Legislature(1997 - 1998)
05/29/1998 09:38 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
May 29, 1998
9:38 a.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
MEMBERS ABSENT
Representative Ethan Berkowitz
OTHER HOUSE MEMBERS PRESENT
Representative Alan Austerman
Representative Scott Ogan
Representative Joe Ryan
Representative Gene Kubina
Representative Bill Hudson
Representative Kim Elton
SENATE MEMBERS PRESENT
Senator John Torgerson
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 102
Proposing amendments to the Constitution of the State of Alaska
relating to establishing a preference for subsistence uses of fish
and wildlife; and providing for an effective date.
- MOVED CSHJR 102(JUD) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 102
SHORT TITLE: CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
5/28/98 (H) JUD AT 2:30 PM HOUSE FINANCE 519
5/28/98 (H) MINUTE(JUD)
5/28/98 (H) RES AT 2:30 PM HOUSE FINANCE 519
5/28/98 (H) MINUTE(RES)
5/28/98 3980 (H) READ THE FIRST TIME - REFERRAL(S)
5/28/98 3981 (H) RESOURCES, JUDICIARY, FINANCE
5/28/98 3986 (H) RES RPT CS(RES) NT 3DP 2DNP 2NR 1AM
5/28/98 3986 (H) DP: GREEN, HUDSON, BARNES; DNP:
JOULE
5/28/98 3986 (H) NICHOLIA; NR: OGAN, MASEK; AM: DYSON
5/28/98 3987 (H) ZERO FISCAL NOTE (H.RES/GOV)
5/28/98 3987 (H) REFERRED TO JUDICIARY
5/29/98 (H) JUD AT 9:00 AM CAPITOL 120
WITNESS REGISTER
BRUCE BOTELHO, Attorney General
State of Alaska
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-2133
STEPHEN WHITE, Assistant Attorney General
Natural Resources Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
THEODORE POPELY, Legislative Assistant
to the Senate and House Majority
Alaska State Legislature
Capitol Building, Room 208
Juneau, Alaska 99801
Telephone: (907) 3720
GEORGE UTERMOHLE, Attorney
Legal and Research Services Division
Legislative Affairs Agency
130 Seward Street, Room 408
Juneau, Alaska 99801
Telephone: (907) 465-2450
KEVIN JARDELL, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4990
JULIE KITKA, President
Alaska Federation of Natives
1577 "C" Street, Number 201
Anchorage, Alaska 99501
Telephone: (907) 274-3611
BOB PENNY
Alaskans Together
(Address not provided)
Telephone: (Not provided)
THEO MATTHEWS, President
United Fishermen Alaska
PO Box 389
Kenai, Alaska 99611
Telephone: (907) 283-3600
ROSITA WORL
Alaskans Together
(Address not provided)
Telephone: (Not provided)
ACTION NARRATIVE
TAPE 98-99, SIDE A
Number 0001
CHAIRMAN JOE GREEN resumed the House Judiciary Standing Committee
meeting from May 28, 1998, at 9:38 a.m. Members present at the
call to order were Representatives Green, Bunde, Porter, Rokeberg,
and Croft. Representative James arrived as the meeting was in
progress.
HJR 102 - CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE
Number 0053
CHAIRMAN GREEN: We have before us today the Resources version of
HJR 102 and we have with us the Attorney General and his able
sidekick. Would you gentlemen identify yourself for the record
please.
BRUCE BOTELHO, ATTORNEY GENERAL, STATE OF ALASKA: Yes, Mr.
Chairman, thank you. My name if Bruce Botelho, Attorney General
for the state.
STEVE WHITE, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES SECTION,
OFFICE OF THE ATTORNEY GENERAL, STATE OF ALASKA: I'm Steve White,
Assistant Attorney General.
CHAIRMAN GREEN: And if you would give us your testimony.
Number 0080
MR. BOTELHO: Thank you, Mr. Chairman, I'm here to briefly comment
and I underscore the word "briefly," on CS for HJR 102(Resources).
The import of my message is simply that I think and commend to you
a suggestion which is that it's perhaps time for a timeout. There
are three reasons. First of all, I think and most directly I want
to address the merits of this resolution, and that is we
fundamentally disagree with the placement of the concept, as we
understand it, in what is proposed to be an amendment to Article
VIII, Section 4(b) in the constitution itself. In our view, this
language and the proposal is something that is appropriate in
statutory form. It is not something that should be placed -
embedded in the constitution itself. In addition, with respect to
the merits, I would comment on the effective date that is to be
contained in Section 29 of Article XV. There are two separate
problems to address there. And, again, I do not make any remark
with regard to the repealer provision. But first, as we have
indicated in our testimony before, the certification being
requested in terms of repeal of provisions of Title VIII of ANILCA,
found in paragraphs one, two and three, are ones that would be
entirely unnecessary if the state were in compliance. On the other
hand, to fight those battles, which I believe that the Department
of Interior will find as an intrusion on powers that have been
found by other courts and implemented in other courts, is going to
be if not an insurmountable barrier certainly a major barrier to
achieving that result. And if it is not required, if the state is
in compliance we should avoid that battle. The second problem,
obviously, with this effective date clause is found in paragraph 4.
The only way a determination could be made about consistency would
be in two respects. First, that Congress will prepare to see that
ANILCA were changed to provide for what appears to be a rural plus
arrangement. That is, under current law, not possible. And
second, it also in terms of -- let's assume that we were simply
dealing with a rural preference, the problem would still be here
that until the statutory scheme accompanied the constitutional
amendment, Congress would not be in a position to indicate that we
have laws of general applicability which are consistent with the
definition priority and participation required by ANILCA itself.
So those are just very brief comments on the merits. I think
second of all, what this has pointed out to me in reviewing the
various iterations this week that we've engaged in a great deal of
debate over words, concepts, where they're placed, constitution
versus statutes, for example, that it would be helpful as a process
-- may not work so well in the legislative arena, is to focus more
on what the fundamental objectives themselves are before we start
trying to wrestle with individual sentences that precursor to the
fine language that we work towards should be to see if there is
commonality about what it is we can achieve and to find out whether
we can say it all in the same way. I suspect we're less far apart
in terms of where we'd want to be than would be evident in my
testimony today or in what's been placed directly here. We have a
fundamental problem with placement now and we have troubles with
some of the concept and body. But again, I think that there is a
benefit to taking a timeout to see if the constituents that are
most affected here and that between the executive and legislative
branches we can find a common objective. And finally, I would like
to express the concern that -- and without diminishing the work
that has been done on this draftee, just a reminder that the
document we're talking about that we're trying to protect here is
the constitution, and one that I think we all regard as a sacred
document not to be lightly changed. It's obviously a view everyone
shares here or we would have been here a long time ago, but also
the importance that the legislative process -- we're at a point
where there have been I think, Mr. Chairman, you indicated the
other day more than 1,000 witnesses, hundreds of hours of hearings.
We are getting closer to the end and yet people are saying in
trying to testify on versions that don't catch up with where we are
and that there is an appropriate point when we've got a new concept
to allow the public to look at it more carefully and for us to look
at it with deliberation. And I recall this becomes particularly
important from my perspective because I ended up having to litigate
the meaning of portions of the constitutional budget reserve,
which, as many of you will recall, was actually a collision between
two different constitutional amendments that were being kicked
around. And then literally the wee hours of the night a final
product was put together, was voted on, placed on the ballot, and
we continue to litigate over what it means and there wasn't an
adequate record to look at to say, "This is what the legislature
meant. What is an administrative proceeding?" And I can say while
the constitutional budget reserve was an appropriate amendment, it
doesn't in itself have lots of constituents who want to litigate
over those terms. Unlike this particular amendment which I'm not
hopeful for, but I'm certain of, will be litigated a great deal.
And it's important that we have crafted it with deliberation. And
again, Mr. Chairman, I commend the legislature for the kind of
effort it's put in this year, particularly in the special session,
then to get through this. And so I'm not, in any way, denigrating
that work. It is essential to this process. I'm only suggesting
that there is a point where it may be necessary to slow down before
we make the final push to ascend this mountain. Thank you, Mr.
Chairman.
Number 0654
CHAIRMAN GREEN: Thank you, General Botelho. I would like the
record to reflect that we've been joined by Representatives
Austerman, Ogan, Ryan and Kubina. I have one question and we have
two others. You indicated that you would like to perhaps get a
group of people together to review, again, "What is our real
objective?" Would you have some idea what sort of group you were
talking about?
MR. BOTELHO: Mr. Chairman, I haven't suggested any particular
composition except that I think that we have some real parties and
interest here that have -- more directly affected and the
constituency probably most directly impacted by what we do is the
Alaska Native community. It would seem to me that having some
direct involvement in the actual formulation of some of these
issues -- people who have actually had to work through these word-
by-word, sentence-by-sentence, line-by-line, would be helpful. And
again, the Administration certainly stands willing to work in that
context, but there may be a lot of different formulations. My
primary concern is simply to say that I think it would be helpful
to have some sort of brief timeout to regroup.
CHAIRMAN GREEN: Thank you, Representative Bunde.
REPRESENTATIVE CON BUNDE: Just so I understand, you put it in very
diplomatic and legal scholarly like terms needing to understand it
from my point of view. We've been pushed on for months if not
years to hurry up and get this done because there is a deadline
coming. Now the Administration is suggesting that we delay. We
have received, from some points, criticism of the Governor's task
force because it was not an elected group that did not necessarily
follow the meetings law, and now you're suggesting the Governor's
task force too. Am I correct in my summary?
MR. BOTELHO: Mr. Chairman, I think the answer, in some respects,
is yes to both of them. Let me say to be quite clear, for months
we've been asking the legislature to take a look at a version which
has been -- that is the task force proposal that has been out
publicly since last September, actually earlier than that, but
that's the final report. And if that were the product we were
acting on, there would be no reason for delay. My point is that I
would guess that most people in this room, much less the public at
large, have not had an opportunity to study the House Resources
Committee substitute and it goes a different direction than any
proposal that, in terms of a constitutional amendment, that has
been on the agenda in this session. I don't recall having seen it
yet on any other session agenda. And my point is only I'm not
suggesting any lengthy delay or short delay. I'm suggesting that
there be time enough to scrutinize, whether you decide to go ahead
with this one or another, carefully enough to look at each word
because with certainty we're going to be litigating over it. We do
not, again, and I'm saying that regardless of my views of the
merits of this one, I've told you I don't think it works. But
obviously the legislature has the prerogative to fully disregard
what I have to say on that. I caution you that it is imperative
that the words be studied for what they're going to be litigated
over for years and perhaps it unavoidable, but some of it clearly
is. And I think taking the time to look at those ramifications, to
craft it carefully rather than, again, in a very short span of time
get it out simply to say, "We've got something here we think, in
good faith, satisfies ANILCA and we just want to make sure the
public gets a chance to vote on it," but it takes a little more
than that. With regard to being able to have people meeting, I'm
not in any way suggesting that there should be any circumcision -
circumscribing of [laughter]... Mr. Chairman, I think we don't
want to circumvent - we get to it eventually, the public process
that public rightly expects from you and from us in arriving at the
final conclusion. But I think it is also helpful to have the
opportunity, in an informal setting, to have dialogue and frankly
this committee structure is important. It is essential, it's in
fact the ultimately only gate-keeping way to get to the final
result, but that there is some benefit for being able to sit around
a table and talk with people back and forth, something that in this
setting is difficult to do. Your rules prevent the debate that
might happen between individual members of the committee and those
testifying, for example. But that debate obviously does happen in
the hallways and I think frequently actually leads to some
enlightenment and I'm simply suggesting that I don't find it
inappropriate. I have no reservation about how the task force
proposal evolved. I know there are other that disagreed with it,
but I think it was fully appropriate. We always recognize that
that recommendation would have to go to the full public process.
So again, Mr. Chairman, a very long-winded slicing of the pie for
Representative Bunde.
REPRESENTATIVE BUNDE: Yes, we want to delay it (indisc.).
Number 1074
CHAIRMAN GREEN: I would piggyback on Representative Bunde's
question. And incidently, we have been joined by Representative
Hudson. And momentarily at least for awhile we had Senator
Torgerson in the audience. One of the concerns we have, General,
is that we don't have a long window to do much if we're going to do
anything at all to modify or hope to get a modification of ANILCA
and that one of the things I see if we have the Native or rural
area representative or representatives and Administration, I would
certainly think, and legislative, that can sometimes work into a
rather protracted deliberation. And the problem we have is time.
We've been told that if we don't do something by sometime next
month we may be out of luck even if do finally get a resolution of
it. And so do you have any rays of hope for us in the fact that
once we do -- if we were to go that route and we established this
tribunal or some other -- maybe it's quabunal (ph), I don't know,
that we could get resolution? We need reasonable length of time.
Number 1132
MR. BOTELHO: Mr. Chairman, I think we would know that fairly early
on. It may turn out that if our objectives are not common that
everybody should go home for good. I'm, by nature, an optimistic
person, continue to be and, again, I'm not suggesting a specific
timetable, but if something that -- I hear your concern about both
urgency. We share that urgency, that sense of urgency, and I also
respect the fact that this body is in Juneau. It is inconvenient
to leave and come back, but also...
CHAIRMAN GREEN: We may need to shorten up our responses a little
bit, thank you. Representative Croft.
Number 1177
REPRESENTATIVE ERIC CROFT: Thank you, Mr. Chairman, and my
difficulty is time as well that when we saw this yesterday, a lot
of new specifics, some new assembled ideas, I talked to
Representative Porter about getting some time to look over it and
wanted particularly last night look over it and said that if we did
that, that I wouldn't delay us, not that I ever have in Judiciary,
and I'm worried that my two hours of debate time is being used for
a good discussion here. But I just wanted so we didn't get to the
very end of it and it looked as though I were delaying. I'd like
to make a motion to remove Section 3 now, then continue with our --
I believe we have more witnesses. I know there are a lot more
people that have interesting things on this. My reason, very
briefly stated, Mr. Chairman, Section 3 puts a number of collateral
requirements on before this amendment will take effect,
specifically directed at Katie John though more collaterally at the
jurisdiction of both the federal government and the federal courts.
I believe this provision guarantees federal takeover. I don't
think there is the time or the votes to do it. I particularly
think that Section 3, subsection (3), that repeals the jurisdiction
of the federal courts we just don't have the power to do. Under
Article III of the United States Constitution extends the judicial
power of the United States to all cases in law and equity arising
under the constitution - the laws of the United States. I think
what we're asking there is an amendment to the federal
constitution. But without going in anymore -- if we're going to
comply with the heart of ANILCA, if we're going to comply with
ANILCA we don't need these. If we're not, it's disingenuous to as
for them. So I think the first step to getting a true resolution
of this and retaining state management not having Section 3 in this
proposal.
Number 1290
CHAIRMAN GREEN: Were you present yesterday during the Resources
Committee? A statement was made by Representative Hudson that he
had talked with Senator Murkowski and that the thought was there
that if we made some conditional approval conditional on some
modifications to ANILCA that he would hold hearings and felt very
confident that he could accomplish that. Now is that because what
you're saying now you don't think we should negotiate or that we
should have the effective date predicated on those negotiations.
REPRESENTATIVE CROFT: It's both and I wasn't here when
Representative Hudson made that representation. I was doing
exactly what I had promised Representative Porter I was doing is
going over, as best I could, in that limited time the specifics,
the language, the idea behind this bill. Holding hearings is one
thing. Amending -- taking something as drastic, as in my opinion,
would need an amendment to the United States Constitution or at
least a fairly large withdraw of jurisdiction is quite another and
getting it passed. So I don't doubt the representations that
Representative Hudson made. I don't think it can happen, but I
know that by making it a prior condition you virtually guarantee
federal takeover this fall, say in my opinion.
Number 1362
REPRESENTATIVE SCOTT OGAN: Mr. Chairman.
CHAIRMAN GREEN: Yes, Representative Ogan, on that point.
REPRESENTATIVE OGAN: On that point, on the motion to delete
Section 3. I know I'm not a member of this committee. I
appreciate the ability to speak on it. This is a deal killer.
(Indisc.) my vote on the floor is absolutely (indisc.) I'm not
there. If we're not going to talk about getting sovereign rights
to manage our navigable waters back, unequivocally from the federal
government, we all might as well just get up and walk out of this
room now.
REPRESENTATIVE CROFT: I hope he didn't take my time on that.
