Legislature(1997 - 1998)
03/09/1998 01:10 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 9, 1998
1:10 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 JOINT RESOLUTION NO. 47
Proposing amendments to the Constitution of the State of Alaska
relating to the nomination, selection, appointment, and public
approval or rejection of justices of the supreme court and of
judges of courts established by the legislature that have as an
exclusive purpose the exercise of appellate jurisdiction over
judicial acts and proceedings, and requiring legislative
confirmation of those justices and judges and of the appointed
members of the judicial council.
- MOVED HJR 47 OUT OF COMMITTEE
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 49
"An Act establishing and relating to a consumer protection section
in the Department of Law; increasing penalties for violation of
laws relating to consumer protection; requiring special accounting
for money from certain actions related to consumer protection; and
providing for an effective date."
- MOVED CSSSHB 49(L&C) OUT OF COMMITTEE
SENATE BILL NO. 195
"An Act relating to common law liens, to remedies, costs, and fees
imposed for the registration, filing, or recording of certain
nonconsensual common law liens, and to penalties for recording
common law liens."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 47
SHORT TITLE: CONST AM: APPELLATE JUDGES
SPONSOR(S): REPRESENTATIVES(S) COWDERY, Phillips, Green,
Rokeberg, Ryan, Kohring, Ogan, Vezey
Jrn-Date Jrn-Page Action
1/16/98 2060 (H) READ THE FIRST TIME - REFERRAL(S)
1/16/98 2061 (H) JUDICIARY, FINANCE
1/20/98 2092 (H) COSPONSOR(S): GREEN, ROKEBERG, RYAN
1/28/98 2166 (H) COSPONSOR(S): KOHRING
2/20/98 (H) JUD AT 1:00 PM CAPITOL 120
2/20/98 (H) MINUTE(JUD)
2/20/98 2389 (H) COSPONSOR(S): OGAN, VEZEY
3/04/98 (H) MINUTE(JUD)
BILL: HB 406
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S)
2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE
2/17/98 (H) RES AT 1:00 PM CAPITOL 124
2/17/98 (H) MINUTE(RES)
2/21/98 (H) RES AT 1:00 PM CAPITOL 124
2/21/98 (H) MINUTE(RES)
2/24/98 (H) RES AT 1:00 PM CAPITOL 124
2/24/98 (H) MINUTE(RES)
2/27/98 (H) JUD AT 1:00 PM CAPITOL 120
2/27/98 (H) MINUTE(JUD)
2/28/98 (H) RES AT 9:00 AM CAPITOL 124
2/28/98 (H) MINUTE(RES)
3/03/98 (H) RES AT 1:00 PM CAPITOL 124
3/03/98 (H) MINUTE(RES)
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
3/04/98 (H) MINUTE(JUD)
3/05/98 (H) RES AT 1:00 PM CAPITOL 124
3/05/98 (H) MINUTE(RES)
3/06/98 (H) JUD AT 1:00 PM CAPITOL 120
3/06/98 (H) MINUTE(JUD)
3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM
3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE;
3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS,
HUDSON
3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW)
3/09/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 49
SHORT TITLE: CONSUMER PROTECT.: DIVISION & PENALTIES
SPONSOR(S): REPRESENTATIVES(S) CROFT, Hudson
Jrn-Date Jrn-Page Action
1/13/97 40 (H) PREFILE RELEASED 1/3/97
1/13/97 40 (H) READ THE FIRST TIME - REFERRAL(S)
1/13/97 40 (H) LABOR & COMMERCE, JUDICIARY, FINANCE
3/26/97 849 (H) SPONSOR SUBSTITUTE INTRODUCED-
REFERRALS
3/26/97 849 (H) LABOR & COMMERCE, JUDICIARY, FINANCE
1/30/98 2189 (H) COSPONSOR(S): HUDSON
2/18/98 (H) L&C AT 3:15 PM CAPITOL 17
2/18/98 (H) MINUTE(L&C)
2/20/98 2378 (H) L&C RPT CS(L&C) 5DP 1NR
2/20/98 2379 (H) DP: ROKEBERG, HUDSON, KUBINA, BRICE,
2/20/98 2379 (H) COWDERY; NR: RYAN
2/20/98 2379 (H) FISCAL NOTE (LAW)
2/20/98 2379 (H) REFERRED TO JUD
3/09/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
Capitol Building, Room 128
Juneau, Alaska 99801
Telephone: (907) 465-3878
POSITION STATEMENT: As co-chair of House Resources Standing
Committee, sponsor of HB 406, explained CSHB
406(RES) and answered questions.
GEORGE UTERMOHLE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions regarding CSHB 406(RES).
STEVE CONN, Executive Director
Alaska Public Interest Research Group
P.O. Box 101093
Anchorage, Alaska 99510
Telephone: (907) 274-0730
POSITION STATEMENT: Testified on CSSSHB 49(L&C).
ACTION NARRATIVE
TAPE 98-33, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:10 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter, Rokeberg and James.
Representatives Croft and Berkowitz arrived at 1:10 p.m. and 1:11
p.m., respectively.
HJR 47 - CONST AM: APPELLATE JUDGES
Number 0048
CHAIRMAN GREEN announced the first item of business would be HJR
47, proposing amendments to the Constitution of the State of Alaska
relating to the nomination, selection, appointment, and public
approval or rejection of justices of the supreme court and of
judges of courts established by the legislature that have as an
exclusive purpose the exercise of appellate jurisdiction over
judicial acts and proceedings, and requiring legislative
confirmation of those justices and judges and of the appointed
members of the judicial council.
CHAIRMAN GREEN advised members there had been a request to vote on
the resolution. He asked whether there were any questions first.
Number 0086
REPRESENTATIVE NORMAN ROKEBERG made a motion to take up and move
HJR 47 out of committee, with individual recommendations and any
attached fiscal notes.
CHAIRMAN GREEN asked whether there was any objection to taking it
up; none was heard. He then asked whether there was any objection
to moving it.
Number 0116
REPRESENTATIVE ERIC CROFT objected. He requested an at-ease.
CHAIRMAN GREEN called an at-ease at 1:11 p.m. He called the
meeting back to order at 1:12 p.m.
Number 0173
CHAIRMAN GREEN requested a roll call vote. Voting to move HJR 47
from committee was Representative Rokeberg; voting to move it but
with the understanding that their votes were no indication of
further support were Representatives Bunde and Green; and voting to
move it with a "reluctant yes" was Representative Porter. Voting
against it were Representatives James, Berkowitz and Croft.
Therefore, HJR 47 moved from the House Judiciary Standing Committee
by a vote of 4-3.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
Number 0321
CHAIRMAN GREEN announced that next the committee would take up HB
406, "An Act relating to subsistence uses of fish and game." He
called upon Representative Ogan to lead the committee through CSHB
406(RES). He noted that five sites were on teleconference, and he
expressed hope that the committee would have time to hear from
those testifiers.
Number 0353
REPRESENTATIVE SCOTT OGAN, co-chair of House Resources Standing
Committee, sponsor of HB 406, came before the committee to present
the bill. He told members he had listened closely to more than 100
hours of public testimony since the Governor introduced the task
force plan in mid-summer; he had also listened to more than 20
hours of testimony from Administration officials who support the
Governor's position. He has concluded there are significant
differences between what the public has been led to believe about
subsistence and what the Administration is really trying to
achieve.
REPRESENTATIVE OGAN stated, "House Bill 406, I believe, is based on
what the public indicated they support about subsistence. The
public indicates only people who need it should get a preference.
The public thinks such a preference should kick in only when
there's a true shortage of the resources, and that such shortage
should be substantiated with biological evidence. The public does
not support any commercial use of subsistence resources. I believe
the public wants true management of fish and game back, not
management through federal court oversight or Secretary of Interior
oversight, at his whim, which is, by the way, what we would get if
we adopted the other plan."
Number 0407
REPRESENTATIVE OGAN said the public does not support changing
Alaska's constitution if the federal law is in conflict and not
constitutional according to the Alaska constitution. Nor does the
public know what rights or uses they might have to give up to
satisfy the Alaska National Interest Lands Conservation Act
(ANILCA). Representative Ogan referred to equal protection rights.
He indicated that while on the surface a rural priority may appear
acceptable to some, he is against amending the constitution to
create different classes of people. He suggested a rural priority
would be an irrational preference, and it would not provide the
healing as a state that he believes is necessary.
