Legislature(1997 - 1998)
03/27/1998 01:08 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 27, 1998
1:08 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft (via teleconference)
Representative Ethan Berkowitz (via teleconference)
MEMBERS ABSENT
Representative Con Bunde, Vice Chairman
OTHER HOUSE MEMBERS PRESENT
Representative William K. (Bill) Williams
COMMITTEE CALENDAR
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD
HOUSE BILL NO. 451
"An Act relating to assistive technology devices and mobility aids
for physically disabled persons."
- SCHEDULED BUT NOT HEARD
(* 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)
3/06/98 2539 (H) REFERRED TO JUDICIARY
3/09/98 (H) JUD AT 1:00 PM CAPITOL 120
3/09/98 (H) MINUTE(JUD)
3/11/98 (H) JUD AT 1:00 PM CAPITOL 120
3/11/98 (H) MINUTE(JUD)
3/18/98 (H) JUD AT 1:00 PM CAPITOL 120
3/18/98 (H) MINUTE(JUD)
3/20/98 (H) JUD AT 1:00 PM CAPITOL 120
3/20/98 (H) MINUTE(JUD)
3/23/98 (H) JUD AT 1:00 PM CAPITOL 120
3/23/98 (H) MINUTE(JUD) (MTG CANCELLED)
3/25/98 (H) JUD AT 1:00 PM CAPITOL 120
3/25/98 (H) MINUTE(JUD)
3/27/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ROBERT BOSWORTH, Deputy Commissioner
Office of the Commissioner
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-6140
POSITION STATEMENT: Gave presentation and answered questions
relating to HB 406.
WAYNE REGELIN, Director
Division of Wildlife Conservation
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4190
POSITION STATEMENT: Answered questions relating to HB 406.
ROBERT J. WOLFE, Research Director
Division of Subsistence
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4148
POSITION STATEMENT: Answered question relating to HB 406.
KEVIN DELANEY, Director
Division of Sport Fish
Alaska Department of Fish and Game
333 Raspberry Road
Anchorage, Alaska 99518-1579
Telephone: (907) 267-2224
POSITION STATEMENT: Answered questions relating to HB 406.
DICK BISHOP, Member
Board of Directors
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, Alaska 99707
Telephone: (907) 455-6191
POSITION STATEMENT: Testified on HB 406.
ACTION NARRATIVE
TAPE 98-46, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Members present at the call to order
were Representatives Green, Porter, Rokeberg and James in person,
and Representatives Croft and Berkowitz via teleconference from
Anchorage. Chairman Green noted that there was no quorum but that
the committee could take testimony. Representative Rokeberg
arrived at 1:19 p.m.
Number 0073
CHAIRMAN GREEN advised members that if there was no objection, he
would ask the Speaker to waive HB 329 on to the House Finance
Standing Committee. He described the bill as a transfer of title
and a rent-back from the state for the Harborview treatment center;
he said it is not really a judiciary issue.
REPRESENTATIVE ERIC CROFT spoke via teleconference from Anchorage,
requesting a moment to review HB 329 at the Legislative Information
Office (LIO).
CHAIRMAN GREEN suggested the committee would go ahead, and if
Representative Croft had an objection after reading the bill, they
could revisit it. [Representative Croft informed Chairman Green
later in the meeting that he had no objection.]
HB 406 - SUBSISTENCE USES OF FISH AND GAME
Number 0176
CHAIRMAN GREEN announced the committee would hear HB 406, "An Act
relating to subsistence uses of fish and game." Present to testify
and provide an overview of how the Alaska Department of Fish and
Game might handle regulations in times of abundance, as well as in
times of varying degrees of shortage, were department personnel.
Number 0237
ROBERT BOSWORTH, Deputy Commissioner, Office of the Commissioner,
Alaska Department of Fish and Game (ADF&G), came forward and
requested that he be joined at the table by Wayne Regelin,
Director, Division of Wildlife Conservation; Kevin Delaney,
Director, Division of Sport Fish; and Robert J. Wolfe, Research
Director, Division of Subsistence.
CHAIRMAN GREEN explained that the committee wants to understand how
the ADF&G would move this into regulation from statute.
Number 0341
MR. BOSWORTH described how the present subsistence law works in
terms of providing the priority. He handed out a single page
titled, "Steps When Considering Subsistence Proposals", and a copy
of AS 16.05.258. He told members the first document is provided by
the department every time the Board of Fisheries or the Board of
Game meets, to remind members of the steps they must go through in
implementing the state's subsistence law.
MR. BOSWORTH informed members that the first state subsistence law
was in 1978; it was amended in 1986 and again in 1992. There have
been iterations that clarified some of these steps and some of
these findings of the board, and there certainly have been changes
in eligibility over the years. In addition, terminology has
changed from time to time; for example, what used to be considered
a "nonrural area" is now a "nonsubsistence area." However, the
fundamental concept of implementing the priority, has basically
remained the same.
Number 0543
MR. BOSWORTH referred again to the one-page handout. The first
step the boards follow in considering a subsistence proposal is to
determine whether the issue affects a nonsubsistence area. The
board has authority to establish nonsubsistence areas; there is a
list of criteria in law that allows for that. The existence of
those areas, relative to the proposal before the board, is the
first item of business. If the fish stock or game population under
consideration is in a nonsubsistence area, that ends the discussion
of subsistence regulations.
Number 0607
REPRESENTATIVE JEANNETTE JAMES asked Mr. Bosworth to list the
criteria that determine whether an area is a nonsubsistence area.
MR. BOSWORTH read from AS 16.05.258(c), items (1) through (13).
Number 0791
REPRESENTATIVE BRIAN PORTER suggested it is basically the same as
Version R of HB 406.
CHAIRMAN GREEN noted that item (13) is a little different, but the
rest are similar.
MR. BOSWORTH told members that as he recalls, there isn't a great
difference between those criteria and the ones used to identify a
rural area pre-McDowell, under the 1986 law.
Number 0827
REPRESENTATIVE PORTER asked what kind of circumstances generate
subsistence proposals.
MR. BOSWORTH explained that on a regular cycle, the Board of
Fisheries or the Board of Game issues a call for proposals. A
document goes out to an enormous mailing list including all of the
advisory committees and others around the state, who are notified
that by a certain time, if they would like to change subsistence
regulations for the area and species under consideration, they are
invited to do so.
MR. BOSWORTH returned to step 1, the question of whether the stock
or population is in a nonsubsistence area. The focus is on fish
stocks or game populations, or portions thereof; there will be
continuing references to those as being the focus of a proposal,
and, therefore, the focus of the regulation the board might adopt.
