Legislature(1997 - 1998)

04/06/1998 01:10 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                   April 6, 1998                                               
                     1:10 p.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Con Bunde, Vice Chairman                                        
Representative Brian Porter                                                    
Representative Norman Rokeberg                                                 
Representative Jeannette James                                                 
Representative Eric Croft                                                      
Representative Ethan Berkowitz                                                 
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Joe Green, Chairman                                             
                                                                               
OTHER HOUSE MEMBERS PRESENT                                                    
                                                                               
Representative Reggie Joule                                                    
Representative Albert Kookesh                                                  
Representative William K. (Bill) Williams                                      
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
HOUSE BILL NO. 451                                                             
"An Act relating to assistive technology devices and mobility aids             
for physically disabled persons."                                              
                                                                               
     - MOVED CSHB 451(JUD) OUT OF COMMITTEE                                    
                                                                               
HOUSE BILL NO. 406                                                             
"An Act relating to subsistence uses of fish and game."                        
                                                                               
     - MOVED CSHB 406(JUD) OUT OF COMMITTEE                                    
                                                                               
* HOUSE JOINT RESOLUTION NO. 66                                                
Proposing amendments to the Constitution of the State of Alaska                
relating to subsistence uses of fish and wildlife by residents; and            
providing for an effective date and repeal of the subsistence                  
amendment.                                                                     
                                                                               
     - SCHEDULED BUT NOT HEARD                                                 
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL:  HB 451                                                                  
SHORT TITLE: ASSISTIVE TECHNOLOGY & MOBILITY AIDS                              
SPONSOR(S): REPRESENTATIVES(S) GREEN, Davies, Berkowitz                        
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 2/18/98      2361     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 2/18/98      2361     (H)  L&C, JUDICIARY                                     
 3/06/98      2552     (H)  FIRST COSPONSOR:  DAVIES                           
 3/11/98               (H)  L&C AT  3:15 PM CAPITOL 17                         
 3/11/98               (H)  MINUTE(L&C)                                        
 3/27/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/27/98               (H)  MINUTE(JUD)                                        
 4/03/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/03/98               (H)  MINUTE(JUD)                                        
 4/03/98               (H)  L&C AT  3:15 PM CAPITOL 17                         
 4/03/98               (H)  MINUTE(L&C)                                        
 4/06/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
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)                     
 3/06/98      2539     (H)  REFERRED TO JUDICIARY                              
 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                        
 3/11/98               (H)  MINUTE(JUD)                                        
 3/18/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/18/98               (H)  MINUTE(JUD)                                        
 3/20/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/20/98               (H)  MINUTE(JUD)                                        
 3/23/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/23/98               (H)  MINUTE(JUD) (MTG CANCELLED)                        
 3/25/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/25/98               (H)  MINUTE(JUD)                                        
 3/27/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/27/98               (H)  MINUTE(JUD)                                        
 3/28/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/28/98               (H)  MINUTE(JUD)                                        
 3/30/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/30/98               (H)  MINUTE(JUD)                                        
 3/31/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/31/98               (H)  MINUTE(JUD) (MTG CANCELLED)                        
 4/01/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/01/98               (H)  MINUTE(JUD)                                        
 4/02/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/02/98               (H)  MINUTE(JUD) (MTG CANCELLED)                        
 4/02/98               (H)  FIN AT  1:30 PM HOUSE FINANCE 519                  
 4/03/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 4/03/98               (H)  MINUTE(JUD)                                        
 4/03/98               (H)  FIN AT  1:30 PM HOUSE FINANCE 519                  
 4/06/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
JEFFREY LOGAN, Legislative Assistant                                           
   to Representative Joe Green                                                 
Alaska State Legislature                                                       
Capitol Building, Room 118                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-6841                                                     
POSITION STATEMENT:  Presented CSHB 451(L&C) on behalf of sponsor.             
                                                                               
ROBERT BRIGGS, Staff Attorney                                                  
Disability Law Center of Alaska                                                
230 South Franklin, Number 209                                                 
Juneau, Alaska  99801                                                          
Telephone:  (907) 586-1627                                                     
POSITION STATEMENT:  Testified on CSHB 451(L&C); proposed                      
                     amendment.                                                
                                                                               
PATRICK REINHART, Executive Director                                           
Statewide Independent Living Council                                           
Department of Education                                                        
1016 West 6th Avenue, Suite 102                                                
Anchorage, Alaska  99501                                                       
Telephone:  (907) 272-8244                                                     
POSITION STATEMENT:  Testified in support of CSHB 451(L&C).                    
                                                                               
THEODORE POPELY, Legislative Assistant                                         
   to House and Senate Majority                                                
Alaska State Legislature                                                       
Capitol Building, Room 208                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-3720                                                     
POSITION STATEMENT:  Answered questions on CSHB 406(JUD).                      
                                                                               
RON SOMERVILLE, Contractor                                                     
   to House and Senate Majority                                                
4506 Robbie Road                                                               
Juneau, Alaska  99801                                                          
Telephone:  (907) 463-3830                                                     
POSITION STATEMENT:  Answered questions on CSHB 406(JUD).                      
                                                                               
WILLIAM MILLER                                                                 
P.O. Box 2262                                                                  
Dot Lake, Alaska  99737                                                        
Telephone:  (907) 883-5138                                                     
POSITION STATEMENT:  Testified on CSHB 406(JUD).                               
                                                                               
MARY C. PETE, Director                                                         
Division of Subsistence                                                        
Department of Fish and Game                                                    
P.O. Box 25526                                                                 
Juneau, Alaska  99802-5526                                                     
Telephone:  (907) 465-4147                                                     
POSITION STATEMENT:  Answered questions on CSHB 406(JUD).                      
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-56, SIDE A                                                             
Number 0001                                                                    
                                                                               
VICE CHAIRMAN CON BUNDE called the House Judiciary Standing                    
Committee meeting to order at 1:10 p.m.  Members present at the                
call to order were Representatives Bunde, Porter, Rokeberg, James,             
Croft and Berkowitz.  Representative Green was excused because of              
illness; Vice Chairman Bunde announced that he and Representative              
Berkowitz would chair the meeting in his absence.                              
                                                                               
HB 451 - ASSISTIVE TECHNOLOGY & MOBILITY AIDS                                  
                                                                               
Number 0060                                                                    
                                                                               
VICE CHAIRMAN BUNDE announced the first item of business would be              
HB 451, "An Act relating to assistive technology devices and                   
mobility aids for physically disabled persons."  Before the                    
committee was CSHB 451(L&C).                                                   
                                                                               
Number 0076                                                                    
                                                                               
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,              
Alaska State Legislature, presented CSHB 451(L&C) on behalf of                 
Representative Green, prime sponsor.  He explained that it                     
establishes an express warranty for technology designed to assist              
physically disabled persons.  Assistive technology and mobility                
aids for the physically disabled are not covered by "lemon laws"               
and consumer protection statutes in Title 45.  The automobile lemon            
law in Chapter 45 makes no mention of wheelchairs.  Similarly, the             
Unfair Trade Practices and Consumer Protection Act found in Chapter            
50 makes no mention of assistive technology for the physically                 
disabled.                                                                      
                                                                               
MR. LOGAN informed members that eleven states have passed such                 
laws; two others, including Alaska, are considering doing so.  He              
directed members' attention to a sectional description in committee            
packets.                                                                       
                                                                               
Number 0176                                                                    
                                                                               
VICE CHAIRMAN BUNDE asked whether opposition was heard in previous             
committees.                                                                    
                                                                               
MR. LOGAN replied that in the previous two hearings in the House               
Labor and Commerce Standing Committee, there was no stated                     
opposition, and the only testimony was positive.  A number of                  
people had testified, including representatives of the Statewide               
Independent Living Council, Access Alaska, and the Department of               
Health and Social Services.  In addition, other individuals not                
associated with a group had testified in favor of the bill.                    
                                                                               
Number 0235                                                                    
                                                                               
VICE CHAIRMAN BUNDE asked whether they had heard from manufacturers            
of equipment for the disabled.                                                 
                                                                               
MR. LOGAN said they had not.                                                   
                                                                               
Number 0270                                                                    
                                                                               
REPRESENTATIVE ERIC CROFT asked what changes were made in the House            
Labor and Commerce Standing Committee.                                         
                                                                               
MR. LOGAN answered that the first change is on page 2, line 7.                 
That entire line was added to conform to changes on page 5,                    
beginning at line 27, and carrying on to page 6, through line 10.              
Mr. Logan explained, "The Labor and Commerce Committee decided, as             
a matter of commercial policy, as it were, that it would be good to            
define more clearly what collateral costs were.  In the original               
version of the bill, that was a rather open definition.  Chairman              
Rokeberg in Labor and Commerce requested the language to tighten               
that up.  In doing so, we noted that the collateral costs referred             
back to [AS] 45.45.620 in the bill, which was returns and refunds,             
but not repairs.  So, that's why the language on line 7 of page 2              
was added, to make sure that the collateral costs incurred by the              
consumer will be covered by the manufacturer for return of                     
assistive technology for refunds or repairs."                                  
                                                                               
Number 0409                                                                    
                                                                               
ROBERT BRIGGS, Staff Attorney, Disability Law Center of Alaska,                
came forward to testify, specifying that he represents people with             
disabilities on legal matters relating to their disabilities.  He              
told members that complaints arise from time to time when someone              
has purchased an assistive technology device or a device for a                 
wheelchair, for example, that doesn't work.  Frequently these                  
devices are quite expensive, and the persons involved don't have               
the economic means to battle a manufacturer located out of state.              
                                                                               