CHAIRMAN GREEN: No, he didn't and we do appreciate and we honestly
accept the fact that you did not cause the first hour of delay.
Representative James.
Number 1397
REPRESENTATIVE JEANNETTE JAMES: Well, there is a motion on the
floor. Must I speak about the motion because I have other things
that I wanted to ask these people.
CHAIRMAN GREEN: Yes, right now.
REPRESENTATIVE JAMES: So right now I'll have put mine off until
we're through dealing with this amendment.
CHAIRMAN GREEN: Alright. Okay, Representative Porter.
Number 1410
REPRESENTATIVE BRIAN PORTER: To the proposed amendment. I
understand the intent of the motion but I would have to agree that
within the context that this bill has been put together this is a
vital ingredient in the bill. I guess to the specific concerns,
we're not asking the federal courts, in number 3 on page 2, Section
29, to repeal their jurisdiction in total. We're asking them to
take it out of Title VIII. That's the only thing we're asking. I
don't think it is the momentous action that it might otherwise be
if that weren't the case.
CHAIRMAN GREEN: I support that obviously. I don't have the legal
background that the maker of the request did, but it seems to me
that when we're in Title -- we're dealing only with an action that
deals specifically with the state. It certainly -- to repeal or
modify that would not abrogate the constitutional powers of the
United States. That, obviously, is just an opinion. Any other
discussion on the -- Representative Hudson.
Number 1470
REPRESENTATIVE BILL HUDSON: I realize I'm not a part of your
committee but, Mr. Chairman, I would like to point out also that we
have modified from the beginning to call for a substantially
compliance which I think provides for, in all of these instances
there, some discretionary actions and I don't know if everybody is
aware of that.
CHAIRMAN GREEN: Any other discussion about the motion to strike
Section 3? The objection is maintained. Can we have a roll call
vote please?
COMMITTEE SECRETARY: Representative Croft.
REPRESENTATIVE CROFT: Yes.
COMMITTEE SECRETARY: Representative Rokeberg.
REPRESENTATIVE ROKEBERG: No.
COMMITTEE SECRETARY: Representative Porter.
REPRESENTATIVE PORTER: No.
COMMITTEE SECRETARY: Representative James.
REPRESENTATIVE JAMES: No.
COMMITTEE SECRETARY: Vice Chair Bunde.
REPRESENTATIVE BUNDE: Yes.
COMMITTEE SECRETARY: Chairman Green.
CHAIRMAN GREEN: No.
COMMITTEE SECRETARY: It failed.
CHAIRMAN GREEN: Failed. The motion does fail. Is there any
other...
REPRESENTATIVE JAMES: Am I up next?
CHAIRMAN GREEN: Yes.
Number 1526
REPRESENTATIVE JAMES: Thank you, Mr. Chairman, back where we were
before this motion was made.
CHAIRMAN GREEN: Yes, correct.
REPRESENTATIVE JAMES: Attorney General Botelho, we've had a lot of
conversations on this issue this year and I've been doing an awful
lot of discussion with people on the ground around the state to try
to figure out what the solution is and - to this issue. And it
seems to me like that what we really need is some understanding.
You talk about a group of people to establish some understanding
and I think you did say we need to whether our goals were the same
as what your goals are and I think they're not. And I want to put
on the record, from my own perspective, is that whether or not
we're looking at a state solution -- we said a legislative solution
that I don't consider a constitutional amendment a legislative
solution. There is legislation and then there is constitutional
change. And I think the problem is whether or not we need a
constitutional amendment. And it was interesting -- I just have to
take a little bit of time here because I've been thinking about
this a lot since I've been here, it's been on my mind constantly
because I really truly wish that we could have a solution where we
could all live in peace together again and go on about our life the
way it ought to. But the conversations on the floor yesterday by
Representative Davis from Soldotna where he was reviewing the
Constitutional Convention and the original writing of the
constitution, and this was a problem then and they settled it by
putting in Article XII. And it's been my contention all along had
the original ANILCA, that provided for a Native priority, which we
would have been okay to manage under Article XII, is where the
problem began. And my conversations with Senator Stevens says, "I
had a hard time getting in rural, there is absolutely no way I
could get in Native." But it seems to me like - that something on
that level ought to be able to be worked out. One question, and as
a legal mind, you may - don't have to answer this now, but I've
been thinking is it possible for us to recognize a Native right
under Article XII as it comes to subsistence even though ANILCA is
not truly Indian law because it gives the right to rural - to
Native and non-Native? Is there any way that we could recognize an
aboriginal right, under Article XII, for subsistence?
Number 1653
MR. BOTELHO: Mr. Chairman, I'll respond directly to that question
and if I might also respond to some earlier comments. The section
we're talking about is actually Article XII, Section 12, which is
the disclaimer provision that deals with aboriginal titles,
including fishing rights, which was required by the Statehood Act,
itself, as a condition precedence to admission. But again, as I
have described at one point that language was actually interpreted
by the (indisc.) Supreme Court in a case called Organized Village
of Kake versus Egan in 1962. And what the court said that language
meant was simply to reserve at statehood or later resolution by
Congress of those claims of ownership, reserving them. And also
the question, not deciding it one way or another, about whether it
was compensable - those claims were compensable. Congress finally
did address those issues in Title XII, Section 12, in passing ANCSA
[Alaska Native Claims Settlement Act] in 1971. I don't think that
Title XII, or excuse me, Article XII, Section 12, empowers the
legislature to pass a preference on the basis of Native ethnicity.
That's my view.
Number 1736
REPRESENTATIVE JAMES: Then a follow-up on that. The other
discussion that we had, had to do with a negotiated of people
getting together to come up with a conclusion of how we could
statutorily provide the subsistence issue without changing the
constitution which takes some ANILCA changes. And my -- we have a
deadline of like July 25, or something like that, to get a
constitutional amendment on the ballot which means that if our goal
is constitutional amendment, which quite frankly it's not mine,
than July 25, is the deadline. If our goal is December 1, which is
to not have the federal government take over fishing, which is my
goal, then we have a little more time on that issue. Would -- and
if we were to put together a group where the group selected who
would speak for them, and we had it moderated by someone who does
those kinds of things, a person who is not biased and is in process
of doing that, there would be time to do something like that
between now and December 1. Would you entertain any kind of a
method such as that to come to some peaceful agreement on this
issue?
Number 1797
MR. BOTELHO: Mr. Chairman, it's quite clear that we do have a
fundamental difference in objectives. Ours has been to do, and
that be somewhat a repartition four things. The first has been to
regain state management. I understand that's in a global sense,
perhaps everyone agrees with that view. Our view has been that
that is achieved by enacting laws of general applicability that are
consistent with, again, using the ANILCA language, the definition
of "preference" and the participation required in ANILCA. How do
you get that? We have two supreme court decisions of the state
supreme court that say you can't get there or a variant. You can't
provide the benefit to all rural Alaskans and inclusively exclude
urban residents. That's the McDowell case. So we can't comply
with ANILCA so long as that is the law interpreting our
constitution. There is another one that is important also to
recognize and that the subsequent decision by the supreme court,
Kenaitze case, which also makes it impermissible to use proximity
to the resource as a basis for determining. And this came up in
the context of sorting out between Tier I and Tier II subsistence
users. That could not be a criteria. My answer is that when we
start from the fundamental premise that regaining state management
is best achieved by passing laws that are consistent and the only
way that may be done is through an amendment to the constitution.
Our second premise was that we wanted to recognize the paramount
importance of the subsistence way of life. Again, I suspect, in
general terms, that is an objective that we share. The legislature
certainly in the past has identified subsistence use as the highest
beneficial use of the resource. We also went from the premise that
it would be one that would be achieved, hopefully, with the least
amount of change necessary in both the constitution and changes to
ANILCA and the statutory scheme. And that was the approach the
task force took. It is one that the Administration fully endorses.
The constitutional amendment itself did not try to say rural,
didn't try to describe or mandate, by the legislature, that it had
to do anything. It was to be enabling. I think in keeping with
provisions that you find in other parts of the constitution, a
conferring of power on the legislature to solve a problem, in as
broad terms as could be achieved recognizing that standing alone it
wouldn't be able to do that. It would require you to take the next
step which was statutory changes and those, again, the task force
looked at using the current Section 258 from the 1992 law as the
basis. And finally, we looked at changes to ANILCA that did not
change the heart of it, but which had proved problematic to the
state - the absence of definitions dealing with rural, dealing with
customary, traditional, trade, trying to circumscribe the powers of
the courts because we knew this was an important issue to Alaskans
and the resentment in many quarters of the role the federal courts
have traditionally played in the area. That's what we tried to do
to get there and I think we still believe that is the road map that
will allow us to achieve our end. For that reason I would say,
again, in summation on this that our objective right now is July
25th, not December 1st.
CHAIRMAN GREEN: I would like to recognized Representative Elton
has joined us.
REPRESENTATIVE JAMES: Just one final comment. I think I've made
it perfectly clear that my goal and your goal are different. And
just the one comment that I wanted to say is that it seems to me
like the Alaskans have a solution to this that does not include a
constitutional amendment. When ANILCA is Alaska law, it doesn't
really affect any other state. It is very difficult for me to
believe that the congressional delegation wouldn't yield to
Alaska's desires. And so that if we could come to a negotiated
agreement between the parties that are affected and the rest of the
state on this issue and came to the congressional delegation with
that solution, I believe they would take it to the bank and put
this thing aside. It's just a comment, you don't have to respond.
CHAIRMAN GREEN: Representative Ryan.
Number 2038
REPRESENTATIVE JOE RYAN: Thank you, Mr. Chairman, for allowing me
to participate in your committee meeting. Mr. Attorney General, I
-- my ears perked up when you talked about people and I hope -- I'm
asking you if this is true, people want to come to the table and
discuss this. The reason I say this, the Administration and both
houses of the legislature have been accused of politicking a lot on
this. The general opinion that I've received as far as the Native
community was concerned was they had no reason to come to the table
because they had ANILCA. Why should they negotiate something when
they already have a slam dunk with federal law? My question to you
is this proposition you make, is there sincerity on the part of all
parties involved to try to reach a reasonable solution because I
really believe that honest people can sit down and give and take a
little bit. Perhaps we can craft something, but if this is going
to be another exercise in politics and posturing then I don't
really want to waste my time. I'm willing to talk, I'm willing to
do what I can, but not if it's going to be the same old diatribe
because we have too much opposition. Too many people feel too
differently and we've demonstrated already that the Governor's
proposal is not acceptable. Is this real sincere? Are the people
committed to try to help, try to craft a solution?
Number 2093
MR. BOTELHO: Mr. Chairman, if I might, I say it with all
sincerity. I think it's also clear that we have, as you have,
certain principles that we're fundamentally not prepared to
compromise on and it may well be, as my exchange with
Representative James, there may be a fundamental difference there
in which case we're not going to be able to bridge. But again,
speaking from our perspective, we have been searching for a
solution. I don't speak for AFN [Alaska Federation of Natives],
but I think having seen their active participation here this week,
as well as over they years, they have been the one body that has
consistently been here. They are the body that represents the
people who most directly feel at stake at this issue and they've
been here saying we could...
CHAIRMAN GREEN: Excuse me, you're pretty convinced that they are
going to be really wanting to work?
Number 2137
MR. BOTELHO: Mr. Chairman, I'm not going to make any statement
about what they're prepared to do. They're here and they can do
that. I can speak for the Administration. I'm only saying that if
I were to look at what we have seen, I think Representative Kookesh
in his address to the body, has indicated there are lots of people
in rural Alaska who would say Title VIII -- we've got what we need.
The federal management has demonstrated its ability to meet our
needs, listen to local input and act on it, but were here because
we're also Alaskans. We want to see the constitution of Alaska
work so...
CHAIRMAN GREEN: We are on kind of a short fuse since we got a
short delay. So I'm going to kind of move these along.
Representative Rokeberg.
Number 2167
REPRESENTATIVE NORMAN ROKEBERG: Mr. Chairman, Mr. Attorney
General, could you comment on your statements regarding concerns
about placement. This -- the task force and then it was in Article
IV or excuse me, Article VIII and so is this, but this is a
subsection of Section 4. The task force amendment was new section.
Could you comment on that?
MR. BOTELHO: Yes, Mr. Chairman. My expression was not that it
wasn't any one particular section of the constitution but whether
this particular language should be in the constitution at all.
This is the kind of language, in terms of describing the
presumptions, for example, in a statute and not in the
constitution.
REPRESENTATIVE ROKEBERG: In regard to your comment about the
Kenaitze, if we had a constitutional amendment before the voters of
this state to choose a proximity type basis, would that be
sufficient to overcome that particular decision? Because it --
would a federal case or the state case or what?
Number 2187
MR. BOTELHO: Mr. Chairman, the Kenaitze - there are actually two
Kenaitze cases, but the one we're talking about is the state one
which deals with the proximity. And as I understand your question
is would it be sufficient simply to have some provision that dealt
with proximity to the resource?
REPRESENTATIVE ROKEBERG: Anything that could be construed as
proximity because, okay.... Now in terms of this particular
resolution before us, in Section 2 could I get your general
comments on Section 2? We already commented. Generally, but more
specifically regarding the way it's structured and the use of the
term "customary and traditional dependency" here. We've had some
testimony before the committee about a state statutory definition
of "customary and traditional." There is some dispute about what
the term "dependent" or "dependency" might mean under Alaska
statute. I'd appreciate your comments on that.
MR. BOTELHO: Mr. Chairman, if I might defer to Assistant Attorney
General Steve White.
Number 2265
STEPHEN WHITE, ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES
SECTION, DEPARTMENT OF LAW: In the bill it says, "customarily and
traditionally dependent", as a way of qualifying in this.
Customary and traditional has been used customarily for a long
period of time in the state subsistence law and indeed in ANILCA,
and it's never been used to define "dependency." It's been used,
for example, in ANILCA to talk about customary and traditional
taking that use and reliance. There may be a small leak between
reliance and dependency, but in any event every word in the
constitution is highly scrutinized. So I just want to make you
aware that "dependency" in terms of being defined or being the
object of customary and traditional has a new concept. It has not
been used and has not been tested and, therefore, will likely be
the object of litigation.
Number 2300
REPRESENTATIVE ROKEBERG: Mr. Chairman, it is in the new ANILCA
amendments though - customary and traditional dependence.
MR. WHITE: Mr. Chairman, I believe it's only customary and
traditional uses via page 110 of the....
CHAIRMAN GREEN: Yes, while you're looking on that point,
Representative Porter.
Number 2315
REPRESENTATIVE PORTER: We had this discussion yesterday. It
appears from the review of the total ANILCA, with the Steven's
amendments as we've been classified, that there is a definition
that says, "customary and traditional dependence," as it relates to
a subsistence area. A subsistence area is a area in which there is
a customary and traditional dependence upon the resource.
MR. BOTELHO: Mr. Chairman, that's correct in terms of what a rural
-- in the definition of "rural Alaska resident" trying to define
what constitutes a rural community or area. It talks about a
community, again, that is substantially dependent.
REPRESENTATIVE PORTER: Then by definition to the user, ANILCA is
"customary and traditional use taking or reliance." But state is
"and reliance," I understand our state statute...
TAPE 98-99, SIDE B
Number 0001
CHAIRMAN GREEN: Is that a affirmative response?
Number 0027
MR. WHITE: I'm sorry, I thought you were making a statement. If
you're asking me to...
REPRESENTATIVE PORTER: No, is my understanding correct?
MR. WHITE: That in state law customary and traditional -- maybe
you could restate it, I'm sorry.
REPRESENTATIVE PORTER: It's my understanding that the difference
between a user -- the definition of "a customary and traditional
user" between state and ANILCA - state statute and the federal law
is that the federal law is customary and traditional taking use or
reliance on the resource, and the state statute makes it basically
"customary and traditional use and reliance."
MR. WHITE: If I could take a moment, I'll look at that and get
back to you.
CHAIRMAN GREEN: If you would because I think Representative Porter
is right, we did discuss that in the Resource....
Number 0100
REPRESENTATIVE ROKEBERG: Mr. Chairman, that's why I brought the
issue up because I wanted to get the Administration's viewpoint.
We had staff counsel with their opinions and I think this is a very
important issue and that's why I wanted to bring it forward here.
Clearly, it is a head scratcher, but because of it's use in this
particular resolution for the constitutional amendment I think it's
absolutely imperative that it be clear.