Number 0917
MR. BOSWORTH advised members that if any portion of the fish stock
or game population is outside a nonsubsistence area, then the board
goes to step 2, customary and traditional use determination. All
through the years when there was a rural preference applied, and
even into the post-McDowell years, there was a two-step process in
identifying eligibility. One question was location of residence;
Mr. Bosworth suggested members are aware of how McDowell affected
that one. The second question had to do with whether there was a
customary and traditional use.
MR. BOSWORTH explained, "So, for example, pre-1990 we did have
areas of the state which were rural but which the board did not
find had a customary and traditional use of a particular fish stock
or game population." He cited examples of rural communities on the
Parks Highway where the board did not find there was customary and
traditional use of a particular species; therefore, there were no
subsistence regulations for hunting and fishing in the vicinity of
those communities.
Number 0989
MR. BOSWORTH advised members that post-McDowell, the boards went
through the same exercise, the difference being under the 1992 law
that once a customary and traditional use determination was made in
the positive, then all Alaskans would be eligible to participate in
that hunt or fishery. So they still went through the customary and
traditional step, but eligibility changed.
MR. BOSWORTH said at this point, the board determines if there is
a customary and traditional use of the fish stock or game
population, applying eight criteria that he believes have been used
since 1978 or thereabouts. The question again is, in the pre-McDowell context,
community have a customary and traditional use of a particular
stock or population. He noted that in the post-McDowell context,
it had more to do with whether anybody had a customary and
traditional use of a particular fish stock or game population.
Number 1079
MR. BOSWORTH explained that the board would address that question
using information pertinent to the criteria. He read from the
preamble to the criteria, which says each board will identify fish
stocks or game populations, or portions of stocks or populations,
that are customarily and traditionally taken or used by Alaska
residents for subsistence uses by considering the following
criteria.
MR. BOSWORTH explained that the first criterion is a long-term,
consistence pattern of noncommercial taking, use and reliance on
the fish stock or game population that has been established over a
reasonable period of time of not less than one generation,
excluding interruption by circumstances beyond the user's control,
such as unavailability of the fish or game caused by migratory
patterns. He indicated the primary question is whether there has
been a long-term, consistent pattern of use.
MR. BOSWORTH told members the second criterion is whether there has
been a pattern of taking or use recurring in specific seasons each
year. Subsistence hunting and fishing patterns are cyclical;
certain things happen at certain times of the year. Therefore, the
question is whether that is the case with the stock or population
in question.
MR. BOSWORTH referred to the third criterion, whether there has
been a pattern of taking or use consisting of methods and means of
harvest that are characterized by efficiency and economy of effort
and cost. He advised members that the operative words are
"efficiency" and "economy of effort."
MR. BOSWORTH said the fourth criterion is the area in which the
noncommercial, long-term and consistent pattern of taking, use and
reliance upon the fish stock or game population has been
established. In other words, where does this use take place? He
explained that pre-McDowell, the board used a slightly different
criterion having to do with the proximity of the hunt or fishery to
the community in question. Mr. Bosworth explained, "Because of the
McDowell finding, we couldn't use it in that way, and it simply is
a way to describe the geography of the hunt or the geography of the
fishery."
Number 1175
MR. BOSWORTH told members the fifth criterion is a means of
handling, preparing, preserving and storing fish or game that has
been traditionally used by past generations but not excluding
recent technological advances where appropriate. He commented,
"So, ... do you can the food? Do you eat it fresh? Do you freeze
it? Do you dry it? Do you pickle it? ... These are all factors
that the board considers in terms of the use of the fish or game."
MR. BOSWORTH discussed the sixth criterion, a pattern of taking or
use that includes the handing down of knowledge of fishing or
hunting skills, values and lore from generation to generation.
This concept hasn't been particularly useful to the board. Mr.
Bosworth believes the board has recognized that we all talk about
what we do; we hand down information about where we've been. "So,
it turns out to be a less-useful criterion than some of the others,
in my opinion," he added.
MR. BOSWORTH said the eighth criterion is whether there is pattern
that includes taking, use and reliance for subsistence purposes
upon a wide diversity of fish and game resources, and that provides
substantial economic, cultural, social and nutritional elements of
the subsistence way of life. This is a way of getting at the
bigger picture of whether the stock or population in question is
the only thing that contributes to the community, family or
household, or whether it is one of a dozen animals used in various
ways by the community. The breadth of the harvest pattern is
something the board thought was very important, Mr. Bosworth noted.
MR. BOSWORTH said he believes the intent, from the beginning, has
been that the board would use these criteria to gather information
and then get an overall impression as to whether the proposed use
sounds like a subsistence use. The criteria include transmission
of knowledge, sharing, and a long-term, consistent pattern of use
that happens yearly. Mr. Bosworth concluded, "A lot of people got
together early on and have worked through these since those early
days, and more or less agreed that these are the kinds of qualities
that seem to characterize subsistence. So, that's how they're
used."
Number 1303
MR. BOSWORTH reported that oftentimes as a board addresses a
proposal, there will have already been a finding; they don't do
these customary and traditional findings repeatedly. A finding
essentially stays on the books unless there is new information, for
example, or a compelling reason to change it. Mr. Bosworth offered
a report listing customary and traditional use findings made
throughout the state by the boards over 20 years or so of
implementing the law; the report also addresses the amount
necessary, which he would discuss shortly.
MR. BOSWORTH explained that if there previously has been a negative
finding - that there is not a customary and traditional use -
generally there is no need to address the subsistence use further,
unless the proposal specifically calls for a reconsideration of
that finding. The law also provides that the board may
periodically reconsider previous customary and traditional use
findings on their own initiative.
Number 1380
MR. BOSWORTH discussed step 3, the question of whether a portion of
the fish stock or game population can be harvested consistent with
sustained yield. If there is no harvestable surplus, that is the
end of the story. It is the absolute priority, and Mr. Bosworth
suggested the constitution would probably prohibit the board from
allocating if there was not a harvestable surplus.
MR. BOSWORTH told members if the answer is positive - that there is
a harvestable surplus - the board takes the fourth step of
determining the amount reasonably necessary for subsistence. Pre-McDowell, thi
customary and traditional use, and determining the amount of fish
or game those communities needed to satisfy subsistence needs. The
board has approached this as a data-based determination; however,
there are gaps in the data, such as for a species for which the
ADF&G doesn't do regular surveys. In all cases, they take public
testimony on these issues, and no matter what they have to go on,
the law compels the boards to determine the amount reasonably
necessary for subsistence.