MR. BRIGGS said HB 451 addresses this problem in a way that he                 
believes is good.  It creates a balance in the relative economic               
positions of the purchaser and seller.  It also provides certainty             
in how those kinds of disputes can be resolved.  In particular, it             
defines how the expenses should be reimbursed when someone's                   
wheelchair or other assistive device does not work and needs to be             
returned or repaired.  "I think it is fair and balanced in its                 
approach, both from the standpoint of a manufacturer and also from             
the standpoint of a purchaser," he added.                                      
                                                                               
Number 0525                                                                    
                                                                               
MR. BRIGGS asked that the committee consider tightening up the                 
definition of "dealer."  He noted that this is a manufacturer's                
warranty.  On page 7, lines 11 through 15, there is a definition of            
"manufacturer" that is fairly straightforward and clear, but it                
specifically does not include a dealer.  On page 6, lines 22                   
through 23, a dealer is somewhat broadly defined as someone in the             
business of selling assistive technology devices or mobility aids.             
Mr. Briggs suggested adding the phrase, "without assembly or                   
modification", to clarify that someone who changes or puts together            
a device in a way that could render the device nonconforming would             
fall within the manufacturer's warranty and therefore would have               
the obligations under this bill.                                               
                                                                               
Number 0585                                                                    
                                                                               
VICE CHAIRMAN BUNDE asked whether wheelchairs, for example, arrive             
at the dealer assembled.                                                       
                                                                               
MR. BRIGGS said no, they typically require assembly.  Sometimes,               
especially for electric wheelchairs, they require custom                       
modifications.  He cited an example.  Mr. Briggs then said as he               
reads through the definitions of "manufacturer" and "dealer," he               
would put the person who makes those modifications, and who selects            
and installs the switches, in the category of a manufacturer.                  
                                                                               
MR. BRIGGS stated, "And certainly, if I were involved in a dispute             
between a manufacturer and a dealer, I would expect the                        
manufacturer to say, 'If there's a problem with the switch, it's               
the problem of the person who put that switch on, not mine.'  And              
under the bill, I think the original manufacturer of the chair                 
would fit within the definition; it's less clear whether someone               
who makes a local modification would fit within that definition."              
                                                                               
MR. BRIGGS urged members to clarify responsibility in the bill as              
much as possible.  He explained, "First of all, we don't want to               
impose extra expense of manufacturers that is unnecessary if you               
can make it clear.  And the people involved don't have the expense             
to get involved in great litigation.  And so, the clearer you can              
make the definition between 'manufacturer' and 'dealer,' the                   
better."                                                                       
                                                                               
Number 0720                                                                    
                                                                               
REPRESENTATIVE PORTER asked to hear the suggested wording again.               
                                                                               
MR. BRIGGS said on page 6, line 23, following the words, "mobility             
aids," he would add the phrase, "without assembly or modification".            
                                                                               
Number 0750                                                                    
                                                                               
VICE CHAIRMAN BUNDE suggested that virtually eliminates dealers,               
because they all assemble.                                                     
                                                                               
MR. BRIGGS replied that for some wheelchairs that is true; for                 
other devices, he doesn't know.                                                
                                                                               
Number 0814                                                                    
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ pointed out that "assemble" is                  
generic language.  He has a friend who flies disabled people                   
around, and it is necessary to break down the wheelchairs to put               
them in a small airplane, for example.  Representative Berkowitz               
referred to page 7, line 11, and suggested that under this                     
definition of "manufacturer," that friend would be assembling.                 
                                                                               
MR. BRIGGS proposed that it could be tightened up a bit by saying              
something like, "who manufactures or assembles for first use".                 
                                                                               
Number 0824                                                                    
                                                                               
REPRESENTATIVE NORMAN ROKEBERG asked whether it would help to add              
"modifies" after "manufactures" on line 11, to make sure they pull             
in the dealer who is modifying a device.                                       
                                                                               
VICE CHAIRMAN BUNDE said, "Rather than change the definition of a              
dealer ...."                                                                   
                                                                               
REPRESENTATIVE ROKEBERG said they could do "dealer" also, but this             
catches the modification aspect of it.  The dealer would become a              
manufacturer for purposes of this section, if the dealer actually              
modified the device, for which he should be responsible for repairs            
or if it was faulty.                                                           
                                                                               
Number 0895                                                                    
                                                                               
REPRESENTATIVE ROKEBERG made a motion to add the word "modifies"               
after "manufacturers" on page 7, line 11.                                      
                                                                               
VICE CHAIRMAN BUNDE asked Mr. Logan whether he sees any problem                
with that.                                                                     
                                                                               
MR. LOGAN replied, "To the extent that it is the desire of the                 
sponsor to clarify responsibilities as to these types of costs and             
who pays them, I think this gets to that end."                                 
                                                                               
Number 0938                                                                    
                                                                               
VICE CHAIRMAN BUNDE asked whether there was any objection to                   
Amendment 1.  There being none, Amendment 1 was adopted.                       
                                                                               
VICE CHAIRMAN BUNDE asked the committee's wish regarding the                   
dealer.                                                                        
                                                                               
REPRESENTATIVE ROKEBERG said he wouldn't object to the suggested               
modification if it is okay with the sponsor.                                   
                                                                               
VICE CHAIRMAN BUNDE clarified to Mr. Logan that they were                      
discussing a  potential amendment, to expand the definition of                 
"dealer" to read, "means a person who is in the business of selling            
assistive technology devices or mobility aids without assembly or              
modification".                                                                 
                                                                               
MR. LOGAN told members that to the extent that the intent is to                
clarify who should be responsible for assuming some of these costs,            
this again goes to that end; he believes it would be acceptable to             
the sponsor.                                                                   
                                                                               
VICE CHAIRMAN BUNDE asked Representative Berkowitz whether that                
would remove his concern.                                                      
                                                                               
REPRESENTATIVE BERKOWITZ said that handles it with the dealer                  
question, but his problem was with "manufacturer."  However, that              
solution would also work for that.                                             
                                                                               
Number 1038                                                                    
                                                                               
REPRESENTATIVE BRIAN PORTER made a motion to adopt Amendment 2, to             
add, "without assembly or modification" after "mobility aids" on               
page 6, line 23.                                                               
                                                                               
VICE CHAIRMAN BUNDE asked whether there was any objection.  There              
being none, Amendment 2 was adopted.                                           
                                                                               
Number 1055                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3, on                
page 7, line 11, so that following "person who" that line would                
read:  "is in the business of manufacturing, modifying or                      
assembling".                                                                   
                                                                               
REPRESENTATIVE PORTER asked the purpose of that.                               
                                                                               
VICE CHAIRMAN BUNDE explained that it is so that somebody who must             
disassemble and reassemble a wheelchair for a person being                     
transported is not in "the warranty business."                                 
                                                                               
Number 1098                                                                    
                                                                               
REPRESENTATIVE JEANNETTE JAMES said she would think that if the                
disabled person had a perfectly good, working wheelchair that was              
disassembled and then no longer worked, this doesn't relieve the               
person who did that from liability.                                            
                                                                               
REPRESENTATIVE BERKOWITZ replied that there would still be                     
liability, but it wouldn't be a warranty situation.                            
                                                                               
REPRESENTATIVE JAMES asked what the recourse of the disabled person            
would be.                                                                      
                                                                               
REPRESENTATIVE BERKOWITZ answered that it would be the same as for             
anybody else who suffered a tort.                                              
                                                                               
REPRESENTATIVE JAMES asked, "You would have to sue?"                           
                                                                               
REPRESENTATIVE BERKOWITZ replied, "Well, you could do that. ...If              
I break something of yours, you could say I've broken it, and I'd              
probably offer to pay for it. ... Even with the warranty, suit is              
an option."                                                                    
                                                                               
Number 1162                                                                    
                                                                               
REPRESENTATIVE JAMES said this whole bill is to make it easier for             
people who are disabled to get their just due, without having to go            
to extensive lengths.  She agreed that a pilot who did this, for               
example, would certainly want to volunteer to pay for it.  She said            
she didn't know that they need to fix that in here, but it seems               
that the person ought not to have to sue to get his payment.  She              
concluded, "And even in a warranty position, you may still have to             
sue; but at least if the statute is very clear that it is                      
authorized and/or directed, that might tend to them to not to sue,             
or not to have to sue."                                                        
                                                                               
REPRESENTATIVE PORTER said he understands what Representative James            
is getting at, but the bill is getting at folks that sell to the               
disabled person.  And the person that the amendment is trying to               
protect is not in that category; that person would have handled it             
as a taxi driver, pilot or friend might do.                                    
                                                                               
Number 1241                                                                    
                                                                               
VICE CHAIRMAN BUNDE asked whether there was any objection to                   
Amendment 3.  There being none, Amendment 3 was adopted.                       
                                                                               
Number 1275                                                                    
                                                                               
PATRICK REINHART, Executive Director, Statewide Independent Living             
Council, Department of Education, testified via teleconference from            
Anchorage.  He said the council supports the bill, and they had                
asked that this type of legislation be introduced a couple of                  
months ago.  They had brought the idea of this bill up primarily               
because of the many consumers across the state who had told them               
about purchasing certain pieces of assistive devices and being                 
"ripped off" one way or another, especially from out-of-state                  
dealers and manufacturers.  Mr. Reinhart added that this really                
hasn't been a problem with in-state dealers, which he suggested may            
be why they haven't heard much from those dealers.                             
                                                                               
MR. REINHART told members, "I don't think that there's going to be             
anybody who wouldn't be supportive of guaranteeing some warranty               
for devices that cost the amount of money that some of these                   
devices do cost."  He suggested this bill could save the state                 
money in a couple of different ways, primarily in that a lot of                
equipment is purchased through third parties and state entities.               
For example, Medicaid, the Division of Vocational Rehabilitation,              
and the Division of Mental Health and Developmental Disabilities               
purchase this equipment on behalf of consumers.  When it is bought             
by a third party, there really isn't someone to follow through when            
a device isn't working right, or if someone is due a refund or                 
repair that is not being made.  "So, I think this will certainly               
add some incentive for state entities that are working to buy                  
consumer equipment, and helping the consumers follow through when              
something isn't working the way it should," he concluded.                      
                                                                               
