Legislature(1997 - 1998)
03/25/1998 01:07 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 25, 1998
1:07 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
OTHER HOUSE MEMBERS PRESENT
Representative Irene Nicholia
Representative Bill Williams
COMMITTEE CALENDAR
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 406
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S)
2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE
2/17/98 (H) RES AT 1:00 PM CAPITOL 124
2/17/98 (H) MINUTE(RES)
2/21/98 (H) RES AT 1:00 PM CAPITOL 124
2/21/98 (H) MINUTE(RES)
2/24/98 (H) RES AT 1:00 PM CAPITOL 124
2/24/98 (H) MINUTE(RES)
2/27/98 (H) JUD AT 1:00 PM CAPITOL 120
2/27/98 (H) MINUTE(JUD)
2/28/98 (H) RES AT 9:00 AM CAPITOL 124
2/28/98 (H) MINUTE(RES)
3/03/98 (H) RES AT 1:00 PM CAPITOL 124
3/03/98 (H) MINUTE(RES)
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
3/04/98 (H) MINUTE(JUD)
3/05/98 (H) RES AT 1:00 PM CAPITOL 124
3/05/98 (H) MINUTE(RES)
3/06/98 (H) JUD AT 1:00 PM CAPITOL 120
3/06/98 (H) MINUTE(JUD)
3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM
3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE;
3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS,
HUDSON
3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW)
3/09/98 (H) JUD AT 1:00 PM CAPITOL 120
3/09/98 (H) MINUTE(JUD)
3/11/98 (H) JUD AT 1:00 PM CAPITOL 120
3/11/98 (H) MINUTE(JUD)
3/18/98 (H) JUD AT 1:00 PM CAPITOL 120
3/18/98 (H) MINUTE(JUD)
3/20/98 (H) JUD AT 1:00 PM CAPITOL 120
3/20/98 (H) MINUTE(JUD)
3/23/98 (H) JUD AT 1:00 PM CAPITOL 120
3/23/98 (H) MINUTE(JUD)
3/25/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
Public testimony was taken at this meeting.
ACTION NARRATIVE
TAPE 98-44, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:07 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter, James, Croft and
Berkowitz. Representative Rokeberg arrived at 1:19 p.m.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
Number 0035
CHAIRMAN GREEN indicated the only order of business would be HB
406, "An Act relating to subsistence uses of fish and game." He
noted the version that came to the committee was CSHB 406(RES),
Version Q. He stated people have been working on a proposed CS
that is more focused. Some issues needing to be addressed are the
Alaska National Interest Lands Conservation Act (ANILCA) and
federal (indisc.) that could possibly impact the state's ability to
operate its own fish and game activities. Chairman Green pointed
out that CSHB 406(RES) does avoid the necessity to change the state
constitution, but there is a strong question and some legal back-up
that says it does not fix the concerns that have been expressed
about ANILCA and federal take-over. He indicated there is a new
proposed CS.
Number 0175
REPRESENTATIVE ERIC CROFT made a motion that the committee adopt
the proposed CS, CSHB 406(JUD), 0-LS1573/R, Version R, as the
working document. There being no objection, CSHB 406(JUD), Version
R, was before the committee.
CHAIRMAN GREEN said, "The R version now would take this from
establishing a large user group for the possibility of subsistence
that would require a rather large implementation of state employees
to screen the individuals who would be qualified under it to a much
more streamlined version. However, in enacting this bill that
would allow the fish and game department to designate, among users,
that would require that we modify the state constitution. There is
no vehicle attached with this at this time because we first had to
adopt this version, and we have so that by tomorrow we will have a
draft copy of a resolution to modify the state constitution. In
the meantime, the essence of 406 Judiciary, or the R Version, is
that under normal circumstances we would establish a nonsubsistence
area or areas that would essentially encompass the Railbelt of the
villages and cities that depend primarily on a cash economy as
opposed to primarily on a dependency for fish and wildlife as their
main means of subsistence, or sustenance, or their activities. We,
in this bill, would empower the Department of Fish and Game with
the right to establish, in times of shortage, and that's a long way
from the fact that we have -- in most cases in the state now we may
not have a plethora an abundance, but we certainly have a very
viable fisheries. We have a very large numbers of herds of land
critters, and so in that period we would continue to operate fish
and game as it does now. And ratcheting down, depending on the
availability of the game or fish that would be above the
sustainable yield, and that's the bottom line, that's the floor --
as we approach that, there are certain restrictions that [the
Department of] Fish and Game would apply. They would reduce bag
limits, they would probably go to, just as they do now, seasonal
shortenings, lengthenings. Commercial fishing would have more or
fewer fishing dates. Until we get to the point where in a
particular area, and I say that and we've got this map, that if,
for example, we got to an area that out here there was a shortage
to the point that the sustainable yield, the amount of critters or
fish that was available for take was so close to the sustainable
yield that the local residents, who have been depending on that for
a lifestyle, would utilize that harvestable amount. If that were
to happen, [the Department of] Fish and Game then would be
empowered, through this Act, to come in and consider this as a
dependent subsistence use area. That does not affect any of the
rest of the state and it would be every day as usual depending on
bag limits, changes just like they do now." Chairman Green
continued to show the committee members areas of the map and
explained only people whose domicile is within an area would be
entitled to take a particular species that was the trigger
mechanism for classifying an area as dependence subsistence area.
If one species of fish triggers it, that is the only species that
would be considered a subsistence use. Fishing of other species
would continue to be available.
Number 0613
REPRESENTATIVE BRIAN PORTER said in his reading of the proposal,
the individuals who would ultimately get what used to be called a
Tier II preference, wouldn't have a requirement that they earn or
not earn a certain amount of money.
CHAIRMAN GREEN said, "That's right. At one time that was involved
and in fact it was part of the Resources Committee inclusion that
there be an economic barrier there or bar, if you will. We have
... or thought about raising that. Finally decided to exclude it
because the people that we envision actually ever being included in
a dependent subsistence, a Tier II type thing if you will, would be
people who live in a certain area. And to say now, 'Let me see
your income tax return or show me that economically you depend on
that,' to me is kind of an envision of their privacy and I don't
think that's really necessary."