REPRESENTATIVE OGAN told members the public also does not know that
sustained yield, without a definition, does not necessarily mean
there will be resources available for human harvest. The bill was
drafted to address all these points in the most forthright, public
manner possible. He stated, "By placing the measure before the
voters, they, and not the politicians, will have the final word on
whether an Alaskan in-state solution is acceptable."
REPRESENTATIVE OGAN said as a further safeguard, HB 406 does not go
into effect until ANILCA is amended, and rural residents can be
secure in knowing that both a majority of voters and Congress must
agree before any changes are made to the present system of
subsistence administration. He stated, "Finally, I think we should
all recognize that no changes to equal protection rights should be
permitted to go on the ballot." He then referred to a court case
that he believes is in Colorado, relating to the inability of
persons to vote away equal protection rights.
Number 0616
REPRESENTATIVE OGAN concluded his opening remarks: "Before we try
to satisfy ANILCA, we must be aware that if it requires a dilution
of the equal protection, it very well could be tossed out by our
courts. We must make every effort to educate ... both ourselves
and the public in what our legal obligations are, and what we ...
can and cannot do within those parameters." He offered to go
through the bill.
REPRESENTATIVE OGAN described Section 1, findings and intent, as
fairly self-explanatory. He read from subsection (a)(1): "the
ability to take fish and game for personal and family use for
sustenance is a fundamental right under the Constitution of the
State of Alaska." He explained that he had been looking for some
common ground with the Alaska Federation of Natives (AFN), which
has as a guiding principle that subsistence is a basic human right.
He told members he believes basic human rights or fundamental
rights apply equally to all people, and they are not severable or
subject to a vote.
Number 0695
REPRESENTATIVE OGAN continued with Section 1, subsection (a)(2),
which read, "the common use clause of the Constitution of the State
of Alaska imposes on the state a trust duty to manage the fish,
game, and water resources of the state for the benefit of all the
people". He said there had been a most informative hearing on the
public trust doctrine in the previous committee; there is a lot of
case law on the public trust doctrine, which he believes shows it
is traditionally a state's right to manage fish and game. He
provided oil as an example, saying that like fish and game, oil is
an asset in the public trust; the permanent fund dividend
represents the people's common ownership, and earnings from that
are paid to each citizen of the state. He said just as the U.S.
Supreme Court has ruled that the state cannot discriminate with
that public trust asset based on how long someone has lived in
Alaska, he believes the state should not and cannot discriminate
with another public trust asset, fish and game, based on where a
person lives in the state.
Number 0801
REPRESENTATIVE OGAN briefly mentioned subsection (a)(3), which
read, "the harvest of fish and game for personal and family use for
sustenance is the highest and best use of fish and game". He then
referred to (a)(4) and said they had taken some language from the
Hickel task force, trying to recognize the importance of
traditional, social and cultural relationships that both Native and
non-Native people have to hunting and fishing. In (a)(5), it says
although these customs, traditions and beliefs vary, Alaskans have
a lot of these issues in common.
REPRESENTATIVE OGAN referred to Section 2, subsection (a), which
says the harvest of fish and game for personal and family use for
sustenance is the highest and best use of fish and game. He said
he had recently had occasion to travel around the state with the
House Special Committee on Fisheries, for hearings on another bill
relating to whether the legislature would allocate a resource. He
had heard repeatedly from commercial fisheries interests that they
had no problem with Alaska residents getting what they need to feed
their families, and that it should be the priority use.
Representative Ogan stated that the resource does belong to Alaska
residents.
Number 0898
REPRESENTATIVE OGAN advised members that Section 2, subsection (b),
is probably the most important portion of the bill. It read, "If
the Board of Fisheries or the Board of Game determines that the
projected level of harvest of a fish stock or game population in an
area would exceed the sustainable level of harvest under the
sustained yield principle, the appropriate board shall allocate,
notwithstanding AS 16.05.251(e), the harvestable portion of the
stock or population in that area among user groups in accordance
with a ranking of beneficial uses of the stock or population that
assigns the highest preference to consumptive use for personal and
family use for sustenance."
REPRESENTATIVE OGAN Ogan explained that in times of shortage, the
boards will allocate a percentage to Alaskans first for feeding
their families, under the authority of the state constitution,
Article VIII, Section 4, sustained yield, which says the use of
fish and game is subject to preference among beneficial uses. He
said he believes case law backs that up, that a preference can be
subsistence, personal use, or commercial fishing, for example;
those are use categories. He indicated that if the legislature
directs the board that in times of shortage that is the highest and
best use, he believes it satisfies the intent, at least, of ANILCA.
Number 0995
REPRESENTATIVE OGAN next referred to page 3, line 10 [stated as
page 10, line 3], "Sec. 16.16.020. Dependence on fish and game for
sustenance." He noted that in subsection (a) it identifies
dependence on fish and game for sustenance, and it instructs the
boards to jointly define fish and game dependent use areas and set
up criteria based on 14 points specified in the bill. He said
basically they are trying to determine which areas are truly
dependent on fish and game. On page 4, in subsection (b), if the
appropriate board, with concurrence of the department, determines
there is a shortage, the bill allows the board to establish a
preference consistent with sustained yield, to reserve a sufficient
portion of stock or population to provide a reasonable opportunity
to satisfy the need for fish and game dependent uses of stock or
population. Representative Ogan said, "So, in the areas that have
been identified as having this dependency, and in times of
shortage, ... they can do the preference."
Number 1116
REPRESENTATIVE OGAN said the criteria have been narrowed down to be
fairly simple. One must possesses a $5 resident hunting, trapping
and sport fishing license under AS 16.05.340(a)(6); for that, he
believes a person must be on public assistance or make less than
less than $8,200. In addition, one must submit to the regional
fish and game board a statement claiming to be dependent or
claiming to have no alternative means as a result of the absence of
a cash-based economy or because of a person's decision to adopt a
fish and game dependent lifestyle. Representative Ogan suggested
the latter recognizes social and cultural values, and he noted that
the bill outlines a way to appeal that, primarily at the regional
level; he indicated he would address the regional boards later,
expressing the desire that the main boards of fish and game do not
turn into hearing forums for these disputes, which he believes
should be settled locally, then forwarded to the boards for
approval.
Number 1224
REPRESENTATIVE OGAN discussed the definitions section on page 6,
which includes definitions of "preference," "principle,"
"reasonable opportunity," "shortage" and "sustained yield." He
advised members that he had meant to offer, in the previous
committee, an amendment suggested by someone who had called in from
Kodiak regarding "shortage" and the availability of other species.
However, he didn't have that proposed amendment with him this day.
He referred to Section 3 on page 6 and indicated there is a
technical change which substitutes "fish and game dependent use"
for "subsistence hunting and fishing." Those are mostly technical
changes, continuing on page 7.
Number 1295
REPRESENTATIVE OGAN told members Section 5 addresses the regional
boards and advisory committees; the latter exist now, and to his
knowledge there are approximately 80 advisory committees throughout
the state. This creates five regions in the state and sets up
regional boards, to separate the wheat from the chaff and cut down
on the work of the main boards. In state law, the main boards are
required to consider every proposal brought before them, an arduous
and time-consuming task. These regional boards would make
recommendations to the main boards; all proposals shall be
transmitted to the main boards, but they will give deference to the
ones by the regional boards. Representative Ogan pointed out that
currently the main boards basically react to emergencies rather
than managing fish and game. This would also give more say to
local residents; he said there is a feeling now of
disenfranchisement by rural people in the process. Representative
Ogan said he envisions the regions being Southeast, Southwest,
Southcentral, Northwest and Arctic. He expressed hope that this
will result in better fish and game management.
Number 1468
REPRESENTATIVE OGAN indicated the next few pages contain mostly
technical name changes. He then discussed page 14, Section 13,
which says, "For the purpose of administering AS 16.05.251 and
16.05.255, each board may delegate authority to the commissioner or
to a regional fish and game board to act in its behalf." He said
if there is a shortage in a region, for example, the main board
could tell the regional board to monitor it and institute a closure
if necessitated under the sustained yield principle. The following
changes are mostly technical, substituting "personal and family use
for sustenance" for "subsistence," up to page 22, which contains
mostly technical repealers. On the bottom of page 22, it gets into
appointments of members to regional fish and game boards.