MR. BOSWORTH noted that again, if there has been a previous
determination, the board may not revisit that; however, they need
to at least look at that question. The board may periodically
reconsider and update these determinations. Mr. Bosworth indicated
the list mentioned earlier describes the amounts necessary, from
findings made by the board over the years. He cited an example.
Number 1522
CHAIRMAN GREEN asked if the updating of determinations would
primarily relate to population increases in a community, or if it
could also relate to a shift in reliance or dependence.
MR. BOSWORTH answered that typically it has had to do with new
information. He believes that the criterion that speaks to a long-term, consis
where the board probably wouldn't respond to a short-term change in
participation. "I guess what I'm saying is that it is not
inconceivable that what you said could be a reason for them to
reconsider, but they do have to look at the longer-term pattern,"
he concluded.
CHAIRMAN GREEN stated his understanding that when the board goes
back, they look at everything.
MR. BOSWORTH concurred, specifying that when the board goes back to
look at customary and traditional findings, they go through the
entire eight criteria again.
Number 1603
REPRESENTATIVE JAMES described a situation where there is either a
sudden or gradual change in a community, with the addition of
industry, for example, resulting in a behavioral change because of
added employment. She asked, "If it was gradual, when would you
notice that? And of course, if it was sudden, I think you would
certainly pay attention to that."
MR. BOSWORTH first pointed out that it is easy for the board, or
anyone, to lose the distinction between the rural determination and
the customary and traditional determination. If factors changed
relating to the economy of the area, that would be more appropriate
to reconsideration of the question of whether a place was still
rural, as those are basically economic criteria that derive from
the "rural" definition.
REPRESENTATIVE JAMES said she was doing it without the rural
designation, adding, "And you said since McDowell you haven't used
that; you've only been using customary and traditional."
MR. BOSWORTH acknowledged that in the context of what they've been
doing recently, it would be more a question raised regarding
whether a community were within or outside a nonsubsistence area.
The question of customary and traditional, then, really doesn't
deal so much with questions of population change or economics.
REPRESENTATIVE JAMES asked, "So, it would be in the first set of
criteria that that would be noticed, and ... it would be, then, a
nonsubsistence area if there's a different characterization of the
area, then, no matter where it was?"
MR. BOSWORTH replied that the board could certainly come to that
conclusion.
REPRESENTATIVE JAMES asked for confirmation that that is under
current law.
MR. BOSWORTH affirmed that.
Number 1719
REPRESENTATIVE PORTER asked whether reliance on the resource is
just a customary and traditional use of it or is a need of it.
MR. BOSWORTH answered that it is much more a way of recognizing the
harvest pattern, then developing regulations that reasonably
accommodate that pattern. He concluded, "I don't believe the word
'need' exists, and the boards haven't interpreted it that way."
REPRESENTATIVE PORTER suggested it would make no difference if
someone has a sustained reliance or dependence on the resource but
also has a large bank account.
MR. BOSWORTH replied, "That's correct. In fact, we could get into
that issue because it's very interesting, the relationship between
incomes and subsistence production. It's maybe a little off to the
side of what we're doing right now, but it's an interesting point."
Number 1775
CHAIRMAN GREEN asked: If there is a harvest of 100 fish or game
animals, would the vast majority be for consumptive use, or does
the criteria include other uses? He mentioned the Marine Mammal
Protection Act and said he wanted to stay away from that.
MR. BOSWORTH said the amount necessary for subsistence use would be
an attempt to address the amount for all aspects, including use of
by-products. He stated, "We could get into the definition of
subsistence here, but it includes food, clothing, shelter and a
number of other uses that would go beyond strict nutrition."
CHAIRMAN GREEN indicated his concern related to harvest for bones
and hides, for example, even if there was no need for the meat.
MR. BOSWORTH suggested that would get into wanton waste, which is
not allowed.
Number 1857
REPRESENTATIVE CROFT asked Mr. Bosworth whether he was reading from
5 AAC 99.010.
MR. BOSWORTH said for the eight criteria, yes.
REPRESENTATIVE CROFT asked whether anything prevents new customary
and traditional uses from coming up, and how that would work. He
also asked whether a consistent sport use, after a sufficient
period of time and meeting the other criteria, could establish
itself as a customary and traditional taking.
MR. BOSWORTH said that is an interesting question, to which he
believes the answer is yes; however, he would defer to colleagues
momentarily. He said it would be a tough call for any board,
noting that one tough call that some boards have made relates to
introduced or transplanted species. For example, the board found
there was a customary and traditional use of deer on Kodiak Island.
He asked Mr. Regelin when those had been introduced.
WAYNE REGELIN, Director, Division of Wildlife Conservation, Alaska
Department of Fish and Game, said it was 1934.
AN UNIDENTIFIED SPEAKER mentioned musk oxen.
MR. BOSWORTH said that is an interesting one. Musk oxen have been
known to have been in an area since prehistoric times, and have
been reintroduced after a lengthy gap in the history. "And this
has been a very difficult one for the boards to determine," he
stated. "I think ultimately the state boards have found that where
there was evidence of prior use ... of musk ox, the introduction
would qualify as a customary and traditional use."
MR. REGELIN concurred.
Number 2003
MR. BOSWORTH indicated that once the amount necessary for
subsistence has been passed, they get into the area this has been
building up to: providing a reasonable opportunity for
subsistence, with adequate consideration of the abundance of the
resource. He told members he would explain what he means by that,
then handed out a two-page analysis of the steps, titled,
"Subsistence Law Flow Chart - Implementation Pre- and Post-McDowell."
Number 2053
MR. BOSWORTH drew members' attention to step 3 in the left-hand
column of the flow chart. He said the next thing the board would
look at is whether the harvestable surplus is sufficient to
accommodate all uses. If that is the case, the board walks through
the steps outlined in AS 16.05.258 for allocating when the surplus
is sufficient for all consumptive uses. Mr. Bosworth specified
that he was addressing (b) and (b)(1) of that statute.
MR. BOSWORTH read from AS 16.05.258(b)(1): "if the harvestable
portion of the stock or population is sufficient to provide for all
consumptive uses, the appropriate board (A) shall adopt regulations
that provide a reasonable opportunity for subsistence uses of those
stocks or populations". Mr. Bosworth commented, "Now, that's the
subsistence allocation right there." He then continued reading:
"(B) shall adopt regulations that provide for other uses of those
stocks or populations, subject to preferences among beneficial
uses; and (C) may adopt regulations to differentiate among uses."
MR. BOSWORTH suggested this is the area the committee has spent a
lot of time talking about, because it is included in a different
form in the draft of HB 406 that he had seen. This is where there
is no need to restrict eligibility because the abundance of the
resource is adequate. It raises a very interesting question that
has been asked of him a number of times, whether the subsistence
priority applies always or only when there is a shortage.
