for themselves. They do it as a matter of course. There is
no bureaucracy that mandates or keeps track of it. It just
happens.
Number 0848
MS. PETE referred to another aspect of a needs based system and
said the pool of eligible users would change from year to year
depending on income. That would really be a difficult thing for
management to determine. When you have a class that changes from
year to year, depending on the number of jobs or the economic
situation, it makes it difficult for management planning.
Number 0898
REPRESENTATIVE PORTER said it is his understanding that the intent
of the bill is to overcome the McDowell and Kenaitze decision, in
terms of location, by setting up a preferential use rather than try
to discriminate among users. He asked, "Am I correct that in
general terms that that was the scheme, prior to McDowell, that the
users was not as important as a specific area, and the use then
within that area for the resource as basically for sustenance?"
MS. PETE stated that is correct. She added that the research that
they did as a division was on subsistence uses. Many people were
also involved in commercial fishing or if they used a rod and reel,
they needed a sport fish license. They couldn't say, "I'm a
subsistence user and only a subsistence user." It's the use that
they engaged in that was protected. She said, "I think it was Theo
Matthews that said if the feds had to, for example, in complying
with ANILCA, provide for only subsistence uses many people in rural
Alaska would be harmed by it because they're both commercial and
subsistence fishers. I think they'd be hard pressed to, in some
cases, determine which use they wanted to maintain because income
from commercial fishing underwrites their subsistence production.
So it's the use, not the user."
Number 1079
REPRESENTATIVE JAMES said some of the rural areas don't necessarily
practice the kind of subsistence life style Ms. Pete discussed. In
other words, they are on an individual basis and because they live
in an area that is located as rural, regardless of what their need
is, they're entitled. She said she suspects that also within the
communities there are the individual people too. She asked how
they fit into that family practice.
MS. PETE pointed out that under ANILCA, you need to be rural to
qualify, but just because you're rural it doesn't mean you qualify.
You need customary and traditional uses on top of being rural.
There are rural areas that don't qualify such as military bases.
Mining towns could found to be non-qualifying areas. A character
of your community has to have a tie to fish and game use. She
said, "And certainly and sort of classic, subsistence economies -
it's family based and community based. They're sharing throughout
the community. In the pre-McDowell system and essentially ... how
we're managing right now other than messing with all Alaskans under
tier II when we have to, we're finding that if people need fish and
game to support their families, they certainly are allowed to get
fish and game. Whether they share or not, if that becomes a
criterion, I think that would be a problem - if they're neighbor is
50 miles away and they can't share outside of the household. But
if they needed to support their families, as you all have said in
one form or another, that is sustenance."
REPRESENTATIVE JAMES asked if you have to have a special
subsistence license or a regular license.
MS. PETE explained that for hunting, everyone needs a license
whether they're subsistence or general hunting. For subsistence
fishing, you don't need a license.
REPRESENTATIVE JAMES said the bill seems to principally address
game and not so much fishing. She said the seasons and bag limits
that are available for the hunters is available for everyone that
lives in the rural areas. If somebody from outside the rural area
went to hunt, would they have the same seasons and bag limits.
MS. PETE indicated they would.
REPRESENTATIVE JAMES questioned what the subsistence advantage is
if anyone else can come in with the same hunting license and hunt
the same seasons and get the same bag limits without living there,
what is the real advantage that you have for being a subsistence
user.
MS. PETE said she believes the advantage is best seen in fisheries
as there are liberal bag limits. She said, "Also in hunting, short
of going to tier II when you did have rural preference, the Board
of Game could design seasons, methods, means and, in some cases,
bag limits more liberally, or restrict nonsubsistence users.
They'd still have access, but more restricted access. So there is
a way to manipulate subsistence hunts, those that were deemed to be
subsistence hunts, to favor local residents short of going to tier
II. Once you went to tier II, the clear advantage was you were the
last eliminate in times of a shortage."
Number 1421
REPRESENTATIVE BUNDE asked Ms. Pete how she defines "customary and
traditional."
MS. PETE responded that it is defined in statute and there are
eight factors. The most important that the boards use is long term
consistent pattern of use.