Number 1564
REPRESENTATIVE OGAN told members page 23 probably contains one of
the more interesting portions, a required advisory vote on
preference for use of fish and game, to be put on the primary
ballot. Section 38 specifies what happens if there is a "no" vote
on that, and Section 40 relates to provisions effective if the
attorney general determines that Title VIII of ANILCA has been
amended in such a manner that it covers the five points set out on
page 24. He read from (A) through (E), noting that one condition
is that the definition of "public lands" in ANILCA is amended to
exclude state and private land and water, including navigable
water. Representative Ogan said when Alaska became a state, no one
dreamed navigable waters would be considered anything but state
lands. He added, "And of course we've been in court on the Katie
John suit on that, so this fixes Katie John."
REPRESENTATIVE OGAN told members that in (E), "sec. 316(b)(3)(B) of
P.L. 105-83" is the portion of ANILCA that gives specific authority
to Secretary of the Interior to manage fish and wildlife on public
lands in Alaska. He said if Alaska amends its constitution and
statutes to give a rural priority, that would actually expand the
authority of the Secretary of the Interior. He referred to one of
U.S. Senator Ted Stevens' amendments to ANILCA and said, "It's been
implied, and there's been federal court oversight before, but it's
never been in writing that the Secretary shall manage if we're out
of compliance. Now, theoretically, if we pass this, that goes
away, but I wanted to make sure that it goes away by addressing it
specifically, because I personally think that reduces our state to
territorial status." He said that concluded his testimony.
Number 1752
REPRESENTATIVE CROFT referred to page 1, lines 6 through 8, and to
the public trust doctrine. He said he had listened to some of the
testimony in the House Resources Standing Committee; he noted that
the current committee must address legal issues, including what is
necessary to amend the constitution, if needed, what it takes to
comply with ANILCA, or what are appropriate amendments to ANILCA or
state statutes to make this work. He said, "And I've been
searching in vain for a public doctrine case that says we can't
amend our constitution. In fact, I heard your expert on that
issue, Mr. Cook, say, 'If you amend ... the Alaska constitution,
the public trust doctrine is simply superseded.' Did I miss
anything in that discussion?"
Number 1804
REPRESENTATIVE OGAN replied that the public trust doctrine is
simply the case law, taken as a whole. He offered to show members
that, indicating a staff member was retrieving a book containing
that. He indicated his belief that amending the constitution as
discussed would violate established case law established in the
U.S. Supreme Court and could certainly be challenged.
REPRESENTATIVE CROFT said he had the law review article, if
Representative Ogan wanted to see it.
REPRESENTATIVE OGAN said the state has a fiduciary duty to manage
the assets of the public trust in the best interests of the public,
and it would be a violation of that duty to give a special class of
people a right to a public trust resource. He read briefly from a
U.S. Supreme Court case settled in 1892, Illinois Central Railroad
Company v. Illinois, saying the state can no more abdicate its
trust over property in which the whole people are interested than
it can abdicate its police powers, administration of government and
the preservation of peace.
Number 1898
REPRESENTATIVE CROFT asked whether Representative Ogan knew of any
U.S. Supreme Court case, or any other case, that holds that giving
a rural preference violates the federal equal protection clause.
REPRESENTATIVE OGAN replied, "No, simply because it has not been
litigated. ... The Alaska Supreme Court has clearly said that it's
an equal protection case, and I believe the verbiage was 'an easy
one, at that.'"
Number 1939
REPRESENTATIVE CROFT responded, "The Alaska Supreme Court said that
it violated our specific provisions ... on management of fish and
game. It violated our constitutional provisions, and that's what
puts us in this ball game. But I have not heard of any federal
case that says it violates equal protection. And that's what I was
trying to get to. Your own expert said, 'If you amend the
constitution, the public trust doctrine does not stand in your
way.'"
REPRESENTATIVE OGAN replied, "And you're correct that he did say
that, and that's because the public trust doctrine is simply case
law, taken as a whole ...." He indicated case law changes as the
cases change, and he restated that it has not been taken to the
U.S. Supreme Court.
REPRESENTATIVE CROFT referred to pages 3 and 4. He asked about the
areas identified as having a dependence on fish and game, as well
as the people who must have a personal dependence on fish and game.
He said, "When you declare that area as unable to meet sustained
yield any longer, does the preference kick in for residents of that
area or residents of every part of the state?"
REPRESENTATIVE OGAN answered that he believes it kicks in for every
part of the state, and that someone who qualifies can go to another
area of the state and partake there.
Number 2027
REPRESENTATIVE CROFT said he didn't see any place where it links
the person to the area. He stated, "It's my understanding that
under ANILCA now, you have a rural preference, but you have a
customary and traditional use of that resource. So under the
proposed federal regulations, under ANILCA, you couldn't fly from
Angoon to Barrow to be a subsistence user. You are still a rural
resident, but you didn't have a customary and traditional use of
that resource; you couldn't establish it. Under your program, as
long as I have the $5 permit, I can fly up to Barrow and be a
subsistence user."
REPRESENTATIVE OGAN affirmed that, stating his understanding that
under the federal law, a rural resident qualifies in any other
rural area, unless there are special restrictions. He suggested
there are practical limitations, however. For example, a person
who qualifies for a $5 license probably could not afford to fly to
Barrow to participate in a caribou hunt, unless a friend had an
airplane.
Number 2086
REPRESENTATIVE CROFT referred to page 3, starting on line 3. He
stated his understanding that the consumptive preference applies to
every fish stock or game population. Therefore, a person who
qualified would be first in line for every particular fish stock.
REPRESENTATIVE OGAN concurred.
Number 2124
CHAIRMAN GREEN asked whether it may create a special use if they
limit people to those who qualify for this $5 license, which would
require being essentially indigent and therefore being unable to go
to other areas of the state. Noting that it may be a restriction,
he asked if there had been discussion of whether that would run
afoul of the present constitution.
REPRESENTATIVE OGAN stated his belief that the testimony from
lawyers in the previous committee indicated the only constitutional
concerns had been amended out of the bill.
Number 2198
REPRESENTATIVE BRIAN PORTER commended Representative Ogan and the
House Resources Standing Committee for bringing forth an approach
that needs to be considered. He referred to page 2 and discussion
in the findings of the capacity for an abundance, as well as the
intention of managing for a greater abundance of fish and game. He
asked, "From your point of view, is this a change in management
policy or a reiteration of it?"
REPRESENTATIVE OGAN replied that there has been a certain amount of
frustration, perhaps exemplified by a recent resolution passed by
the legislature, that the department wasn't necessarily managing
for abundance. He suggested some of it is founded in a lack of
intensive management regarding predators. He stated, "Certainly if
you manage for abundance, it reduces the conflicts of who is a
'have' and a 'have not.'" Noting that subsistence fishing is the
largest portion of subsistence hunting and fishing, he said he had
been told it is only 1 percent of the amount harvested statewide by
humans. He said he finds it rather ludicrous if the federal
government is considering taking over the fisheries management for
1 percent. Representative Ogan said Alaska residents own the
resource, adding, "It belongs to the people first, and then we
allow other people to exploit it commercially. And I just think
it's a good public policy to have that the highest and best use."
Number 2311
CHAIRMAN GREEN noted that "abundance" is not defined here. He
asked, "And would we run afoul if we managed for abundance, of
determining that if there's any restriction in any area, that we
haven't reached abundance? And would that kick this in, then?"
REPRESENTATIVE OGAN agreed it might be good to put "abundance" in
the definitions. He said the less ambiguous the law is, the less
chance there is of litigation.
Number 2335
REPRESENTATIVE CROFT asked whether abundance necessarily means some
form of predator control.
REPRESENTATIVE OGAN replied that it means intensive management as
defined under Title 16, which could be predator control or, as he
recalls the statute, silvacultural practices that increase
populations of ungulates. He said he was talking about forestry,
cutting down trees and letting little trees grow so that moose can
eat better, for example.
REPRESENTATIVE CROFT asked how one manages for abundance for a
fishery, such as doing predator control.
REPRESENTATIVE OGAN said they wouldn't necessarily have to do that
for a fishery, but the description must include both boards.
Number 2393
REPRESENTATIVE ROKEBERG requested clarification of the distinction
between managing for abundance and managing for sustained yield.
REPRESENTATIVE OGAN read the definition of sustained yield, page 6,
lines 21 through 23, which says it is a level of utilization of a
fish or game population for consumptive uses by humans that is
capable of being maintained in perpetuity. He added, "And
abundance certainly means enough to go around for everybody, is how
I would simplistically interpret it."
Number 2432
REPRESENTATIVE CON BUNDE pointed out that Alaska has a growing
population. He questioned how there can continue to be abundance
to serve everyone, without some rationing. He suggested that
definition defies reality.