Number 2156
MR. BOSWORTH told members the simplest answer he has come up with
is yes, the subsistence law does apply even when there is no
shortage, but at this point it doesn't restrict other uses. The
law applies in the sense that it requires that reasonable
opportunity for subsistence be accommodated. The law says that
even though there is enough to go around, the board still needs to
understand what the customary and traditional use is, and
reasonably provide for that use. For example, the board could be
looking at the season of use and the method and means; the board
needs to provide regulations that reasonably accommodate that. Mr.
Bosworth restated that yes, the subsistence priority is in place,
but no, we haven't got to the step where it affects other uses
detrimentally. There is no restriction on other uses.
Number 2207
CHAIRMAN GREEN referred to discussion from a previous meeting about
whether a certain river would allow fish wheels and all people
would, then, be able to go there. He stated, "I think you've just
answered that: They may qualify, except they may not have done
this in the traditional manner. They wouldn't be able to just go
out there one time, build a fish wheel and then back off."
MR. BOSWORTH responded, "It was a lot simpler, frankly, in the pre-McDowell day
customary and traditional use had a pattern of using fish wheels.
People from that community can go there and put in a fish wheel.'
It's a little more complicated now, ... post-McDowell, where we
say, 'Yes, people used to use fish wheels there; now anybody can go
and build a fish wheel and go to that place.' I think what sort of
defuses the issue is that it's real hard to build a fish wheel,
it's real hard to operate a fish wheel, and it's real hard to find
a site for a fish wheel. So, there's sort of practical limitations
to that, and I think that's why - even though I've heard about
portable fish wheels sort of being built and advertised - I think
still, at this point in history, we don't see a lot of people
rushing out to build fish wheels."
MR. BOSWORTH said the board has recognized that and provided a
different type of opportunity, because there is plenty to go
around. He mentioned the Copper River dipnet fishery, saying in
some places there is customary and traditional use of dipnets and
that in the past, they have had subsistence dipnet fisheries. He
asked whether it was on the Kenai River.
AN UNIDENTIFIED SPEAKER said yes, around the mouth.
MR. BOSWORTH said that is a nonsubsistence area right now, so we
don't have that.
Number 2285
REPRESENTATIVE JAMES said along that line of thinking, they provide
the reasonable opportunity by seasons and bag limits, and by
methods and means. She stated her understanding that
nonsubsistence hunters can come into a subsistence area. She asked
whether those hunters would behave, then, under the same seasons
and bag limits, and under the same methods and means, as do the
subsistence hunters.
MR. BOSWORTH said yes, citing the Nelchina caribou hunt as an
example and deferring to Mr. Regelin.
Number 2315
MR. REGELIN said it is the same for all resident hunters, but
oftentimes there are different bag limits or other restrictions on
nonresident hunters for antler size, for example, or a reduced bag
limit for caribou. He specified that these are nonresident, out-of-state hunte
Number 2333
REPRESENTATIVE JAMES asked whether it every subsistence hunter or
fisher must have a license or permit, and whether that is the only
way they are identified.
MR. BOSWORTH said first he would talk about fish, then game, which
is different. A subsistence fisher doesn't need a license. The
fishing license the ADF&G sells is a sport license, and they
haven't developed anything like a subsistence license. However,
the board has gone around the state and in many areas has
established a subsistence permit system. For example, to be a
legal subsistence fisher in Southeast Alaska, one needs a permit
that includes the person's name and the number of fish taken per
day, for which there is a restriction. In other areas, there is a
restriction on the number of fish per season.
MR. BOSWORTH added that there are different ways that the
subsistence fishing permit process has been used and designed
around the state. In some cases, a catch calendar is simply
returned to the ADF&G at the end of the season; in other cases,
that must be returned within 10 days of fishing. "It depends, I
think, on how intensely we manage those fisheries," Mr. Bosworth
said. "My understanding is if you live in Bethel there is no
subsistence fishing permit necessary; there's never been a real
need ... to monitor the harvest at that level of intensity." He
noted that Southeast Alaska, Prince William Sound, Southcentral
Alaska, Kodiak Island, the Aleutians and the Alaska Peninsula all
have subsistence fishing permits, to his knowledge. However, that
is not a requirement in Western Alaska. He asked Mr. Wolfe about
the Arctic.
ROBERT J. WOLFE, Research Director, Division of Subsistence, Alaska
Department of Fish and Game, shook his head.
MR. BOSWORTH said, "Not in Arctic Alaska."
CHAIRMAN GREEN asked whether those are renewable annually.
MR. BOSWORTH said yes.
Number 2433
REPRESENTATIVE JAMES noted that a portion of the sport fishing
license goes into management, directly or indirectly. She asked
whether it is a correct assumption that if all these people aren't
buying a license, they are not participating in that management
expense.
MR. BOSWORTH concurred with they are not participating in the fish
and game fund through a fishing license purchase. He pointed out,
however, that people do need a hunting license. The hunting
license is not called a sport hunting license. It is called a
general hunting license, and a subsistence hunter in this state
does need to purchase one. In addition, depending on the hunt and
the species, there are permits. Mr. Bosworth deferred to Mr.
Regelin.
TAPE 98-46, SIDE B
Number 0006
MR. REGELIN explained that for an unrestricted hunt, in which
either sport hunters or subsistence can participate, there is no
permit required. However, if they have to restrict among
subsistence users, they go into the Tier II system, with a Tier II
permit; they would have already closed the season to nonresident
hunters. Mr. Regelin characterized the form that must be filled
out for that permit as very complex; it is then scored, and the
highest scorers are issued a permit in order to participate in a
restricted Tier II hunt.
CHAIRMAN GREEN asked whether it was that way before McDowell.
MR. BOSWORTH said yes, there were Tier II hunts before McDowell,
although not as many of them.
MR. REGELIN commented, "We don't have that many now."
Number 0053
REPRESENTATIVE PORTER said most of his questions had been answered
by Representative James' questions; he noted that it is a
troublesome area. He stated his understanding that a subsistence
use in an area, whether or not it requires a permit or requires
reporting by the individual, is based on the area, not in general.
MR. BOSWORTH concurred.
REPRESENTATIVE PORTER said pre-McDowell, a subsistence use in an
area that had a shortage was limited to the resident's-proximity-to-the-resourc
the permit may exist, and there may be a determination of customary
and traditional use, but the individuals can come from anywhere in
the state.
MR. BOSWORTH said that is correct.
CHAIRMAN GREEN added, "That are qualified under your criteria."
MR. BOSWORTH agreed.