CHAIRMAN GREEN: If one of you might look that up we can go on with
the questioning of General Botelho. Representative Ogan (indisc.)
response or do you have a follow up?
REPRESENTATIVE ROKEBERG: Mr. Chairman, yeah, I have one more
question. Regarding the Section 3 provisions, Mr. Attorney
General, the subsection (4) - you've said that we would need
statutory scheme in order for Congress to review our particular
constitutional and statutory consistency with ANILCA. Does the
word -- in subsection 4 is consistent with subsections (4) (b), (c)
and (d). Is that most troublesome part of that because it seems to
be in contradiction to "substantially complies" more less in the
beginning sentence of subsection (4). And could you comment on the
difference between "substantially complies with" and then "is
consistent with the subsections?" This seems to be, from a
drafting and meaning standpoint, two different levels of what is
intended to be done here. Could you comment on that?
Number 0230
MR. BOTELHO: Thank you, Mr. Chairman, yes I can. I think it's
important that there are two different certifications that are
implicit here. One is explicit, the other is implicit. You begin
at line 19, on page 2, talking about the Governor making a
certification in order for the constitutional amendment to take
effect. This is a bit of a circular -- the question of consistency
is not one that we get to make. It is the one that the Secretary
of Interior gets to make. He's not going to be bound by what you
find in the rest of this section. And What he's going to decide is
whether the laws that the state of Alaska has in effect on December
1st, are laws, again, to use the language of general applicability
which provides for the definition of the preference and the
participation. And at best, one could say that the constitutional
amendment you've proposed here tries to address the preference, it
misses the mark or it doesn't satisfy the definitions nor does it
satisfy the participation. As a consequence, the Secretary isn't
going to be able to make that certification and the Governor, in
turn, will not be able to certify the constitutional amendment
because it will be difficult for him to be able to determine that
its even substantially complies. That's part of I think the
circular difficulty one has to I guess struggle through.
REPRESENTATIVE ROKEBERG: Thank you, Mr. Chairman, (indisc.) my
questions.
CHAIRMAN GREEN: Representative Ogan.
Number 0367
REPRESENTATIVE OGAN: Thank you Mr. Chairman, I'll try to be as
brief as possible and redirect. I'd like to establish two issues
for the record, and then I'd like to possibly follow up with a
political timing issue. First thing, Mr. Chairman, I'd like -- Mr.
Attorney General, I'd like to establish that on times of shortage
language here, it sometimes - it's been interpreted by the courts
I believe in the Bobby case that "times of shortage" means anytime
there is a hunting season, that's a shortage. In Lime Village
we've got kind of a little circle around Lime Village that there is
essentially no hunting closed season. And I would like to
establish that in times of shortage, basically "sustained yield
principle" means that if -- could be interpreted that there is a
time of shortage. And under sustained yield principle; i.e., times
of shortage, we can give a preference of subsistence use of fish
and game. This is what gives me comfort level with this, the fact
that this preference, a subsistence preference-based on a area
where there is a subsistence use area - nonsubsistence use area.
I believe that section of the constitution gives us that authority
to do that and to give that preference and then we're defining it
further in this amendment that the preference is based on a
subsistence that's nonsubsistence area. But the times of shortage,
I'd like to clearly establish on the record that that doesn't mean
that if we have a hunting season, there's not enough game to go
around. I think times of shortage would be best interpreted that
under the existing traditional hunting seasons, not just because --
under the traditional hunting seasons, there would be -- and
traditional use patterns, if we have a decline from that, that
would be a time of shortage. Am I making myself clear?
CHAIRMAN GREEN: We have -- if refer to lines 13 through 15 on page
1 where we're talking about that this actually is in periods of
time when there is not sufficient taking for - to accommodate all
beneficial uses. I think that's where you're headed. I think
that's where you're headed. Is that right?
REPRESENTATIVE OGAN: That's correct, that's correct.
Number 0545
MR. BOTELHO: Mr. Chairman, I'm not sure whether I'm being asked to
comment on whether this is what you meant by this language. I
don't know the answer to that.
REPRESENTATIVE OGAN: I would like to establish that, for the
record, that that's what we mean and then maybe you can comment on
the Bobby case and how that's been interpreted differently by the
courts. I think that the Bobby case, if I'm mistaken please
correct me, but the Bobby case essentially established a full-time
hunting season around Lime Village. Is that correct?
Number 0580
REPRESENTATIVE CROFT: Point of order, Mr. Chairman.
CHAIRMAN GREEN: Your point of order, Sir.
REPRESENTATIVE CROFT: Representative Ogan can't establish what the
Judiciary Committee means by this, the drafter or certainly can't
what I mean by it.
CHAIRMAN GREEN: I agree. I know what you're after, Representative
Ogan, but I think with this statement in the bill that we're
looking at that probably will establish that. And I know you would
like to have the Administration or the AG's [Attorney General]
opinion on that. I don't know what that would mean whether that
would help us or not.
Number 0609
MR. BOTELHO: Mr. Chairman, let me respond to - more specifically
to the Bobby case. Representative Ogan is correct that it arose in
Lime Village (indisc.) with moose hunts. The Board of Game had
made extensive findings about the almost total reliance of Lime
Village on moose as fundamental of the major part of the
community's diet. And then, in essence, imposed (indisc.) poor
hunting season on that area. That issue was then taken to federal
court as is authorized by Title VIII of ANILCA. The federal courts
said this is unreasonable, used an example actually and it was this
arbitrary, capricious abuse of discretion. You make the
determination about what the fundamental need of the community is
and dependence on the resource and then you establish regulations
that make it impossible for the community to satisfy their basic
need. There is a lot of other language - individual sentences that
people pull out of Bobby, but I think that's the fundamental
(indisc.) holding of the case.
CHAIRMAN GREEN: You had another point, Representative Ogan?
Number 0703
REPRESENTATIVE OGAN: Yes, Mr. Chairman, I'll try to be as brief as
possible. This subsistence -- Article VIII, Section 4, we had this
conversation on the previous constitutional amendment a couple of
days ago -- enables us to give a preference amongst beneficial uses
and that -- Do you consider that the fact that that's the enabling
section of this constitution that because of that we have a little
bit more latitude as far as subsistence and nonsubsistence areas
and it doesn't compromise the equal protection provisions,
specifically Article I, Section 1 of the constitution?
MR. BOTELHO: If I've understood your question correctly, Mr.
Chairman, Representative Ogan, does this language somehow authorize
the creation of separate areas? I'm sorry, I may have missed it.
If I understood you to be asking me whether this gives some
additional level of comfort for the (indisc.) state in subsistence
areas and nonsubsistence areas.
REPRESENTATIVE OGAN: Mr. Chairman, Mr. Attorney General, the
enabling language is Article VIII, Section 4 that allows us to give
a preference to subsistence already, that's existing.
MR. BOTELHO: Yes, Mr. Chairman, that's correct.
REPRESENTATIVE OGAN: And this preference is based on where one
lives with the rebuttable presumption if you're not in this
subsistence area is enabled only in times if shortage, and because
of that, Article VIII, Section 4, enabling doesn't compromise the
Article I, Section 1, in any way.
Number 0817
MR. BOTELHO: Mr. Chairman, to the extent that the court would be
trying to harmonize Section 1, which is the current sustained yield
principle. Section 2 would be read as not being inconsistent. The
courts would read them together and harmonize them, so -- and if
this were the text, the courts would find a way to say that one was
not in conflict with the other though there is an inherent, and
this is a minor point, but to me somewhat amusing because we are
dealing with sustained yield, but minerals and waters are not
sustained yield. They're not renewable resources so there
reference in here in lines 15 and 16 of page 2 is really
incongruous, and I assume the courts would simply read that out.
REPRESENTATIVE OGAN: Thank you, Mr. Chairman, very briefly a
statement.
CHAIRMAN GREEN: Very briefly.
REPRESENTATIVE OGAN: We've cut a lot of bait here and we're
fishing. And I hope the Administration is done cutting bait and
putting their line in the water because time - the window is very
short. I would not suggest that we have a great deal of time,
politically, to look at this. Thank you.
Number 0898
REPRESENTATIVE CROFT: Mr. Chairman, I'd like to go back briefly
and quickly to this "customary and traditional dependence" that
Representative Rokeberg brought up because I'm very disturbed by
that phrase as well. When we have the author of the bill, as far
as I could tell (indisc.) to be Representative Barnes, before us I
asked her specifically I sport hunt deer on Kodiak and have done so
non-commercially, long-term and consistently - shoot ducks and fish
in all kinds of different streams. Am I a customary and
traditional user of those resources? She said, "Yes." Assuming my
facts were correct, she didn't necessarily concede that that I'd
(indisc.), but if I do hunt those commercially, long-term and
consistently, I am under the definition. I asked her if it
mattered whether I was rich or poor, didn't. Asked if it mattered
whether I was rich or poor, it didn't. I asked her it mattered
whether I needed that to survive or even if game was a large
portion of my life and it didn't. It seems to me that definition
makes subsistence users out of every sport hunter and fisher in
this state. That's if "customary and traditional" is emphasized in
that. If "dependency" is the key word there and it's a needs-
based, it would contradict what the drafter said to me, but it
would be a needs-based system of dependency and that would put an
individual criteria on every rural resident. So I guess I'm asking
for the legal -- your interpretation of what the heck "customary
and traditional dependency" means, and whether it means users, like
myself, or dependent people and thereby imposes a individual
criteria on all rural Alaska?
MR. BOTELHO: Mr. Chairman, I think this returns us, in part, to
the question that Representative Porter was asking in terms of the
state versus federal law which Steve has had a chance to examine
now.
Number 1099
MR. WHITE: I guess I'd respond by looking at a particular in this
bill here. The bill has two ways of qualifying to be a subsistence
user, one of them being related to where you live or I'm talking
page 2, lines 1 through 7. And the second one being demonstrate
customary and traditional dependence, which I think Representative
Croft is focusing on now. That second method is an individual
criteria method is the way that I read it. In other words,
anybody, regardless of where they live, would qualify if they
showed customary and traditional dependence. What "customary and
traditional dependence" means is something that would be derived
from your discussion here.
REPRESENTATIVE CROFT: If can interrupt for just a second. It does
seem to me, Steve, that on page 2, lines 3 and 4, the way that they
describe the area one, I think that may have been the intent, but
it says, "residents who reside outside of nonsubsistence areas,"
essentially, in a subsistence area "as designated by the
legislature and within an area in which the residents are
determined to be customarily and traditionally dependent." And if
the emphasis is on the "dependent" and the residents are analyzed,
aren't we putting even in that area determination an individual
needs or dependency-based criteria on rural Alaska?
Number 1099
MR. WHITE: Well it certainly -- there is some ambiguity there
because if in looking at the dependency of the area, because it's
talking about individuals, are you looking at the individuals and
what devising the individuals and seeing if more them - more
individuals than not have that characteristic? Or are you looking
at the area generically and more realistic? And that's an
ambiguity.
REPRESENTATIVE CROFT: It is the resident or residents have this...
MR. WHITE: That's one problem that's not clarified here so...
Number 1130
REPRESENTATIVE PORTER: Just on that point, what this is attempting
to do is to describe the ANILCA definition of the area. That is
where the area is determined to have a dominance of customary and
traditional dependence. So it's saying, "Who the heck else?" The
residents of the area have this customary and traditional
dependence.
CHAIRMAN GREEN: Collectively, not individually.
REPRESENTATIVE PORTER: But it isn't an individual -- it is not
intended to be an individual criterion qualification within that
area. It could be better worded.
REPRESENTATIVE CROFT: My fundamental problem with this is that I
keep asking what the bill does and people keep responding to me
what it's intended to do. And it seems to me that the fundamental
problem is it does not do what's it's intended to do.
CHAIRMAN GREEN: Well I appreciate what you're saying and if that's
the case when we get into a problem on that on the amendments that
we may come up with in this committee, then we should probably redo
it. This was advised by a different legal drafter that what we
were really taking about an area can't be dependent on anything.
The residents within that area, collectively, not individually, are
customarily dependent on the use of the resource. And if this
doesn't say that, then it does need to be modified.
Number 1203
MR. BOTELHO: Mr. Chairman, what I see here, in terms of the change
drafting, is almost what I call a three tier system. You have the
area outside nonsubsistence areas I guess (indisc.) say rural. And
then within those areas, we have other - the areas that are
dependent on the specific resource, so that within rural you have
a subdivision called, whatever it is, area in which the residents
are determined to be customarily and traditionally dependent on the
specific resource we're talking about. And if you're there, you
get the presumption. There is no further examination you get to
take, but if you're a person who lives in rural Alaska but not in
the area, there is a presumption that you're out and you have to
demonstrate your customary and traditional dependence. And also,
if you're a person who is outside the - or reside in a
nonsubsistence area, you have to make that showing as well. Have
I understood that correctly?
CHAIRMAN GREEN: Well that's certainly the intent and whether or
not it says it, we'll have to see. On that point, Representative
Porter.
Number 1264
REPRESENTATIVE PORTER: Maybe we do need more work on this bill,
Mr. Chairman. No, that is not my interpretation of this at all.
My interpretation of this is, I thought I said, that we're trying
to define, as ANILCA does, what a subsistence area is not a
subdivision of it - all of it. Unless I'm incorrect, ANILCA's
definition of a subsistence area is an area with a customary and
traditional dependence.
MR. BOTELHO: The ambiguity here lies in lines 2 and 3 on page 2.
We have a person who resides within an area outside of
nonsubsistence area, which presumably is a subsistence area, and
then we also have them residing within an area in which residents
are determined to be customarily and traditionally dependent.
REPRESENTATIVE PORTER: Which are one in the same.
MR. BOTELHO: And that's the ambiguity.
MR. WHITE: Mr. Chairman, maybe I can help bridge a gap here, at
least clarify something that Representative Porter is talking
about. ANILCA talks about a rural area, a community or area
substantially dependent on fish and wildlife - in a general sense
fish and wildlife. The bill, in contrast, talks about an area
customarily and traditionally dependent on a particular wildlife
resource. So you could have an area that's particularly dependent
on a fish stock or game population. In that event, did the people
who then become subsistence users by residing in that area only
have the priority for that fish stock or game population? That
seems to me to be what this says and....
Number 1356
REPRESENTATIVE PORTER: One quick response and then I'll get off
it, Mr. Chairman. I understand that distinction. What this is
trying to get at is the fact that we want to stay with the ANILCA
definition of the area, but recognize that we only need the
preference at the time of a shortage and there is only a shortage
in one particular stock or population. So we've jumped and maybe
we should stepped.
MR. WHITE: That's your intent, I think it's lost in here. It
would have to be clarified.
CHAIRMAN GREEN: Representative Bunde.
Number 1383
REPRESENTATIVE BUNDE: On the bill, Mr. Chairman. On page 1, line
16 - beginning on line 15, "The state may, in times of shortage of
a particular game or wildlife resource, grant a preference," and
getting back to what something that was attempted to be addressed
earlier, this "in times of shortage" seems to be a trigger and all
iterations of some subsistence preference bill. And for my
understanding would you please clarify, for the record, what the
Administration - how the Administration defines, "in times of
shortage?" Some people have said whenever there is a bag limit or
a season, there is obviously a shortage because there is not enough
animals or fish to serve every possible imaginable need. Others
say, "No, times of shortage is something else." Please define for
me what the Administration version of times of shortage.
MR. WHITE: Mr. Chairman, perhaps someone from the Subsistence
Division could clarify that. I personally do not know any uniform
Administration interpretation of what "in times of shortage" means.
What I see in the bill is you have two preferences in the first two
sentences here, one predicated by times of shortage. The other
insufficient to accommodate all uses of the resource. To me,
personally, I think that they're interchangeable. One could well
be one and one could -- they could be the same thing and I'm
wondering why you have preferences predicated by the very same
thing in two different sentences.
CHAIRMAN GREEN: Representative Bunde.
Number 1468
REPRESENTATIVE BUNDE: And following up then, so if there is
insufficient to meet all needs that means that when there is indeed
bag limits or seasons, it is a time shortage according to your
definition.
MR. WHITE: My personal definition of "shortage" is that there is
not enough for all people who want it - all the demands and
everybody's wants and desires. And I've never seen that condition
in this state on any resource. There is always more demand
than....
REPRESENTATIVE BUNDE: So there is then always a time of shortage.
MR. WHITE: Virtually, in my idea of times of shortage, demand
versus supply, we're always there.