Number 0731
REPRESENTATIVE CON BUNDE commented that believes that the state
average income is $27,000, the average teacher earns about $39,000.
Representative Bunde said he can understand how the concept could
apply to game because when you go to hunt moose, you don't shoot
caribou by accident. He referred to fishing and said there are
mixed stocks. He said, "As I was hearing your description, I was
thinking about - okay, we'll cal it chums are reduced in number,
they're an important fish for somebody on a subsistence level. But
the commercial fishermen want to be in the river catching silvers."
Nets aren't selective as you can't catch and release with a net.
Representative Bunde said when there is a targeted species,
particularly with salmon, you would probably have to shut down all
take in order to protect the targeted species.
CHAIRMAN GREEN said he doesn't know that that would be a necessity,
but that certainly is a possibility. He stated there is the
ability to project, under normal circumstances, how much escapement
there would be for a certain species.
REPRESENTATIVE BUNDE said, "I would use the Kenai Kings as an
example, people that are fishing up river think all the commercial
fisheries should be cut down because ... there is an incidental
catch. I've fished there, I know some people throw away Kings or
eat them and don't sell them so they don't have to count them. But
if there were a subsistence priority for Kings in the river, you'd
have to really shut down the red fisheries or do some limitation of
it."
Number 0956
CHAIRMAN GREEN said it could have an impact. He said, "And again,
that's a an example that I'm very, very little, but somewhat
familiar that there are ways commercial fisherman can do in the
inlet that would target a certain species even though they are
migrating at the same time. The way and where you're fishing -- if
you're in the corridor, if you're next to a set net or -- you're
probability of catching Kings would change with where you're
fishing. And so they could leave the fishery open and say, 'No,
the bycatch is still too high. We are going to have to shut down
for a week to allow enough Kings in the river.'"
Number 0993
REPRESENTATIVE ETHAN BERKOWITZ said in reviewing the CS, he didn't
notice that there was an explicit provision for a subsistence
preference or a subsistence priority.
CHAIRMAN GREEN asked if he is talking about the dependent
subsistence area.
REPRESENTATIVE BERKOWITZ clarified in the subsistence use and
allocation of fish and game.
CHAIRMAN GREEN referred the committee to the bottom of page 3 of
the CS, Version R. He said, "If you get to a point that within
that little circle, there still isn't enough escapement, there's
enough that we don't want to shut it completely, but there's not
enough for the projected need for that area, it is a dependence
subsistence fishery declared with priorities for the locals. And
then among those, there is currently then, in this thing, a
prioritization among the people who live there." He said there is
a priority for just the local residents. Within that, there is a
further prioritization.
Number 1069
REPRESENTATIVE BERKOWITZ said he has some questions about
definitions. He stated the word "domiciled" hasn't been defined.
CHAIRMAN GREEN informed the committee that there are probably two
or three issues that haven't been defined. He indicated the
committee would work on those definitions.
REPRESENTATIVE BERKOWITZ referred the committee to page 4,
(d)(1)(A), "use of fish and game for the principal component of the
diet throughout the preceding 12 months;."
CHAIRMAN GREEN interjected that he had just been informed that
domiciled is in a different portion of AS 16.05.940 of the fish and
game statute. He again noted that there are some words that
haven't been defined.
REPRESENTATIVE BERKOWITZ said, "Discussing the use of fish and game
or sharing for the previous 12 months, ... someone who has gone
away to school or someone has been serving in the military, someone
has been sick. What sort of provision do we make to allow them,
when they return to their community?" He said the way he reads the
requirements, he could not classify himself under subsistence if he
went to school for a year and came back.
CHAIRMAN GREEN stated he couldn't for the first year.
Number 1255
REPRESENTATIVE PORTER referred to Representative Bunde's scenario
about Kings and said the bill appears to allow the Board of Fish
and the Board of Game to identify the stocks or the populations
that are traditionally taken as subsistence stocks or populations.
Representative Porter said, "I guess the only other two things that
I looked at was that it looked like we've did an amiable job
providing that what we were offering here was a reasonable
opportunity and not a guarantee all the way through except in this
last tier. I may be misreading it, but I don't see any provision
that we're still saying, even in the last tier, that we're only
offering a reasonable opportunity."
CHAIRMAN GREEN responded, "If not, that is an oversight."
REPRESENTATIVE PORTER said the committee may want to expand on the
definition of "trade" or "barter" that appears in the regulation.
He said, "And kind of include it with 'trade' and 'barter' as one
definition, taking into account noncommercial and something to
avoid some of the federal court decisions we've had."
CHAIRMAN GREEN stated that is a good point.
Number 1300
REPRESENTATIVE CROFT referred to wording on page 3, line 12,
"subsistence under nonsubsistence hunting". He said, "We've done
a good job of identifying what fish stocks or game populations are
customarily and traditionally used locally, identifying ... and
quantifying them to make sure that they can be harvested under
sustained yield and keep that going. And I guess I don't see how
that local subsistence customary and traditional use is then
protected. And I wanted to explore how it would be protected -
implemented under a sport or personal use or other regulation.
When we say, 'nonsubsistence,' or if we change it to 'generally
applicable,' if Representative Rokeberg lives in a village ... that
has a customary and traditional use of the fisheries stock,
customarily and traditionally takes 500 fish in a non-wasteful way
out of that river, and ... there is ten families there and each
takes about 50 and uses them, and takes them with a fish wheel.
How does Representative Rokeberg apply for a sports permit that
allows him to take 50 fish from a fish wheel? I don't know of any
such sports permit now and if it's ... not a sports permit, if it's
a subsistence permit, is that open to just those people who have
that bonafide and shown customary and traditional use, or everybody
in the ... state? Which was contemplated here?"
CHAIRMAN GREEN stated what was contemplated is that under existing
rights, the Department of Fish and Game, through regulations, will
allow, during plentiful times, for the building of a fish wheel.