CHAIRMAN GREEN said area is certainly not a criterion.
REPRESENTATIVE PORTER suggested there isn't any criterion for the
individual.
Number 0096
MR. BOSWORTH said that is correct unless they get to the level of
Tier II, which Mr. Regelin had described. An example is the
Nelchina caribou hunt, where there are 40,000 animals. He asked
Mr. Regelin how many applications were received for that.
MR. REGELIN said the highest year was 28,000; the harvestable
surplus is 6,000 to 8,000.
MR. BOSWORTH explained that any resident can apply for a permit for
a subsistence hunt on the Nelchina caribou, because there is a
customary and traditional use of those animals. Eligibility
becomes a question because they can take only 6,000 animals but
more than 20,000 want a chance at it. There needs to be a way to
identify, among all the potential subsistence users, who are the
most dependent upon those animals; those are the criteria that Mr.
Regelin referred to as Tier II.
Number 0143
REPRESENTATIVE PORTER said that kind of determination was post-McDowell or pre-
MR. BOSWORTH agreed, saying it was in ANILCA [Alaska National
Interest Lands Conservation Act].
CHAIRMAN GREEN stated his understanding that before McDowell, there
were drawings.
MR. BOSWORTH replied, "In pre-McDowell, we did both." He noted
that Nelchina was not a Tier II hunt pre-McDowell. He said what
happened then is they identified communities in the Copper Basin
with a customary and traditional use; he believes 400 to 500
permits were allocated to that, and all the other permits were
handled through drawings.
Number 0172
REPRESENTATIVE CROFT referred to Representative James' question on
means, bag limits and seasons in subsistence hunts, and said he'd
been struggling with it as well. He stated his understanding that
pre-McDowell, urban residents simply weren't eligible for
subsistence, so there couldn't be any differential bag limits
between them. Post-McDowell, everyone was included, and all
residents had the same bag limits and seasons.
CHAIRMAN GREEN asked whether Representative Croft was discussing a
Tier II area.
REPRESENTATIVE CROFT said no, he was referring to the "ratcheting-down" area.
that everyone could subsistence hunt when allowed, but that there
can be some ratcheting-down of the "nonlocal" to preserve customary
and traditional local use. In that situation, it seems that
everyone would be open for subsistence licenses, but there would
have to be different bag limits, seasons or other restrictions as
they went downward from excess to shortage.
MR. BOSWORTH asked for clarification. He noted that all Alaskans
are eligible for subsistence because of McDowell, not because of
something the boards necessarily chose to do, and he commented that
it is working after a fashion.
Number 271
REPRESENTATIVE CROFT explained that he was trying to figure out how
it would work under the setup discussed by Chairman Green at the
previous committee meeting: Everyone would be allowed to hunt
during times of excess, probably under the same bag limits and
seasons, but as there were fewer and fewer animals, they would
preserve local customary and traditional use; and if there were not
enough animals to support that local customary and traditional use,
they would go to individual criteria. He suggested in that "great
area going from excess down to shortage, we can all be open for
subsistence, local and nonlocal, but if you protect the local,
we've got to give the boards approval to give a nonlocal
subsistence user a lower bag limit." He added, "You've got to have
something between 100 percent and zero."
Number 0317
MR. BOSWORTH said that is absolutely right, adding that he hadn't
quite got to that in the sequence of ratcheting back on other uses.
The law now provides for customary and traditional uses of
subsistence, and he thinks it is important that it do so. He
added, "Right now, with all Alaskans eligible, we all participate
in that." Mr. Bosworth emphasized that because there is an
abundance, the board also creates personal use fisheries, sport
fisheries, and general hunts in which nonresidents participate. As
other uses might have to be restricted because of a shortage, there
must still be a reasonable opportunity for customary and
traditional use; then the boards develop appropriate regulations to
accommodate other uses.
MR. BOSWORTH explained that those appropriate regulations certainly
should, and do, look a little different in many cases from the
customary and traditional use. Seasons might be shorter, bag
limits might be different, and other aspects having to do with the
nature of the hunt could be different. Mr. Bosworth suggested that
has become part of the way the board avoids closing a hunt or a
fishery. However, there are other ways to restrict use without a
closure, and only when there is further depletion of the resource
would actual closures would be necessary. He asked whether his
colleagues had anything to add, noting that this is an important
area.
Number 0398
CHAIRMAN GREEN discussed a hypothetical situation where 20 animals
are needed for customary and traditional use, but the available
animals decrease from 100 to 40 and lower, until they approach the
Tier II or the true subsistence limit.
MR. BOSWORTH replied that they need to protect the amount
necessary, and to provide a reasonable opportunity to take the
amount necessary. "And that's the essence of the subsistence
priority," he stated. "Subsistence is the last to be restricted."
Number 0436
REPRESENTATIVE CROFT stated his understanding that what precludes
putting that kind of system into effect, that ratcheting down and
then finally a true Tier II, is that we don't have the ability
under the constitution now to protect that local use any
differently from nonlocal use.
MR. BOSWORTH agreed, saying "local" implies residence or proximity
to a hunt, and we can't do that.
Number 0464
MR. BOSWORTH returned to the flow chart, noting that they had
already talked about step 4. When the harvestable surplus is
sufficient for subsistence uses, but not all other uses, the board
would adopt regulations for subsistence protecting the reasonable
opportunity for customary and traditional use, and the board may
adopt regulations for other uses, subject to preferences among
beneficial uses. He pointed out that this is in AS
16.05.258(b)(2), and he read from subsections (A),(B) and (C). He
said the point is here, too, that the law does not provide that, in
the time of a shortage, all uses would be ratcheted back together;
it is specific that the reasonable opportunity must remain intact.
MR. BOSWORTH discussed step 5 from the flow chart. When the
surplus is not sufficient for subsistence by all subsistence users,
they first eliminate all other uses and then go into Tier II. He
stated his understanding that there are three criteria in ANILCA;
the state adopted them, more or less, then lost one through the
McDowell verdict. "So now, I think we have two Tier II criteria
that are used to determine dependency," he stated. "The criteria
are level of dependence and ... a question of whether you have
alternatives to that hunt."
MR. BOSWORTH told members it is a bit of a problem without the
criteria of proximity, which is measurable. In contrast, the level
of dependence and other alternatives are hard to measure. He noted
the ease of measuring on a map the distance between a person's
house and the boundary of the hunt area, in order to verify some of
the applications.
CHAIRMAN GREEN commented, "We're trying to get that back to you."