REPRESENTATIVE BUNDE said, "I'm trying to get my hands around long
term and where does it kick in and when does it stop. But as I
understand the Governor's proposal, ... when people in urban areas
complain they say, 'Simply move to a rural area and you can have
the same rights.' So in order to qualify for customary and
traditional, a urban resident that moves to rural doesn't qualify
until - one generation, two generations, three generations?"
MS. PETE said the boards have made those determinations. She
thinks it depends on the type of use. In some cases, it has just
been one generation in the mix of the population.
REPRESENTATIVE BUNDE said when someone moves from rural to urban,
when do they lose customary and traditional.
MS. PETE responded it's an immediate qualification or
disqualification.
Number 1532
MR. DELANEY said when the boards had made a determination of
whether or not there was customary and traditional use, they have
used various periods of time, anywhere from 5-year period of time
to a couple of generations. It's been a case-by-case basis and
it's variable. When an individual moves from an urban area to
rural area, they immediately become eligible to participate in
those subsistence opportunities that exist there. When an
individual moves from a rural area into an urban area, they
immediately are disqualified from participating.
MS. PETE stated that currently, because all Alaskans qualify, it
doesn't matter where you live if the harvestable surplus
accommodates everyone.
REPRESENTATIVE BUNDE said, "Much like the person the rural area,
who is a person of means or has the equipment, a person in the
urban area, who also may be the person with more money and who buys
more licenses, buys more equipment, makes a greater contribution
toward the management of our fish and game through the taxes, the
Pittman/Robinson taxes that they pay on the equipment they buy,
they may be very supportive of our fish and game. And my problem
is then - I have to tell them that they don't have equal
opportunity even though they are much like the rural person who is
the more efficient harvester. They are the greater supporter of
our fish and game and (indisc.), and I have to tell them that they
don't have equal opportunity, and that's difficult for me to do and
I'm looking for help."
MS. PETE responded that currently, because all Alaskans qualify,
once the McDowell decision came into effect there was a
proliferation of tier II hunts. So, in effect, there was less
opportunity for urban residents. She said if we could go back to
some kind of distinguishing criterion to differentiate among rural
and non-rural, she would imagine a majority of the tier II hunts
would disappear and be replaced by drawing permits, or other means
to provide more opportunity for urban residents. Ms. Pete said
because all Alaskans qualify, they have had to resort to tier II
because the available resources can't meet the demand of all
Alaskans.
REPRESENTATIVE BUNDE said, "And that leads to my final point, and
if I might Mr. Chairman, and that is that there is never not a
shortage. So would subsistence preference, as conceptualized in
the Governor's task force proposed amendment, subsistence
preference would always be in effect."
REPRESENTATIVE BERKOWITZ interjected, "Point of order, Mr. Chair,
are we going to talk about that bill? Because I'd like to."
Number 1772
CHAIRMAN GREEN responded in the negative and noted that bill is not
before the committee.
REPRESENTATIVE BUNDE asked if there isn't any time that there is
not a shortage.
MS. PETE stated that she would agree there is always a shortage
because we have seasons and bag limits for everything.
Number 1797
REPRESENTATIVE CROFT referred to CSHB 406(RES) and questioned if
there will be a shortage situation almost all the time under the
definition in the bill regarding the shortage criteria.
MS. PETE responded that it would depend on the pool of eligible
people.
REPRESENTATIVE CROFT indicated there are two different criterions
in the bill on page 3, line 3, (b), and on page 4, line 13, (b).
He said he isn't sure he understands which is the more restrictive
or which applies on more situations. He referred to the wording on
page 3, "projected level of a fish stock or game population in an
area would exceed the sustainable level of harvest under the
sustained yield principle,". He said he would guess that the
author means that if all the competing uses got what they wanted or
what they could conceivably take, and everybody could be
accommodated with sustained yield, then there would not be a
preference under page 3, (b). Representative Croft asked if
"projected level of harvest exceed sustainable level of harvest" is
the standard situation.
Number 1898
MR. DELANEY responded that the Board of Fisheries and the Board of
Game, through their deliberations, established situational
definitions for sustained yield. In all cases, under the state
system, they attempt to achieve fairly high levels of sustained
yield so that as many beneficial uses as possible can participate
in the harvest. He noted there is certainly the harvest potential
between combined beneficial users of all fish and game stocks to
harvest the entire harvestable surplus. Because of that, we have
seasons and bag limits in all cases. To some degree, with some
species, you can accommodate a preferential use by continuing to
reallocate from other uses, but that can only occur to a point
where the preferential use is capable of taking the entire
harvestable surplus of that stock by itself. Therein lies the real
problem in implementing this concept, especially in the
nonsubsistence zones where a bulk of Alaska's population lives.