As we begin to lose that abundance, regulations from the Department
of Fish and Game will begin to restrict certain users. It will be
different in different parts of the state. He said in that
section, he would like to indicate that the Department of Fish and
Game, through regulations, would have the right to actually
establish a restriction among users. He noted this would require
a constitutional amendment.
Number 1524
REPRESENTATIVE CROFT said, "If it's a stream overflowing with fish,
the excess population that we rarely get into but just purely....
Then villager Rokeberg can take his ordinary, customary and
traditional use and Representative Bunde can fly out there and take
50 if it can (indisc.). As that shrinks down, the board has the
power to protect his use while ratcheting down non-local,
nonsubsistence, non-customary and traditional uses until you're
finally down to a level where even those can't be satisfied
anymore, in which case you're forced to distinguish between
villager Porter and villager Rokeberg."
CHAIRMAN GREEN responded, "It could get that severe, but this would
kick in even before that so that the two villagers should have the
ability to get theirs, not guaranteed, but reasonable opportunity.
And it's only then that there is only half enough, then you would
distinguish among the villagers or the area. But the working its
way down would -- rather than to extinguish one user group
completely, the way [the Department of] Fish and Game has managed
it in the past is that they restrict all user groups as well as
they can to still allow this use. It's not a priority, but to be
sure that they're covered and they just restrict, restrict until
they can't restrict anymore. They're going to have to now drop
some people out."
Number 1621
REPRESENTATIVE JEANNETTE JAMES said she sees fishing as an entirely
different issue than hunting because of the location. She said
there may be some places where people have been or will want to or
should be able to fish subsistence and they live aways away. She
said she thinks they do some traveling. Representative James said
another concern is commercial fishing takes place first before the
fish go up the river. She questioned how that will be managed.
She then referred to a problem the Yukon River had a few years ago
where there weren't any fishing going up. The subsistence
fishermen couldn't fish. She asked how that issue would be
protected.
CHAIRMAN GREEN said fishing and hunting are different. If an area
is determined to be a subsistence area for a discrete stock of
fish, it may have no bearing on the hunting. It may have no
bearing on the other species of fish, so those would be
independent. They may overlap but only because it's a happen
(indisc.), not because one requires the other. Chairman Green
referred to the Yukon River and said for some reason the
harvestable fish went way down. He said, "This is not an exact
science, it's a projection type thing that the Department Fish and
Game uses. And if they anticipate that there is going to be a low
yield, they probably would start impacting commercial fishing early
on. If, on the other hand, it's a very big surprise to them there
is no reason to think that all the fishing groups that use the fish
that go up the Yukon, there is no reason to change what they've
been doing. Oh my gosh, we've seen suddenly that we're half way
through the run and there aren't any fish getting into the Yukon.
It would be as they do. And, again, we use this nonsubsistence
river, called the Kenai, as an example. Shut off commercial for a
day, reduce the numbers of days, whatever is necessary to allow
fish to get into the river and they do that now. So that's not an
uncommon situation."
REPRESENTATIVE JAMES questioned if identification of the areas are
done once. She asked if it's done every year. She asked how would
the people, who are depending on subsistence uses, know when the
rivers are going to be available for subsistence use or not.
CHAIRMAN GREEN responded, "It is not done in perpetuity, it's not
done every year. It's only done when it's necessary and that would
be determined by [the Department of] Fish and Game. We have these
six regional boards that we have not in placed here and probably
should if we're going to make some changes, who also will have
advisory groups and the advisory groups say that, 'Hey, we've got
a problem on the Lower Yukon,' or wherever it might be. They
review it and they react just as they do now. If there is a very
low yield - Representative Bunde talked about the Kings, and please
be assured that the Kenai River would not be a subsistence river.
But on that basis, we better do something about shutting down
because the King yield is way, way down. There's not enough there
for the -- let's assume that Soldotna was a subsistence village
within this subsistence area. There are not enough there to get
them so we're going to have to shut down the other fisheries
because personal consumption would be - or subsistence, the highest
and best use and working back up the ladder."
REPRESENTATIVE JAMES said if it is not presumed to be a shortage,
then there is no identification of a subsistence priority. She
asked if they have to fish with their fishing license just like
anybody else.
CHAIRMAN GREEN stated they have to do it in a normal customary
tradition, whether it's a fish wheel on a certain river or a net,
they would do what they normally do.
REPRESENTATIVE JAMES said it would be all the time unless there is
a shortage and then they're curbed.
CHAIRMAN GREEN said that is not what he is saying. He said, "I am
saying they are the last ones curbed. As there is plenty of fish
all people do their customary thing. As you begin to rachet down,
there are not as many as there were expected or normally, then
there is a going to be a restriction of seasons. Bag limits will
go down, commercial fishing days will drop. It will go down and
down and down and down until finally there is only enough to supply
the subsistence area for those who customarily use it. They're the
last guys out of the box."
Number 1909
REPRESENTATIVE JAMES said there are nonsubsistence areas and
everything else is subsistence areas. If an area is a subsistence
area, you can't do nonsubsistence fishing or hunting there.
CHAIRMAN GREEN said that is not correct. If you come from a
nonsubsistence area, you can fish in the subsistence are as long as
there is plenty of fish, but you can't establish a priority among
users in the nonsubsistence areas. He stated that nonsubsistence
means you don't get a subsistence priority and it doesn't have
anything to do with the other fish and game regulations.
Number 1970
REPRESENTATIVE JAMES said if the entire length of the Yukon River
was determined to be a subsistence area, the people who live in the
nonsubsistence area could go there and fish providing that there
wasn't any kind of a limit that was put on by the Department of
Fish and Game.
CHAIRMAN GREEN said that is correct.
Number 2007
REPRESENTATIVE PORTER referred to (A) and said, "If I live in
Anchorage and I go to a subsistence area that does not have a
shortage of any kind I can hunt and fish, but I'm going to assume
that what we mean here is that I can only hunt and fish as I could
in my own area, that is with the normal restrictions of a sport
license.
CHAIRMAN GREEN stated, "That's as it is now, that's not the truth.