Number 0587
REPRESENTATIVE JAMES said that is the crux of the problem. She
expressed concern, however, that if that is the first "sort" in
determining a subsistence area and who gets it, "the ultimate of
that decision, then, is that when you get to those lower 'sorts,'
they just don't sort" if there is suddenly more activity, for
example, in a community. She asked whether that is correct.
MR. BOSWORTH suggested this may go back to her question of what
happens when there is a change in a community.
REPRESENTATIVE JAMES agreed that is the issue. She said she
herself lives in a rural community but certainly doesn't have all
those other criteria.
MR. BOSWORTH responded that all he could say is that the board is
empowered to address that question and consider whether there is a
need for a change.
Number 0648
REPRESENTATIVE NORMAN ROKEBERG referred to AS 16.05.258. He asked
what occurs when the health of the particular stock or population
is so bad that there can't even be subsistence taking.
MR. BOSWORTH, noting that Representative Rokeberg had arrived
following some testimony, again explained the harvestable surplus
filter, the question the board must ask relating to sustained yield
before getting to any of these steps.
Number 0702
REPRESENTATIVE ROKEBERG asked whether it has occurred and how it
has been enforced.
MR. BOSWORTH replied that there have certainly been instances when
the board, or the ADF&G by emergency order, has been forced to
close subsistence fisheries and hunts; they can do that in a
heartbeat, just as with a sport or commercial fishery, if the
resource appears endangered.
Number 0727
REPRESENTATIVE ROKEBERG asked how difficult it is to enforce.
MR. BOSWORTH said it creates a stressful situation, as these are
typically situations where people depend on that resource.
However, it has never come to his attention as an unusual
enforcement problem, more than closures to other fisheries or
hunts.
MR. REGELIN added, "The area we have done that in wildlife
management is sheep in the DeLong and Baird Mountains. We have
closed those seasons to all take by emergency order, because we had
a large die-off." He said the local people were as adamant as
everyone else, once they saw the numbers and knew what the survey
said. "I don't think we've had any violation of that, because the
communities don't want it to happen" Mr. Regelin said. "And we're
on the verge of now being able to reopen those."
Number 0789
CHAIRMAN GREEN said, "Apparently you do this now, as a matter of
course. It's been suggested in some of the dialogue that we hear
in the halls or in various offices that perhaps the legislation
that would go with this should include that when you get to a
subsistence level, that you should do whatever is necessary to
attempt to rebuild the species that's down in the subsistence range
now, or the Tier II. It sounds like ... you automatically do that;
that really wouldn't be a requirement, because in an order to try
and maintain something, you want to make sure it's there to
maintain."
MR. REGELIN responded that for sheep, for example, they would do
that and let the population rebuild. But in an area like Unit 13,
there are 40,000 caribou, and the habitat can't support more than
that. In fact, last year they had a longer season, trying to
reduce the herd, which they would like to be at about 35,000
caribou. They can easily have more hunters out there.
CHAIRMAN GREEN suggested it may be a reduced-take area, rather than
a subsistence area.
MR. REGELIN replied that Nelchina Unit 13 is a Tier II hunt. This
last year, they had both a Tier I hunt and a Tier II hunt, the
first time they had tried that as an experiment. That is the
contentious area for subsistence hunting, and they issue 8,000 Tier
II permits for that area. "The other largest Tier II hunt, we
issue 150 permits," he noted.
CHAIRMAN GREEN said, "And that Tier II does go through this litany
of work-down."
MR. REGELIN said yes.
CHAIRMAN GREEN commented, "That is a job."
MR. REGELIN replied, "It's a mess."
Number 0885
REPRESENTATIVE JAMES said people in these areas depend upon this
resource for survival, as well as liking to live that way; there
are two facets to it. She acknowledged that the way the ADF&G
operates now makes reasonable sense, because of not wanting to
destroy the resource.
REPRESENTATIVE JAMES expressed concern about two occurrences,
however. The first was a few years ago when there was a reduced
number of fish in the Yukon River and the subsistence fishermen
couldn't fish. Representative James commented, "And of course,
they said, 'Well, we're going to fish anyway; we have to eat, we
can't live without the fish.'" She said she never did hear the end
of the story, then asked, "If these people are really depending on
it, how do we manage to see that they have the resources?"
REPRESENTATIVE JAMES next mentioned Togiak, where the Bering Sea
fisheries were so bad this year, and people asked to take moose in
an area that hasn't had enough moose for hunting for 20 years. She
asked, "Do we, as a state, have any kind of responsibility, and is
there any other kind of alternative method or means for these
people to get the food that they need, when the normal customary
and traditional resource is just not there?"
Number 0984
MR. BOSWORTH responded that the ADF&G had watched the Yukon River
situation closely, including looking at the abundance of other food
sources such as moose, small game, waterfowl and other fish
species. Local people looked at exactly the same things. Through
time, systems in place tend to substitute one food that is
customarily taken for another, and there are stories and
documentary evidence of shortages in times past. Nowadays, people
don't starve, but there still is balancing. If there aren't enough
chum salmon, perhaps extra effort goes into fishing for coho
salmon, which has happened. One way the state got involved was
setting up networks, including transportation to move fresh fish
from one part of the state to another; he believes a number of
shipments were made from Valdez to the Yukon River communities.
That was moderately successful, although some fish arrived no
longer fit for human consumption. Mr. Bosworth said by and large,
the state was concerned with the same questions just asked.
MR. BOSWORTH told members that in some cases hunting regulations
can be adjusted to make up for a shortage. For example, if the
harvestable surplus in a specific hunt, for a specific year, wasn't
all taken, they could perhaps extend the season, which Mr. Regelin
has done in a few cases through his emergency order ability. "So,
I guess the answer is probably yes, that we do have a
responsibility, and these are some of the ways that we've addressed
it in the past," Mr. Bosworth concluded.
REPRESENTATIVE JAMES asked if they can, then, extend the season or
bag limit for another resource for those people, even though it
wasn't necessarily what they customarily or traditionally used.
Number 1112
MR. BOSWORTH explained, "When we're talking about shipping food
around the state, we're certainly not bound by the terms of the
subsistence laws, so we're not talking customary and traditional.
In the context of a subsistence system, of how it has always
worked, that kind of use of alternate food supplies is part of the
system. Now, that doesn't necessarily mean that pink salmon are an
adequate replacement for king salmon, but certainly if starvation
is the alternative, that's what's been done, I'm sure, on many
occasions."
Number 1149
REPRESENTATIVE PORTER asked about an affirmative defense to a
violation of fish and game regulations if the taking is to avoid
starvation.
MR. REGELIN answered that a statute allows a person who is starving
to take game.
CHAIRMAN GREEN suggested that would apply to all residents,
regardless of where they were from, that someone in the outback
could take game to keep from starving.