Number 1378                                                                    
                                                                               
REPRESENTATIVE JAMES made a motion to move CSHB 451(L&C), as                   
amended, with individual recommendations and attached zero fiscal              
note.                                                                          
                                                                               
VICE CHAIRMAN BUNDE asked whether there was any objection. There               
being none, CSHB 451(JUD) was moved from the House Judiciary                   
Standing Committee.                                                            
                                                                               
HB 406 - SUBSISTENCE USES OF FISH AND GAME                                     
                                                                               
Number 1435                                                                    
                                                                               
VICE CHAIRMAN BUNDE announced the next item of business would be HB
406, "An Act relating to subsistence uses of fish and game."  On               
teleconference were KOTZ Radio from Kotzebue, as well as the                   
Legislative Information Offices (LIOs) from Anchorage, Dillingham,             
Fairbanks, Juneau, Kotzebue, Mat-Su and Nome.  Vice Chairman Bunde             
advised members there was a proposed committee substitute, Version             
J (0-LS1573\J, Utermohle, 4/5/98).                                             
                                                                               
Number 1447                                                                    
                                                                               
REPRESENTATIVE JAMES made a motion to adopt Version J as a working             
document.                                                                      
                                                                               
REPRESENTATIVE CROFT and REPRESENTATIVE BERKOWITZ objected.                    
                                                                               
VICE CHAIRMAN BUNDE requested a roll call vote.  Voting to adopt               
Version J were Representatives James, Porter, Rokeberg and Bunde.              
[Note:  Representative Rokeberg's vote is indiscernible on tape;               
however, the roll call sheet, verified by the secretary, shows that            
he voted to adopt it.]  Voting against it were Representatives                 
Berkowitz and Croft.  Representative Green was excused.  Therefore,            
Version J was adopted as a work draft by a vote of 4-2.                        
                                                                               
Number 1543                                                                    
                                                                               
VICE CHAIRMAN BUNDE provided information for listeners from a                  
summary that read:                                                             
                                                                               
     1.   Legislature adopts the policies contained in Title VIII              
          of ANILCA [Alaska National Interest Lands Conservation               
          Act] to conserve resources and provide a preference for              
          a subsistence way of life.                                           
                                                                               
     2.   This preference is applied at all times of shortage to               
          people who customarily and traditionally depend on the               
          resource, regardless of where they live.                             
                                                                               
     3.   No constitutional amendment required.                                
                                                                               
     4.   Authorizes the appropriate board to identify subsistence             
          dependent areas based on individual stock or population              
          data.                                                                
                                                                               
     5.   Those dependent residents located within the subsistence             
          dependent area are presumed to qualify for the preference            
          and those located elsewhere are presumed not to qualify.             
                                                                               
     6.   Any individual may rebut the above presumptions by                   
          meeting specific criteria relating to reliance and                   
          dependence on the resource.                                          
                                                                               
     7.   Retains existing state definitions of "customary trade,"             
          "customary and traditional," "reasonable opportunity,"               
          "subsistence use" and adds definitions of "preference"               
          and "sustained yield."                                               
                                                                               
     8.   Retains existing nonsubsistence areas established by the             
          Boards of fisheries and game.  The respective boards may             
          act independently to establish nonsubsistence areas.                 
                                                                               
     9.   Establishes regional advisory committees with specific               
          guidelines for rejection of proposals.                               
                                                                               
     10.  Retains existing local advisory committees.                          
                                                                               
Number 1630                                                                    
                                                                               
REPRESENTATIVE PORTER told members this draft is a collective work             
of Chairman Green, Representative Ogan, and himself over the                   
weekend.  It is an attempt to find a middle ground that would allow            
them to proceed, with the goal of allowing the entire legislature              
to respond to this issue.                                                      
                                                                               
REPRESENTATIVE PORTER explained, "The first section basically                  
states what we believe to be true, that in an attempt to find a                
middle ground there is substantial argument that this bill meets               
the tests that obviously have to be met before a bill can be                   
successful, and that is, to meet the general requirements - at                 
least by intent - of ANILCA and the federal legislation, while                 
meeting the requirements of our own state constitution, short of               
amending that constitution."                                                   
                                                                               
REPRESENTATIVE PORTER said the operative section that balances that            
is the establishment of a restriction on consumptive use takings in            
subsistence areas that (indisc.--papers over microphone) shortage,             
which seems to fit with the intent of ANILCA, and that the                     
presumption that those domiciled within the area of shortage are               
eligible for that preference fits the challenge of ANILCA to                   
provide a preference to rural residents.                                       
                                                                               
REPRESENTATIVE PORTER told members that to overcome the supreme                
court decisions that disallow that from occurring under the state              
constitution, they are not indicating individuals; rather, they are            
innovating a selection of a preferential use, not a user, and that             
use is subsistence.  That will allow those people to have this                 
preference.  Representative Porter stated, "Additionally, perhaps              
a middle ground even more, so that it actually works, is the                   
allowance, then, for folks who might not reside specifically within            
the boundary of that shortage, but who also have a dependence on               
that resource, can establish that they do, and can, then, be                   
allowed to participate in that subsistence taking.  That basically             
is the essence of what it is we put forth."                                    
                                                                               
Number 1780                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked the intent that day.                            
                                                                               
VICE CHAIRMAN BUNDE said they would hear the bill, and if finished             
with it, move it.                                                              
                                                                               
Number 1801                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ expressed appreciation for all the work               
that Representatives Porter, Green and Ogan did over the weekend,              
and what they have done in moving this through the process.  He                
stated, "I think it's only fair, though, to acknowledge that there             
are a lot of other people around the state who have considerable               
expertise in this subject, whose opinions I personally would value             
and would like to hear before I can make an informed decision about            
this bill, whether it does what it sets out to do, whether it                  
complies with ANILCA, whether it does indeed forestall federal                 
takeover.  So, it would be my hope that we have the opportunity to             
give those folks the chance to look at this bill and testify to us             
about what's contained in it, because for us to pass this out                  
without giving them that opportunity, I think, would be somewhat               
derelict in our responsibility."                                               
                                                                               
Number 1846                                                                    
                                                                               
REPRESENTATIVE PORTER explained that although he doesn't disagree,             
that this would be the committee to do just that, time doesn't                 
allow it.  There has been a lot of testimony, and the committee has            
a good feel for the general feelings of people in the state.  The              
specifics as to whether this bill meets the constitutional tests               
that might be applied to it are speculative, at best.                          
Representative Porter recognized that there are areas that will be             
debated through the process.  He pointed out that HB 406 has a                 
House Finance Committee referral, there will be a vote on the House            
floor, then the Senate will go through the same committee process              
and a vote.  He concluded, "And so, it certainly is not an                     
indication that this is the absolute final product.  But it is an              
iteration that has merit, in my mind, and needs to get moved                   
forward."                                                                      
                                                                               
Number 1920                                                                    
                                                                               
REPRESENTATIVE JAMES stated her belief that this is a much better              
draft.  However, she still has some concerns, and she is willing to            
follow the bill and her concerns.  In reading the bill, it appears             
that a lot depends on the Department of Fish and Game's making                 
regulations.  Although she tends to agree with that assessment,                
usually when the legislature allows boards or agencies to make                 
regulations, the language is not so specific.                                  
                                                                               
REPRESENTATIVE JAMES said, "My concern is:  Have we been specific              
enough when we needed to be and broad enough when we did need to be            
to accomplish it?"  She expressed concern over whether it should be            
clear who these people are that qualify.  She suggested the                    
presumption that they are qualified, if they happen to be in this              
subsistence area, is very broad.  Representative James agreed with             
Representative Porter that they could get a decision both ways as              
to whether this requires any constitutional amendment.  "But I                 
think that moving it on is certainly the best option that I've                 
heard yet, and get it to be wrangled around by another group of                
people, who can listen to the same testimony that we've had on this            
bill and get it further refined," she concluded.                               
                                                                               
Number 2000                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said he would associate himself with                   
Representative James' remarks about following the bill and the                 
desire to move it.  Noting that he still has unanswered questions,             
he suggested the public needs to have this particular issue debated            
further, and he expressed hope that it would be resolved before the            
legislature adjourns in May.                                                   
                                                                               
REPRESENTATIVE ROKEBERG expressed concern about not changing                   
ANILCA, saying he thinks there is a responsibility on the part of              
our congressional delegation and the federal administration to make            
some modifications that would make this more acceptable to all                 
people in the state of Alaska.  He suggested that issue needs                  
further debate.  He then asked, "Mr. Popely, could you tell me:  If            
in the course of this legislation an income ceiling were imposed in            
any way, say at $60,000-a-year-per-family income or something such             
as that, would that necessitate a constitutional amendment?"                   
                                                                               
Number 2060                                                                    
                                                                               
THEODORE POPELY, Legislative Assistant to House and Senate                     
Majority, Alaska State Legislature, answered that income ceilings              
have been tried through these bills, and the possibility is there              
that it would require a constitutional amendment because of the                
tendency of that to create classes of people who cannot                        
participate, regardless of other factors.  He said constitutional              
areas under Article VIII and all these laws are fairly gray, and               
that he could give a qualified "maybe."                                        
                                                                               
Number 2090                                                                    
                                                                               
REPRESENTATIVE CROFT asked whether they were going to hear from the            
Administration, and whether the Administration had received copies             
of this new proposal.                                                          
                                                                               