Number 2075
REPRESENTATIVE PORTER said the rural preference of ANILCA is aimed
at the kind of rural designation that includes the ability to say
what the normal area characteristics are, which includes whether
most of the people have a subsistence life style and the economy of
the area, et cetera. He asked, "Would you think that the way we
had managed subsistence areas was consistent with ANILCA's rural
preference?"
MS. PETE responded, "Yes, because in implementing the subsistence
law, even our current law, we go through a process of determining
customary and traditional uses. And if there are no customary and
traditional uses, there is no subsistence."
REPRESENTATIVE PORTER pointed out that CSHB 406(RES) establishes
dependent use areas and has a criteria set up for how to establish
those areas. He asked if that criteria is generally consistent
with how it has been done.
MS. PETE said, "The current law says, 'a principle characteristic'
rather than 'the principle characteristic', because 'a principle'
is vague. This specifically says '50 percent or greater.' Exactly
how that would impact determinations of areas...."
REPRESENTATIVE PORTER said, "I guess what I'm trying to get at is
that ANILCA recognizes -- if we could make them say it correctly,
they probably would allow us to make a determination on a
subsistence area along the way - along the general guidelines that
we had been, or that are in this bill. They wouldn't require that
anything that's non-urban is rural, and consequently is a
subsistence area."
MS. PETE said she would imagine that Representative Porter is
correct.
Number 2304
REPRESENTATIVE BERKOWITZ referred to page 5 of the bill and said
there is a lot of discussion on fish and game dependent life style.
He explained the way he reads "dependent," based on its context in
other parts of the bill is that it means 51 percent. He asked Ms.
Pete if that is consistent with how she reads it.
MS. PETE responded, "Yeah, because the definition of principle is
more than 50 percent."
REPRESENTATIVE BERKOWITZ referred to page 5, Section (2)(A), and
said it would be hard for him to determine how someone who is
living in Anchorage could be dependent on fish and game for
personal and family use. He asked Ms. Pete if she know of any
instances of people like that.
MS. PETE responded that she didn't know of anyone in Anchorage.
She said she imagines there are people in nonsubsistence areas,
such as Fairbanks. She said, "We heard in public testimony
examples of people and probably from local people's perspective fit
this description. In a place like Anchorage, I would figure it
would be difficult to maintain this life style because of ...
equipment requirements."
REPRESENTATIVE BERKOWITZ said, "(B)(i), is clearly a cash-based
economy, (indisc.) any place within ready driving range of
Anchorage would be a cash-based economy it would seem to me...."
TAPE 98-38, SIDE A
Number 0001
REPRESENTATIVE BERKOWITZ said that essentially, nobody in Anchorage
could qualify for subsistence under the bill.
MS. PETE stated it would be very hard to qualify. They could avow
to qualify because they would present a signed written statement
that they do.
REPRESENTATIVE BERKOWTIZ said that Representative Ogan spoke about
median incomes, in certain areas, as influencing the decision of
whether to declare them dependent use or not.
MS. PETE said, "In a community it means 50 percent of income
producers fall below that point and 50 percent fall above that
point, which is really not a very good way to characterize income
in an area or community. Average income is a better measure, and
in terms of trying to measure sort of a economic wage earning
capability, income is not the totality of (indisc.). A community's
economy is and we need to look at the number of jobs, ... the level
of unemployment over a sustained period of time. In fact, in many
rural communities you tend to have a bimodal income distribution.
The median may be relatively high by sort of statewide standards,
but the stretch between the median and the actual lowest income is
very long, and the lowest income is very, very low, and the stretch
on the other side - the upper end is very short. So you have the
50 percent that's above, it's really crunched. So you have a real
interesting bimodal income picture where this upper part is very
crunched and lower portion is very long. So it makes more sense to
use average income rather than median income."
CHAIRMAN GREEN thanked Ms. Pete and Mr. Delaney for answering
questions.