If we get the constitutional amendment where they can distinguish
among classes that could be done and it would be done through
regulation."
REPRESENTATIVE PORTER asked what the intent is.
CHAIRMAN GREEN stated the intent is that the Department of Fish and
Game could restrict you more than the local people even though
there wasn't a shortage. He noted that is currently not the case.
REPRESENTATIVE PORTER said, "Then it presumes ... that the standard
kinds of method and means used for subsistence and quantities in a
subsistence area, whether there was a shortage or not, would be
allowed for subsistence users but not allowed for me."
CHAIRMAN GREEN responded, "Not necessarily, no. You might have the
same right if there is a plenty and all the locals certainly have
all they can handle and there is still a river full of fish out
there, you could take in their same manner so long as you didn't
adversely impact them ... and as long as the stock is not adversely
impacted."
Number 2121
REPRESENTATIVE BUNDE referred to Chairman Green saying that the
Department of Fish and Game doesn't currently limit access. He
said that isn't really true. He said the people in Sleetmute don't
like the people from Bethel to come up and hunt their moose. They
have lobbied the Department of Fish and Game to put certain motor
restrictions on the river boats that would make it a lot more
difficult to get there.
CHAIRMAN GREEN stated his point is that you're not restricted,
you're just impaired.
REPRESENTATIVE BUNDE indicated that Chairman Green has said he
anticipates a constitutional amendment.
CHAIRMAN GREEN said, "If this is enacted either as it is, or unless
there is a significant amount of amendments. Yes, this would
require a constitutional amendment."
REPRESENTATIVE BUNDE questioned whether the amendment would mandate
how the priority is established or would the legislature.
CHAIRMAN GREEN stated the constitutional amendment would allow the
Department of Fish and Game that prerogative rather than the
legislature.
Number 2205
REPRESENTATIVE BUNDE referred to page 2, item 10, "the cultural,
social, and economic values associated with the taking and use of
fish and game;", and asked if the culture refers to the Alaskan
culture, to the hunting and fishing culture, or a Native culture.
CHAIRMAN GREEN responded that it is an area culture. It does not
necessarily imply racial or anything else.
REPRESENTATIVE BERKOWITZ stated culture is more of a kin to
heritage than race.
REPRESENTATIVE BUNDE said in his definition, it would include all
Alaskans. He said the department is going to define when a
shortage exists. He asked if the boards would determine, annually,
each stock and population in a subsistence area. He also asked if
a fiscal note had been thought about.
CHAIRMAN GREEN stated they currently do that and would do the same
sort of thing for a subsistence area. They already determine when
fish days are on and how much the bag limits are going to be.
REPRESENTATIVE BUNDE responded that the commercial fishermen feel
that the research is not adequate at this point. He said this
would add to the job of the department.
CHAIRMAN GREEN said, "Maybe, I disagree because we're talking about
a very isolated area that would be different from the way they do
it now. And if it's not done to the satisfaction of all users now
- that's part of this bill, that's another issue."
Number 2300
REPRESENTATIVE BUNDE referred to page 3, line 30, "(2) domiciled in
the local subsistence use area", and asked if that means eat it
where you shoot it.
CHAIRMAN GREEN responded, "In effect because what you're saying you
got to live there."
REPRESENTATIVE BUNDE referred to page 4, line 22, "(F) other
characteristics as determined jointly by the boards, that are
relevant", and said that looks like a loophole that you could drive
a mac truck through.
CHAIRMAN GREEN responded that is true. He said, "You wouldn't find
that kind of a loophole in the regs, but because there is such a
variance among the state - along the state, I mean for locals, it's
very difficult to just limit certain things and say, 'Okay, that's
all you can use, [Department of] Fish and Game, in your
determination.' One area may have a nuance that's nowhere else in
the state."
REPRESENTATIVE BUNDE said they would have to meet (A) through (E)
before they could consider (F).
CHAIRMAN GREEN indicated that is correct.
REPRESENTATIVE BUNDE stated he shares Representative Porter's
concern about traditional barter. He asked, "Do you anticipate a
dollar amount? And we've had the discussion of the $15,000
(indisc.), and I know it says 'non-commercial,' but that would be
like being a nonprofit. You might exchange $15,000 and didn't plan
to make a profit."
CHAIRMAN GREEN said he thinks that would be an issue that would be
a discussion of the committee as a whole.
Number 2376
REPRESENTATIVE BUNDE said if the legislation were to become law and
was endorsed by the public in a constitutional amendment, would the
public know if they were subsistence or nonsubsistence in a short
fashion?
CHAIRMAN GREEN said he would think that could be established very
quickly, within a reasonable amount time. He said, "One of the
things that was kicked around that we may want to address here as
a body is do we establish the nonsubsistence areas. That would
make a major step forward to determining who is and who isn't."
REPRESENTATIVE BUNDE asked if this would be done annually.
CHAIRMAN GREEN responded in the negative. Once you establish the
nonsubsistence areas, that's fixed.
REPRESENTATIVE BUNDE questioned a person moving from one area to
another.
CHAIRMAN GREEN said you either gain or lose.
REPRESENTATIVE BUNDE asked if the road system will include the
ferry system.
CHAIRMAN GREEN said probably because that essentially, not all, but
essentially that runs to federal land and there is the attempt that
navigable waters would be the purview of the state. That issue
would have to be established.
REPRESENTATIVE BUNDE asked if Sitka, Kodiak, Bethel and Barrow
would be subsistence or nonsubsistence areas.
CHAIRMAN GREEN responded, "That would be a determination that
whether we allow [the Department of] Fish and Game to determine
that or whether this board or the legislature should determine it.
I get the feeling that..."
TAPE 98-44, SIDE B
Number 0015
REPRESENTATIVE JAMES referred to page 6, line 6, "(37)
'subsistence' means the noncommercial, customary and traditional
use of fish and game by a resident for personal and family
sustenance and for customary trade or barter; in this paragraph,
'family' means persons related by blood, marriage, or adoption, and
a person living in the household on a permanent basis." She said
the committee has heard testimony about community sharing. Many of
the people who do the hunting are not necessarily the people who
are the neediest. She asked how that concern would be addressed.