TAPE 98-33, SIDE B
Number 0006
REPRESENTATIVE OGAN said he would carefully consider these points,
and he is open to getting it as clearly defined as possible.
Number 0023
REPRESENTATIVE PORTER referred to page 3, subsection (b). He asked
whether the area mentioned on line 4 refers to any area of the
state or to a dependent use area.
REPRESENTATIVE OGAN expressed his understanding that it would be
any area of the state, as it would certainly have statewide
application. He noted that under the sustained yield principle, if
there is not enough to go around with the harvestable portion, then
the board is given authority to allocate. He added, "We're
requiring them to allocate with the ranking of the beneficial uses,
with the highest preference to consumptive use for personal and
family use for sustenance. So, this is kind of like the first
tier." He said when there is not enough to go around, and to
maintain the sustained yield, the board would first allocate a
certain percentage to personal and family use.
Number 0080
REPRESENTATIVE PORTER asked whether, for a shortage in a
nonsubsistence area, this would still give a preference to
subsistence users, or whether the preference would be to sport
fishing and personal use.
REPRESENTATIVE OGAN answered that he interprets this portion to be
applied statewide.
Number 0099
REPRESENTATIVE PORTER said if he understands the bill in the
aggregate, it sets up the standard licenses for taking fish and
game that now exist, commercial through personal use, and then adds
subsistence, with this definition of a $5 license and the other
requirements. In a time of no shortage, a subsistence permit
holder can hunt or fish within limitations that may be placed on
how much a subsistence person can take, anywhere. He asked
whether, if there was a shortage in a nonsubsistence area, that
license would have a preference there.
REPRESENTATIVE OGAN deferred to Mr. Utermohle.
Number 0165
REPRESENTATIVE CROFT referred to page 4, line 13, and read, "If the
Board of Fisheries or the Board of Game, as appropriate, with the
concurrence of the department, determines that a shortage of a fish
stock or game population available for harvest in a fish and game
dependent use area exists, the board may establish a preference
...." He said that same question perturbs him, and if it is in
there, then all subsistence users in the state can fly in and take
it, first in line. He inquired, "But if I am a subsistence user
qualified under your definition, who lives in a nonsubsistence
zone, that is, one that hasn't been certified as fish and game
dependent, I don't move to the head of the line?"
REPRESENTATIVE OGAN again deferred to Mr. Utermohle, who came
forward and joined him at the witness table.
Number 0241
REPRESENTATIVE PORTER referred to subsection (b) on page 3, line 3.
He asked whether it is Mr. Utermohle's interpretation that a
subsistence permit holder, as defined within this bill, in times of
a shortage would have a preference in a "non-fish and game
dependent use area."
Number 0256
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, told members subsection (b)
provides that in the event of a shortage, the department would rank
uses of that particular resource, giving highest priority to those
uses involving taking of that fish and game for sustenance. He
said that ranking of priorities is distinct from the procedure in
the next section of the bill.
Number 0278
REPRESENTATIVE PORTER noted that it says "notwithstanding AS
16.05.251(e)," which seems to set up all the categories of licenses
except for subsistence. He surmised that it therefore refers to a
subsistence program.
MR. UTERMOHLE replied, "It's my understanding that is not what this
language does. [AS] 16.05.251(e) establishes a procedure by which
the Board of Fisheries allocates fisheries resources among personal
use, commercial and sport uses. That's consistent with the current
'all those uses being subservient to the preference for
subsistence.' And this provision of the bill sets up ... a
procedure for ranking the various uses of fish and game resources,
notwithstanding those criteria set out in .251. So, this
establishes an alternative procedure whereby the board, in times of
shortage, goes out and looks at each of the uses of the resource
and determines which should have first crack at the available
resource, inside or outside of a subsistence use area."
Number 0336
REPRESENTATIVE PORTER asked whether a personal use permit would
qualify for personal and family sustenance, and consequently that
could be considered in the mix of priorities.
MR. UTERMOHLE said yes.
Number 0358
REPRESENTATIVE ETHAN BERKOWITZ said he understands the point Mr.
Utermohle was just making, but on page 4, line 16, even after there
has been a hierarchy established it doesn't appear to be mandatory
that the preference be followed; it appears to be permissive. He
asked Mr. Utermohle to comment.
MR. UTERMOHLE replied, "That is true. ... Once the board of
fisheries or game identifies a shortage, it is still discretionary
with them whether or not to go through this preference process."
REPRESENTATIVE PORTER said that is in a dependent area.
Number 0393
REPRESENTATIVE BERKOWITZ stated, "Once you have a shortage, it's
not necessary that someone with a sustenance priority get
preference."
MR. UTERMOHLE agreed.
Number 0398
REPRESENTATIVE CROFT noted that on page 4, beginning at line 13, it
talks about fish and game dependent use areas. He asked where the
similar provision is for areas that are not fish and game
dependent.
MR. UTERMOHLE said that provision is largely contained in
subsection (b) at the top of page 3. He specified that it
establishes a procedure to force the boards to decide which uses of
a resource shall be allowed, establishing a hierarchy of uses.
Number 0424
REPRESENTATIVE CROFT inquired what subsection (b) on page 3 and
subsection (b) on page 4 do differently.
REPRESENTATIVE OGAN said as he sees it, (b) on page 3 happens
first, because it is not necessarily a shortage but there is just
not enough to go around and still maintain the sustained yield
principle as mandated in the constitution. On the other hand, he
envisions that (b) on page 4 is when there is a shortage, and the
boards would have already done what is in subsection (b) on page 3;
it would then fall under the criteria spelled out at the top of
page 5.
MR. UTERMOHLE concurred.
Number 0489
REPRESENTATIVE CROFT stated, "Page 3 says if the boards find that
the projected level of harvest of a fish stock or game population
would exceed the sustained level of harvest." He asked how the
shortage on page 3 differs from that on page 4, line 14.
REPRESENTATIVE OGAN answered that he would perhaps call this the
extreme shortage, where there isn't enough to go around for the
people who live in a fish and game dependent use area. It gets
into language of "reasonable opportunity," which is defined in a
later section. It allows the board to provide a preference to
those people who have a true dependence, who are true subsistence
users, rather than to those in the area that have good jobs, for
example. He said he doesn't like the term "needs-based," and he
would call it more of a resource-dependent criteria.
Number 0562
REPRESENTATIVE CROFT asked, "In this general shortage on page 3, it
applies to each of the areas, whether a dependent use or not?"
REPRESENTATIVE OGAN affirmed that.
REPRESENTATIVE CROFT continued, "In the extreme shortage, as you
put there, it applies only to the dependent use areas. So, if
we're in an extreme shortage in the Anchorage bowl, ... why am I
not first in line?"
REPRESENTATIVE OGAN replied, "Because you wouldn't be in a
dependent use area, ... because it wouldn't fit the criteria.
Number 0579
REPRESENTATIVE CROFT said, "So rural residents - subsistence,
dependent use, whatever term we use - but rural residents go to the
front of the line in an extreme shortage, but urban residents
don't, for some reason."
REPRESENTATIVE OGAN affirmed that, then added that there is
dependence for sustenance, which has this whole criteria, and the
board shall determine where dependence on fish and game is a
principle characteristic of the economy and way of life of the
area. He cited factors, indicating his belief that the courts have
said if there are rational criteria, this is appropriate.
Number 0624
REPRESENTATIVE CROFT referred to the top of page 3. He noted that
the general "small shortage" provision applies equally to both
Anchorage and Holy Cross. However, in an extreme shortage, a poor
resident of Holy Cross gets a hard preference and goes to the first
of the line, whereas a poor resident of Anchorage does not.
REPRESENTATIVE OGAN stated his understanding that the Anchorage
resident could go to Holy Cross and participate in subsistence
taking, or could go into an area where there is this preference and
participate.
REPRESENTATIVE CROFT said he believes that is the way it reads, and
that is what he was trying to explore. If both Holy Cross and
Anchorage have an extreme crisis, the poor resident of Anchorage
doesn't get the preference in Anchorage but can fly to Holy Cross
and get the preference.
Number 0685
MR. UTERMOHLE responded that there is no residency-based criterion;
rather the criteria are the fish and game license plus the history
of use. If a shortage is found to exist, every person in the state
who satisfies the criteria has equal access to the available
resource.