VICE CHAIRMAN BUNDE said it is available as public information, and            
based on his six years here, he is confident they will hear from               
the Administration.                                                            
                                                                               
REPRESENTATIVE CROFT asked whether they would hear that day from               
witnesses other than the representatives from the majority.                    
                                                                               
VICE CHAIRMAN BUNDE indicated the committee would take testimony               
from anyone who wished to testify.                                             
                                                                               
Number 2120                                                                    
                                                                               
REPRESENTATIVE CROFT said he thinks there are some interesting                 
ideas here, but he believes it would be a disservice to pass it out            
that day, as it was only released at 9 a.m.  He then referred to               
page 2, lines 10 and 11, and asked the purpose of including the                
definition of "rural" from Webster's New World Dictionary.  He said            
it seems sort of a circular definition.                                        
                                                                               
MR. POPELY indicated the policy and findings section of the bill               
corresponds somewhat to the policy considerations in Section 802 of            
Title VIII of ANILCA.  He said he believes the notion is to                    
demonstrate that there is some consistency and a parallel between              
the intention of the state and that of Congress; he noted the use              
of the term "rural" in the findings and in the policy section of               
ANILCA.                                                                        
                                                                               
MR. POPELY stated, "And I believe the drafters intended that the               
definition of 'rural' did not raise any requirements of residence.             
I think that's simply the reason that's put in there, is to imply              
that the policies and principles of ANILCA that would afford a                 
preference to rural peoples don't necessarily mean that the                    
preference would apply to people who are designated as rural simply            
because of where they live. ... This dictionary definition                     
apparently implies that 'rural' could come about through a variety             
of means, including a country life, a country people, rustic -                 
which is an adjective describing a lifestyle - rather than                     
describing a place of residence."                                              
                                                                               
Number 2215                                                                    
                                                                               
REPRESENTATIVE CROFT suggested the "or" is what Mr. Popely is                  
concentrating on, and that it could be country people living in the            
city.                                                                          
                                                                               
MR. POPELY said he believes that is the intent.                                
                                                                               
VICE CHAIRMAN BUNDE acknowledged the presence of Representative                
Joule.                                                                         
                                                                               
Number 2235                                                                    
                                                                               
REPRESENTATIVE CROFT referred to page 5 and said he had seen some              
of the factors before; however, he is used to language introducing             
them that says something to the effect of, "determine an area                  
substantially dependent on fish and game."  Before, the goal they              
were seeking was whether a community was based substantially on                
fish and game resources; now, however, they are talking about                  
whether it has a cash-based economy.  Representative Croft asked               
whether that is the substitution and what the rationale is behind              
the switch.                                                                    
                                                                               
MR. POPELY replied that he is not sure if there has been a switch.             
That section is a description of a nonsubsistence fishing or                   
hunting area, as opposed to a subsistence area.  In trying to                  
describe whether it is a nonsubsistence area, apparently the                   
drafters are basing that on whether these factors, in totality,                
rise to what constitutes a cash-based economy as opposed to a                  
subsistence-based economy.                                                     
                                                                               
REPRESENTATIVE CROFT suggested they are seen as opposite sides of              
the same coin.                                                                 
                                                                               
MR. POPELY said they are seen as mutually exclusive.                           
                                                                               
Number 2300                                                                    
                                                                               
REPRESENTATIVE CROFT said he is familiar with the list of factors              
on page 5, and somewhat familiar with those on page 4.  He asked               
whether those are individual criteria at the top of page 4.                    
                                                                               
MR. POPELY affirmed that.                                                      
                                                                               
REPRESENTATIVE CROFT referred to page 4, line 9, item (1), "past               
use of the stock or population", and asked what that means.  He                
said he understands item (2), "lack of alternative resources".  He             
then read item (3), "the proportion of diet made up of subsistence             
resources".  He asked, "But not that particular stock?  Or should              
(3) read, 'the proportion of your diet made up by that specific                
subsistence use'?"                                                             
                                                                               
MR. POPELY responded, "Probably not a bad amendment.  I think that             
probably was the intent of the drafters."                                      
                                                                               
Number 2331                                                                    
                                                                               
REPRESENTATIVE CROFT referred to item (4), "the variety of fish and            
game species consumed".  He asked, "Which way does that cut?  That             
is, if they consume a variety of other fish and game species                   
besides this one, I guess one way of looking at it is they're less             
reliant on this; another is they're more a genuine subsistence                 
user.  Which way is the board directed to look at that?"                       
                                                                               
MR. POPELY said that is an area Representative James had alluded to            
earlier.  There is apparently a great deal of latitude left to the             
board to determine that.  These are simply generalized categories              
that the boards may use to determine whether a resident is a                   
qualified subsistence user.  Mr. Popely said he couldn't say how               
that would work; it would be up to people who are in place to make             
the determination.                                                             
                                                                               
Number 2360                                                                    
                                                                               
REPRESENTATIVE CROFT suggested the board could conclude that having            
a variety of other fish and game would be either a negative mark or            
a positive mark.                                                               
                                                                               
MR. POPELY responded, "But again, within the context of trying to              
determine whether or not the individual has customarily and                    
directly relied on that particular stock or population."                       
                                                                               
REPRESENTATIVE CROFT said that was his struggle with these six                 
criteria.  Some don't seem to have to do with whether someone has              
been reliant on this particular stock but relate to the old test of            
whether or not someone is a genuine subsistence user.                          
                                                                               
MR. POPELY replied, "For a hypothetical sake, I could imagine a                
scenario under number (4) where the board looked at the variety of             
fish and game species consumed - perhaps there are ten for an                  
individual - and using the combination of (3) and (4), the                     
proportion of the diet, and what species are involved, if there's              
a very small or de minimus portion that one is arguing creates a               
reliance for a given stock or population, perhaps the board would              
want to take that into account, if the vast majority of the diet               
came from dependence on a separate stock or a ... separate species             
of fish or game."                                                              
                                                                               
Number 2416                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked, "Mr. Popely, Mr. Somerville, in                
your professional opinions - not as advocates for the majority but             
in your professional opinions - does this piece of proposed                    
legislation comply with ANILCA?"                                               
                                                                               
MR. POPELY replied, "If you're going to ask the Secretary of                   
Interior to certify that this is in compliance with the sections               
that require compliance in order to sign off on management, no.                
But I think that question is loaded with a lot of context, and I               
think the folks that drafted it would argue that the overarching               
policy under which ANILCA was drafted could arguably be met with               
this piece of legislation."                                                    
                                                                               
RON SOMERVILLE, Contractor to House and Senate Majority, Alaska                
State Legislature, said some changes to ANILCA would probably have             
to occur to really make this effective.                                        
                                                                               
TAPE 98-56, Side B                                                             
Number 0006                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ mentioned the impending federal takeover.             
He asked what changes to ANILCA are required by this bill.                     
                                                                               
MR. SOMERVILLE replied that ideally, the definition of "rural"                 
would have to be changed to comply with the basic intent of this               
legislation.  Definitions exist in Title VIII of ANILCA today, as              
well as those included in Senator Stevens' amendments, and the                 
appropriation language would have to be modified to match the                  
language in here.  The regional advisory committees would have to              
be modified to some extent to comply with minor changes.                       
Furthermore, it is possible that the language in ANILCA would have             
to be changed to comply with the six alternative criteria that                 
Representative Croft and Ted Popely had discussed.                             
                                                                               
Number 0050                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said, "You've been pursuing this issue,               
obviously, for some time.  Do you have any indication whether                  
Senator Stevens is willing to pursue those change to ANILCA?"                  
                                                                               
MR. SOMERVILLE answered that he hadn't been privy to a lot of the              
discussion between individuals in the majority and the Senator, so             
he couldn't answer that at all.                                                
                                                                               
MR. POPELY said, "Nor have I."  He added that he'd never had                   
communication with the delegation's office directly on that topic.             
                                                                               
Number 0070                                                                    
                                                                               
REPRESENTATIVE PORTER referred to Representative Croft's questions             
about the individual criteria.  He stated his belief that those are            
established this way in order to establish a subsistence person.               
Then, at the time of a shortage, the look at whether that person               
had a traditional and customary use of the stock or population                 
which was short would be another matter.  The first question is                
what a subsistence user is; the second question is, in a time of               
shortage, whether that person relies on that particular short                  
stock.                                                                         
                                                                               
REPRESENTATIVE PORTER stated, "The difference in the bill as to                
ANILCA's requirement for regional committees, for example, doesn't             
alter the idea that we have regional committees.  What it alters,              
very practically, is from ten to nine."  He said it seems                      
impractical to have an automatic tie involved.                                 
                                                                               
REPRESENTATIVE PORTER acknowledged that at some point, to the                  
extent that ANILCA amendments are required by this legislation "or             
whatever it turns out to be," they will have to sit down with the              
congressional delegation and discuss those.  However, he is not                
anxious to further confuse the matter by having premature                      
discussions with the delegation.  The bill hasn't gone through the             
process yet.  Representative Porter suggested this will probably go            
into a conference committee, if it gets that far, and then they                
will have those discussions.                                                   
                                                                               
Number 0171                                                                    
                                                                               
REPRESENTATIVE REGGIE JOULE addressed the process, pointing out                
that his constituents have an extreme interest in this issue.  He              
indicated he had talked with the chairman about when his                       
constituents could expect to testify, and he'd been told they could            
probably do so this coming Wednesday; Representative Joule had                 
informed them of that.  Noting the likelihood that the bill would              
move out of committee at the present hearing, he said it really                
raises some concerns for him.                                                  
                                                                               