REPRESENTATIVE BUNDE: And I think that's really critical for at
least public understanding if not our own that there will always be
a subsistence preference because there is always a time of
shortage. If that's the trigger for preference....
MR. WHITE: If that should trigger, unless you can well define
"time of shortage" something different than supply being less than
demand. But that's again a problem.
REPRESENTATIVE BUNDE: But your definition at this point...
MR. WHITE: My personal one would be....
CHAIRMAN GREEN: Do you want to comment on that or - we're trying
to get to that as an amendment.
Number 1528
REPRESENTATIVE PORTER: Trying to take off on Representative
Croft's good ability to get to it, I would move that the phrase,
"in times of shortage of a particular fish or wildlife resource" be
deleted on line 16, page 1.
CHAIRMAN GREEN: And insert "then".
REPRESENTATIVE PORTER: No, just be deleted. The reason for that,
if I may speak to the amendment, is that we have defined what I
think we mean by "time of shortage" in the preceding line.
"Subsistence uses of fish that take effect when a fish or wildlife
resource is not sufficient to accommodate all beneficial uses of
the resource", that's what we mean rather than have a court tell us
that a time of shortage is what Representative Bunde is indicating
could happen. We don't want that to happen.
CHAIRMAN GREEN: I understand and I think what they're saying
though is that even with that statement, "insufficient to
accommodate all beneficial users", if I want six fish and, for some
reason, the limit has been determined that I can only get three,
then there is a limit. I can't go out and shoot all the caribou I
want, therefore, there is an insufficient amount of game,
therefore, we're in that throw right away.
REPRESENTATIVE JAMES: On that point....
REPRESENTATIVE PORTER: A brief response, there is no doubt that no
matter what we come up with it will have to be defined by statute,
but I think that the basis for the definition that has existed all
be it virtually for the last 30 years is easier found from the line
I left in than from the line I took out.
CHAIRMAN GREEN: On that point, Representative James.
Number 1620
REPRESENTATIVE JAMES: Yes, on that point, ANILCA says that all
other uses need to be taken away before the subsistence is taken
away. And what's happening on that issue as I see it is that we
haven't had to do that because there has always been enough for
subsistence. We've had testimony that there is enough for
subsistence, so the fact that it's all the time is not relevant I
don't think for this. And so I agree with this amendment to take
this line out because I think it does say it two times and it's
more specifically clear in the language what we're leaving in here.
CHAIRMAN GREEN: And I think the consequence is without the
enabling legislation, this does leave the question as expressed by
Representative Bunde and I think responded to by the AG's office
that you're not determining what that really means. We are in
question.
REPRESENTATIVE JAMES: And on that response, we're trying to do
what ANILCA says here.
CHAIRMAN GREEN: I understand.
REPRESENTATIVE JAMES: And I think it does, and if we need enabling
legislation that's the next step.
CHAIRMAN GREEN: That's right. You had another point?
REPRESENTATIVE JAMES: The other point was on Representative
Croft's mention of need - and I wanted to put it on the record.
From my perspective that need does not necessarily mean money or
worth because there is lots of other needs that can be (indisc.)
shown and they're not necessarily derogatory either and I wanted to
put that on the record.
CHAIRMAN GREEN: Representative Barnes.
Number 1690
REPRESENTATIVE RAMONA BARNES: Well Mr. Chairman, I think in their
attempt to answer the question about the time of shortage that
perhaps they do not have the qualifications to answer that, that
someone from the Department of Fish and Game would probably be the
ones that we should ask that question of.
CHAIRMAN GREEN: They did mention that.
REPRESENTATIVE BARNES: They mentioned that after I put my hand up.
REPRESENTATIVE CROFT: On the amendment, Mr. Chairman.
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: I think it's a good one. I'm curious to
know what the sentence has left. Do we need the sentence at all?
The sentence would read, "The state may grant a preference for
subsistence uses of that fish or game resource," and "that" used to
refer to this. It seems to me it simply paraphrases the first
sentence which says, "shall establish a preference for subsistence
uses of fish and wildlife resource."
CHAIRMAN GREEN: And that's why I was offering a friendly amendment
to the amendment to put in the word "then" - "the state may then
grant" because that ties it to the sentence above.
REPRESENTATIVE CROFT: I think the sentence above says it already
and we're restating it so...
CHAIRMAN GREEN: That's right, but if we put "then" in, that ties
the same question that you brought up.
REPRESENTATIVE PORTER: Mr. Chairman, would it be probably just the
same intent, but to change to "a" on line l, page 2.
REPRESENTATIVE ROKEBERG: No, that's too generic to change
(indisc.).
REPRESENTATIVE PORTER: "or any" I guess.
CHAIRMAN GREEN: I think what we're trying to tie it back to is the
first sentence.
REPRESENTATIVE ROKEBERG: Right, Mr. Chairman.
CHAIRMAN GREEN: Yes, Representative Rokeberg.
Number 1767
REPRESENTATIVE ROKEBERG: I think Representative Croft (indisc.),
it's matter of what we're trying to get here. What we're trying to
do is identify a discrete or particular fish and game stock. So
actually the better word would be "discrete," but people wouldn't
necessarily understand what that meant. But you could even add
that in on line 14 near the end of the sentence where it says,
"subsistence uses of fish and wildlife that takes effect when a
discrete or particular fish or wildlife resource", et cetera. And
then delete the next sentence is what you could do, but you need to
get the right word there that makes some sense because that's what
we're trying to draw attention to is a particular and discrete
stock of fish and game so....
CHAIRMAN GREEN: Mr. Popely, would you join us at the table on this
particular issue and see, whether in your opinion, what the wording
should be to accomplish what the amendment is trying to say.
MR. BOTELHO: Mr. Chairman, would you prefer us to withdraw at this
point?
CHAIRMAN GREEN: Or we could just bring a chair up because we may
have some more questions for you as well unless you prefer to step
back in the gallery.
REPRESENTATIVE CROFT: Do you plan to adjourn at 11:00 [a.m.]?
CHAIRMAN GREEN: No. Mr. Popely, have you heard the
recommendations?
Number 1854
THEODORE POPELY, LEGISLATIVE ASSISTANT TO THE SENATE AND HOUSE
MAJORITY, ALASKA STATE LEGISLATURE: No, Mr. Chairman, I have not.
This is Ted Popely, Counsel for the Senate and House Majority. I
was out of the room.
CHAIRMAN GREEN: What Representative Porter had suggested in the
amendment was on line 16, page 1, that we delete all the words
staring with "in times" up to including the "," after "resource."
And the question then resolved about the fact should that sentence
tie back to the first sentence with something like, "The state may
then grant," which implies obviously that we're talking about the
other question. And there was some concern about that on page 2,
line 1, the fourth word in "that" should be something other than
"that" "any" or "a".
MR. POPELY: Mr. Chairman, the phrase on page 1 that is suggested
to be deleted and replaced and replaced with the word "then", I
agree that that phrase, "in times of shortage of a particular fish
or wildlife resource," appears to be confusing because it
superimposes two standards of what a shortage is. And I agree with
what Representative Bunde mentioned that there is, under federal
law, one interpretation of what "times of shortage" means, and I
believe the intent, under state law and the drafters of this
legislation, is that it would refer instead not to where there is
a recommendation, or rather a regulation imposing seasons or bag
limits as you saw in the Bobby case and mentioned, but rather the
phrase two lines up, "when a fish or wildlife resource is not
sufficient to accommodate all beneficial uses of the resource." My
understanding is that is the intention of the drafters. That is
the time period when the preference would kick in, "in times of
shortage" would then be unnecessary if that phrase were replaced by
the word "then".
Number 1940
CHAIRMAN GREEN: The question was then drawn up, Mr. Popely, that
there may be a consideration that any time you can't harvest as
much as you want, any time there is any restriction on what you
would normally take there is a shortage for all beneficial uses, so
that we would always be in the shortage period.
MR. POPELY: Mr. Chairman, I would also defer to the Department of
Fish and Game on that question, but my understanding is that that
is not true, that that would be a board determination on what it
specifically means. Are all beneficial uses accommodated for by
the resource or are they not? And my understanding is that under
current federal law, where we do have a tiered system, they are
able to make that determination and it does not apply every time
that there is a season or bag limit. But again, this is a
constitutional amendment. That is an issue that would have to be
addressed by the statutes and following by regulation through the
board. What my understanding is that it is likely that the boards
would not interpret that to mean that there is a shortage any time
that there is a season or bag limit on a stock or population.
REPRESENTATIVE BUNDE: Mr. Chairman, on that point.
CHAIRMAN GREEN: Yes, Representative Bunde.
Number 1986
REPRESENTATIVE BUNDE: Probably more critical than what the boards
think than what the courts will think, and I think we've heard from
very high legal opinions in the state of Alaska, currently, what
the constitutes a shortage - times of shortage.
REPRESENTATIVE CROFT: Mr. Chairman.
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: And I guess I'm still confused whether that
second -- I think the two definitions of "shortage" do get to be
conflicting and maybe confusing, but I'm not sure what that second
sentence adds there. The whole phrase on lines 14 and 15, "when a
fish or wildlife resource is not sufficient to accommodate all
beneficial uses of the resource", that's the definite shortage we
want, but I can summarize it as the shortage. The first sentence
reads, "The legislature shall establish a preference for
subsistence uses of fish and wildlife in a shortage." And second
would read, "The state may grant a preference for subsistence uses
of that" or whatever fish and the wildlife resource. It seems to
me one is a "shall," one is "may" with almost identical language
and I don't know what it adds. To the extent that it adds the idea
of discrete, I mean that is captured in the first, "The legislature
shall establish a preference for subsistence uses in a shortage."
So do we need even that second sentence?
Number 2043
MR. POPELY: Mr. Chairman, Representative Croft, do we have a
response from Representative Porter? Do you want it to offer that
to change the initial "shall" to "may"?
CHAIRMAN GREEN: Representative Porter.
REPRESENTATIVE PORTER: During my review of this I came up with two
or three things and I might as well just roll them into this
amendment - a friendly amendment to my amendment because it makes
sense to what Representative Croft was saying.
REPRESENTATIVE BARNES: Mr. Chairman, before he does that...
CHAIRMAN GREEN: Representative Barnes.
Number 2059
REPRESENTATIVE BARNES: Could I just interject that where the
"shall" is we're talking about the sustained yield principle and I
think that you have to bear that in mind because you have to
protect the stock first.
CHAIRMAN GREEN: Well that I don't is the issue that we're
discussing.
REPRESENTATIVE BARNES: I understand, but that's what...
CHAIRMAN GREEN: It would be beyond protecting the sustained yield.
It's that next group up.
REPRESENTATIVE BARNES: I understand...
REPRESENTATIVE PORTER: Mr. Chairman, to continue. Nothing in here
denigrates the idea that sustained yield is the basic principle of
management, for the record. All of the iterations that we've had
so far have been "may" rather than "the legislature shall". So I
would suggest, for consistency with the internal mechanism of this
particular iteration and everything else that we have done so as
not to throw something new and (indisc.), that on line 13, "shall"
be deleted and replaced with "may". And again for definition on
line 15 that "state" be deleted and "legislature" be inserted.
There is question when you say "state" whether you're talking about
the Executive Branch or the Legislative Branch, and that I would
agree that we add "then" after "may".
CHAIRMAN GREEN: Does everybody understand the new amendment?
REPRESENTATIVE JAMES: I have a comment.
CHAIRMAN GREEN: Representative James.
REPRESENTATIVE JAMES: I have a comment on the "shall" as to "may",
and I certainly understand that issue and I guess maybe it
shouldn't make any difference what I think about this issue because
I'm probably not going to vote for this thing when it gets done
anyway. But it does make a difference to me in my perspective and
I want to put that on the record that my goal, which is to have
some state law that protects the subsistence rights in the state
that doesn't have to depend on federal law, if that's the case
"shall" is the only thing that will work. If you put "may", then
we have to depend on the federal law for subsistence protection.
That (indisc.) with my way of doing it.
Number 2156
CHAIRMAN GREEN: Any other comments? Is there objection to the
modified amendment? Representative James.
REPRESENTATIVE JAMES: (Indisc.), I mean I'm not objecting because
I wanted to put on the record that I don't like the changing of it
and I'm not going to object to it.
CHAIRMAN GREEN: Without objection then, we have modified lines 12
through 16 as...
REPRESENTATIVE BUNDE: Excuse me, I thought you were asking for an
objection to the amendment to the amendment. I would object to the
total amendment.
CHAIRMAN GREEN: Well these actually -- my understanding was that
he had made a omnibus (indisc.)...
REPRESENTATIVE BUNDE: In that case, I object.
CHAIRMAN GREEN: Okay, speak to your objection.
REPRESENTATIVE BUNDE: Well, the times of shortage - I want it very
clear in there that there is always going to be a subsistence
preference and so I don't want it taken out.
CHAIRMAN GREEN: Representative Porter.
REPRESENTATIVE PORTER: That's precisely why I'm taking it out. I
do not want this to be interpreted as the Bobby case apparently
interprets that anytime that there is any restriction on anybody's
taking of a particular fish or game that there is a shortage. That
is a ludicrous definition and it is not what we have ever intended.
Obviously, we're going to have to be a little more precise than
that in the iteration of the statute that backs this up. But I
think it's somewhat counterproductive to put on the record that
that is and interpretation when it has never been an
interpretation, in my knowledge, of any legislator who is
contemplated a constitutional amendment or written a statute.
CHAIRMAN GREEN: Representative Ogan.
Number 2220
REPRESENTATIVE OGAN: On that point, Mr. Chairman. Certainly the
uses of fish and game can be classified as subsistence, commercial
fish, personal use, any number of classifications. Subsistence
takes up, for example, fish - approximately 1 percent of the total
take of the fish resource. I would subject that there is not a
shortage of fish except maybe some very isolated cases of which,
and only then, would this preference be kicked in if there is not
enough to go around for subsistence use and then other uses have to
be eliminated with the highest priority being for subsistence. And
I would subject that there is not a shortage nor -- and the
legislative -- I concur, wholeheartedly, with comments and would
like to associate myself with Representative Porter. I think
that's the legislative intent here and we need to establish that
for the record.
CHAIRMAN GREEN: I certainly understand what you're saying. I
think, again though, that there is that possibility. However, by
doing it this way, we have a constitutional approval to
legislatively enact a priority. And in that case, then we can
address the issues that Representative Bunde is concerned about.
This is just a vehicle in which we can do that, legislatively.
REPRESENTATIVE OGAN: I concur.
REPRESENTATIVE BUNDE: If I might speak to my objection, it's not
what we intend or what we want, it's what courts are going to do.
And so I maintain my objection.
Number 2273
MR. POPELY: Mr. Chairman, Representative Bunde, if I understand
your concern, it is that the courts will interpret the language
that where the fish and wildlife resource is not sufficient the
beneficiaries could become a shortage at all times according to the
court...
REPRESENTATIVE BUNDE: Times of shortage - will be a shortage at
all times.
MR. POPELY: And I've been asked to suggest an alternative in that
the risk of being more wordy with this amendment I would be glad to
do so. If there is a suggestion to add language here that might
help you, I have a suggestion. If you would rather go on then....
CHAIRMAN GREEN: Well you might let us know what it is as a
friendly amendment (indisc.).
UNIDENTIFIED SPEAKER: Let's hear it.
MR. POPELY: Mr. Chairman, Representative Bunde, for purposes of
your concern I would suggest adding the words where it says on line
14, "a preference for subsistence uses of fish and wildlife that
takes effect", insert, "when as determined by an appropriate board
a fish or wildlife resource is not sufficient to reasonably
accommodate all beneficial uses of the resource."
TAPE 98-100, SIDE A
Number 0001
REPRESENTATIVE OGAN: ...this gives constitutional authority to a
board. My understanding is that only the legislature delegates its
authority to the board and it might circumvent that legislative
authority being delegated to the board.
REPRESENTATIVE PORTER: Mr. Chairman.
CHAIRMAN GREEN: Representative Porter.
REPRESENTATIVE PORTER: To that point, and that is well taken and
I think we had this discussion on another point similar. If we
were to say, "when determined by the legislature", it is presumed
that the legislature may delegate some of this authority and we
would, in that case, to a board, but the authority would be
retained by the legislature.
MR. POPELY: Mr. Chairman, the word "reasonably" I think is what I
was getting at. Whether it's the board or the legislature, I agree
you don't want to put the boards in there if you can avoid it. But
the word "reasonably" might have some impact on...