Number 0724
REPRESENTATIVE PORTER called members' attention to page 5, line 26,
subsection (f), which says, "A person who is determined by the
Board of Fisheries and the Board of Game to be dependent on fish
and game for personal and family use for sustenance may take fish
and game in any location in the state where a preference for the
harvest of fish or game for personal and family use for sustenance
has been established under (b) of this section." He asked whether
Mr. Utermohle believes that applies to both dependent use areas and
nondependent use areas, although it doesn't specifically say that.
Number 0803
MR. UTERMOHLE said no, that subsection (f) is specific to the
taking of fish and game for personal and family use for sustenance,
in an area where the preference for the harvest is established
under (b) of this section. That preference for a harvest is only
established in fish and game dependent use areas.
REPRESENTATIVE PORTER replied, "But by definition, consumption use
for personal and family use for sustenance, they would share, I
guess, consideration for preference in a nonsubsistence use area
with personal use permits."
MR. UTERMOHLE concurred.
Number 0841
REPRESENTATIVE PORTER asked whether this person that qualifies must
have the $5 license and submit a written, signed statement of
dependence or have no alternate means of sustenance as a result of
the person's decision to adopt a fish and game dependent lifestyle.
He further asked whether, if he himself qualified for the $5
license and decided to adopt this lifestyle, he would qualify.
MR. UTERMOHLE said that is essentially the case, but there is a
review process that the person asserting eligibility has to go
through. The person must submit documents to the regional board
for review and a determination of qualification; that is passed on
to the statewide board of fisheries or game to make the ultimate
decision.
REPRESENTATIVE PORTER suggested there is no discretion to deviate
from this statute in that determination by the board, however.
MR. UTERMOHLE replied, "No. These are the criteria."
Number 0905
REPRESENTATIVE PORTER suggested that if he was qualified to possess
and did possess the $5 license, and said he wanted to adopt the
lifestyle, he would qualify.
MR. UTERMOHLE replied, "You enjoy the preference."
Number 0926
REPRESENTATIVE OGAN commented on that, noting that they had
discussed the technical portions of how that works. He explained
that they had put that in there to recognize the cultural and
traditional needs of some people who might live in Bethel, for
example, which might have a cash-based economy. If a person has
the $5 license and wants to live a subsistence lifestyle, this
still allows the person to do that.
REPRESENTATIVE PORTER said he could understand how they could back
into something that way to try to cover the right people. He
expressed concern about unintended consequences, however. He asked
whether Representative Ogan had run an estimate of how many people
could possibly qualify for a subsistence license under this bill.
REPRESENTATIVE OGAN said no, indicating he would ask his staff to
have that done.
CHAIRMAN GREEN mentioned that the Alaska Department of Fish and
Game (ADF&G) could furnish the number of $5 licenses.
REPRESENTATIVE BERKOWITZ said from his understanding, there are
15,000.
REPRESENTATIVE OGAN suggested that under this provision, they would
probably see a lot more $5 licenses in rural Alaska. He expressed
hope that people who buy the inexpensive licenses would then buy
the tags and do the reporting, which would provide a better handle
on what is being taken.
Number 1006
REPRESENTATIVE PORTER referred to page 4, line 30, which reads,
"(1) possesses a $5 resident hunting, trapping....", and said he
would add the wording, "qualifies for and possesses...."
Representative Porter said you would have regional boards and local
advisory committees. He asked if the intent is that the five
regional areas comprise the entire state.
REPRESENTATIVE OGAN responded in the affirmative.
REPRESENTATIVE PORTER pointed out the bill doesn't say that.
REPRESENTATIVE OGAN said we're asking the boards to identify the
areas. He stated, "If I'm not mistaken, we were talking and I
don't recall if it got drafted in the bill, but I believe we were
talking about having that confirmed by the legislature."
REPRESENTATIVE PORTER explained that it appears that the
establishment of the regional boards begins at the top of page 13.
REPRESENTATIVE OGAN interjected that it begins at about the middle
of page 12.
REPRESENTATIVE PORTER said, "The Board of Fisheries and the Board
of Game, acting jointly, shall establish a maximum of five fish and
game management regions in the state. It doesn't say, 'to be
comprised of the entire state', but that's the intent."
Number 1111
REPRESENTATIVE OGAN stated that is want we intended them to do.
REPRESENTATIVE PORTER said within each one of those regions, you
want up to nine areas comprised of the entire region that are
represented by an advisory committee, which is specific in the
bill.
REPRESENTATIVE OGAN stated that is correct. He explained the
reason that was done was to cut down on the number of advisory
committees. He said some people may have "heartburn" with that,
but it is his attempt to offset some of the costs. There will be
45 advisory committees versus 82.
REPRESENTATIVE PORTER pointed out that the committees and the
boards make recommendations, as is mentioned on the applications
for subsistence licenses. He said, "But you've got the
recommendations of the advisory committees going to both the ...
regional board and the appropriate board of fish or game, and then
the board of fish and game giving deference to those
recommendations. But I guess - wouldn't it be better if the
advisory committees made recommendations to their board, and then
their board gave deference to that if they could, or if they were
conflicting, made a decision and sent on to the Board of Game or
Board of Fish. In other words, it's possible that a region board
could have one opinion and an advisory committee within that region
have another opinion, but both of them would go to the Board of
Fish and then they'd have to sort it out I guess but...."
Number 1228
REPRESENTATIVE OGAN explained he has had a lot of discussions with
people who have been involved in fish and game management policy.
They felt that there was a lot of contention on what kind of
authority was given to each committee and board. Representative
Ogan said there is certainly the potential for regional boards that
they have too much authority to step on another region, especially
in areas where there is fish that migrate from the lower river to
the upper river and would be in two different regions. He said it
was felt that it is best to just to keep the advisory committees
advisory because we don't want to delegate too much of the
legislative authority. He noted the authority is already being
delegated down to a regional board. If authority is delegated down
to the committees, it would be contentious.
REPRESENTATIVE PORTER said he didn't have concern with that. He
said, "It was just that the advisory committee stuff going directly
to the Board of Fish, that's a fish issue, and going to the
regional board. The chain of command is violated, I guess, if you
want to put it that way."
REPRESENTATIVE OGAN explained the reason he did that is because he
wanted the main boards to have the ability to give deference to
what the regional boards recommended to them. He said he also
wanted them to be able to pick up any proposal in case one region
is stepping on another region. They can look at the rest of the
proposals to see what's there. They aren't required to have a
hearing on them like they currently are. Hopefully, it will
eliminate a whole bunch of work, but if they see something that
raises a red flag they can say, "Wait a minute, no, we need to look
at that."
Number 1335
REPRESENTATIVE PORTER asked if a person can be a member of an
advisory committee and a member of a regional board.
REPRESENTATIVE OGAN said he would think the answer is yes. He
noted he doesn't believe there is anything that prohibits it.
REPRESENTATIVE PORTER said, "If two or three advisory committees
that perhaps had areas on the same river, and could have conflicts,
had different takes on how much should be taken in their region as
compared to the other two, that would want to be settled by the
regional board and then that recommendation forwarded. Would that
be satisfactory, or would you want that issue also the three
advisory committees disagreeing recommendations to be also in front
of the Board of Fish?"
REPRESENTATIVE OGAN said he believes that the way the bill is
written, the main boards can delegate whatever they wish to the
regional boards. He said he thinks that discretion should be given
to them.
Number 1441
REPRESENTATIVE BERKOWITZ referred to the section of the bill that
addresses the advisory votes and said as he understand, advisory
votes don't have the force of law. The way it's set up on page 23,
it seems to act like an enabler.
REPRESENTATIVE OGAN responded that there is no doubt that it does
act as an enabler. It takes effect when the people vote on it. He
said he would be happy to provide two attorney general opinions
that say that it is entirely legal.
REPRESENTATIVE BERKOWITZ said there are 14,263 people who have $5
permits to qualify. There would be significantly a fewer number of
people who qualify under the ANILCA definition. He asked
Representative Ogan how his bill would square with ANILCA. He also
asked if it wouldn't invite federal management.
Number 1513
REPRESENTATIVE OGAN referred to AS 16.16.010 (b) of the bill and
said we're allocating with the highest priority towards consumptive
use for personal family sustenance. Only when there is too much of
a shortage to provide for that allocation shall the other criteria
kick in. He explained that hopefully under the first scenario
those needs will be met. Only in very extreme shortages would the
second one would kick in and possibly it be just be in a game
management unit or a subunit of a game management unit. It gives
the board the latitude to manage appropriately.