REPRESENTATIVE JOULE questioned how much time the House Finance                
Committee could devote to this.  He emphasized the magnitude and               
importance of this issue, and he expressed hope that the people                
whom he had assured would have a voice in this process - in this               
committee, at a specific time - would be able to bank on that.  He             
acknowledged that time is of importance here.  However, the                    
legislature, as a body, encourages the public to participate.                  
Representative Joule concluded by saying he understands that things            
change rapidly, and he understands it better every day.  He                    
restated the hope that his constituents would be able to testify.              
                                                                               
Number 0386                                                                    
                                                                               
REPRESENTATIVE JAMES stated, "Quite frankly, I think we're moving              
in a direction that we need to go.  But I think that what the                  
public needs to understand, and what the legislature needs to                  
understand, on the area of subsistence is that ... there is a fence            
around where we can get from here, because of the attitudes of all             
the various people and the various different -- as far afield as we            
are.  And I think the legislature, ... their chore at this point in            
time is to find a piece of legislation that will define and protect            
the subsistence lifestyle of a certain group of people that was                
intended to be protected in ANILCA.  And in order to be successful,            
to ever get that piece of legislation passed, it has to not include            
a constitutional amendment."                                                   
                                                                               
REPRESENTATIVE JAMES expressed her belief that if everyone                     
understands those are the parameters to having a successful                    
solution, and starts talking about doing it that way, it can be                
done.  But it will take the participation of everyone affected.                
She concluded, "And I appreciate Representative Joule complaining              
about the process.  The process is not a good one.  But as long as             
we have this divide, the process will continue to go as it is, and             
the people will continue to be distressed.  I think what it takes,             
it just takes some real yielding and some real cooperation to get              
something ... that will really work before we're finished."                    
                                                                               
Number 0395                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ disagreed to some extent.  He suggested               
the constraint of saying the legislature can't arrive at a solution            
that requires a constitutional amendment is an artificial barrier,             
because a number of constitutional amendments have gone through not            
only this committee but the legislature.  "And to arbitrarily say              
a constitutional amendment attached to the question of subsistence             
is out of bounds is arbitrary and unfair to the process," he                   
concluded.                                                                     
                                                                               
REPRESENTATIVE JAMES replied that this constitutional amendment is             
not like the others.  It is violating the common use clause, which             
is like gold to the people in Alaska.                                          
                                                                               
REPRESENTATIVE BERKOWITZ pointed out that there are constitutional             
amendments that address the equal protection clause.                           
                                                                               
VICE CHAIRMAN BUNDE acknowledged the presence of Representative                
Williams.                                                                      
                                                                               
Number 0420                                                                    
                                                                               
REPRESENTATIVE PORTER expressed appreciation for the difficulty of             
Representative Joule's constituents in following this legislation.             
He expressed hope that they can testify in the House Finance                   
Committee.  He stated, "But this constitution that we like to                  
protect also cuts the amount of time we have to deal with these                
issues, and until we get it at least to a point of having a                    
consideration in the other body, most of the discussions that we'll            
be having could be for naught anyway.  So, it's a fine balance                 
between being able to accomplish anything and keeping everybody on             
board."                                                                        
                                                                               
Number 0470                                                                    
                                                                               
REPRESENTATIVE CROFT asked whether the term "rural" is used in the             
bill except in the preface.                                                    
                                                                               
Number 0500                                                                    
                                                                               
MR. POPELY replied, "No, not in the sense of identifying who is                
afforded the preference, it's not."                                            
                                                                               
REPRESENTATIVE CROFT asked, "So we use the terms 'nonsubsistence               
and subsistence areas'?"                                                       
                                                                               
MR. POPELY affirmed that.                                                      
                                                                               
REPRESENTATIVE CROFT asked, "Have there been any legal opinions                
from the attorney general, or have you generated any, on whether               
the presumption - which I've seen that approach before - is                    
constitutional without an amendment?"                                          
                                                                               
MR. POPELY replied, "Not to my knowledge."                                     
                                                                               
Number 0530                                                                    
                                                                               
REPRESENTATIVE CROFT referred to the individual criteria and said              
he was following up on Representative Porter's point.  He read from            
page 4, beginning at line 5, which says, "To determine whether a               
resident is a qualified subsistence user, the Board of Fisheries or            
the Board of Game shall establish criteria for determining if a                
resident has demonstrated a customary and traditional dependence on            
the stock or population ...."  Representative Croft said that seems            
to meld those two concepts together.  He asked, "Do we mean, 'We               
know you're a subsistence user if you rely on this particular                  
stock'?  'We know you rely on this particular stock if you're a                
subsistence user'?"                                                            
                                                                               
REPRESENTATIVE PORTER clarified that "resident" means an Alaskan               
resident, not a local area resident.                                           
                                                                               
REPRESENTATIVE CROFT said that is made very clear two lines above,             
where it says, "without regard to the location of the resident's               
domicile."  However, it seems they are combining, or confusing, two            
different concepts.  Who is a qualified subsistence user, and who              
is dependent on this particular fish and game stock?  He asked how             
he is to understand those two.                                                 
                                                                               
Number 0577                                                                    
                                                                               
VICE CHAIRMAN BUNDE responded that as he understands it, they are              
talking about allowing a particular stock.  But deciding whether               
someone is or is not a subsistence user has a lot of criteria.  The            
portion of the diet of subsistence resource doesn't, in his mind,              
just refer to that stock.  He added, "If we're talking about king              
salmon, and you eat a lot of moose and caribou too, you don't get              
disqualified because a major portion of your diet isn't king                   
salmon."                                                                       
                                                                               
REPRESENTATIVE CROFT said that is the rub.  It seems to put two                
different analyses into one section.  He said he doesn't see how               
one can determine if someone is a qualified subsistence user by                
determining if they are dependent on that particular stock, because            
the variety of fish and game consumed, and the importance of                   
sharing, cut against reliance on that particular stock.                        
                                                                               
VICE CHAIRMAN BUNDE said, "Subsistence user of that stock, not                 
whether you're a subsistence user totally."                                    
                                                                               
Number 0626                                                                    
                                                                               
REPRESENTATIVE PORTER asked whether Representative Croft was                   
comparing item (1) on page 4, line 9, with the rest of them.                   
                                                                               
REPRESENTATIVE CROFT answered, "Well, I'm taking lines 5 through 8,            
which says to determine whether you're a subsistence user, we                  
determine whether you're reliant on this stock.  Some of the                   
factors relate to subsistence user - particularly 2 through 6,                 
well, maybe 3 through 6, but anyway - and some relates to reliance             
on ... a particular stock.  But ... it's not a good general-purpose            
test of who is a qualified subsistence user or who is reliant on a             
particular stock, because it tries to do both."                                
                                                                               
REPRESENTATIVE PORTER said the intent is to establish in this                  
section who is or is not a subsistence user; it is really not                  
trying to define it to a specific stock or population.  The                    
combination of the two - the stock or population that has a                    
shortage and who is the subsistence person - is just recognition               
that a subsistence person in Angoon, for example, is probably not              
going to have a customary and traditional use on a stock in                    
Northwest Alaska.  If there is a shortage in Northwest Alaska,                 
there is a likelihood that a person in Angoon would not qualify in             
the time of a shortage to hunt or fish in Northwest Alaska, but the            
point is that they don't want to.                                              
                                                                               
Number 0704                                                                    
                                                                               
REPRESENTATIVE CROFT asked Mr. Popely whether under ANILCA now, if             
somebody lived in Angoon and had a customary and traditional use of            
a fishery stock there, that person would have a subsistence right              
to go to Kotzebue and hunt.                                                    
                                                                               
MR. POPELY replied that for the most part that is true, but there              
have been federal subsistence regulations where the priority                   
attaches specifically to a local stock.  He added, "And there are              
some regulations that apply whether you are a subsistence user or              
not.  Period."                                                                 
                                                                               
REPRESENTATIVE CROFT responded, "What's true?  I understood in                 
ANILCA that you couldn't prove, as an Angoon resident, that your               
residence, your community, had any customary and traditional use of            
the hunting grounds around Kotzebue.  So, I understood it that you             
would not have the right under ANILCA now."                                    
                                                                               
Number 0752                                                                    
                                                                               
MR. SOMERVILLE answered that both are reflected in the federal                 
regulations, which he believes is what Mr. Popely is saying.  He               
explained that in some cases, it will say "all rural residents."               
In other cases, it will say "only residents of Units 26 A, B and               
C."                                                                            
                                                                               
REPRESENTATIVE CROFT posed a situation where he has gone to Kodiak             
and taken deer for ten years.  He asked what rights would come to              
him under this bill, if he proved he had a past use but wasn't a               
general-purpose subsistence person.  He asked what he would have               
the right to do, and what he would not have the right to do.                   
                                                                               
MR. POPELY replied, "First of all, I think you'd further have to go            
down the line and apply all of the criteria.  Just one is not                  
necessarily going to include you into the qualified class of                   
subsistence user - past use."                                                  
                                                                               
REPRESENTATIVE CROFT responded, "Assume I'm not a qualified                    
subsistence user but I can prove that past use.  I thought that's              
the distinction Representative Porter and I were talking about,                
whether you got into one category or the other.  So, I have a past             
use - a legitimate use - but I cannot show the other, (2) through              
(6).  What do I get or not get?"                                               
                                                                               
Number 0820                                                                    
                                                                               
REPRESENTATIVE PORTER explained that the intent is that a person               
who has established that he or she is a subsistence user, by past              
use and by the board's determination based on this criteria, will              
have the same right to subsistence hunt and fish as a local                    
subsistence user in times of no shortage; it would be by those                 
methods and means available to the local subsistence user.  If                 
there is no shortage, a person who is not qualified as a                       
subsistence user would have the right to take fish and game under              
a sport or personal use license, or whatever happens to be open                
short of subsistence, in a subsistence area; none of this                      
distinction would come into play, except for the distinction that              
exists now between someone who qualifies for a subsistence permit              
and someone who doesn't.                                                       
                                                                               