REPRESENTATIVE PORTER: Okay, and again, it was "when reasonably
determined by". Is that what you said?
MR. POPELY: Reasonably accommodate.
REPRESENTATIVE ROKEBERG: Mr. Chairman, is that an amendment to the
amendment? We've got too many amendments here and....
CHAIRMAN GREEN: Yes, this is a friendly amendment to the
amendment.
Number 0106
REPRESENTATIVE ROKEBERG: Oh, then I object.
CHAIRMAN GREEN: To reasonably accommodate a fish and -- okay.
Does the maker of the amendment accept that as a friendly
amendment?
REPRESENTATIVE PORTER: If it is that it would insert "when
determined by the legislature to reasonably accommodate". Is that
what it would say?
MR. POPELY: Or just the word "reasonably" and leave out how it's
determined entirely.
CHAIRMAN GREEN: Oh, when reasonably determined to accommodate....
MR. POPELY: That's sufficient -- just adding one word, "to
reasonably accommodate".
CHAIRMAN GREEN: Oh, I see.
REPRESENTATIVE PORTER: On line 15?
MR. POPELY: On line 15.
CHAIRMAN GREEN: Oh wait a minute, now I'm confused. You're not
doing anything with 14 now.
REPRESENTATIVE JAMES: Can we hear how that would read now?
CHAIRMAN GREEN: Yes, please, I'm confused now.
MR. POPELY: Mr. Chairman, "except in areas designated by the
legislature as nonsubsistence areas the legislature may establish,
consistent with the sustained yield principle, a preference for
subsistence uses of fish and wildlife that takes effect when the
fish or wildlife resource is not sufficient to reasonably
accommodate all beneficial uses of the resource. The legislature
may then grant a preference", and so on.
Number 0222
REPRESENTATIVE PORTER: I accept.
CHAIRMAN GREEN: Is everybody with the program now? Now as far as
-- you had also indicated, unless you want to make that as a
separate amendment, that the next line "state" would be changed to
"legislature".
REPRESENTATIVE PORTER: And add the word "then".
CHAIRMAN GREEN: And then add the word "then". So is everybody
aware of what the amendment now as amended reads?
REPRESENTATIVE BUNDE: A question on that and who determines
reasonable? I mean is that assumed the legislature determines
that?
Number 0267
MR. POPELY: Mr. Chairman, Representative Bunde, that's one of
those things that -- right, it's ultimately is going to be
determined by the legislature. It's going to be delegated to a
board and if there is a challenge in court, it will ultimately be
interpreted as everything in a constitutional amendment will be by
a court of law.
REPRESENTATIVE BUNDE: Well, that -- my concern. So the courts
still decide when there is a shortage.
MR. POPELY: Mr. Chairman, ultimately they'll decide if the
interpretation that was given this language by the legislature and
by the board is reasonable.
UNIDENTIFIED SPEAKER: That reasonable language is reasonable.
Number 0316
CHAIRMAN GREEN: There has been yet another proposal for an
amendment to the amendment to the amendment. If we were to put
back on line 14, after "effect when determined by the legislature
that a fish and wildlife resource is not sufficient to reasonably
accommodate". Would that -- did you understand what I'm saying?
You had a questionable look. Does the maker of the original
amendment accept that as a reasonable amendment to the amendment?
What this does then establishes who has the authority to determine
that.
REPRESENTATIVE PORTER: Where are you inserting what again? I'm
sorry.
CHAIRMAN GREEN: Okay, on line 14 then we've go the "may", that's
not a problem. We get down to line 14 where it says, "that takes
effect when", we insert, "determined by the legislature that", and
then go on with, "a fish or wildlife resource is not sufficient to
reasonably accommodate all beneficial users."
REPRESENTATIVE HUDSON: Mr. Chairman.
CHAIRMAN GREEN: Representative Hudson.
Number 0398
REPRESENTATIVE HUDSON: Mr. Chairman, isn't that already done by
the line 13 where you say, "the legislature may establish"?
CHAIRMAN GREEN: Well that's -- they may establish consistent with
sustained yield. What we're saying is then that they can determine
there is a shortage.
REPRESENTATIVE HUDSON: My point is that you've already got that in
by saying that they may establish. You've given them the authority
to do it unless you feel you need to (indisc.).
CHAIRMAN GREEN: Well, what the concern has been, Representative
Hudson, is that yes, they may be able, consistent with sustained
yield, to establish a preference, and then we're saying who
determines what that preference is.
REPRESENTATIVE PORTER: It could be done in a little less words by
just inserting, "when it determines".
CHAIRMAN GREEN: Okay, yes. When it determines that a -- okay.
REPRESENTATIVE OGAN: Mr. Chairman, you've lost your quorum.
CHAIRMAN GREEN: We have indeed.
REPRESENTATIVE PORTER: Well, we can continue to work, we're
getting down to the final thing here.
REPRESENTATIVE BUNDE: We can still adopt an amendment (indisc.).
CHAIRMAN GREEN: We can, yes, that's true. So now it reads "takes
effect when it...."
REPRESENTATIVE PORTER: No, it takes a majority of a quorum to
adopt an amendment. We don't have a quorum. We've got to have a
quorum to take any action.
CHAIRMAN GREEN: You're right, but at least we can -- if we've got
this we can go on. When it determines that a fish and wildlife
resource is reasonably accommodate. Okay, so...
REPRESENTATIVE PORTER: If I could state the whole thing so I'm
sure I understand it.
CHAIRMAN GREEN: Okay.
REPRESENTATIVE PORTER: (b) would read under the manipulated
amendment, "Except in areas designated by the legislature as
nonsubsistence areas, the legislature may establish, consistent
with the sustained yield principle, a preference for subsistence
uses of fish and wildlife that takes effect when it determines that
a fish or wildlife resource is not sufficient to reasonably
accommodate all beneficial uses of the resource. The legislature
may then grant a preference for subsistence uses of that fish or
wildlife resource."
CHAIRMAN GREEN: Mr. White.
Number 0593
MR. WHITE: Two comments, Mr. Chairman. First, when you
specifically say in the constitution that the legislature makes the
determination, as you've done in this amendment, that I do not
believe could be delegated to the boards and so that determination
would have to be made during a legislative session or special
session whatever, by statute or resolution. This may well be
something that requires more immediate in-season management. So
there is a implication of fish and game management here.
CHAIRMAN GREEN: Because it's in the constitution, there can't be
an enabling act that they can delegate?
MR. POPELY: I would defer to Mr. Utermohle, who is much more
experienced in this area than I am, but it seems to me that when
it's that explicit it may well not be able to be delegated to a
board. And that's the first point I raise and you may want to
explore it with him. The second one is if you retain that second
sentence section, it seems to echo the very same thing you've said
in the first sentence. It doesn't add anything. If it's
redundant, the courts are going to look - ask why you've said the
same thing twice and they're going to look for meaning. I don't
think that there is a meaning, at least the meaning escapes me. So
why would you have the second sentence in there because it's not
saying anything more than the first?
CHAIRMAN GREEN: I agree.
REPRESENTATIVE PORTER: Good point. Mr. Chairman, I think I've got
a answer to both.
CHAIRMAN GREEN: Alright, Representative Porter.
Number 0699
REPRESENTATIVE PORTER: Instead of saying, "when it determines
that", add, "when it is determined that".
REPRESENTATIVE JAMES: Where are you?
REPRESENTATIVE PORTER: We're on line 14 on what we were going to
add.
REPRESENTATIVE JAMES: Oh, I wasn't here when that was happening so
I have it to ex out.
CHAIRMAN GREEN: Mr. Utermohle, will that pass constitutional
mustard?
Number 0729
GEORGE UTERMOHLE, ATTORNEY, LEGAL AND RESEARCH SERVICES DIVISION,
LEGISLATIVE AFFAIRS AGENCY: Oh, certainly it will pass
constitutional mustard. The issue is what are the implications of
that language. I would still beg the question as to who makes that
determination as to when there is a shortage.
CHAIRMAN GREEN: Okay, so that the constitution says it'll have to
be determined then enabling legislation. And using that as it's
authority can say that we -- hereby say Fish and Game or the boards
or whatever, throughout a statute.
MR. UTERMOHLE: Mr. Chairman, that is a possible outcome of such
language. I think the cleaner approach would be not to address
that particular issue and just leave it within the power of the
legislature to establish this preference that takes effect when
fish and wildlife populations is not sufficient to accomplish --
reasonably accommodate all uses. Therefore, it's within the
discretionary power of the legislature to establish this preference
and essentially determine how it's to be applied and when it's to
be applied.
CHAIRMAN GREEN: Well on one hand you say that that could create a
problem with the way interpretation and yet, we have earlier heard
that if we don't say that, this could be interpreted to mean that
we're always there and that we don't have the authority, through
statute, to change.
MR. UTERMOHLE: Mr. Chairman, that was the point of adding the
reasonable language is to -- the reasonable accommodation to avoid
that particular issue of all pervasive or always present shortage.
The other issue is the extent of the power of the legislature and
the role of the legislature in this process, whether or not the
legislature is the sole player in this process. And if I may, Mr.
Chairman, in regard to Mr. White's second point that the second
sentence is becoming redundant, I would agree with him. Yes, that
has been a problem with this language for quite awhile and the
language is becoming even more and more similar in the two sentence
with this amendment and it may well serve you to eliminate the
second sentence. The amendment still contains the problem of -
you're defining shortage because it seems to be (indisc.) by the
committee to have the same meaning in both sentences but you're
using completely different language to describe it which may raise
questions, in the eyes of the court, as to why you used different
language to describe the same thing without having different
meanings.
CHAIRMAN GREEN: And is it your opinion then that on line 15 if we
don't add anything new on 14 and we say, "not sufficient to
reasonably accommodate", we haven't opened up a concern then who
determines reasonably?
MR. UTERMOHLE: Mr. Chairman, this sentence provides that the
legislature has the discretion to determine (indisc.) this
preference.
CHAIRMAN GREEN: Since it's all one sentence?
MR. UTERMOHLE: Yes.
CHAIRMAN GREEN: Representative Porter.
REPRESENTATIVE PORTER: I would accept that. This is the
constitution. We're trying to write a statute. I would amend my
motion to read as follows, "Except in areas designated by the
legislature as nonsubsistence areas, the legislature may establish,
consistent with the sustained yield principle, a preference for
subsistence uses of fish and wildlife that takes effect when a fish
and wildlife resource is not sufficient to reasonably accommodate
all beneficial uses of that resource." And then delete the next
sentence.
REPRESENTATIVE JAMES: Question.
CHAIRMAN GREEN: Representative James.
Number 0943
REPRESENTATIVE JAMES: Once upon a time we had put "particular" in
between fish or wildlife. Is that there now or not?
CHAIRMAN GREEN: Where are you?
REPRESENTATIVE JAMES: On line 14 where it says, "particular fish
or wildlife resource". That's not there?
UNIDENTIFIED SPEAKER: No.
REPRESENTATIVE JAMES: Okay.
CHAIRMAN GREEN: Is there objection to the modified amendment?
Hearing none, we'll bring this up when we have a quorum.
REPRESENTATIVE PORTER: We have a quorum. We have one, two, three
four.
CHAIRMAN GREEN: Oh, we do. Is there objection? If not, that's
adopted. Okay. No, no, no, all we did was put "reasonably" in
there. Any other proposed changes? There are some - let's see
line 15, we've done that one.
Number 1014
REPRESENTATIVE BUNDE: Mr. Chairman, could I have a question for
Mr. Popely?
CHAIRMAN GREEN: Yes.
REPRESENTATIVE BUNDE: Representative James asked earlier on line
16, page 1, where the term, "particular fish and game resource", an
attempt, I think, to narrow things down to smaller regions
(indisc.) areas. That is now gone. Does that raise a concern?
MR. POPELY: Mr. Chairman, Representative Bunde, if the intention,
as I understand it, that the legislation would be to impose a
preference in individual stocks and populations only when a
shortage exists with regard to that specific stock or population,
I don't see a problem with that anywhere particular as to...
REPRESENTATIVE BUNDE: But it's been deleted and I'm asking if
there's a problem with the deletion.
MR. POPELY: Mr. Chairman, Representative Bunde, if that is the way
that the statute is going to be written, I would be more
comfortable with the word "particular" in there then without it.
REPRESENTATIVE BUNDE: And then just for conversation, if I might
Mr. Chairman, on page 19 the question - page 14 - page 1, line 14,
"and particular" could be inserted asking for the attorney's
opinion -- "when a particular fish and game resource".
CHAIRMAN GREEN: More specific -- does that...
REPRESENTATIVE BUNDE: Or specific, whatever.
CHAIRMAN GREEN: Would that help or is it necessary?
Number 1065
MR. POPELY: Mr. Chairman, Representative Bunde, I -- the same as
the other comment. I would be more comfortable with it then
without it if that is the intention of the legislation (indisc.--
coughing), yes.
REPRESENTATIVE BUNDE: Mr. Chairman, I'm just saying that if there
is a shortage of chum salmon in False Pass, I don't know that we
would want to encourage a subsistence preference for chum salmon in
Southeastern Alaska.
CHAIRMAN GREEN: And I would have thought "reasonably" would do
that, but if it's more comfortable, no problem.
Number 1122
MR. UTERMOHLE: Mr. Chairman, as to particular, "particular" is the
word - the term used in the remainder of this section. Just for
consistency, particularly the (indisc.) the one (indisc.) here and
we have the option of going specific throughout the statute, that's
your choice. In this particular section it seems that "particular"
would certainly be implied -- "a particular fish and game
resource" would be implied, but if you wish to drive that point
home adding "particular" does not seem to do any additional harm.
REPRESENTATIVE BUNDE: Mr. Chairman, I'd defer to the expertise of
the legal profession and the drafters.
CHAIRMAN GREEN: Move it.
Number 1188
REPRESENTATIVE BUNDE: Okay, Mr. Chairman I'd move that the term
"particular" be inserted on line 14, following the words, "when a",
and in front of "fish and wildlife resource".
CHAIRMAN GREEN: Alright, is there objection? Hearing none,
Amendment 2 is passed.
REPRESENTATIVE BUNDE: I'd like to move the bill.
CHAIRMAN GREEN: We have a couple of things that have been advised.
We're on page 2, line 21, where it says, "in the state
substantially complies". We've been advised that that could create
problems and that I would move that we delete the word
"substantially". It either does or doesn't. Is there objection?
Hearing none, number 3 is adopted. Again, our drafters have looked
at line 22 and where it says, "to expressly exclude", there is some
concern that state and private lands and navigable waters might be
interrupted and it's probably a belt and suspenders concern, but
that they may talking about only the waters that opposite state
land. And so the suggestion has been to put in there between
"exclude" and "state", "any and all", so there is no question if
this then becomes a litigated situation - that we're talking about
all navigable waters through the state. Representative Porter.
REPRESENTATIVE PORTER: Mr. Chairman, wouldn't we want to put that
then between "including" and "navigable"?
CHAIRMAN GREEN: I would, but this what the...
REPRESENTATIVE JAMES: I think so too.
CHAIRMAN GREEN: That's where I've written it before, but....
REPRESENTATIVE JAMES: Somebody wants it in replace?
CHAIRMAN GREEN: What do you think, Mr. Popely? If we put "any and
all", would that fit better?
MR. POPELY: If you put the phrase before the word "state" on line
22, and again, on line 23 before the word "navigable waters". I
believe....
CHAIRMAN GREEN: Put it twice.
MR. POPELY: Yes.
CHAIRMAN GREEN: There is an insertion twice on lines -- one on 22,
one on 23. Is there objection to those insertions? If not, number
4 is passed. Line 24 -- oh, we did that, okay. Same sort of thing
on line 24 after, "lands and"...
REPRESENTATIVE BUNDE: "Any and all".
CHAIRMAN GREEN: "Any and all waters." Is there any objection to
Amendment 5? Hearing none, that's passed. Line 30 after, "4", add
in number "5", I see. That's not going to be.... Line 30, wait a
minute. Take a brief recess or an at-ease. [11:31 a.m. - 11:37
a.m.]
CHAIRMAN GREEN: One, two, three, we lost some. Oh, we have four.
