Legislature(1997 - 1998)

03/11/1998 01:15 PM House JUD

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

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