REPRESENTATIVE PORTER emphasized that the distinction only applies             
when there is a shortage.  When availability of a stock or                     
population diminishes, the first "ratchet down" is that there can              
be distinctions between other consumptive uses, with a preference              
given to subsistence users.  The second "ratchet down" is that                 
there can even be a distinction between subsistence users in that              
district, if the population is actually that short.                            
                                                                               
Number 0900                                                                    
                                                                               
REPRESENTATIVE CROFT replied that he can't go on the intent.  If,              
for example, he couldn't prove that he is a general subsistence                
user but could show a verified, genuine, nonwasteful past use, he              
understood from that discussion that he wouldn't have any                      
particular rights, because he is not qualified as a subsistence                
user.                                                                          
                                                                               
VICE CHAIRMAN BUNDE indicated that would be his interpretation.                
                                                                               
REPRESENTATIVE JAMES concurred.                                                
                                                                               
Number 0940                                                                    
                                                                               
REPRESENTATIVE CROFT asked whether someone who lives a subsistence             
lifestyle in a nonsubsistence area, such as Dick Bishop, would have            
rights under this bill identical to the rights of somebody who                 
lives a subsistence lifestyle out in the Bush.                                 
                                                                               
MR. POPELY indicated qualification would be through these six                  
criteria for both persons.  He said he believes the answer is a                
qualified yes.  He explained, "I'm not sure if the intent of the               
drafters is to have that preference scheme apply specifically to               
stocks and populations, or generally."                                         
                                                                               
Number 0991                                                                    
                                                                               
REPRESENTATIVE CROFT said he'd like to get that answer, too.  He               
suggested that Representative Kookesh, for example, wouldn't have              
to prove anything; they would have to disprove it.  But Dick Bishop            
would have to prove it.  So they're not in the same legal sphere.              
                                                                               
MR. POPELY replied that ultimately they are, but presumptively they            
are not.  Presumptively, the one who lives in the nonsubsistence               
area is not qualified, subject to rebuttal under the six criteria.             
And the one who lives in the area found by the boards to be                    
dependent on the stock or population is presumed to qualify under              
the preference scheme; however, that may also be rebutted.                     
                                                                               
Number 1030                                                                    
                                                                               
REPRESENTATIVE CROFT asked, "If I qualify as a general subsistence             
user, wherever I am, based on ... the evidence I bring about my                
customary and traditional use of these particular stocks, or of                
this one stock, say, does that give me the right to subsistence                
hunt or fish in other stocks?  Or does it just give me the right,              
as some ANILCA regs have it - and I would argue the better view of             
the ANILCA regs would have it - that I have the preference for this            
particular stock?  What does this bill do?"                                    
                                                                               
MR. POPELY said his understanding is that this bill affords the                
preference to that particular stock or population.                             
                                                                               
REPRESENTATIVE CROFT said, "And no other."                                     
                                                                               
MR. POPELY said that is correct.                                               
                                                                               
REPRESENTATIVE CROFT asked, "Where do you read that?"                          
                                                                               
MR. POPELY answered page 4, lines 7 and 8.  He said in order to                
qualify under the six criteria, they are establishing criteria for             
determining if a resident has demonstrated a customary and                     
traditional dependence on the stock or population.  Mr. Popely                 
stated, "I read 'dependence on the stock or population' to extend              
to where the preference would extend."                                         
                                                                               
Number 1095                                                                    
                                                                               
REPRESENTATIVE CROFT referred to the "semi-shortage."  He                      
paraphrased beginning on page 3, line 3, which says, "(2) is                   
sufficient to provide a reasonable opportunity for subsistence uses            
by qualified subsistence users and for some, but not all, other                
consumptive uses, the appropriate board (A) shall adopt regulations            
that provide a reasonable opportunity for subsistence uses ...."               
He asked whether that doesn't just say subsistence uses.                       
                                                                               
MR. POPELY replied, "Back on page 4, at the top, determining                   
whether a resident is a qualified subsistence user - which is what             
you just referred to - then we go back into that language that I               
just pointed to, that says, 'demonstrated a customary and direct               
dependence on the stock or population.'  I read that to extend the             
preference to a reliance on that stock or population."                         
                                                                               
Number 1146                                                                    
                                                                               
VICE CHAIRMAN BUNDE suggested that while they pondered that, the               
committee would hear from a testifier who lives in Dot Lake.                   
                                                                               
Number 0176                                                                    
                                                                               
WILLIAM MILLER testified via teleconference from the Tok LIO,                  
specifying that he lives in the Native village of Dot Lake.  He                
referred to Section 1, page 2, line 2, which says a subsistence                
user is a person who has demonstrated a customary and traditional              
dependence on a particular fish stock or game population in an area            
outside of nonsubsistence areas in Alaska.  Mr. Miller told members            
this completely misses the point of subsistence, which is not upon             
a particular game or fish stock but is opportunistic, using                    
whichever wild renewable resource is available.  He suggested it               
should be a dependence upon wild renewable resources.                          
                                                                               
MR. MILLER referred to Section 2, page 2, lines 17 and 18,                     
pertaining to AS 16.05.258.  It says the boards shall identify the             
fish stocks and game populations, or portions of stocks or                     
populations, that are customarily and traditionally taken or used              
for subsistence.  Mr. Miller stated, "Again, all natural resources             
are used for subsistence."                                                     
                                                                               
MR. MILLER next referred to page 4, subsection (c), starting at                
line 7, which says, "shall establish criteria for determining if a             
resident has demonstrated a customary and traditional dependence on            
the stock or population".  He noted that factor (1) says, "past use            
of the stock or population", whereas factor (3) says, "the                     
proportion of diet made up of subsistence resources".  He asked                
whether they are talking about individual stocks or renewable                  
resources, suggesting there is a contradiction; he again emphasized            
the variety of fish and game species consumed.                                 
                                                                               
MR. MILLER told members it goes to the importance of sharing. He               
explained, "In the villages, we have a lot of elders.  A lot of the            
young people hunt for the elders, so they share quite a bit.  They             
may spend a large number of days - going on to section (6) -                   
hunting or fishing.  Again, you may get a whole year's supply of               
fish in one day, if the fish are running in the fish wheel.  So,               
you only need one day.  Would that take away, then, from the                   
subsistence (indisc.), because you only hunted one day?"                       
                                                                               
Number 1325                                                                    
                                                                               
MR. MILLER referred to page 5, lines 6 and 7, and said he has a big            
problem with cash-based economy, economy or income being used in               
any way.  In many small villages, two or three high-paying jobs may            
offset the income of the rest of the community, where everyone else            
may be unemployed.                                                             
                                                                               
MR. MILLER referred next to lines 15 and 16, "the cost and                     
availability of goods and services to those domiciled in the area".            
He said this has nothing whatsoever to do with the customary and               
traditional use in the villages.  Other goods may be available, but            
they do not fulfill the need; there is a psychological and                     
physiological need for the resources in the remote areas,                      
especially in the Native villages.  Mr. Miller added, "You do                  
address some of this in subparagraph (10), line 24, on page 5, 'the            
cultural, social, and economic values associated with ... taking               
and use of fish and game', but again, I have a problem.  Are all of            
these going to have to be met, or are all of these going to be                 
considered, or specific ones?"                                                 
                                                                               
MR. MILLER next referred to line 30, which says, "(13) the other               
sources of direct and indirect economic support available to those             
domiciled in the area or community".  He said cash economy and                 
traditional cultural need don't work together, "no matter how you              
look at it."                                                                   
                                                                               
Number 1430                                                                    
                                                                               
MR. MILLER asked how the local or regional advisory committees will            
be set up.  Will they be elected by the people in the area?  Are               
they going to be appointed by the Board of Fisheries and the Board             
of Game, by the legislature, or by someone else?  He said if they              
are not going to be elected locally, then they are not going to be             
representative of the people in the area; they are going to be                 
representative of the political outlook for whoever appoints them.             
                                                                               
VICE CHAIRMAN BUNDE noted that the regional advisory committees                
currently are elected, which he suggested would continue.  He                  
thanked Mr. Miller for his testimony.                                          
                                                                               
Number 1489                                                                    
                                                                               
REPRESENTATIVE PORTER pointed out that the regional boards that are            
new under this legislation, as well as under other iterations of               
this legislation, are part of ANILCA; they would be appointed by               
the governor, as is provided by ANILCA.  For the general                       
qualifications for what is a subsistence area, as well as for what             
is a subsistence person, this bill is trying as much as possible to            
end up with a position that would basically reflect the decisions              
made to date by the boards of fish and game in those                           
determinations.                                                                
                                                                               
REPRESENTATIVE PORTER said to the extent possible, by trying to                
meet the needs of both Alaska's constitution and ANILCA, the                   
determinations on "where" and "who" should be consistent with what             
exists today.  "While we recognized that's not perfect, we're                  
obviously looking for a situation the result that the differences              
that may exist today can be worked out here, as opposed to at the              
federal level," he concluded.                                                  
                                                                               
Number 1554                                                                    
                                                                               
REPRESENTATIVE ALBERT KOOKESH advised members that he had promised             
constituents that when this bill came under consideration to be                
moved, he would get them the bill and the time frame for comments.             
He stated, "Well, I understand now that this bill may be moving out            
of committee, so I want to make a couple comments, not so much on              
the merits of the bill, because if it's middle ground and if it                
makes sense, maybe I would have been able to support it.  But                  
without having the benefit [of] analysis, I can't tell you whether             
I can support it or not.  I would like to just ask the question on             
whether or not the constituency I represent would have time for                
comment on this bill before you move it out, and if they are going             
to have comment, when that would be.  If they are not going to be              
able to have comment, why not?"                                                
                                                                               