REPRESENTATIVE BERKOWITZ said the $5 resident hunting, trapping and
sport fishing license is only available roughly to 15,000 people.
He stated that he understands the language in ANILCA is pretty
clear that if there is a diminishment of the number of people who
qualify under ANILCA, that would be the sort of discrepancy that
would lead to a federal takeover of Alaska's fish and game
management. Representative Berkowitz asked Representative Ogan how
he reconciles the dictates of federal law with the significantly
diminished numbers that would qualify under his bill.
REPRESENTATIVE OGAN responded, "Very easily, if we pass this bill
we're out of compliance because it doesn't give a rural priority.
So we're already out of compliance and we're asking the Alaskan
voters to vote on this and also give the nod for appropriate
changes to ANILCA to conform with state law.
REPRESENTATIVE BERKOWITZ said we're out of compliance with ANILCA
under the bill.
REPRESENTATIVE OGAN responded in the affirmative and said it does
not give a rural preference. He said he believes the bill is more
in compliance with the intent of ANILCA to meet the subsistence
needs of people who have the need than what is currently in state
law. He said this is not a rural priority constitutional amendment
nor does the statutes in it require a rural priority constitutional
amendment.
Number 1708
REPRESENTATIVE BUNDE noted he has information that states the
number of people who have the $5 hunting license is 14,263. He
said, "And just to give you an idea that whether this would
diminish opportunity if this bill were to pass ... just because
that's the number of licenses doesn't mean that's number of people
that ought to be buying. You know 3,500, in round numbers, were
sold and Anchorage 300 in Juneau, and 300 in Fairbanks - about
around 500 Soldotna and Wasilla, 3 were sold in Barrow and 0 in
Venetie. So the fact that there license are being purchased that
are not purchased doesn't diminish opportunity." Representative
Bunde pointed out a concern of his is that there is always a
shortage. He read from page 2, subsection (6), line 5, "these
resources are not unlimited and cannot provide for every desired
use, now or in the future;". Representative Bunde referred to page
3, (b), and said, "And it talks about this will only apply if there
is a shortage. I mean are we mincing words? Should we just say
there isn't enough?"
REPRESENTATIVE OGAN said that on page 3, (b), just says that there
is not enough projected level of harvest. He said, "In other
words, 'projected level of harvest' I think you could probably
envision as this is what the historical harvest of this has been
and suddenly this drops below the projected level of harvest.
We're giving the board the authority to allocate with the ranking
to the highest preference to consumptive use for subsistence or
sustenance or whatever you want to call it."
REPRESENTATIVE BUNDE referred to page 2, (6), and asked if he is
wrong to say that a shortage will always occur.
Number 1884
REPRESENTATIVE OGAN said he believes it recognizes that. He stated
these resources are not unlimited and cannot provide for every
desired use now or in the future.
REPRESENTATIVE BUNDE observed that Alaska has a lower number of
wild game, per square mile, than many other states in the nation.
He referred to page 5, line 5, (B)(ii), "the person's decision to
adopt a fish and game dependent life style." Representative Bunde
said he thought he heard Representative Ogan say it allows people
to pick and choose. He gave a scenario of a person who is a
fisherman in Kodiak. When the person lives in Kodiak, he lives
what Representative Bunde would call a fish and game dependent life
style. This person also has a second home in Seattle and lives
about half the year there. Representative Bunde said when this
person comes back to Alaska, would he get to choose to have a
dependent live style even though they're wealthy enough to live
half of the year out of the state.
REPRESENTATIVE OGAN said he doesn't believe so. He said the
residency statute became law the first of the year which tightened
down a lot of the old language. He said the old language maintains
that a permanent place of abode could be interpreted as a cabin in
Alaska. A lot of people maintain Title 16 residencies that didn't
qualify for permanent fund dividend checks. It was changed to
domicile. "Domicile" defined in Black's Law Dictionary is
principle place of residence. He said the description has been
tightened quite a bit.
Number 2033
REPRESENTATIVE BUNDE said what if the person chooses not to live in
Seattle, but does choose to live in Anchorage. He is wealthy
enough to have two legitimate homes and lives part time (indisc.)
dependent in Kodiak and part time in downtown Anchorage.
CHAIRMAN GREEN said he wouldn't qualify for the $5 license.
REPRESENTATIVE BUNDE said it says, "or".
CHAIRMAN GREEN said he has a $5 license and some of those other
"ors."
Number 2067
REPRESENTATIVE JAMES asked what the purpose of establishing a
dependent use area.
REPRESENTATIVE OGAN pointed out that it is currently in state
statute. He said, "We wanted to make sure that we can provide for
people that have a true subsistence need or life style that are
dependent on the area. I think ... if we establish a reasonable
criteria and with the criteria that we've got here on these 14 or
whatever points, are that we can give a preference of the use of
fish and game to people in those dependent areas."
REPRESENTATIVE JAMES asked Representative Ogan what kind of a
different use would he expect for the people that live in the
dependent use area as opposed to those who don't. She said if
there is someone in Palmer who is currently living a subsistence
life style, meets all the other criteria, but doesn't live near a
dependent use area or an area that's not assigned as a dependent
use area. She referred to a person who has the same qualifications
in some place that is a dependent use area and asked if they would
have more of a priority.
REPRESENTATIVE OGAN stated that in times of shortage, if you live
in a dependent use area and qualify under the $5 criteria, you
would have preferential use of fish and game.
Number 2194
REPRESENTATIVE JAMES pointed out that the committee heard Mr.
Utermohle say that during a shortage, that would apply to anyone
across the state. She asked if that means if there is a shortage
in one of the dependent use areas that the person from Palmer can
go there or must he stay and hunt and fish in the area that is not
considered to be a shortage.
REPRESENTATIVE OGAN stated he can hunt in any area in the state,
including the areas that have a restriction.
REPRESENTATIVE JAMES asked what there is a need for a dependent use
area. It looks like it doesn't have a purpose.
REPRESENTATIVE OGAN pointed out that it has a purpose of
identifying areas of the state where the economy and the historical
and social economic values, and a whole bunch of other things that
are in the criteria, are the way of life.
REPRESENTATIVE JAMES said it doesn't give him any more of a benefit
for being there in this case.
REPRESENTATIVE OGAN stated he believes it does because in times of
shortage people in those areas that possess the $5 criteria have a
preference.
Number 2303
REPRESENTATIVE BERKOWITZ said based on the benefit, depending on
where you live, we can draw distinctions based on $5 users.
REPRESENTATIVE OGAN said he would defer to Mr. Utermohle as he is
more familiar with the constitutional authorities.
REPRESENTATIVE BERKOWITZ said, "As I understand what Representative
Ogan said, he said that people who live in dependent use areas gain
a benefit from being in those areas as opposed to people who aren't
residents of those areas. Therefore, it appears to me as of what
he's saying is that we can distinguish between people based on
their place of residence."
CHAIRMAN GREEN informed Representative Berkowitz that was a
question that was asked earlier and he was going to think about a
definition.
Number 2388
MR. UTERMOHLE explained that in the process of allocating access to
fish and game we cannot make determinations or restrictions on
access based on where you live in the state.
CHAIRMAN GREEN said that because of the de facto, you are because
of the low income level necessary to qualify for a $5 license.
MR. UTERMOHLE stated that by virtue of providing for access to a
user group, we are implicating the equal access provisions of the
Alaska Constitution. He said as long as you're not making access
to a user group based on geographic criteria, the criteria you use
is subject to an equal protection analysis. He said, "The
importance of the state interest -- the state is trying to pursue
by creating this criteria versus the important individual interest
...."
TAPE 98-34, SIDE A
Number 0001
MR. UTERMOHLE continued, "...means chosen to achieve its end has
the least infringement, or least restrictive method on access to
fish and game. And that's the steps the courses go through and
that's how you would determine whether or not a $5 license
requirement would survive scrutiny under the Alaska constitution.
The nonsubsistence areas have been upheld in the Alaska Supreme
Court just because they don't prevent someone from going into a
subsistence area and engaging in use of fish and game for food.
Just because someone lives in a subsistence use area or doesn't is
not unconstitutional classification of residence of the state.
People outside living outside the area are free to go into those
areas and engage in uses of those resources for fish and game."
Number 0099
REPRESENTATIVE JAMES referred to the current law and people who
qualify for the subsistence life style in rural Alaska according to
ANILCA and asked if these people have to purchase a hunting and
fishing license.
REPRESENTATIVE OGAN said he believes they have to get some sort of
a permit. He said that Mr. Utermohle may know something about it.