CHAIRMAN GREEN said that could be a problem. He said, "It's
workable, it is not addressed here."
Number 0068
REPRESENTATIVE JAMES referred to the issue of licensing and said
there are subsistence permits. She said it seems there ought to be
some consistency, no matter how you take fish and game, and that
they should have a license. There also should be a method for
reporting the take. She said the requirement of a license is in
current law. She noted she doesn't know about the issue of
subsistence permits. Representative James stated she believes
there should be something in the bill that relates to that. She
said, "If they're subsistence users, we haven't given them any kind
of a (indisc.) you know anything - a mark on them that says they're
subsistence users. So if you have this river full of fish and it's
a subsistence area, which means that subsistence fishing can be
done there, and it's not identified as a shortage, that means that
nonsubsistence fishing can be done there. How do you tell them
apart?"
CHAIRMAN GREEN responded, "You don't."
REPRESENTATIVE JAMES questioned, "How do we know how much they
took?" She stated part of the licensing fee goes to help manage
fish and game. She said the committee has heard evidence that
there is an ability by license. If there isn't, maybe something
should be done about that. She said she doesn't think existing law
is sufficient.
CHAIRMAN GREEN said, "That's right. This is establishing that very
narrow priority, not the general fish and game rules of how they go
about counting and how they go about issuing licenses."
Number 0151
REPRESENTATIVE BERKOWITZ referred to page 4, line 16, subsection
(1)(D), and said it talks about dependent on subsistence hunting
means a reliance characterized, at some point, by limited ability
to obtain food. He asked how "limited ability" would be
envisioned.
CHAIRMAN GREEN said, "If you have no other means than this
particular river, you have a limited ability to get other kinds of
sustenance. You're really truly dependent on what goes by your
front door - not the ability to catch but the ability to get
anything else.
REPRESENTATIVE BERKOWITZ said there is a store in the village.
CHAIRMAN GREEN said, "Your limited ability is reduced. You may
still need this, but you may be able to get salt and flour or
something at the store. You may be able to get tootsie rolls, but
you're still dependent. A majority of your sustenance is going to
come from the river rather from the store. You don't have enough
money, for example, to go to the store or you, for whatever reason,
... have a lifestyle that doesn't utilize the store to the extent
that somebody like I do."
REPRESENTATIVE BERKOWITZ asked if the existence of a store in a
village would have an impact on the determination.
CHAIRMAN GREEN responded that it could. He said it would be
reviewed and a determination would be made.
Number 0219
REPRESENTATIVE BERKOWITZ referred to page 4, subsection (F), "other
characteristics as determined jointly by the boards," and said it
is in reference to the Board of Fish and the Board of Game. He
asked if there is a policy reason why the bill goes to the higher
level rather than using the local advisory boards.
CHAIRMAN GREEN responded, "The local advisory boards can be
anywhere through this. They have no authority, but they do have an
advisory capacity, and very likely -- certainly establishing that
there is a low yield."
REPRESENTATIVE BERKOWITZ stated, "I guess what I'm driving at is it
seems to me that we're devolving into a system of local control as
much as possible, and we need to rely on people on the ground."
CHAIRMAN GREEN interjected, "Local control, not necessarily local
advisories."
REPRESENTATIVE BERKOWITZ stated the local advisory groups would
have a more prominent role to play in determining -- you used the
example of conditions differ across the state. He said a local
advisory board would better know what the peculiar conditions are
for that local condition rather than the Board of Game or the Board
of Fish. He informed the committee members that it seems to him
that the local advisory board has an important role to play.
REPRESENTATIVE PORTER said when he read that, he envisioned that
most certainly the local advisory boards would be providing the
information to the board to make the final decision. The problem
with having a decision made by a local advisory board is there is
often conflicts. Representative Porter said, "ANILCA kind of calls
for the regional boards and the advisory boards, and we're not
talking about that here. Is it the intent to get into that or..."
CHAIRMAN GREEN responded, "It will and actually that was something
we were thinking about not having, but in order to not cause the
'ANILCA Gods' to rise up in anger we may want to reinstall or
reinstate the six - I guess we have - regional boards that would be
in fact -- I think [the Department of] Fish and Game probably is in
favor of that. And I think the advice we're getting from some
folks in Washington would be that ANILCA would look to that. It
seems to me unnecessary, but if that's the price we have to pay I
certainly don't object to it."
Number 0368
REPRESENTATIVE IRENE NICHOLIA asked how would the Board of Fish and
the Board of Game would implement this, and how would they
determine who would be the recipients of having a priority. She
asked if it would be through application or permitting. She
referred to the wording, "12 months of taking within a subsistence
area," and asked if the teachers who live in a subsistence area for
nine months be affected. She also questioned how the Board of Fish
and the Board of Game would determine that.
CHAIRMAN GREEN responded, "If the teachers who were there, and
we're talking about a specific type of fish that is the subsistence
fishery, happens to swim between the middle of June and middle of
August say, and the ... teachers are gone all the time. They
wouldn't qualify as having been utilizing this for prior 12 months.
They aren't even around. So they wouldn't qualify. Now if it were
something that swam earlier or later than that, they would because
it's during that 12-month period that the fish migrated and that's
when they hammered them, and so they would qualify."
REPRESENTATIVE NICHOLIA indicated that the fall chum salmon usually
arrive during the last part of August.
CHAIRMAN GREEN said all they would have to establish that they have
characteristically have fished chums, and chums are now the
subsistence fishery. He stated anybody could still fish the other
species.
REPRESENTATIVE NICHOLIA referred to local priorities and said we
use local residents in their state contracts for construction. She
said under that definition, "local residents" means residents from
all over the state. They're all considered local inter-state
contracts. Representative Nicholia said in her view, local
priority could be legally challenged in courts because that
language is used in state contracts.