VICE CHAIRMAN BUNDE suggested this bill has a long way to go                   
through the process, and there will be ample opportunity to comment            
at many levels, including all levels in the Senate.  Noting the                
lengthy discussions in the current committee, he suggested that                
those who want federal control will not change their testimony                 
based on this bill; those that want the Governor's proposal will               
not change their testimony based on this bill; and those that don't            
want any change will not change their testimony based on this bill.            
He said that while he believes the process is important, he doesn't            
believe anyone will be precluded from weighing in.                             
                                                                               
REPRESENTATIVE KOOKESH emphasized that he would like his                       
constituents to at least have the chance to testify.                           
                                                                               
Number 1703                                                                    
                                                                               
REPRESENTATIVE ROKEBERG commented that this legislature invites                
anybody to testify on any bill.  If people are unable to testify in            
person or via teleconference, their written comments are invited.              
He suggested that is important to understand, because specific                 
ideas provided in writing can be integrated into the legislation.              
He again encouraged written testimony and said they would certainly            
welcome Representative Kookesh's constituents to be part of this               
process.                                                                       
                                                                               
VICE CHAIRMAN BUNDE added, "As I would my constituency."                       
                                                                               
Number 1794                                                                    
                                                                               
REPRESENTATIVE JAMES noted that there are questions about the six              
criteria, but said that is the only part of the bill she                       
understands.  She said it is the most descriptive part of the bill.            
                                                                               
Number 1830                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ referred to page 4, subsection (e),                   
relating to a presumption.  He asked who has standing to present               
evidence at a hearing.  He further asked whether this permits some             
sort of class action.                                                          
                                                                               
MR. POPELY answered that his interpretation of this section, if he             
were a judge, would be that standing would be afforded to,                     
certainly, appropriate state officers to whose attention                       
misinformation was transmitted about an applicant for a subsistence            
preference, and perhaps to the individuals themselves who are                  
challenging the classification scheme; and a class action could                
indeed be certified under this sort of scenario.  He said that is              
his off-the-cuff answer.                                                       
                                                                               
Number 1887                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked whether someone who was challenging             
someone else's classification could present evidence.                          
                                                                               
MR. POPELY said his understanding is that it would be brought to               
the attention of the state officers, who would then bring the                  
challenge, although that is not contained in the bill.                         
                                                                               
Number 1914                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked whether there is a fiscal note                  
attached to this.  He said he knows the answer but wants it on the             
record.                                                                        
                                                                               
MR. POPELY said he doesn't know.                                               
                                                                               
Number 1933                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ indicated he wished to direct his next set            
of questions to Mary Pete, Director, Division of Subsistence,                  
Department of Fish and Game, since they were endowing the                      
department with all this authority to enact regulations.  He noted             
that Ms. Pete was present.                                                     
                                                                               
VICE CHAIRMAN BUNDE suggested Ms. Pete would be available to take              
Representative Berkowitz' questions in written form.  He said Ms.              
Pete was not a witness at that time, and if he himself chose to                
call her, he would.                                                            
                                                                               
Number 1976                                                                    
                                                                               
REPRESENTATIVE CROFT referred to page 7 and regional advisory                  
committees.  Noting that Representative Porter had said the change             
is basically from ten to nine, he asked whether that is from the               
prior draft of HB 406.                                                         
                                                                               
MR. SOMERVILLE answered that HB 406 started with five and had                  
various options.  The six in here are identical to what occurs in              
ANILCA, which requires at least six Alaska subsistence resource                
regions.                                                                       
                                                                               
Number 2038                                                                    
                                                                               
REPRESENTATIVE CROFT said he was under the impression that ANILCA              
required them to have some subsistence experience.  He asked                   
whether there is any requirement in here that they be subsistence              
users or have any particular knowledge of subsistence activities.              
                                                                               
MR. SOMERVILLE paraphrased from page 7, beginning at line 22, which            
says:  "The regional advisory committees shall be composed of                  
persons well informed on the fish or game resources of the region."            
                                                                               
REPRESENTATIVE CROFT asked, "So, ... not particularly subsistence              
anymore, but generally on fish and game resources."                            
                                                                               
MR. SOMERVILLE said that is his recollection.                                  
                                                                               
Number 2080                                                                    
                                                                               
REPRESENTATIVE CROFT asked how that expertise differs from the                 
general expertise of the fish or game board, and what they are                 
adding that is different to that discussion.                                   
                                                                               
MR. SOMERVILLE said the emphasis here is that there would be people            
who are "more familiar with the regional issues including                      
subsistence than the other nonsubsistence activities, that they                
would be making recommendations to the board, thus reducing some of            
the workload of the board and providing them with that additional              
expertise."  He suggested it is a step up from the local advisory              
committees, as they are now called.                                            
                                                                               
Number 2123                                                                    
                                                                               
REPRESENTATIVE CROFT suggested those people could give advice on               
anything relevant to the fish or game resources of the region, not             
just subsistence.  For example, they could give "commercial advice             
or sport advice."                                                              
                                                                               
MR. SOMERVILLE affirmed that.                                                  
                                                                               
Number 2150                                                                    
                                                                               
REPRESENTATIVE CROFT suggested the individual criteria are the                 
heart of this and the heart of his own lack of understanding.  He              
posed a hypothetical situation:  "If I, as an Anchorage resident,              
can meet the criteria and prove that I am a qualified subsistence              
user - based on my travel to Representative Kookesh's area in                  
Angoon and the taking of that specific stock of salmon, but I take             
so much on a regular basis that I can also meet the other criteria             
- am I or am I not entitled - as a general, qualified subsistence              
user, based on that taking - to go to Representative Joule's area              
and take caribou?"                                                             
                                                                               
MR. SOMERVILLE replied that he thinks the answer is basically no.              
The boards would have already made C and T [customary and                      
traditional] findings throughout the state.  But when there is a               
shortage in any specific area, and the boards delineate this                   
dependent area, it is basically focused on a particular stock or               
population.  Those who qualify for use of that stock or population             
would have to justify it, based on this six criteria, including                
dependence upon a wide variety of resources.  A person's dependency            
and ability to participate would depend upon having participated in            
utilization of that particular stock or population.                            
                                                                               
VICE CHAIRMAN BUNDE suggested these are not new concepts, and that             
further questions could be addressed in writing.  He called upon               
Mary Pete.                                                                     
                                                                               
TAPE 98-57, SIDE A                                                             
Number 0006                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked, "Are the regulations clear enough?             
And are the resources adequate ... for you to carry out the mandate            
of this legislation?"                                                          
                                                                               
MARY C. PETE, Director, Division of Subsistence, Department of Fish            
and Game, answered that at first glance, keeping in mind she'd                 
looked at this for an hour, she would say no.  The bill seems to               
conflate how Tier II is implemented and how it is determined who is            
a qualified subsistence user; it is hard to pull those two apart in            
the bill.                                                                      
                                                                               
MS. PETE noted that in terms of a resident who qualifies, the                  
qualification is determined by an area determination.  She                     
explained, "In other words, it says here, 'a resident who is                   
domiciled in an area that is determined by the appropriate board to            
be customarily and traditionally dependent on the stock or                     
population.'  And on the one hand, you have to be a resident of, or            
domiciled in, that area to qualify.  If you live outside that area,            
you cannot qualify; but it seems to allow people, regardless of the            
location of ... where they're domiciled, to qualify for specific               
... fish stocks or populations."  Ms. Pete said it is unclear at               
that point.  She concluded, "Regardless of that, operationalizing              
these vague standards of dependency would, I think, take a huge,               
huge time and effort to establish the bureaucracy to do that, just             
... at first glance."                                                          
                                                                               
Number 0170                                                                    
                                                                               
REPRESENTATIVE CROFT said that was his concern on those six                    
standards, not that he didn't understand them or that they were new            
distinctions, but that he thinks this bill doesn't clearly describe            
the distinction it is drawing.                                                 
                                                                               
REPRESENTATIVE CROFT next referred to page 5 at the top, the cash-             
based economy idea.  He said, "Ted Popely described it as being                
mutually exclusive.  And my concern is where on line 3, on page 5,             
we say, 'a principal characteristic of the economy, culture,' and              
again, I guess, on line 4, 'a principal'.  It seems to me that ...             
you can only have one 'the' principal characteristic, but a number             
of 'a' principal characteristics.  If 'a' principal characteristic             
of the economy is cash-based, and that excludes it, what does that             
do to our current definitions of subsistence and nonsubsistence                
areas?  In other words, what, under 'a' principal characteristic,              
is a subsistence area in this state now?"                                      
                                                                               
Number 0260                                                                    
                                                                               
MS. PETE replied, "Well, this 'a' principal characteristic used to             
... be the phrase that defined subsistence use areas.  Turning it              
sort of on its ear to be used with cash and nonsubsistence -- based            
on the floor discussions for the 1992 law, there were concepts such            
as '15 percent of the economy,' whatever that means; as little as              
15 percent of an economy being subsistence-dependent may qualify an            
area as ... customarily and traditionally dependent on fish and                
game. ... If you look at 15 percent, 15 percent of what?"                      
                                                                               
MS. PETE suggested it would disqualify many, many rural communities            
if they used cash as "a" principal characteristic, using that same             
loose measure that was in the Senate floor debate, especially.                 
There is no pure subsistence-versus-cash sector anywhere in this               
state, although there are mixed subsistence/cash economies that                
certainly have varying dependence on cash.  Ms. Pete explained that            
people need some cash to engage in hunting and fishing of any sort,            
subsistence or otherwise, just by the nature of hunting and fishing            
in contemporary society.  "So, I would think many, many places that            
now qualify would fail to qualify based on this new definition,"               
she concluded.                                                                 
                                                                               