Number 0279
ROBERT WILLARD, Jr., Alaska Native Brotherhood (ANB); Member,
Executive Committee, Southeast Native Subsistence Board, came
before the committee to testify. He said that CSHB 406(RES) would
deal a very severe blow to the cultures of the Alaska Native tribes
that are dependent upon uses of wild renewable resources. Mr.
Willard stated that they object to the change of the term
"subsistence." There are at least 51 or 52 references to the term
"sustenance." Sustenance implies a welfare type program for the
bear minimum for survival. He discussed how the boards are also
authorized to establish additional criteria if they so desire.
There is then the process of application that a person would have
undergo to prove eligibility status. Mr. Willard informed the
committee members of tribal customs, within the Tlingit culture,
when a tribal member is deceased, and how the legislation would
conflict with the culture. He discussed problems between tribal
law and state law. Mr. Willard pointed out in 1980, the federal
subsistence board designated all communities in Southeast Alaska to
be rural and subsistence eligible except for Juneau and Ketchikan.
The legislation would require that each community undergo a
qualification process, and the ANB objects to this cumbersome
process. Under Title VIII of ANILCA, the regional council is
comprised of persons who have knowledge of the area, subareas,
terrain, dynamics of the species and the subsistence needs of the
communities within the region. Under the legislation, the regional
council in the community would examine the qualification process of
individuals. They do not believe this should be involved as the
council is sure to address only resource management. He indicated
that there are Tlingit elders that posses knowledge of the areas,
terrain and resources. He said he would pit any of the elder's
knowledge against any scientists or biologists any day of the week.
The ANB objects to recommended changes to Title VIII of ANILCA.
Number 0904
REPRESENTATIVE PORTER said, "It hasn't been said yet, and I guess
it probably should be for the record. There are some folks that
would love to go back to the way it was. We don't have that
ability. We cannot write a law to give your tribe a preference.
We can't write a law that distinguishes between people by their
race. The only folks that could do that is the federal government
in their relationship with the tribes and they chose, for whatever
reason, to do that. So what we have to do is try to get something
as close as possible to provide you with what you need, but not say
it that way. And that's why this effort is so confusing."
REPRESENTATIVE BERKOWITZ said, "I think what Representative Porter
has said illustrates why this problem, in spite of a lot of
rhetoric to the contrary, is not a Native problem. It's the
problem for the state. If it were solely a Native problem, it
seems to me, then the rural preference under ANILCA federal
takeover option would be one that Native organizations endorse
wholeheartedly. But because the Native organization that I've been
in contract with have expressed a desire to continue state
management of fish and game, it seems clear to me that they're
looking for a solution that allows Alaskans to control fish and
game, ... which brings it back to it being our responsibility, as
representing all Alaskans, to solve this problem in an Alaskan way
- not a question of Native or non-Native, but how to keep the
federal government from managing our fish and game resources. And
that ought to be the focus of what we attempt to do."
Number 1026
REPRESENTATIVE CROFT pointed out that if Congress get so frustrated
with our inability or lack of will to protect the subsistence way
of life in rural Alaska, they can very easily make it Native.
We're playing with fire in an attempt to fine-tune something that
we could lose.
TOM LACKISH (ph), testified via teleconference from Anchorage. He
stated a solution for this problem is fairly complex and he would
suggest some amendments. He said the bill goes in the right
direction to create public purposes and beneficial uses. Mr.
Lackish stated he would suggest that local subsistence use be
equivalent to indigent use, that there be non-local subsistence
use, that there be customary and traditional trade, that there be
commercial use and recreational use. He discussed the judge's
findings in the Kenaitze case. As an accommodation for the
commercial fishermen and also the guides, he would suggest that be
given a right to guide subsistence users. For example, all
commercial fishermen and river guides would be given a permit to
guide subsistence users or take their proxies and then (indisc.)
their fish. Commercial fishermen just want to get their money for
their fish and the people just want their fish, they want to be
able to eat. This scenario would also help alleviate some of the
management problems where there would be a lot of people all trying
to all go out and catch fish. He said this would allow everybody
to get their fish and game in their freezers and would allow
commercial fishermen to advertise their permits and their gear. He
thanked the committee for the opportunity to testify.
Number 1366
CHAIRMAN GREEN indicated there were no further witnesses to
testify. [CSHB 406(RES) was held over for further consideration.]
ADJOURNMENT
Number 1366
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 6:21 p.m.
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