CHAIRMAN GREEN pointed out the bill says domiciled in the area. In
other words, you have to live there. If the Lower Kuskokwim area
is determined to be a subsistence fishery, the people from Nome or
Barrow are not domiciled there so they would not have the
subsistence priority.
REPRESENTATIVE NICHOLIA said, "So you don't they could be legally
challenged."
CHAIRMAN GREEN responded that he is sure there will be some legal
challenges, but he doesn't think they'll be supported if the
constitution is changed to allow that.
Number 0524
REPRESENTATIVE BILL WILLIAMS referred to not being domiciled to an
area and asked, "How would -- you know like we went through like
the intercept fishy and the pass, and it was closed down and the
people up there in the upper Yukon River weren't getting the fish.
How would that be affected by your comments you just made?"
CHAIRMAN GREEN said they did talk about what would happen if there
was a subsistence area that was being fed outside by the ocean and
how it would affect commercial fishermen. Chairman Green said,
"That gets stickier the further away you go, just like last year
with the problem. But that would still be a [Department of] Fish
and Game prerogative saying that we know, or at least we think we
do as fish and game people, that this is the migration route for
the ... fish that go to a certain area that is now considered a
subsistence area. And in order to allow that type of an
escapement, there may have to be a restriction based on how many
are coming in. The river that eventually feeds that particular
area by the first three days of a normal fishery, is going to have
10,000 fish in it. This year it's got 2,000. This backs up then
and [the Department of] Fish and Game says, 'Wait a minute, whoops,
we're intercepting too much.' That's a [Department of] Fish and
Game prerogative and it shouldn't, I don't think, be discussed in
detail by the legislature, but that would be their prerogative."
Number 0625
REPRESENTATIVE ROKEBERG asked, "Could you tell me will this bill,
in your opinion Mr. Chairman, would a family of four from my
district in Anchorage with an income of $25,000 a year or less, and
20 years of history of use of fish and game stocks, including
personal use and Tier II type hunting, qualify under this bill?"
CHAIRMAN GREEN responded, "Yes, the only place that they would be
restricted would be in the red area. The rest of the state, they
would have an opportunity to fish ... because there is no
restriction there. There is no subsistence imposed in the rest of
the state."
REPRESENTATIVE ROKEBERG asked if they would have to fish based on
existing regulatory...
CHAIRMAN GREEN interjected, "Yeah, they would just continue to
operate as normal." He continued to point out areas on a map.
REPRESENTATIVE ROKEBERG said anybody can sport fish when there is
an open season and they would be under sport fishing regulations.
He said is talking about subsistence use.
CHAIRMAN GREEN indicated they would have to move to the area to
qualify under subsistence.
Number 0732
REPRESENTATIVE BERKOWITZ said if you live in Anchorage and you're
resource dependent, why would you go to an area of resource
shortage.
REPRESENTATIVE JAMES said if your mother lived there, you might
want to go there.
CHAIRMAN GREEN responded that you would go there and get you're
mother's subsistence food.
REPRESENTATIVE ROKEBERG stated that is very common. Representative
Rokeberg said if the current version of the bill were to become
law, would there be any necessary changes that would need to be
made to ANILCA.
CHAIRMAN GREEN responded in the affirmative. He said he envisions
that they would ask for changes to ANILCA in order to get to the
point of changing the constitution to comply with either what they
have said or what the legislature thinks is necessary.
REPRESENTATIVE ROKEBERG said, "Correct me if I'm wrong. In a
nonsubsistence area, or I guess either one for that matter, in
either area ... would be redrawn by the boards of fish and game for
each stock and for every historical user group. Would that be a
proper statement? That's what you said before."
CHAIRMAN GREEN responded, "That's not what I said, what I said was
that the nonsubsistence areas would be established, not in
perpetuity, but they would be established ... year after year, not
each year. What I said was that the specific area that was
impacted by discrete stock could be changed each year. It could
exist, it could exist for half a season, it could exist not at
all."
REPRESENTATIVE ROKEBERG said a subsistence area, when it is defined
by the boards of fish and game, is going to have to be drawn for
each discrete stock. Representative Rokeberg said the way the bill
is written, it is conceivable, although probably not practical or
probable, it would be legal to draw a subsistence area for each
discrete stock and each user group that might have a historic
attachment to that use. Representative Rokeberg continued to ask
questions regarding certain areas he was pointing at on a map.
REPRESENTATIVE ROKEBERG stated he is very concerned about a sports
fisherman using a fish wheel. He asked, "If you're a sport
fisherman - nonsubsistence user that goes into a subsistence area,
and a fish wheel may be a subsistence use historically there, you
can use it too?"
CHAIRMAN GREEN responded, "If the stock will allow you to do that
without adversely affecting those others, yes."
REPRESENTATIVE ROKEBERG responded that is a real problem because
you could have a run on fish wheels and wipe out the stock before
the board could even ... prohibit it.
CHAIRMAN GREEN said it is currently permissible.
Number 1022
REPRESENTATIVE PORTER stated he doesn't think that it is
permissible, but he could be wrong.
CHAIRMAN GREEN said that is what the committee had just been
advised of by the Department of Fish and Game in certain areas.
REPRESENTATIVE PORTER asked if he would be correct to say that
what the bill would require, in terms of the areas, would be for
the Board of Fish and the Board of Game to, in a reasonable period
of time, establish nonsubsistence areas of the state. All those
areas outside of that generally would be considered subsistence
areas, but would not be further defined for specific use until a
shortage occurred in a specific stock or population. That boundary
would then be drawn based on traditional customary use of that...
CHAIRMAN GREEN said, "We use subsistence, unfortunately, and that
does create a problem nomenclature. Which subsistence are you
talking about because [the Department of] Fish and Game says
essentially what Representative Porter just said. You walk outside
the nonsubsistence area and because there are limits, you're in a
subsistence area nearly every place of the state." He said maybe
general subsistence area is what they're talking about for the big
area, and then they go to dependent subsistence for the small
group. He noted there currently is Tier I and Tier II in
subsistence areas.