Number 0386                                                                    
                                                                               
REPRESENTATIVE PORTER asked if this basic criteria is not basically            
the criteria they are using now.                                               
                                                                               
MS. PETE replied yes, but the previous definition, in the current              
statute, didn't use "a" principal characteristic and didn't use                
cash.                                                                          
                                                                               
REPRESENTATIVE PORTER asked, "Would you see anything in here that              
would cause you to do this differently than what you're doing now?"            
                                                                               
MS. PETE answered that certainly, she would think the joint boards             
would have to see the discussion in that section as guidance and               
take these factors, as they always have.  She referred to factor               
(9), page 5, line 22, "the harvest levels of fish and game by those            
domiciled in the area or community."  She said that has been the               
driving force and the most measurable factor, because there is no              
cash involved, and no explicit direction to use cash.  Now,                    
however, "cash-based economy" is in the guiding principles, before             
the characteristics are listed in the bill.                                    
                                                                               
Number 0473                                                                    
                                                                               
REPRESENTATIVE PORTER noted that the bill may move from this                   
committee but would go to the House Finance Committee.  He                     
requested of Ms. Pete, "And if between now and then there's                    
anything in here that ... you feel would cause you to go about this            
determination differently, please tell them, and that it's not the             
intent that that happen."                                                      
                                                                               
Number 0500                                                                    
                                                                               
REPRESENTATIVE BILL WILLIAMS asked how many changes in ANILCA would            
have to come about if this passed.                                             
                                                                               
MS. PETE said she didn't know specifically.  She suggested that is             
a question most appropriate for the Department of Law.                         
                                                                               
VICE CHAIRMAN BUNDE stated, "I think we had that question earlier,             
and the comment was that they could not specifically answer that at            
this point, because when there is a final subsistence bill product             
would be the time to negotiate changes with ANILCA."                           
                                                                               
REPRESENTATIVE PORTER said it is a recognized fact that there will             
have to be amendments to ANILCA to accomplish this bill.  "What                
we're trying to aim at with the bill is that the amendments would              
be technical, and not change the basic intent of ANILCA," he added.            
"They might have to redefine 'rural,' they might have to do some               
work in the area of the specifics ... that ANILCA has on the                   
regional boards, and a couple of other refinements.  But the intent            
is what we're striving for."                                                   
                                                                               
REPRESENTATIVE WILLIAMS asked whether they were going to move the              
bill that day.                                                                 
                                                                               
Number 0611                                                                    
                                                                               
VICE CHAIRMAN BUNDE replied, "I think we've had about as much                  
testimony that will be fruitful, and I would now like to close                 
public testimony."                                                             
                                                                               
REPRESENTATIVE WILLIAMS mentioned the concept that resources issues            
should be addressed in the House Resources Committee and legal                 
issues should be addressed here.  He asked what makes this                     
different.                                                                     
                                                                               
VICE CHAIRMAN BUNDE restated his previous comment.                             
                                                                               
REPRESENTATIVE BERKOWITZ objected.                                             
                                                                               
VICE CHAIRMAN BUNDE asked whether he wanted to appeal the rule of              
the chair.                                                                     
                                                                               
REPRESENTATIVE BERKOWITZ said no, it would be like spitting in the             
wind.  He pointed out that someone from the Department of Law was              
present, and he stated his belief that it is incumbent on the                  
committee to hear what they have to say about this bill.                       
                                                                               
VICE CHAIRMAN BUNDE said he would entertain a motion to move the               
bill.                                                                          
                                                                               
Number 0714                                                                    
                                                                               
REPRESENTATIVE PORTER made a motion to move from committee HB 406,             
Version J (0-LS1573\J, Utermohle, 4/5/98), as adopted, with                    
individual recommendations and fiscal notes as attached.                       
                                                                               
REPRESENTATIVE CROFT objected.  He asked why the chairman had                  
allowed no time for amendment.                                                 
                                                                               
VICE CHAIRMAN BUNDE said he had chosen not to.                                 
                                                                               
REPRESENTATIVE CROFT responded that he had a number of amendments              
going to the points he had learned there that day.  He said his                
objection to moving the bill is that there are going to be ANILCA              
changes required by this, and they could hear testimony in the                 
House Judiciary Committee about what those are.  He added, "Not to             
whether Ted Stevens likes them or not, but to what they have to be.            
We haven't heard that."                                                        
                                                                               
REPRESENTATIVE CROFT continued, "We know there are significant                 
legal differences of opinion on whether this presumption requires              
or does not require a constitutional amendment.  We have not heard             
any testimony on that.  This is the first time we have heard a bill            
that makes major substantial changes in the area of individual                 
criteria, in the area of presumption, and in the way it defines                
areas.  I just heard Representative Porter say he didn't intend any            
changes to the way we describe and define subsistence areas and                
nonsubsistence areas.  But I know that the bill, as it stands, does            
make substantial changes to that."                                             
                                                                               
REPRESENTATIVE CROFT continued, "We are not doing our job as the               
Judiciary Committee. ... It pains me to say it because this                    
committee has very consistently done its job.  I'm proud to have               
served on this committee.  But we are not doing it here today.  We             
should not move this bill until those legitimate legal questions               
have been answered, until the public has had more time to see this,            
until I have had more time to see this, Mr. Chairman."                         
                                                                               
Number 0830                                                                    
                                                                               
REPRESENTATIVE JAMES stated, "I just want to put on the record that            
I am disappointed that we couldn't get a real final bill in this               
committee.  But I'm willing to move it on because I agree with the             
chairman that we're never going to get there from here, and that               
we're wasting time in this process.  And so, I'm willing to vote to            
move the bill on, even though I'm disappointed that we don't have              
a better product."                                                             
                                                                               
Number 0850                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated, "I want to echo what                          
Representative Croft said.  This is the most unprofessional action             
I feel we've taken in this committee in the time I've served on                
it."  He said this piece of legislation is a recipe for federal                
takeover.  It does not address the problems of ANILCA, as the                  
majority's lawyers testified that day, and it is practically                   
unworkable, as the Department of Fish and Game testified.                      
Furthermore, no fiscal notes have been provided, which is the                  
height of folly considering the potential costs.                               
                                                                               
REPRESENTATIVE BERKOWITZ told members that it is unconscionable                
that legitimate issues are not being explored:  internal                       
contradictions within the bill, not even discussing the broad                  
policy ramifications of whether an amendment is required or not,               
but whether this is even workable.  He concluded, "And I, in the               
strongest possible terms, say that this is a disservice to public              
policy, and ... again, I reiterate that I think it is entirely                 
unprofessional what we're doing here."                                         
                                                                               
Number 0920                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said he would echo what Representative                 
James had said.  He disagreed with Representative Berkowitz'                   
comment that this is a disservice to public policy.  He then                   
expressed hope that the bill would move forward and be amended to              
become a vehicle that will meet the conditions of all people of the            
state.                                                                         
                                                                               
Number 0950                                                                    
                                                                               
REPRESENTATIVE PORTER stated, "If timing were different, I would               
love to be the committee that did the majority of the work on this.            
The problem, of course, is that time doesn't allow it, and the                 
process doesn't allow us to have the final word in anything until              
we're allowed to vote on it on the floor of the House, and                     
probably, in this one, in conference committee - after conference              
committee.  Consequently, while I appreciate all of the members'               
comments, both the minority and the majority, in my humble opinion,            
we're not going to get anything done in this area if we don't get              
a bill moving that can reach that point of conference committee and            
can thereby reach a point where our congressional delegation has               
the ability to even discuss with us what they can and can't do."               
                                                                               
Number 1003                                                                    
                                                                               
REPRESENTATIVE WILLIAMS said he would like to be able to move                  
something that he could hang his hat on.  He said if it is as bad              
as some people say, he is sorry about that.  He acknowledged that              
it needs to get done, then asked Vice Chairman Bunde, "If this                 
doesn't come close to keeping the promise that was made in 1971,               
how do we get around that promise that was made in '71? ... Or is              
it a promise?"                                                                 
                                                                               
VICE CHAIRMAN BUNDE replied that in his opinion, it meets the                  
promise; he then acknowledged that he is not a lawyer.  He stated              
that this issue has been before the legislature for as long as he              
has been here, and he has been to one subsistence special session              
already.  He said, "I've been concerned, involved and thought about            
subsistence for the last 20-some years.  I think that there are                
those in the state, and in the legislature, who relish and look                
forward to federal control, and as such really don't care much what            
we do here, probably would just as soon we not do anything.  There             
are others who have very strong views on this subject.  I've heard             
from the rural communities some that would support the Governor's              
task force, others who've said, 'No, I'd rather live under federal             
control.'  I've heard people from other ends of the spectrum have              
conversations.  I don't think that further discussion will change              
any of those opinions."                                                        
                                                                               
VICE CHAIRMAN BUNDE continued, "And so, I support moving this                  
instrument forward so that other committees can have a look at it,             
another body can have a look at it, and I have every confidence we             
will hear from people throughout the state about this iteration and            
every other iteration that occurs before, hopefully, the issue will            
be solved."                                                                    
                                                                               
Number 1130                                                                    
                                                                               
VICE CHAIRMAN BUNDE requested a roll call vote.  Voting to move the            
bill from committee were Representatives James, Porter, Rokeberg               
and Bunde.  Voting against it were Representatives Berkowitz and               
Croft.  Representative Green was excused.  Therefore, CSHB 406(JUD)            
moved from the House Judiciary Standing Committee by a vote of 4-2.            
                                                                               
ADJOURNMENT                                                                    
                                                                               
Number 1158                                                                    
                                                                               
VICE CHAIRMAN BUNDE adjourned the House Judiciary Standing                     
Committee meeting at 3:00 p.m.                                                 

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