MR. REGELIN concurred.
REPRESENTATIVE ROKEBERG noted that this bill defines a subsistence
area based on a discrete stock. He asked whether under this bill
there could be a subsistence area for moose, for example, covered
by the same geographic boundary that would be for a nonsubsistence
area for salmon, if that were abundant.
CHAIRMAN GREEN answered that the way this bill is crafted, yes.
Number 1224
REPRESENTATIVE ROKEBERG suggested there must be a definition of a
subsistence area, then, based on each discrete stock in the area.
He asked if this might create a management nightmare, and he said
it seems complicated. He also asked how it would differ from what
the ADF&G does now.
MR. BOSWORTH replied that he isn't sure he completely understands
how the bill proposes to handle these subsistence areas that come
and go. However, there can be, and have been, situations where
there was customary and traditional use of a game species, but no
customary and traditional use of fish. He asked Mr. Delaney if
that is still the case for the Skwentna area.
KEVIN DELANEY, Director, Division of Sport Fish, Alaska Department
of Fish and Game, said no, that has changed. They now have a "C
and T" [customary and traditional] for fisheries as well.
MR. BOSWORTH noted that it is certainly confusing for local people
who are trying to figure out what regulations apply to their
circumstances. "And now you add the federal rule book in there,
and it is even more complicated," he said. "So, believe me, we're
all in favor of keeping this thing as clean and as simple as
possible."
Number 1370
MR. DELANEY stated, "That is essentially what we have now, and
maybe we've been favored by Mother Nature and circumstance, but it
hasn't become an overwhelming burden, partly because your fish
stocks are moving at one time of the year, and there's an
assessment program in place, and your wildlife populations are
being assessed and harvested at other times. And you can conceive
of situations where if everything is in short supply that same
year, you'd have some boundary differences."
MR. DELANEY explained that when there is a shortfall of chum salmon
in a portion of the Kuskokwim River, for instance, they have looked
at whether that population is bound for the Kuskokwim at large or
perhaps up the Aniak. Depending on that finding in their
assessment program, they take action in the appropriate portion of
the drainage, to try to conserve that stock and meet escapement
objectives; that is all done through the ADF&G's emergency order
authority, in season. In that manner, they make adjustments to
standing management plans that are reviewed every three years or so
by the Board of Fisheries. Come the fall of that year, when the
hunting season begins, they roll out the wildlife assessment
program and management strategies, and if there are shortfalls,
they make accommodations as appropriate there. As Mr. Bosworth had
pointed out, in each iteration of the law since 1978, they have
been performing a function similar to that.
Number 1467
CHAIRMAN GREEN referred to the example of having a shortage of game
but not fish. He said from the bill's standpoint, the subsistence
preference wouldn't be an issue in the fish portion. There would
be a right to establish the subsistence area for the moose, and it
would be applicable only to the residents of that area. That is
the difference from what they can do now, because they cannot just
designate by area without being in conflict with the constitutional
equal protection.
Number 1562
REPRESENTATIVE ROKEBERG said the entire state, with the exception
of three or four areas, now is composed of subsistence areas by
definition; they are not worried about artificial boundaries as far
as management is concerned, but are going out and looking at the
stocks. He suggested this is good; they have built up knowledge
about the discrete stocks and populations of fish and game, and
there should be baseline information. However, it seems that every
year, or periodically, they will have to make an assessment of
whether there are various shortages at certain levels that would
qualify as subsistence or nonsubsistence.
CHAIRMAN GREEN pointed out that step 1 is done yearly now.
Number 1646
REPRESENTATIVE ROKEBERG asked whether anything exists in statute
about the concept of highest and best use, as opposed to a
subsistence use. He cited as an example trophy rainbow trout. He
asked whether it is conceivable under existing law that there could
be a highest and best use for a particular population of fish or
game that would exclude it from any kind of subsistence use. He
gave the example of elk, which were never a "C and T" until someone
decided they were.
MR. BOSWORTH replied that the current law does not provide any
species-specific exception to the subsistence priority.
REPRESENTATIVE ROKEBERG suggested they could not, then, designate
a discrete population as having a highest and best use of sport
trophy fishing or catch-and-release, for example.
MR. BOSWORTH answered, "We don't have the authority to do that
now."
REPRESENTATIVE ROKEBERG asked, "But if there is not a customary and
traditional use of that stock, then, could you exclude that from
subsistence taking?"
Number 1720
MR. BOSWORTH replied, "Absolutely. If there was not a customary
and traditional use, then there could be no subsistence regulations
for that."
REPRESENTATIVE ROKEBERG again mentioned the transplanted elk of
Southeastern Alaska and asked how game animals that are not
indigenous to an area become a customary and traditional species.
MR. BOSWORTH replied that in that case, the board considered it and
said no. The area of introduced species is a difficult one, but in
that case, he thinks it was not so difficult.
REPRESENTATIVE ROKEBERG asked about elk on Afognak island.
Number 1812
MR. REGELIN explained that when the board wrestled with that
subject a few years ago, they decided there needed to be a history
of use of one generation, which is about 20 or 25 years and is
legally defined. That is now their rule of thumb. Mr. Regelin
indicated there was a similar ruling on introduced musk oxen. He
noted that as board membership has changed, there have been
different rulings on that, because there is no guidance in the
statutes.
CHAIRMAN GREEN asked whether that would also apply in the case of
bison, for example.
MR. REGELIN said there are other things involved in that. For deer
on Kodiak Island, they had been used for a long time. On the other
hand, for bison in Delta, there has always been a very restricted
drawing hunt; therefore, it probably never would qualify. He
pointed out that the next board may say it is two generations; it
is the board's call.
Number 1931
REPRESENTATIVE ROKEBERG referred to state statute; he asked how it
works when they separate out a discrete stock or population, to
take it into consideration when applying the definition and
principles of customary and traditional use.
MR. BOSWORTH said he had mentioned that as one principle upon which
this whole exercise depends. There is a focus on the stock or a
portion of the stock, the population or a portion of the
population; that is what the determinations are made on, or about.
REPRESENTATIVE ROKEBERG explained that he had brought it up because
of criticism of the changes made by U.S. Senator Stevens in ANILCA
regarding the definition of "customary and traditional." He
suggested those created problems by losing a certain flexibility in
implementation, because under the federal definition they may not
be able to consider the discrete stock. He asked whether he was
missing something.
MR. BOSWORTH replied, "Well, I'm not tracking with you."