On line 23, page 2, after "navigable waters;", we remove the ";"
and put in "and any federal interests in waters arising under
either reserved water rights or navigable servitude". These, as
you may recall, we went into a problem with navigable servitude and
then they changed it to "reserve water rights", and gave us all
kinds grief about the federal government having right to the water
column and all the fish therein and this would preclude that. Is
there any objection?
REPRESENTATIVE BUNDE: Could you repeat that?
CHAIRMAN GREEN: I'll repeat that. Instead of the ";", after
"navigable waters", we would insert, "and any federal interests in
waters arising under either reserved water rights or navigational
servitude". Is there objection? Hearing no objection, Amendment
6 is approved. Mr. Popely, would you address what will become
Amendment 7 on line 30 of page 2?
Number 1464
MR. POPELY: Mr. Chairman, conceptually the - has been suggested
that there be a phrase here somewhat similar to what the task force
had proposed regarding the term of art being the Congressional Seal
of Approval on state law which is essentially the Congress would,
before this became effective, acknowledge that state and federal
law were consistent with these provisions. And language that's
been suggested would be that this would be either replacing number
4 somehow or an additional number 5. And again, this is
conceptually because this hasn't been ironed out yet. I would
prefer more time to consult with the drafters to get it down pat,
but something to the effect of in the list, we have (1), (2) and
(3) under effective date -- "acknowledges that the laws of the
state in existence on December 1, 1998, are consistent with
provisions of federal law governing the subsistence uses of fish
and wildlife on federal public lands in the state".
CHAIRMAN GREEN: That would be a new (4)? We would delete (4) and
substitute this instead?
MR. POPELY: Mr. Chairman, I need to spend a little bit more time
reading it to determine whether or not you could add that as an
addition (5). Number (4) would appear to be subsumed within that
language, yes, because we say, "state law", and number (4) refers
to constitution sections of this constitutional amendment. But I
would like to at least review it.
REPRESENTATIVE ROKEBERG: Mr. Chairman.
CHAIRMAN GREEN: Yes, Representative Rokeberg.
REPRESENTATIVE ROKEBERG: I'm not sure the sub (4), as it exists
now, that's the Governor's certification of federal law. I'm not
sure that's exactly what the intent of this new conceptual
amendment is. What I thought I heard was that the Congress had to
acknowledge. Is that correct?
Number 1566
MR. POPELY: Mr. Chairman, Representative Rokeberg, that's right.
I've taken a look at it, you could in fact replace number (4) with
the language and it would cover what's in number (4). It is our
Governor's certification, but the way I read it is this,
Representative Rokeberg, "The Governor shall certify that federal
law does the following", and we have (1), (2), (3), defines the
term, waives federal jurisdiction, repeals jurisdiction and then
the new (4) would be, "acknowledges that the laws of the state".
So you've got the Governor certifying that federal law acknowledges
consistency between the two laws. So, yes, it's a attenuated
connection, but it makes sense under the structure of this
sentence. The Governor certifies that federal law acknowledges
that state and federal law are consistent on this provision.
REPRESENTATIVE ROKEBERG: I think I understand.
CHAIRMAN GREEN: Is there objection to the conceptual amendment?
Hearing none, Amendment 7 has...
REPRESENTATIVE ROKEBERG: Mr. Chairman, just to clarify, are we
going to replace (4) then? I think we can.
CHAIRMAN GREEN: Yes. And finally, on page 3, lines 4 to 6. The
request is to delete starting with "in Alaska", through the -- I
guess clear down to the "." on line 6 - "District of Columbia".
So that we would deleting the last two words of line 4 all of 5 and
the first five words of line 6. And Kevin, do you want to speak to
that, or Mr. Popely?
Number 1649
MR. POPELY: Mr. Chairman, if I understand the amendment it would
read as follows: "Subsections (4)(b), (4)(c) and (4)(d) of Article
VIII regarding a preference for subsistence uses of fish and
wildlife are repealed if a federal court issues a final decision
that", and continues there on. What this amendment would do is to
obviate the need that the case that determines that Title VIII is
invalid be the actual case that pending now before the court. In
other words, any federal case that made the determination referred
to in this amendment would be sufficient to repeal this amendment.
It doesn't limit now that court ruling to this particular case. So
for instance, if the case were dismissed or were lost in somewhere
in between, another party brought a different civil case, it would
suffice to trigger a repeal of this amendment. The idea was not to
limit the finding by federal courts that Title VIII is invalid to
this particular case. This would eliminate that requirement.
REPRESENTATIVE BUNDE: Mr. Chairman, I had asked that question
yesterday and people said, "No." Now you're saying, "Yes," so this
is a later answer, it must be a better answer.
CHAIRMAN GREEN: Is there objection to Amendment 8? Hearing none,
that amendment is passed. Do you have a comment on that?
REPRESENTATIVE OGAN: No.
CHAIRMAN GREEN: Are there any other proposed amendments to 102?
If not, what is the wish of the committee?
REPRESENTATIVE PORTER: For the record, before we pass the bill out
so as that there is not misunderstanding of later review of what we
have accomplished here. If I am mistaken, please someone point
out, but it is my belief that we have not here, in any way, sought
to restrict the ability of Fish and Game or the legislature, by
statute, in dealing with regulations as to methods and means and
seasons and bag limits and all of those other kinds of limitations
on subsistence or any other taking of fish and game at any time.
We have not established that just for a time of shortage that these
kinds of limitations, as have traditionally been done - may be done
at any time so as to be consistent with the basic premise of our
management scheme, which is sustained yield. Anybody disagree with
that?
REPRESENTATIVE BUNDE: Mr. Chairman, just to add to it that it's
certainly my intent to limit the department's ability to manage,
and had the reverse of what Representative Porter said occurred, we
would certain limit the department's ability to manage fish and
game.
CHAIRMAN GREEN: Any other comments before we -- well....
Number 1792
REPRESENTATIVE PORTER: I would move that we move from committee...
REPRESENTATIVE ROKEBERG: Object, object. Before we make the
motion, if you're going to have some testimony. In all due respect
to the testifiers, why don't hear that first before...
CHAIRMAN GREEN: We have been requested to take some five minute
maximum testimony from some of the people in audience who have not
had an opportunity to testify even though we have heard significant
testimony. So I will ask that we -- is Julie Kitka -- I realize
this creates a little bit of a constraint on you, but we are
supposed to go back on the floor. Ms. Kitka, would you identify
yourself and association for the record please.
Number 1834
JULIE KITKA, PRESIDENT, ALASKA FEDERATION OF NATIVES: Yes, thank
you, Mr. Chairman, my name is Julie Kitka and I am testifying today
as the president of the Alaska Federation of Natives. Accompanying
me today is Norman Cohen who is our legal counsel. First of all,
I would like to thank you for giving me an opportunity to express
some comments and I will keep them very brief because I know that
you have set a very tight scheduled for yourself so I will be very
brief. Yesterday in the House Resources Committee, this resolution
was described as a compromise between an amendment that provides
for a rural priority and no amendment at all. For Native people,
the is not a compromise. Rather we seen an amendment that does
serious damage to the protections afforded to rural Alaskans by
ANILCA. We see an amendment that proposes a resolution of the
conflict that cannot possibly be made effective in the foreseeable
future and that creates a new system of subsistence management that
would do serious damage to the way of life in rural Alaska. As to
the damage it does to the protections afforded by ANILCA let me be
clear. The Native community has been supportive of state
management, but in times when the state is not providing the Title
VIII protections, rural residents will fight hard to retain those
protections. As an example, the second subsection of Section 29 of
your amendment raise federal jurisdiction over state private lands
and waters. This unacceptable to us. This provision would mean
that the marine mammal harvest in state waters would be eliminated.
It would mean that the provisions allowing Alaska Natives to
harvest bowhead whales within the three-mile limit of Beaufort Sea
would be eliminated. It would mean that the subsistence uses of
migratory birds would be eliminated. The second example is Section
1 that is intended to overturn the Katie John case. The Native
community fought for years for this victory and here we're being
asked to agree to the overturning of that decision in exchange for
a constitutional amendment. Our people depend upon fish as a vital
part of subsistence, nutrition and food. This choice is easy and
we reject it. The second problem with the proposal, it will never
effective. The only way it can become effective is if ANILCA is
amended as described above. We oppose those amendments for the
reasons that are previously stated. The final problem is that the
shear confusion that this resolution creates mixing statute and
constitutional language all together in a constitutional amendment.
We have tried to follow the amendments approved by the Resources
Committee, but we still don't think that we understand how this
constitutional amendment will work. It appears to provide for a
preference for subsistence then conditions that preference to such
a degree there may be no preference at all. Reports to provide
subsistence (indisc.) rural residents plus some in urban areas, but
with the wording used, we do not know if any rural residents will
actually qualify or if they will be able to participate. The
accompanying bill is so close to House Bill 406, a bill in which
the Alaska Department of Fish and Game found only two rural
communities in the state, Lime Village and Chalkyitsik eligible.
We are concerned that the wording, in effect, in real practical
bounds, will result in no subsistence at all, anywhere. There does
appear to be any requirement that whenever a customary and
traditional use is identified in rural Alaska, it will be provided
for thorough board regulations. It appears to remove any
consideration of subsistence uses where resource development is
being considered. Does all this stuff need to be included in the
constitutional amendment? Is this what is needed to fix the
problem before us? And our conclusion is no. This resolution does
not address the problem. I appreciate you listening to this short
comment. Like I said, we are very confused by all the changes back
and forth. We think you're mixing statutes and constitutional
language and that is a deep concern for me. But (indisc.) the
ANILCA amendments will not happen. There is no way that the state
can totally wipe out all the federal jurisdiction. And I would
like to see whether or not you have had an constitutional analysis
on whether or not this violates the federal constitution and any
other detailed legal written and reading on this. I think that you
are setting up a nightmare situation which, in the end, will just
fool the Alaskan people thinking that they are doing something to
resolve this problem when, in fact, we think that they are not.
And so I just wanted to let you know I understand that there are
people in the legislature that are of good will that are seriously
trying to do something. I understand that, I respect that. I
understand this interrupts everybody's summer coming together doing
these things and there are people that have struggled long and hard
- I understand that, but all I can tell you is this does not do it.
This does not resolve the conflict even if exactly the way you have
it right now became enacted and approved by the people of Alaska,
it will never fix the subsistence conflict between federal law
because you will not get those amendments in Congress. You are
raising this up to a major national issue that is undoable and I
think that this just escalates the problem in the state even worse.
And I'm not sure that the people of good will in the legislature
are intending to thus by those that have done this. And I just
want to caution you that and raise our concerns and just say that
we think that this deserves an awful lot more analysis. And
(indisc.), that's the end of my statement.
Number 2082
CHAIRMAN GREEN: Ms. Kitka, do you think that -- you have been very
adamant that we cannot get any changes to ANILCA. Is this because
you have been so indicated by the Attorney General's Office or is
there some other -- your own attorney feels that we won't get that.
The reason I'm asking these questions it that we have been advised
by at least one of our congressional delegation members that there
is an opening that we can make the two mesh. Now perhaps we can't
get everything here but that there is a possibility to make them
mesh so that they would be compatible. And the other question I
have for you is that if this is enacted, do you feel that there
wouldn't be a shortage - a subsistence preference for people who
traditionally have done that? I'm not quite sure why you feel that
way.
MS. KITKA: Okay, first of all to the political question of
amending ANILCA. I think it is very clear that this is very short
congressional session and there is only just a matter of weeks that
it to go through. And so let's look through the committees that
you have to go through. You have House Resources Committee. If
you have constitutional questions, you're going through Judiciary
and so forth - the same way on the Senate side. Even if there was
a huge consensus in this state, the ability to move complex
legislation through multiple committees and referrals back there
is very difficult. So even if there was a consensus and this was
the best idea that everybody agreed to, the ability to do that is
very difficult. I have to rely on some of the things that our
congressional delegation tells us, and I know as recently as a few
days ago, Senator Murkowski who chairs the Senate Energy and
Natural Resources Committee, stated what form it was on that, that
he thought that there needed to be support of the Governor and the
Clinton Administration and a consensus in the state behind that.
I would venture to say you don't have any of that behind this bill
and I think that if there is people of good will that want to move
forward to resolve this and they don't like the Governor's
proposal, they don't like this, that they should take some time to
try to get that consensus before doing all the things that you're
proposing to do in this bill. I just don't think you have the
consensus. If you think otherwise, that is your prerogative. I'm
not going to tell you what Congress can do or cannot do, but I'll
tell you that from the Native perspective, we would be absolutely
opposed to any of these ones and we would do everything that we
could to protect our people that live the subsistence way of life
and we will not allow this legislature to dismantle the protections
that we have for our people. That's the bottom line.
Number 2199
CHAIRMAN GREEN: I certainly appreciate that. My concern there was
that we have taken, I thought, great lengths to try and do just
what you're saying, to protect your way of life where you
traditionally have depended upon a resource. When that resource
gets in short supply, you have the preference and that's what we're
trying to craft here. Instead of a blanket, everything that's not
in a nonsubsistence area, we're just saying it's only where there
is a shortage not -- because we'll continue to operate as we have
until there is really a shortage area and then you get the
preference. That's what this is supposed to say.
MS. KITKA: Well, I think some of the things people say it's
supposed to say is not exactly how it's worded in there and I think
you are setting up a situation where you're going to have massive
litigation on every word and comma in your thing because it is not
clear. It is confusing, you're mixing statutory language,
statutory schemes and goals in a constitutional amendment and I
think this amendment will not work even if you're goals are crystal
clear to you, I don't think that any of this stuff works. It's too
-- like I said, I'm not a lawyer. I'm just tell you watching this
process, I think that there is just a problem there.
CHAIRMAN GREEN: And I just wanted you to know what we're trying to
accomplish at least. Any other questions of Ms. Kitka? Thank you
very much, I appreciate that. We have Mr. Penny. Appreciate your
indulgence, sir, in wanting to make a statement for (indisc.).
Number 2267
BOB PENNY, ALASKAN TOGETHER: Mr. Chairman, I can't tell you how
much I'm very glad to be here and how I respect each and every one
of you. Theo Matthews is following me up and I don't want to give
anything to say that he is just following me up, but just because
he's coming behind me he may be as important as I am. I'm glad I'm
speaking before him. One of the main things I want to tell you is
that a year ago this Sunday, I started working on this issue. I
first heard about it, I was to write with anybody in this room, no,
no, I will not go. You're not going to take it way, you're not
going to do that. Since then, I've gone through many things and
one of the things I think I can give you an expression of that says
it better than anything else is Theo Matthews, a member of our
board, he's also a member of our executive committee. And our
theme is this that there is very few things that Theo Matthews and
I agree on in our whole lives, but we're together in this because
unless we agree, the issue of subsistence must be put behind us.
And I cannot tell you how encouraged I am to see the attitude that
come from the House of Representatives in the fact that you've
crafted a bill you have and you're trying to get some place.
Everyone of you, I'd thank you for that and encourage you and
whoever is responsible should be lotted for. Very quickly, the
economics that I've learned in this last year's time - the
economics would be devastating with a federal takeover like most
people haven't even considered. A lot of it's contained in the
Compass I sent to your office that was published a week ago. Sport
fish and commercial fishing will never be the same again. It'll be
worse than it was in territorial days which is why I'm here because
I remember what it was like when the feds were here. It'll
devastate commercial fishing and you won't see any sport fishing in
two years anywhere in federal lands. All the lodges and everything
will be gone and I can go into the reasons for that. Last January,
at a cocktail party (indisc.) told me that he liked the idea of
needs better than area. So I spent five weeks researching that, I
want to Fish and Game, Fish and Wildlife, talked to as many people
as I could and last March I sent him a memo, which I have a copy
of, and I went through each one of those points. I have that to
show you if you wish and I would be glad to go over it with anybody
here. And I'm just telling you area, works, needs -- needs
doesn't. It's very clearly spelled out. Is a constitutional
amendment really necessary...
TAPE 98-100, SIDE B
Number 0001
MR. PENNY: ...under Knowles, former governor Cowper, Hickel,
Sheffield, Hammond, Attorney General Botelho, past attorney general
Charlie Cole all say we must have a constitutional commitment - a
constitutional amendment. If you don't respect that group,
(indisc.). So I say to you our analysis is the constitutional
amendment is necessary. All three of our delegation say so. I
won't take time to talk on it now, but my analysis tells me the
constitutional amendment, as proposed, is a tempus in a teapot. It
will be the most least event of all 26 amendments to the
constitution since statehood. This constitution amendment will
mean the least. It'll be -- won't be a ripple in a pond, and I'll
touch on that if you have time. But the most important thing, I'm
very encouraged to see what's taking place. And our organization
is here to do two things, one, provide the education to the public
of the issue; and number two, to work with you, members of the
Senate, members of the delegation and members of the Administration
towards seeing if there is not some way we can keep the feds out.