MR. UTERMOHLE said, "I cannot answer what the license requirements
are under the state law or under federal requirements."
REPRESENTATIVE JAMES asked if the subsistence qualified people are
allowed to hunt without seasons and bag limits.
REPRESENTATIVE OGAN said to the best of his knowledge, no.
Number 0249
REPRESENTATIVE ROKEBERG asked if the House Resources Committee
considered reviewing the $5 license criteria and raising the level
of income in consideration of adopting it for the current version
of the bill.
REPRESENTATIVE OGAN said the committee tried to keep it as simple
as possible and just cited the Title 16 authority for the $5
license. He noted that to do that he believes you would have to
change the criteria under AS 16.05.340 (A)(6).
REPRESENTATIVE ROKEBERG referred to the current version of the bill
and said there is a need for review by the regional boards of the
applications. One of the criticisms of this type of program has
been the overwhelming amount of administrative work, detail, et
cetera, that would be forced upon these people that (indisc.)
qualify. He asked Mr. Utermohle if it would feasible to draft
language that would put the burden of proof on the individual
applicant after a very simple applicant. If he was, in terms of
enforcement, going to make a violation or didn't qualify, could it
be enforced from that aspect. In other words, set up a very
simplified application and enforcement system where the burden of
proof would be on the individual when he was caught as an
infraction or some kind of a rebuttable presumption.
MR. UTERMOHLE said he suspects that is quite possible.
Number 0398
REPRESENTATIVE OGAN said there was a great deal of criticism about
that and that is one of the reasons the committee dropped a lot of
the criteria for qualifying. In the previous version of the bill
there was almost a full page of qualifications. It was simplified
greatly to try to mitigate that concern.
CHAIRMAN GREEN stated HB 406 would be addressed again the following
Wednesday.
SSHB 49 - CONSUMER PROTECT.: DIVISION & PENALTIES
Number 0487
CHAIRMAN GREEN announced the committee would address SSHB 49, "An
Act establishing and relating to a consumer protection section in
the Department of Law; increasing penalties for violation of laws
relating to consumer protection; requiring special accounting for
money from certain actions related to consumer protection; and
providing for an effective date," sponsored by Representative
Croft.
REPRESENTATIVE CROFT explained he has called the Better Business
Bureau (BBB) who is a getting a number of calls on a $49 scam. He
explained the legislation is a consumer protection bill. It adds
a little bit more money into the consumer protection system and it
also creates a pool of money that is received from fines so that we
can start doing a better job of helping our citizens with consumer
protection. The BBB has recently received calls from people,
mostly elderly people, who have received a telephone call where
they were offered a $49 deal that included an eye exam and glasses.
Most of the people found that their particular vision requirements
didn't meet the $49 deal. They could get their glasses for $179.
They either had to do that and if they refused, they were
presented a bill for around $79 which was higher than the $49
amount. Representative Croft said it seems that it not only hurts
the consumer, but it hurts the legitimate businesses in the area as
people are less likely to respond to anything including legitimate
offers. He said he would answer any questions the committee may
have.
Number 0623
REPRESENTATIVE ROKEBERG indicated there is a fiscal note for
$145,000 and asked Representative Croft if he has had discussions
with the BBB in that they may try and get additional funding, in
leu of the bill, to help them with their operations.
REPRESENTATIVE CROFT explained that there are only two pieces of
the consumer protection puzzle. One is a screening function and
the other is an enforcement function. He said his bill deals
mainly with the enforcement function. Representative Croft
referred to the screening function and said there have been a lot
of good ideas about how we might set up, either through the for-
profit, nonprofit or some combination with government, to screen
out those calls. He noted that not every complaint is a true
consumer protection violation. The screening function problems
need to be solved and there are some innovative ideas to do that.
The bill relates to the enforcement provision. The BBB currently
filters those complaints out and refers the ones where there have
been multiple complaints on to the Department of Law. He noted
that currently the Department of Law doesn't have sufficient
resources to respond to all the complaints that should be responded
to.
Number 0743
REPRESENTATIVE BERKOWITZ said there is a provision in the bill that
would allow the state to collect fines. He said it would seem to
him that the general fund expenditures could be recouped based on
revenue brought in by the Consumer Protection Section.
REPRESENTATIVE CROFT informed the committee members that currently
any fines brought in for consumer protection violations go into the
general fund as they constitutionally have to. He said intent
language has been added to the bill to keep that so that they would
have a pool of money to work from.
REPRESENTATIVE JAMES questioned what the anticipated fines would
be. The fiscal note could show program receipts as opposed to
general funds. She noted there is a provision for designated
program receipts in the law.
REPRESENTATIVE CROFT said it would move the line from the money
coming under general funds to come in under designated general
funds.
REPRESENTATIVE JAMES noted that the fiscal note doesn't show
anything coming in.
REPRESENTATIVE CROFT said he would talk to Daveed Schwartz,
Department of Law, regarding an estimate of what another attorney
might bring in.
Number 0829
REPRESENTATIVE BUNDE said he doesn't have a fondness for con men.
He said Representative Croft has indicated that we cannot have
dedicated funds. He said he doesn't want the public to think that
somehow we're now establishing a direct line of funding for
consumer protection if the bill were to become law. Representative
Bunde pointed out that it is currently against the law to commit
fraud. He asked if we couldn't, without establishing more
bureaucracy, simply prosecute and collect the fines and produce the
same level of income.
REPRESENTATIVE CROFT asked he means doing that as private citizens.
REPRESENTATIVE BUNDE clarified that if there was more aggressive
prosecution of fraud, there would be more fines and perhaps more
money available for more attorneys to do more prosecuting.
REPRESENTATIVE CROFT pointed out that there is currently 1 1/2
people in the Department of Law doing the entire state's consumer
protection. He said the bill raises the level of public awareness,
the level of awareness within the Department of Law and adds one
more position.
Number 0927
REPRESENTATIVE BUNDE said he appreciates raising the level of
public awareness. He said if the Department of Law should choose
to hire another attorney to aggressively prosecute fraud, would
they not then generate approximately the same amount of income that
the bill would speak to.
REPRESENTATIVE CROFT said the Department of Law chose to take,
within their current resources, somebody who is prosecuting murder
trials and move them over to the....
REPRESENTATIVE BUNDE explained that he said if they hired another
person they'd accomplish things that....
REPRESENTATIVE CROFT said if they hired another person they would
accomplish the same thing with the same fiscal note he would
assume.
REPRESENTATIVE BUNDE said they can do that now, the bill mandates
that they do that.
REPRESENTATIVE CROFT said, "True and doing another couple of
different things, breaking it off as a section that increases
public awareness, establishing this intent that the funds be used.
So yes, we're mandating they do it setting apart another section
and (indisc.). Doubling fines as well, quite right."
Number 0987
CHAIRMAN GREEN referred to prosecuting somebody for telephone
fraud, for example, coming in from out-of-state and each person who
had been defrauded could be a separate action he would presume. He
said you could actually go pretty heavy on company aid. You could
actually get as much as the entire cost of the program from a
single defendant. If they're going to set up a telephone scam,
they're going to try and target a lot of people. He asked if the
prosecution would list 150 or 200 people that might have been
defrauded. In that case, each one would be a separate action and
would really show an increase in income.
REPRESENTATIVE CROFT said it is certainly possible under the new
language. Under the old language, it was $5,000 per violation and
not per defendant.
CHAIRMAN GREEN said if that's the case under existing law, the
Attorney General has not seen fit to do that. He said he wonders
if that is because there are too few to be worthwhile.
REPRESENTATIVE CROFT explained that he doesn't know. He said he
could ask Mr. Schwartz. He said, "It does seem to me that you find
not in the hundreds of violations but ... a single person you get
a number of different calls and you can isolate three or four with
somebody who is willing to step forward in a complaint. It narrows
itself down. I'm sure they make hundreds of tries, but it comes
down to usually three or four violations. I think that this $5,000
has been in our books for some time and so the $10,000 is, to some
extent, an inflationary increase."
CHAIRMAN GREEN said he understands that. He said, "My concern is
that if it's been there and hasn't been used, is there anything
that leads you to believe that by doubling the fine and
establishing a new attorney certainly at $5,000, if there is a
significant number of defrauders out there, they could pay his
salary. They could hire another one. So $10,000 doubles the
amount, but is there going to be very few people that this new
person would be going after."