Number 1142
REPRESENTATIVE CROFT referred to page 6, line 6, and said the
definition of 'subsistence' differs from ANILCA's definition in
that it essentially says food and limited barter without shelter,
fuel, clothing, tools or transportation. He said it seems there
are legitimate areas and some bad examples of abuses in some areas.
Simply excluding it may not be the solution, but thinking about
some way to give the Board of Fish or the Board of Game the ability
to use it in the right situations. It might be appropriate on a
policy level and maybe comply with that section of ANILCA. He
stated, "Fuel and clothing in particular would seem to me if
they're doing it in a traditional manner and using it to make
clothing or to heat lamps, I don't know why we would have much
interest in stopping that."
CHAIRMAN GREEN responded, "My concept, certainly subject to the
wish of the committee, would be that we're talking about a
subsistence preference for sustaining one's life. And if I get a
preference over someone else because I need that to live, that
would be different than I getting some preference over somebody
else because I want to make shoes or something - I want to burn a
candle or something."
REPRESENTATIVE CROFT said if they're going to make those shoes to
sell, that would be - unless it fit the very narrow definition of
what they traditionally done is barter, -- objectionable shoes to
wear to candles to use.
CHAIRMAN GREEN said he that's worthy of debate as to whether or not
that does constitute the package of survival, and it may. Even if
they sell those shoes and receive money, and money is still not the
prime thing that drives them, if it helps in their overall 'put
together,' maybe that is something the committee should consider.
Number 1372
REPRESENTATIVE JAMES said if there is a subsistence area and there
is not a shortage, then anybody can hunt or fish there even though
it's a subsistence area. That would mean that everyone that was
hunting and fishing there would have the same rules and
regulations. She asked if people who currently have a subsistence
lifestyle would be doing their hunting and fishing under the same
seasons and bag limits as everyone else.
CHAIRMAN GREEN stated even a subsistence area would be subject to
bag limits, et cetera, that the Department of Fish and Game
establishes, even to the point of shutting a season down if the
subsistence area was such that there was only enough for the
maintenance of the species.
REPRESENTATIVE JAMES asked if it would be the same seasons and bag
limits as everyone else that comes into the subsistence area that
doesn't live in a subsistence area.
CHAIRMAN GREEN asked if she was talking about a plentiful stock.
REPRESENTATIVE JAMES said, "I'm talking there is no shortage ...
because when there is a shortage they keep everyone out. It's the
time period where there is not a shortage so everybody can go in.
And if that's the case, even the subsistence users are still taking
their fish or game under the same seasons and bag limits as the
other people that can come in. Is that what this does?"
CHAIRMAN GREEN answered, "No, not necessarily because what we're
saying is that there is a development that we would allow the
Department of Fish and Game, by regulation, to vary. As it is now,
they ratchet down, but they would be able vary, through regulation,
so that we don't...." He noted that is not in the current version
of the bill, it would have to be inserted under (A) on page 3.
REPRESENTATIVE JAMES said she is struggling with the issue of the
constitutional amendment. She said it seems to her that if they
were providing a local preference, they wouldn't have to have a
constitutional amendment. Her reason for that is there are other
cases in law where we provide a preference, particularly in land
opportunities. He said, "When we follow all the rules and
regulations to be fair and equitable to anyone who wants to buy a
piece of land, a person who lives next door can ask for a
preference because they're living adjacent to it. That seems to me
like that's a local issue and that seems to be allowed under our
current constitution."
REPRESENTATIVE PORTER referred to the Kenaitze supreme court case
and said they selected one out of several criteria to be considered
as the unconstitutional provisions in statute, thus, negating the
whole thing. He noted that was just proximity to the resource. He
said he would guess that if somebody took the provision of land
acquisition to the supreme court that they would throw it out.
CHAIRMAN GREEN said just because it hasn't been challenged doesn't
mean that it would necessarily pass muster. He referred to the
Kenaitze case and the McDowell case and said they were alright for
several years until there was a court decision made that went
against it.
Number 1611
REPRESENTATIVE BERKOWITZ said he would give an example where there
is discrimination based on place of residence. He said, "That is
in the offices we hold. Each one of us is restricted to where we
can run based on where we live. And the courts, I'm sure, would
find that to be reasonable."
REPRESENTATIVE JAMES pointed out that it is in the constitution.
REPRESENTATIVE CROFT suggested that at the meeting scheduled for
the following Friday, a representative from the Department of Fish
and Game should be present to answer questions.
CHAIRMAN GREEN responded there would be expert testimony at the
meeting on Friday.
REPRESENTATIVE CROFT said, "The one final issue then that I had is
there had been some talk about when we get to the super shortage
that we're having to distinguish between subsistence users, the
possibility of a presumption to take away some of the
administrative burden. To say, 'It's this criteria, but if you
live in a small village or you live in these areas or something,
then we're going to presume you've met those individualized
criteria.' Is there anything in the works on...
CHAIRMAN GREEN interjected, "There is ... we have wrestled with
where that number should be for a few days, and even talking with
our congressional delegation to see if that sort of thing would be
acceptable. Use the number of 1,000. If you live in an area that
has less than 1,000 residents, there would be this presumption that
you qualify."
REPRESENTATIVE CROFT asked if there is any chance of seeing a
constitutional amendment or the proposed ANILCA changes.
CHAIRMAN GREEN responded, "Yes, I would hope that we could have
one. Since we have now adopted this, which requires it, we'll go
ahead put the finishing touches on a skeleton and have it for
Friday. And I would hope to maybe get it to you before hand so
you'll have a chance to think about it like we did this - before we
come into the meeting."
Number 1895
REPRESENTATIVE ROKEBERG said the criticisms of the rural preference
(indisc.) has been the problem of the high income, high assetted
individuals living within a defined area. He said, "By following
your subsistence area definition of those boundaries, it's
conceivable that somebody with a significantly high income, within
that particular area and domicile there, qualifies. Is that
correct?"
CHAIRMAN GREEN said that is true.
REPRESENTATIVE ROKEBERG asked Chairman Green if he has considered
trying to top in and cap it out. He said that is a huge problem,
particularly in the urban areas. Why should I give up my rights
when these guy that are out there make $50,000, $60,000 a year, and
they have the right to subsistence hunt and fish.