All we do is talk to each one of you, see how we can get there.
And I can say you this from the Administration's side, we've been
there this morning, we were there last night. They are trying to
make a deal. They are trying to come to terms. If they aren't,
then tell me, tell Theo, tell Julia, we're all pretty close
together on this issue - tell anyone of us that something is not
getting done, we'll do anything we can to help you because we want
to keep the feds out. Everything we've done, our board of
directors, our executive committee, we've looked at deals, we've
had proposals made, we've had bills made, we came to one conclusion
a month ago. It's not for us to dictate or say what the statute or
the constitutional amendment should be so we have done this, and
this is what we used for an examination, we want to vote on a
constitutional amendment that will keep the management of fish and
game here in Alaska by Alaskans. Everything we look at, everything
we see, we judge with that criteria. And I appreciate very much
the theme of how this has gone past, but the counsel that we've
talked to and our people we look to, the bill as is drafted today
we don't think meets that criteria. The last point I'm concerned
about is timing. Senator Murkowski said to us in writing, he
repeated it again two days ago, "The only way you're going to get
any amendments done in this, Senator Stevens can't do anything, no
more hanging it on appropriation bill, it's gone. The only way it
can be done, with Senator Murkowski, through hearings in this
committee. It takes three legs of the stool, the House, the
Senate, and of course the Governor's Office. Now to get any
changes in ANILCA, I don't know anybody in this room, including
myself. who wouldn't like to see some changes, but you're not going
to get any changes unless, from what I've been told, unless they go
through Senator Murkowski's committee. Now to get his committee
requires public hearings in Congress. Four and a half months is
gone, I'm not going to say wasted, but it's gone. You've used up
the most precious time to get those hearings. In my opinion,
you've got one month left because if you look at the calendar of
Congress, go through the things we have, if you're not before
Senator Murkowski's committee in June, my personal opinion, not
going to get there - the ANILCA amendments we'd like to see aren't
going to get done. How do you accomplish that? I don't know, but
you're not going to get there in August, you're not going to get
there in September of an election year. So my concern is how do we
get those changes put in place? And I'll close by saying for me
and my kids and the rest of our family, I thank you for what you do
and I ask you to do everything you can to keep the feds off
(indisc.).
CHAIRMAN GREEN: Representative Ogan.
Number 0321
REPRESENTATIVE OGAN: Thank you Mr. Chairman, welcome Mr. Penny.
You know you said that all these people said a constitutional
amendment is necessary, yet in ANILCA it says nothing is to be
construed that Alaska should amend its constitution. You know you
also said you'd like to work with us and I have a -- I guess
working with us - your idea of working with us is a little bit
different than mine because of the ads that you run basically
calling us a communist or retaliatory or whatever...
MR. PENNY: Mr. Chairman, I take exception to that, but continue.
REPRESENTATIVE OGAN: Okay, well it's not an olive branch to me.
I hope we can work with you. I hope that you realize that the time
is wasting. I believe for a very short window, the sun, moon and
stars will wind up here to where we have a shot at this with this
proposal. And I have to swallow hard, very hard, on this proposal.
I think it shows a significant movement from certainly my position
earlier in this legislature. And whether or not I can support this
depends very much on whether or not I see movement from the other
side in this because I would hope that you would -- you know you
said tell us if there is any way you could help. What I would
suggest is that this isn't going to last for weeks or months or
whatever. This is probably going to last for a day or two and
we're going to stop cutting bait and start fishing here. We need
to do it. You stated Senator Stevens can't do anything. I would
suggest Senator Stevens won't do anything. He can do it if he
wanted to. He has the power to, he's simply has chosen not to.
But my office is open, I've never turned down an appointment to
anybody and if you'd like to come and talk with me, I would be
happy to and see if we can work together. I think we have the same
goals - unfortunate that we've gotten pretty -- I believe that your
organization has taken adversarial role. Also, I heard you say
that you would provide a disclosure of who the contributors were to
the Senate Resources Committee. Did you do that?
Number 0477
MR. PENNY: Which one should I take first? Number one? When I
took exception to what you said, I won't take it up now. I'll
discuss with you, Representative Ogan, as soon as the meeting is
over. Second item, Senator Stevens, we've have seven meetings,
Representative Ogan, with Senator Stevens, one on one, two on two,
three on three, five on five, on the phone, in person, in detail,
I don't know how many you've had. But the first thing we did was
go to him say now, "What can you change? We don't want anymore
1980s an 1990s and all that stuff. Where do we stand?" And I'll
quote to you what he said to us, "There is not a damn thing more I
can do period." Now either he's lying to me or he's misinformed,
but he's flat out said there is nothing else he can do. Now if you
think he can do something, I'd suggest you ask him, but he very
strongly said there is nothing else he can do. You can ask Theo or
anybody else that was on the phone or in those meetings. So for
that then, that's what I say to you. As far as the disclosure I
said I would give when we testified, I gave those. I gave the
sources of funds that -- I gave the funds that we spent for the
different things we spent them for. As far as the sources of
funds, that's private companies, private business, just like AOC's
[Alaska Outdoor Council] is, just like yours are, Mr. Ogan, or
anybody else's - the private business. We've obeyed the law and we
continue to hold that if our board of directors elects to do that,
they can. I don't have responsibility to do it.
REPRESENTATIVE OGAN: Thank you, in brief response...
CHAIRMAN GREEN: I don't want to get into a debate here about these
issues so...
REPRESENTATIVE OGAN: Okay, well he...
CHAIRMAN GREEN: No, you guys can talk later then on that.
REPRESENTATIVE OGAN: Okay.
CHAIRMAN GREEN: Any other questions?
MR. PENNY: Mr. Chairman, thank you very much for finally getting
to see you.
CHAIRMAN GREEN: Thank you Theo, Mr. Matthews.
Number 0609
THEO MATTHEWS, PRESIDENT, UNITED FISHERMEN OF ALASKA: I thank you,
Mr. Chairman, members of the committees and other legislators and
audience members. My name is Theo Matthews, I'm speaking today as
the president of the United Fishermen of Alaska. I'm also the
chairman of their Subsistence Committee and have been for probably
longer than I wanted to be. The first thing I want to do is
recognize the legitimate efforts that have gone into the product
before us. It is a major movement and we recognize that in the
original work product of the Resource Committee was resolved during
the session. It is a major good faith effort, we recognize it as
that and for that. I'd also like to say we recognize the diversity
of opinions on this issue and you just can't get away from it. We
have tried always, over time, to recognize that and say what do we
need to do to get it done and provide for all uses to the fullest
extent possible. We do not oppose the concept of tying it, some
kind of linkage, sunsetting to the legal case against the federal
law. We feel we're going to fail in that, but we think this state
and its residents need some finality on that. The concept of
sunset linkage we can accept. The reversed is almost foolish
saying we won't kick in an amendment until we win or lose the
lawsuit. You have the opportunity of keeping the federal
government out of here for whatever length of time it takes to
determine that and it could be a long time. Our organization is
looking for not to set policy for the federal government or for
this legislature. Subsistence is there, the feds set their policy
to it, you set your policy. But we want to make, as much as
possible, sure that it works. It provides for all uses of the
resources as much as humanly possible because our commercial
fishermen - many of them have a tradition, a long long tradition of
subsistence use, an economic and social importance of many lodge
owners and recreational users in rural areas. So we need something
that will work and it is very clear to us that it won't work under
federal management. the feds will not manage for the multiplicity
of uses for our citizens. Their law only dictates one use that
they have to be concerned about, not the other uses of the same
individuals. They have demonstrated their incompetence in the past
and they, to many degrees on many issues, they continue to
demonstrate that. So I think we all concur that state management
has been vital and remains vital. The reason we are here
supporting a constitutional amendment is because the stars are
aligned for the very first time. We have opposed an amendment
standing alone in the past because by doing that, we're buying into
a terrible federal law, and that since that federal law is so vague
that no one can tell you what it means and no one can take that law
and make it work practically for those who are intended to benefit.
So we have identified what we have always called technical
amendments to ANILCA that are independent of this issue that's sort
of dividing the state right now. Who gets the preference? And any
law, whether it be state or federal, we've got to give enough
basics - building blocks for those who are implementing it to make
it work. They didn't do that in ANILCA, we did that in our state
statute, and by that I mean the technical aspects (indisc.). If
you have a rural preference, what in the hell does the word "rural"
mean? Where do you expect this to apply? If you say you're going
to allow customary trade, at what limit and what does that mean?
We have identified some very key terms that are independent of the
issue of who gets it, rural versus urban, or all Alaskans or
whatever. In state or federal law we need that, and at this point
in time for the very first time and what we're concerned about is
perhaps the last time, we have bent the federal government. They
are prepared to put this kind of clarification in federal law, to
actually take the wisdom of this state that you put into the 92
statute and put that into federal law. They're actually
recognizing that you did a better job. If we don't take them up on
this offer, our concern is we're not going to get this offer again.
Over the long term of federal law that's mandating the same
subsistence preference that our state law does, without these tools
is going to be disaster for this state including subsistence users.
At least that's our opinion and we've worked very hard to that. To
get specific to this legislation before us, we feel that that
concept of -- this is what we've always termed rural plus.
Everyone there qualifies and some people who can try and meet
qualifications in that same area, it's a very legitimate concept.
It's been around, debated and talked about in various forms for a
long time. To set that rural plus now without, and this is where
I think Attorney General Botelho was going, we need a lot of rapid
but quick communications between user groups, the federal
government, the legislature, because that is a fundamental sort of
policy change. It's not a technical amendment that you're asking
Congress to consider and I think that's why Senator Stevens says,
"I can do the technical stuff if there is enough agreement, I can't
do the policy stuff quickly." And I think by inserting a rural
plus type mandate it's going to take time if at all, but it's going
to take some time. I last night faxed then version with my
scribbled notes the Interior Department that came out of Resources
last night. They haven't had time or I haven't had time to
communicate back to them, but that kind of communication is needed
both from us as users and the legislature and the delegation. We
feel that to actually make this work without a policy change in
ANILCA, the plus part of this can be done in statutes. This
slightly - is going to require a slightly varying degree of
preference. That's unless you want to take the extra time to
develop a policy change of ANILCA. The technical amendments that
we find so vital in state law that we want to get in federal law
are not in this amendment and they're not required, it's not one of
the conditions. We would like to see that there. And I'll
conclude with one thing that is perhaps a policy issue, but you
can't hardly demand it of Congress, Section 2 (d). It talks about
the preference in this section shall not diminish utilization of
forest, grasslands, et cetera. I mean I think I know that was
aimed at "and other renewable resources," that part of the ANILCA
thing. But as it is written here, it basically says this
preference doesn't have a preference. These other things really
have the true preference. I don't think that's the intent. I will
conclude with the caution that Attorney General Botelho gave you
also. Even if we agreed absolutely on intent, purpose, and all
that stuff, it's very clear that when you're dealing with a
constitutional amendment we need to take the time amend it, think
about it - amend it, think about it, because this will be with the
state for a long long time. And I appreciate your willingness to
take the time to do it right. Thank you, Mr. Chairman.
Number 1103
CHAIRMAN GREEN: Very briefly Theo, that (d) section that you
referred to, the concept there was just to be sure that subsistence
isn't used as a vehicle to prevent any of the other developments.
We're fearful that there could possibly be situations where they
would say, "Well, hey you can't do that because you have
subsistence preference here." And compatibility is one thing, but
to exclude that's the thing we were worried about by having that
section in there.
MR. MATTHEWS: Mr. Chairman, just briefly. I think I understood
that, but actually this is my point about taking your time. As
written, it says, "shall not diminish". So that means the true
preference is on this utilization and I'm not a lawyer so
really....
Number 1145
REPRESENTATIVE JAMES: Well, on that point, Mr. Chairman and Mr.
Matthews, I appreciate your testimony here today. And I'm quite
sure that if we could sit down and talk between us, because I have
before, that we're in agreement on almost all the basic philosophy
and the way the state ought to be run. I'm sorry that we're on
opposite ends of that spectrum on this issue. The comment that you
made about that one issue, I believe it's Section 802 of Title VIII
of ANILCA makes it specifically clear that any other development on
federal lands will take a back seat if it interferes with
subsistence. And I don't disagree with that statement, but I want
to put on the record that my concern is, and I've watched and
finitely through this whole issue from the beginning, which Title
VIII of ANILCA came from a unholy alliance between a Native people
who definitely need a subsistence preference and environmentalists
who want to shut down all of these kinds of activities. It is that
driving factor in the begin that I have no faith in, absolutely no
faith in, although I have faith in my Native friends, but I don't
have faith in the environmental community although I consider
myself to be a very environmentally astute and concerned person.
So I think this imperative that we at least have something in there
that designates that they won't unrealistically, at least, use
subsistence as a reason to shut down resource development. And you
know I've heard testimony, they've really worked hard to get Red
Dog mine in. We got it finally and it's really helping that area
up there for the shareholder hire and all those other kinds of
things. I don't want those kinds of developments to go by the
wayside and I want to say in anything that we pass that we want
that to be acknowledged, that that is not going to be utilized in
the way as an excuse. If it certainly does interfere with
subsistence, I would be the first one to say yes, we need to
consider it. That's the only statement. I just wanted to let you
know how I felt on that issue and that that is a very serious
concern to me.
Number 1258
MR. MATTHEWS: Mr. Chairman, Representative James, I think I
understand. My caution was I don't think the wording there says
what you said or intend.
REPRESENTATIVE JAMES: I might agree with you on that.
MR. MATTHEWS: And that was caution to take the time, even if we're
in agreement, this is a constitutional amendment.
CHAIRMAN GREEN: Representative Rokeberg.
Number 1303
REPRESENTATIVE ROKEBERG: Mr. Chairman, Mr. Matthews, very quickly.
Have you provided to the committee, or I haven't seen unless I
missed it somewhere, these technical changes to ANILCA?
MR. MATTHEWS: Mr. Chairman...
REPRESENTATIVE ROKEBERG: Are they in the book here somewhere?
I've been looking them, but I haven't found them.
MR. MATTHEWS: Yes, applied the committee, in session, all of our
comments to the task force and over the years that they've always
been the same. There is a definition of "rural," a definition of
"customary and traditional," a definition of "customary trade,"
which the state has all these things - the definition of "stock."
Those are the primary ones.
REPRESENTATIVE ROKEBERG: It just seems to me, Mr. Chairman, in my
recollection in the last four and a half months, nobody has ever
presented them to this committee and this is the House Judiciary
Committee, unless I missed it.
MR. MATTHEWS: I have testified to this.
CHAIRMAN GREEN: I haven't seen these.
REPRESENTATIVE ROKEBERG: I mean there is a difference between
testimony and presenting some written lists so we could take a look
at. I'd love to see a list of these.
CHAIRMAN GREEN: Representative Croft and then Hudson.
Number 1327
REPRESENTATIVE CROFT: Mr. Matthews, can I call you General
Matthews?
MR. MATTHEWS: No Sir, I'm a civilian.
REPRESENTATIVE CROFT: I take it to be true that I have, my family
has gone, for the last ten years, long-term consistently and
noncommercially to Chitna to dip net fish. We can establish
ourselves as customary and traditional users of that resource.
Representative Barnes was in that chair before, I asked her did it
matter that I have a job, such as it is, and have other sources of
income. She said it did not matter that -- I have other sources of
food and it did not. Under this, as she told me yesterday, I'm one
of those urban subsistence users. I live in Anchorage. I know in
the duplex that I own my tenants do this in Chitna every year.
What, in your estimation, would be the impact of Anchorage sport
fishermen or personal use fishermen like myself, having now a
subsistence right in the Chitna or other rivers - fish.