Number 1128
REPRESENTATIVE CROFT stated that he believes the Department of Law
collects a substantial amount of fines under the $5,000 amount. He
said the money goes into the general fund and doesn't stay with the
department and has been eroded somewhat by inflation.
REPRESENTATIVE JAMES referred to the sieving of eliminating the
calls and said she would suggest looking at what process the
Ombudsman's Office is currently doing on that process. She noted
it's working very well.
Number 1215
REPRESENTATIVE PORTER said, "I can't remember if it was in this
life or a past life, but there was a proposition, either in front
of the municipal assembly or the state legislature, that said if we
spent this much money we will be collecting these many outstanding
fines and forfeitures, or that would be forfeitures. And
consequently, if we pay for one person, that person will, with
little doubt, bring in more money than what he has cost he or she,
and consequently, that's a pretty good deal. And it was done and
that was the truth. If we could get a fiscal note that seemed to
indicate this possibility with this bill, I would feel a lot more
comfortable on passing it along than raising expectations and
having them fall with we don't have the ability to look at any new
programs which is what it will get in finance. I mean I just hate
to be blunt, but I don't see any new programs being passed this
year if they have a fiscal impact. But if they could be revenue
neutral, that could be another thing."
REPRESENTATIVE BUNDE said he sees it to be difficult to create a
revenue neutral programs because there will be expectations in the
public and if the fines go away, there will be a trip to the
general fund for that. He stated he certainly supports raising the
amount of the fine. He pointed out that most of the telephone
soliciting fraudulent operations are out-of-state boiler room
operations. Representative Bunde said, "They have little or no
resources, as I'm sure the people in the legal profession know
this, it's a huge step between getting a judgement or levying a
fine and collecting. And so I guess I need to see show me the
money too. And I just have to question why, if this was on-tap
source of revenue that indeed would then also be very positive
public policy why the Department of Law or attorney general's
office hasn't simply funded another attorney."
CHAIRMAN GREEN said there are three committee members who have
raised the same question.
Number 1347
REPRESENTATIVE CROFT said he doesn't think it's going to be revenue
neutral. He said he thinks we're going to be spending money to
protection people out in the public and that will cost. It will
bring in some money. Representative Croft noted he has a letter
from the Office of the Attorney General, written last year,
summarizing some of the cases they settled and how much money they
recovered in each case. One was an award to the state of over
$70,000 in attorney fees and costs. He noted the letter lists
local companies that had defrauded people, either existing
businesses who lost their moral way somewhat or local scam artists.
There is the potential money for significant money to come in, but
it is going to cost money. It is an important public service and
there are other important things that the Department of Law has
been doing. Representative Croft said Representative James' idea
is an excellent idea to put a line in the fiscal note showing what
is expected to come in. He noted he doesn't expect it to equal the
cost.
Number 1411
REPRESENTATIVE BERKOWITZ said he disagrees with Representative
Croft. He stated when he was a prosecuting attorney he brought in
far more to the state than he costed, and that was in a criminal
realm.
Number 1428
REPRESENTATIVE JAMES said, "One quick thing, serving on the
Department of Law subcommittee, testimony from the Department of
Law as to why they're not doing this know is they're given a
certain amount of budget and there are other issues that are more
important, and part of it is children's issues that are more
important. And so to meet that demand, they took away the spending
on consumer protection. If I were to prioritize, I would
prioritize it that and let the consumer beware and they can take
care of their own problems, I mean, if it came to that. So I
believe that -- I agree with Representative Berkowitz that I think
there would be more than enough to pay for this person if they did
actually aggressively look at these cases. And Representative
Bunde said that in telephone scams, you're absolutely right, it's
very difficult to get your finger on who they are. But there other
scams besides telephone scams and by working with attorney generals
in other states, we can recoup those issues - have in the past. I
was scammed once, or on a group of scams, and they aggressively got
after them and I got my money back. So that's been 20 years ago."
Number 1495
STEVE CONN, Executive Director, Alaska Public Interest Research
Group (AKPRIG), testified via teleconference from Anchorage. He
informed the committee that a week ago he was able to provide
Representative Porter with a report that AKPRIG produced where they
examined the budget review units (BRUs) of the previous Consumer
Protection Section for fiscal years 78 through 90. The amount that
they were able to recover was in the hundreds of thousands of
dollars. He noted it was not exclusively to the filing of law
suits. Mr. Conn said, "The law suits, at most, throughout the
entire period numbered 28 and 25 and those were rare. The average
was more like 15 law suits. The way they were able to handle most
of these complaints was through mediation and what we have called
alternative dispute resolutions. So in other words, to the
question of whether this would be pay as you go, the answer is very
probably so long as the individual who is bringing law suits is
backed up by volunteers, paralegals, other people who using that
version in the background as an alternate deterrent is able to --
these other people are able to sit down and work out compromises.
And so (indisc.) argues and I hope the Representative Porter could
share that with you that it's really mediation that is at the heart
of this back stop by an attorney freed up ready willing and able to
deal in the courts with those people who are totally recalcitrant
and refuse to work out some sort of a compromise."
Number 1603
REPRESENTATIVE PORTER referred to the settlement results from
mediation and asked Mr. Conn if they ever resulted in a settlement
of a fine amount that would actually go to the state or were they
settlements that resulted in the victim being compensated.
MR. CONN said they were a combination of both, but loads of money
went to the state. He said, "The problem is for a consumer
advocate or for a lawmaker is once we've lost that section and the
BRUs associated with that section, the statistics are drifted out
of existence, but during that period - that long period for fiscal
year 78 to fiscal year 90 the dollars recovered and reported to the
legislature were -- I'll just throw a few of these figures out -
$210,000 in 78, $192,000 in 79. I'm going to skip because I know
you're busy, $379,000 in fiscal year 82, $344,000 in fiscal year
85, all the way down to the last one that we have records for,
$100,000 recouped by the state in fiscal year 90. In other words,
this is quite serious money that a process that is backed-stopped
by the deterrent of lawsuits and very, very, very slow number of
lawsuits indeed, but it involves mostly settlements. This is
serious money that the state can bring into (indisc.). And as to
the discussions by the ladies and gentlemen there, that was very
interesting. I myself have wondered for more than nine years,
since I've been with Alaska Public Interest Research Group, why the
state does not see the fiscal opportunity here of not only
protecting honest business people and the economic climate in the
state, but also bringing in some much needed resources to ... in
many other areas such as child protection."
Number 1714
REPRESENTATIVE PORTER indicated he has the report that Mr. Conn
spoke of and said he would be glad to share it with the sponsor and
the committee.
CHAIRMAN GREEN said he can see how the prosecutor might feel there
are higher and better things to do. He said it seems to him that
this might be an area where they could contract it out.
REPRESENTATIVE BERKOWITZ said he thinks that there may be problems
with contracting out these services under current law.
Number 1746
REPRESENTATIVE CROFT said if the committee was able to get a fiscal
note that says it costs $145,000 and raises $145,000, it would
still run into a budgetary problem. Even fiscally neutral measures
can be stopped by budget cutting itself. He said $145,000 is not
increasing the fiscal gap, but it is increasing the budget.
CHAIRMAN CROFT agreed with Representative Croft.
REPRESENTATIVE JAMES stated, "I argued that vehemently last year
when they passed the designated program receipts where they are
going to add them up separately. And they said that's not going to
make a difference, but why bother to have designated programs
receipts in a column by themselves if they're not going to consider
program receipts when they make the budget?"
REPRESENTATIVE BERKOWITZ said it seems to him that is a battle that
shouldn't be raised in the Judiciary Committee.
CHAIRMAN GREEN said that is correct as it is a finance issue.
Number 1802
REPRESENTATIVE BERKOWITZ made a motion to move CSSSHB 49(L&C) out
of committee with the attached fiscal notes.
REPRESENTATIVE JAMES said she would object for the purpose of
amending the fiscal note or to get another one.
REPRESENTATIVE CROFT said he would ask for another fiscal note.
REPRESENTATIVE JAMES said, "I would (indisc.) that I would prefer
not that fiscal note but another fiscal note to send it on,
otherwise I would remove my objection."
CHAIRMAN GREEN said, "So you have removed your objection and you
would request a revised fiscal note?"
REPRESENTATIVE CROFT said he would make the request for a revised
fiscal note.
CHAIRMAN GREEN said there has been a recommendation to move the
bill from committee. He asked if there was an objection. Hearing
none, CSSSHB 49(L&C) moved out the House Judiciary Committee.
ADJOURNMENT
Number 1839
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:15 p.m.
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