CHAIRMAN GREEN said when they were talking about that originally,
they were talking about a huge area that would have lots of those
"richies." He said, "Now we're talking about a very narrow area so
that we wouldn't have a concentration of those wealthy people in a
small area that we're talking about subsistence-wise. Secondly,
within that area if we make a presumption that they do qualify, but
that's rebuttable. And if you were to talk about people who make
that kind of money, they probably don't fit the qualifications of
having to have more than half of their sustenance from wild
critters. They may or they may not. The question then becomes if
we have a subsistence area that encompasses 2,500 people, wherever
that may be, would it be worth our time to find that guy that makes
$50,000 or $150,000 and has the leer jet? Or ... is his impact on
that subsistence are of 2,500 people going to worth that effort?
That's the call you have to make."
REPRESENTATIVE ROKEBERG responded, "Mr. Chairman, I would suggest
that the size of whatever area you're talking is the eye of the
beholder, notwithstanding wherever the boundary lines are drafted
because if you believe that you have been inequitably and unfairly
treated and you were disallowed when somebody else that has more
income, more assets and more capabilities is out there, and has a
right to do it, you're going feel cheated and that's the problem."
CHAIRMAN GREEN said, "I submit to you that if an Anchorage person
felt cheated because somebody in the red area made more money, he
lives out there, he makes more money and he has a preference, I
really don't think you're going to get a lot of human cry from
Anchorage about that. Anchorage doesn't go there, it's perception.
It was a major perception and I was one of those that was
perceiving that when it was the entire state. We're talking about
such little isolated areas, I really doubt that you're going to
have a human cry."
Number 2144
REPRESENTATIVE BUNDE said that is easy to understand when they are
talking about an area, but his understanding of the amount of fish
that is available in the state he believes every drainage will be
an area. He said if the bill were to become law, you would be hard
pressed to put your foot down anywhere outside of the Railbelt,
highway, ferry system, where there wouldn't be some subsistence
preference for some species. He stated the appearance of justice
is just as important as justice.
CHAIRMAN GREEN pointed out that we are not that close to
endangering the sustainable yield. He said, "We may be in a
subsistence area that says that users will not be allowed to take
all they want. We may only be able to take two-thirds of what they
want. That does not invoke this subsistence that we're talking
about here. They continue to operate as they did before just --
and you used the Kenai River. The Russian River, I can remember
going down and getting six reds, then it went to three, then it
went to two. I mean that will continue to happen as (indisc.) of
the availability does, but it doesn't trigger the subsistence use
for the specific stock."
REPRESENTATIVE BUNDE referred to the phrase "opportunistic
hunting," and said there will never be enough moose for all the
hunters of the state to shoot a moose whenever they want to. He
said we would then always be in shortage. He asked if the moose
preference wouldn't cover most of the moose habitat in the state.
CHAIRMAN GREEN stated that we have to go back to the fact that they
are now talking about the sustainable yield and the harvest just
above that. He said that won't be a statewide issue, but it may be
an issue in certain areas. It isn't going to be statewide. That
doesn't mean that there is enough for everybody go out and hunt
them, there aren't now. He it just says that when we get to the
point where we are down to the sustainable yield, and a tiny bit
above that, that is when there would be the subsistence priority.
TAPE 98-45, SIDE A
Number 0001
REPRESENTATIVE PORTER said, "I think we ought to try to aim this at
the way we were doing because as much consternation as it caused
was the best thing for the stocks and populations that could happen
to the state, best rue for the puddings and the eating. And it
allows us to make these fine tooth distinctions rather than
somebody in Washington, D.C."
REPRESENTATIVE BUNDE stated he agrees with Representative Porter
based on fish, but he disagrees on game because there is far less
game now and far more people taking it than there was 30 years ago.
REPRESENTATIVE ROKEBERG said the committee members have a colleague
trying to get a chit signed for an appropriation of general funds
to a major area of the state which was disastrously affected this
last season. He said the committee should keep in mind that there
is not plentitude in some areas of the state.
Number 0200
REPRESENTATIVE JAMES said, "To put my perspective on the record is
that it seems to me like that - we could define the need, and we're
getting close to [a] hit, I'm not completely happy with it. But I
don't think we want to accelerate the subsistence use in future
because I don't think that is where the state is going. And it
bothers me that a person can move into one of these areas and be
there for 12 months and then qualify. And so it seems to me like
that we should protect those people who live a subsistence
lifestyle and are depending on it today, but that we shouldn't --
that over time it should decrease and stop increase necessarily
unless it's family members of those subsistence lifestyle. I don't
want to create something where people, especially in this modern
technology age, can move into a rural area and take advantage of
the subsistence lifestyle while they do all of their work around
the world on a computer. I want to be absolutely sure that we have
-- this is a subsistence lifestyle, we define it and we protect it,
but we don't allow it to be misused. And that's my biggest
concern."
CHAIRMAN GREEN said that is a good concern, but he would remind her
that those of us that beat the Zobels would have preferred that we
would have the pioneers home relegated to only those people who
have been here 25 years or more, and that we should be able to
designate those who should have the permanent fund dividend against
those others.
Number 0375
REPRESENTATIVE BERKOWITZ said, "I think it's very important to
reiterate that we ought to keep our eyes on the prize here, which
is preventing federal takeover. And I think that's something that
we all can agree on. And rather than get tied up over nuances in
this bill or whatever permutation it goes through before it moves,
if it does move, that's got to be our focus. And in order to do
that, we need to have that constitutional amendment."
CHAIRMAN GREEN responded, "As much as I argued against it, I really
did, I railed eloquently - well not eloquently, but loudly against
a constitutional amendment - I really did, but as I get closer to
trying to get what we want done, and you make a very good point,
that's one of the major things and to supply for selected groups of
people who really need it, we can't do it with our current
constitution."
[HB 406 was held over]
ADJOURNMENT
Number 0452
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 2:47 p.m.
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