MR. MATTHEWS: Mr. Chairman, Mr. Croft, it could be devastating and
that's why I tried to say we need for the plus side of the
equation, we had talked long and hard and think about it, how
you're going to define it. And it needs to have, in my opinion --
if you want to keep the intent of ANILCA, this is to protect these
uses and rural residents from encroachment from an ever expanding
urban populations. If you just simply say, "Well, we're going to
give you this if you've hunted and fished it enough," over time, it
will eliminate a severely curtailed those rural resident's
preference in two ways. First of all, it might kick in a priority
where you go to Tier II and the urban guy gets it before the rural
guy does. That would be totally opposed to ANILCA, or I think most
still get it, but the rural resident has lost his economic
opportunity to use those same resources as a commercial fisherman,
a guide, a lodge owner, a trapper. So you've really curtailed his
entire lifestyle by adding this extra class of users. Policy wise,
I think it can be done. I think you really -- and we need to think
long and hard - what kind of preference. If they were a co-equal
preference, this could really hurt the rural areas.
Number 1448
REPRESENTATIVE CROFT: On that point.
CHAIRMAN GREEN: Representative Croft.
REPRESENTATIVE CROFT: It seems to me that it is a co-equal
preference. It's in the same sentence as I read it on page 2,
starting on line 1, "The preference shall be available to any
individual resident who resides within basically a subsistence area
and within an area designated, and an area whose residents are
determined to be customary and traditional dependent.
' That's the area part, ", or who has demonstrated customary and
traditional dependence." The shall applies to both of them and no
distinction is made between them. Is that your reading.
MR. MATTHEWS: Mr. Chairman, Mr. Croft, that's my reading and
that's really why we can't support this as a part of the
constitutional amendment and I suggested it could be done in
statutory language with a different level of preference. To put
"co-equal" into the constitution, you're really going to impact the
people that have the preference now. I mean there could be
virtually an unlimited class of users because simply they have
hunted and fished before. The concept of rural plus, I want to say
very legitimate, been around for a long time. To actually think it
all the way through (indisc--coughing) when it kicks in, are they
co-equal and what does it do to the other uses of the rural
residents. I don't think we've ever had that exercise and it's
clearly very necessary.
REPRESENTATIVE CROFT: Thank you, Mr. Chairman.
Number 1516
CHAIRMAN GREEN: (Indisc.) belabor this because we do have some
others, but the word "dependent" is going to be a major issue,
especially when the statutes are involved. It's not everyone, it's
those who are dependent and a customary and traditional use, so you
really limit then. For example, I might have gone through the
Copper River for the 22 years that I've been in Alaska, but I'm not
dependent.
MR. MATTHEWS: I understand and that was the discussion, I believe,
with Mr. White about does customary prevail or dependence prevail.
That's correct.
CHAIRMAN GREEN: Thank you very much. Oh, Representative Hudson,
briefly.
Number 1542
REPRESENTATIVE HUDSON: Theo, the technical amendments you were
referring to that you didn't want to lose. We're they included in
the Steven's amendments.
MR. MATTHEWS: In a large part, yes sir.
REPRESENTATIVE HUDSON: And I'm assuming that they would remain
providing we could find commonty (ph) between the Governor, the
congressional delegation and the legislature.
MR. MATTHEWS: I certainly hope so.
CHAIRMAN GREEN: Thank you, Rosita Worl.
Number 1578
ROSITA WORL: Mr. Chairman, committee members, thank you for
allowing me to speak before you and thank you for just being here
yourselves. In the wider world I'm known as Dr. Worl, Professor of
Anthropology at the University of Alaska, Southeast. Within the
Native world, I'm known as Rosita Worl and I'm a member of the
board of directors of Sealaska Corporation and also the Alaska
Federation of Natives. Among my own people I'm known as [spelling
unknown to transcriber] , I'm an Eagle from the Thunderbird Clan
and from the House Lowered from the Sun and also a child of the
Sockeye Clan. However, Mr. Chairman and committee members,
despite my affiliations with all of these three different domains,
I am here today as an Alaskan, an Alaskan who wishes to advocate
for a resolution of the subsistence dilemma that allows for the
cultural survival of Alaska Native people and rural communities.
I would like to address one of the basic arguments that has been
advanced by various legislators and is an underlying premise of the
proposed constitutional amendment here before us as to why a rural
subsistence priority is inherently wrong. That argument has been
clothed in the principle of equality. Ever since the civilized
world accepted that American Indians were human beings, ever since
the United States abolished slavery and adopted the fourteenth
constitutional amendment, and ever since the Alaska State
Territorial Legislature adopted the Antidiscrimination Act, the
tenant of equality has been touted as a political ideal.
Unfortunately, neither God nor Congress or the Alaska legislature
has enacted divine or natural laws that ensure equality. All laws
make distinctions among classes of people and citizens. The United
States government, itself, and even the state of Alaska have
recognize that Alaska Natives have a different political status
than that of other Alaskans. that status is not based on a racial
classification, but rather on the political status of Native people
and I think Representative James has tried to address and raise
that issue several times. Because of the political status of
Alaska Native people, Alaska enjoys 400 to 500 million dollars
annually from Congress that we, as Alaska or the state of Alaska,
might otherwise have to supplement. So in recognizing this
political difference, it is beneficial for the state of Alaska.
The status of equality is affected by multi factors. No one single
variable, such as geographic residence, provides equality. For
example, we have no law on the book that discriminates against
Alaska Natives in the judicial or correctional system. Yet Alaska
Natives who account for 16 percent of the state population
represent more than 36 percent of those who are incarcerated in our
correctional institutions. As we may recall, a study by the Alaska
Judicial Council in the late 1970s reported that Alaska Natives
receive sentences that were twice as long as non-Natives for the
very same crime. We had no laws that Alaska Natives should receive
sentences that were twice as long. We had a system that led to
inequity. Our laws and constitutions provide for inequality or
inequity in other areas, but yet this inequity is acceptable by
Alaskans and our legal systems. For Alaska Native people, it is
perplexing that this differential access to resources is acceptable
when it comes to commercial fisheries through the limited entry
fishing permit system, but it is not acceptable for subsistence
hunting and fishing, which accounts for only a minuscule portion of
the total harvest of fish and wildlife. We have heard members of
this legislature and this committee say that subsistence is the
highest and best use of the resources and for those who have
expressed this ideology, I applaud them. However, distinguished
legislators, I submit to you that the reality is that if this ideal
is so and if we, as a people, prize cultural diversity and the
viability of rural communities, then it imperative that we have
legislative laws that specifically protects the subsistence way of
life. The great question in democracies has never been whether
laws treat all people the same. It has always been whether the
distinction or, if I may, the discrimination that any law makes is
acceptable whether it advances a policy goal, whether the people
believe it to be right. The polls show that a clear majority of
Alaskans believe that a state law containing a rural subsistence
priority is justifiable social policy. I feel that the protection
of rural communities, whose socioeconomic systems are based on a
subsistence economy, is morally right. I feel that it is just to
protect the culture and economy of Alaskan villages. It is utterly
perverse to wipe them out for no reason other than for a false
premise, a false argument of equality. If the economies and
cultures of Bush Alaska are to be dismantled by a distant policy,
every Alaskan, your children and my grandchildren, will suffer the
consequences.
Number 1905
CHAIRMAN GREEN: Excuse me Rosita, much of your testimony seems to
be supporting a constitutional amendment required to have a
preference as opposed to equality based on McDowell and Kenaitze.
This bill that we're addressing today does call for a
constitutional amendment.
MS. WORL: I am aware of that, Senator, I'm sorry Mr. Green.
CHAIRMAN GREEN: And I would ask you if you could confine your
comments to that. While you may not like this constitutional
amendment, but it is an amendment as opposed to not having one as
required by McDowell. Okay.
MS. WORL: Right. Mr. Chairman, if I may, I was addressing the
underlying premise of this constitutional amendment and so my
arguments, my comments are limited to that. Ms. Kitka outlined the
specific and I'm just outlining the underlying philosophy that I've
heard expressed by many legislators. So if I may...
CHAIRMAN GREEN: Are you pretty close to finishing?
MS. WORL: Yes, I may, but I thought it was important for this
statement to be in the record since we've heard this argument of
equality thrown out many times. Equality is an ideal and principle
that all Alaskans seek. However, let us not dilute ourselves that
opposition to a rural subsistence priority ensures equality. Let
us look at the reality of our world that accepts that a
constitutional amendment to protect commercial fisheries is morally
right. Let us act with equity and extend the same principles to
rural subsistence communities. Thank you.
CHAIRMAN GREEN: Thank you very much. Are there any -- yes,
Representative James.
Number 1979
REPRESENTATIVE JAMES: Just briefly, I just want thank you so much
of your testimony, I enjoyed every minute of it, but on the issue
of the limited entry and the subsistence, I had a very succinic
response from one of the people my district, just yesterday,
defining the difference in a way that I had never thought of it
before. And I was opposed to -- I wasn't here when the vote is for
the limited entry, but I think that was a mistake. But this person
said, "Limited entry change to the constitution is beneath the
common use clause." In other words, that allows for the commercial
harvest without interfering with the community, the common use
because it's below it. The subsistence is, on the other hand, a
priority ahead of other common use. And so there are two different
spectrums of the common use clause. I just got this yesterday, the
fax, and so I just wanted to share that with you. You don't have
to respond, but I just wanted to share with you what he was telling
me the difference between...
MS. WORL: If I may, just so that there is no ambiguity about my
position, I support commercial fishing, but the point that I was
trying to make over here is that there are various ways to look at
equity whether it's above or below...
REPRESENTATIVE JAMES: I understand you're talking to your point.
I do and I want to comment and compliment you on (indisc.).
MS. WORL: Thank you very much.
Number 2037
REPRESENTATIVE HUDSON: Mr. Chairman, can I just say Rosita I
believe sincerely that this constitutional amendment will, if
enacted, establish -- now maybe the words are quite right, maybe
they're technically, maybe there is some ambiguity, we need to work
that out, but will establish in the constitution a right for people
in rural Alaska. We don't say "rural" in here, but we describe it
almost identically to what's described in ANILCA. I believe that
it will comport, in most cases, to ANILCA. Now maybe the
provisions to change ANILCA are offensive or something of this
nature, but it does attempt to establish that priority and that
opportunity in the constitution for the legislature to provide to
those people almost an exclusive use because in application, I
don't see very many people come from urban Alaska to disrupt that
normal lifestyle. That's the reason that I've been working so hard
to try to craft this thing with my fellow legislators here because
I think it does do that. And absent that, I got to believe that we
are failing all Alaskans, not just rural and Native Alaskans, but
all Alaskans because we're going into federal management which will
disrupt commercial fishing and all those other uses. I wanted to
tell you that because that's sincerely the way I feel.
MS. WORL: Well thank you very much. We do really appreciate your
intent, your objectives and your effort. Thank you.
CHAIRMAN GREEN: Well in wrap up, I would like to go on the record
as well saying that it is truly my belief that if we're down to the
last fish or the last critter, the people who subsist on this - the
people who have lived off this certainly have a right more than I
do who live in an urban setting. By the same token, I staunchly
defend the state's constitution, as I do the national constitution,
and I do believe in equality. Now those two statements conflict
with each other, so what I think we've tried to do here, if it's
not exactly written that way, is to say we all have the same
equality, as a pre-McDowell, that we will do as we have done until
we get to that last fish. That veneer just above the sustained
yield, and then and only then and in the area where that actually
has occurred where there is the true, true subsistence need only
and that's the only amount that we can harvest, then it should go
to the people who live in that adversely affected area only with
the rebuttable presumption that someone who lives outside that area
that can show they have used that same resource on a subsistence or
a sustained type of historical value, they would also qualify
against both urban and rural, other users. So in other words,
we're trying to minimize the adverse effect on that area which is
under problems because of low yield. That's, in effect, what this
does and I think this does it actually more fairly to those places
that are affected. It certainly does it more fairly with a Native
culture, whether they live in a urban or rural environment. They
would have better access than they would under ANILCA or under the
task force proposal. So I think that, in effect, is what we're
trying to do - is a fairness thing.
MS. WORL: Well Mr. Green, I want to thank you for your comments.
I really do appreciate that and I'm hoping that we're going to be
able to work together to try to resolve this issue. But of course,
we, who have lived and felt the results of it, of course are bound
to have some differences of opinion as to the exact statutory
language.
CHAIRMAN GREEN: Well, I appreciate your endurance and your
willingness to testify and with that, we'll close testimony. What
is the wish of the committee?
Number 2192
REPRESENTATIVE ROKEBERG: There was a point raised by Ms. Kitka
that I don't know if we really need to take up that does have to do
with the Marine Mammal Act and the migratory birds. I wanted to
put another amendment excluding those specific U.S. codes that
might be appropriate.
CHAIRMAN GREEN: That I don't believe is going to be necessary
because... the Marine Mammals Act, I don't believe by addressing an
ANILCA change or a subsistence within the state would adversely
impact the Marine Mammals Act, which is nationwide. But we have
our staff attorney here who has a statement on that.
Number 2220
MR. JARDELL: My name is Kevin Jardell, I'm the staff attorney for
the Judiciary Committee. In response to Representative Rokeberg's
concern, I think some language added on page 2, line 24 -- if we
add "as provided or otherwise asserted under Title VIII of ANILCA."
CHAIRMAN GREEN: Where would you want that?
MR. JARDELL: After "state." So on line 25 -- I'll read the entire
sentence, "waives federal jurisdiction over state and private lands
and waters in the state as provided or otherwise asserted under
Title VIII of ANILCA."
CHAIRMAN GREEN: Is there any benefit to "only?" I mean if that is
our concern.
MR. JARDELL: Through the Chair, I don't think it would negatively
impact the statement. It may have some clarification. I think as
it's written, it would be read to only apply to ANILCA, but if
there is a desire by the committee to insert "only", I don't think
it would do any harm to the intent.
CHAIRMAN GREEN: And what was the last part? Provided in....
MR. JARDELL: "as provided or otherwise asserted under Title VIII
of ANILCA."
REPRESENTATIVE JAMES: Where would you put the "only"?
CHAIRMAN GREEN: I was going to put it after "asserted as provided
in this area", oh, wait a minute I got it twice here - "as provided
and asserted".
REPRESENTATIVE JAMES: I was thinking it should be in the beginning
that only as provided, but otherwise asserted.
CHAIRMAN GREEN: Okay, that's fine.
Number 2306
MR. JARDELL: Mr. Somerville brought up a good point. Title 1 of
ANILCA does contain definitions. If you dropped the "Title VIII"
and just left it "under ANILCA", that would reference the
definitions also and it...
CHAIRMAN GREEN: It there an objection to adding that -- that would
be what number 9 - Amendment 9.
REPRESENTATIVE JAMES: Do we have to put the whole thing out like
it is in number 3, and the PL 96-487. Do we have to?
MR. JARDELL: Through the Chair, if we can do it conceptually, I
would defer to the drafters to...
REPRESENTATIVE JAMES: Okay, thank you.
CHAIRMAN GREEN: Okay, is there objection? Hearing none, Amendment
9 is approved -- the wish of the committee?
Number 2340
REPRESENTATIVE BUNDE: Well I would recommend we move from
committee HJR 102, Resources, as amended, with individual
recommendations and then I would like to make a comment.
CHAIRMAN GREEN: Alright, is there objection? Hearing none...
REPRESENTATIVE JAMES: Object to listen to his comment.
REPRESENTATIVE BUNDE: Well just that nothing in this legislation
or any other legislation be construed to prevent rural people from
doing what they've done for thousands of year...
TAPE 98-101, SIDE A
Number 0001
REPRESENTATIVE BUNDE: ...memorialize someone's opportunity to
maintain a particular place of residency because we cannot
guarantee fish and game for time in memorial.
CHAIRMAN GREEN: That's a very good point. I appreciate that being
on the record.
REPRESENTATIVE ROKEBERG: Mr. Chairman.
CHAIRMAN GREEN: Yes, Representative Rokeberg.
Number 0036
REPRESENTATIVE ROKEBERG: There was an interesting point brought up
by someone here that too, that his particular amendment actually
would provide greater subsistence uses for more Native Alaskans
than the Governor's amendment.
CHAIRMAN GREEN: Yes, I mentioned that, yes that's true. I
certainly believe that when the largest Native community in Alaska
happens to be in Anchorage. What's the wish of the committee then?
Is the objection removed?
REPRESENTATIVE JAMES: I remove my objection.
Number 0078
CHAIRMAN GREEN: With no objection, the bill has moved from
committee as amended and there is - probably be a $3,000 fiscal
note to get it published.
ADJOURNMENT
Number 0110
CHAIRMAN GREEN: We're adjourned, I'm sorry, excuse me the to the
call of the Chair [12:50 p.m.].
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