MR. REGELIN said the way the state does it now, it depends on the
species. For caribou, customary and traditional determinations
have been made on a herd basis, if the herd moves around. It is
more difficult to do for caribou than for moose. For moose, the
determination is usually done on a sub-unit of a game management
unit; those boundaries are usually geographical boundaries, so that
there is a fairly discrete population of moose there. As far as
the way the regulations have been developed for many, many years,
there are separate regulations for each subunit. Mr. Regelin said
he doesn't believe there is a problem the way this is done.
REPRESENTATIVE ROKEBERG indicated he probably hadn't asked the
question right.
Number 2118
REPRESENTATIVE PORTER acknowledged it was an overgeneralization,
then asked: To the extent that this legislation is trying to bring
us back, basically, where we were pre-McDowell, what is good about
it and what is bad about it?
Number 2163
MR. BOSWORTH said there is an easy answer. He worked for four
governors on this issue, under three different subsistence laws,
which took work to implement. He was on the staff to both Hickel's
task force and the most recent bipartisan task force. He
recognized the constraints to crafting a subsistence law that
works, including but not limited to ANILCA, practicality and cost.
MR. BOSWORTH told members, "I can really only point to that
progression and the fact that once again, with a concerted effort
throughout the summer, with all the best minds that we could
assemble, the task force package that was put together takes us
back to pre-McDowell. It requires a constitutional amendment, as
you know. ... And it builds on the efforts of previous ...
legislatures and boards of fisheries and game in crafting the right
wording for definitions, and for the steps that I've outlined here
for the board to follow in doing its work. And it's absolutely the
best effort I've ever yet seen to do what needs to be done."
Number 2346
REPRESENTATIVE PORTER asked what in the bill is inconsistent with
that, then.
MR. BOSWORTH said as he understands it, the main difference in the
draft he has seen of HB 406 is that all Alaskans are eligible for
subsistence until there is a need to restrict eligibility. As
Chairman Green had indicated, this can be characterized as a hybrid
of the pre-McDowell and post-McDowell approaches. Mr. Bosworth
said there are good reasons for maintaining a distinction between
what is subsistence and what is not, even when there is an
abundance.
MR. BOSWORTH explained, "Frankly, it's counter-intuitive to me that
I would be eligible to go down to fish for subsistence along with
my friends in Angoon. I don't need to. I don't need to compete
with them, in a sense, for what could be a limited resource. I'd
be quite comfortable with the way we would like to do it, get it
back to pre-McDowell, where I could participate in a personal use
fishery, I could get some number of fish that I like to take home
and smoke or can or whatever, and know that there is something
different about the people in Angoon [ends mid-speech because of
tape change]."
TAPE 98-47, SIDE A
Number 0006
MR. BOSWORTH said to him, providing a different kind of opportunity
for those folks is far more intuitively correct than a law that
would allow him that same opportunity. He acknowledged this is a
policy call, and that it is appropriate to be deliberating on it.
Number 0095
REPRESENTATIVE PORTER asked whether there are other major
differences between the task force report and this bill.
MR. BOSWORTH said the bill version he saw had an eligibility
approach, applying individual criteria for a large number of
potential participants within subsistence areas, even though it was
not yet at the level of Tier II. He added, "Or perhaps it is Tier
II, depending on how you read the bill, but the point is, the
individual eligibility approach is something different and
something new, and ... we've, I think, testified in other forums
about the complexity of that approach, the cost, the intrusive
bureaucracy, and this sort of thing." Mr. Bosworth concluded by
saying he has a personal problem with that approach and believes
there are better ways to accomplish that objective.
Number 0170
CHAIRMAN GREEN pointed out that a proposed committee substitute
takes that part out. He then suggested that as the bill is now
crafted, when there is plenty for everyone there is no difference
from the way they operate now; it is only when they get to the
point of Tier II that there is a difference. Suggesting that Mr.
Bosworth had responded to Representative Porter that he prefers the
current method or the task force method, Chairman Green said, "But
if we're leaving that to your discretion now through regulations,
it seems to me that gives you what you're after."
Number 0237
MR. DELANEY said he thought Representative Porter had asked the
difference between this bill and what it takes to get back to pre-McDowell. He
Alaskans at times where there is not a shortage being eligible for
a subsistence preference or priority,' a first set-aside, a base
level of regulational opportunity that exists outside of
nonsubsistence zones." He said that is different from pre-McDowell.
Number 0270
REPRESENTATIVE PORTER said from that he understands there are
methods and means for those who qualify in an area for subsistence,
and methods and means for those who qualify in the same area for
sport. And if there are no restrictions, with his fishing license
he can sport fish; he may have a different bag limit, for example,
than the same area provides for someone with a subsistence permit,
who can take more, basically. Representative Porter suggested Mr.
Delaney is saying this bill eliminates that distinction when there
is no restriction, so that everyone can take under the same bag
limits and criteria.
Number 0353
MR. DELANEY provided an example, under the 1992 law, post-McDowell.
If he and Representative Porter, as state residents, want to fish
in a river in a rural part of the state, it would require buying
sport fishing licenses and abiding by sport fishing regulations,
seasons, limits, methods and means. However, while there - in
addition to fishing with a hook and line under the sport fishing
regulations - they may participate in the subsistence fishery,
because all Alaskans are eligible for subsistence. Then they would
fish with the methods and means, and be subject to the limits that
exist in that area for subsistence. And they could do both on the
same day, or on the same trip.
MR. DELANEY continued, "Now, if all Alaskans were not eligible for
subsistence out in these areas, then you and I would buy our sport
fishing licenses and participate only in the sport fishery, and not
be eligible to do both at this time when nothing needs to be
restricted. In each case, I think, at least in concept, if there
was a shortage - not enough to meet the needs - and we fell into a
Tier II situation, we would start to get sorted out, but not at
that first level, now or post-McDowell, post-'92 law, or ... under
the concepts embodied in [HB] 406, as we've got it in front of us
now."
Number 0478
REPRESENTATIVE JAMES said having these people out there, able to do
this without a license, bothers her for many reasons. She stated
her understanding that under current law, and even pre-McDowell,
"there was no discernment as to whether or not they ever would not
be qualified again, once they lived in this area and they had the
customary and traditional, forever." She indicated it makes sense
for Natives but not for others.
REPRESENTATIVE JAMES referred to the eight criteria and the
determination of what use is available. She said someplace along
the line, they must determine the user who qualifies; she suggested
a little extension of those eight points would do that. Once the
user is defined, it would make no difference where that person
lives, because the "sort" has already been done by establishing the
nonsubsistence area and the customary and traditional uses.
Representative James concluded, "So, then, why do we have to say
'rural'? That's my point. Why do we have to say where they live
when we've already defined them specifically enough? We know who
they are."
Number 0638
MR. BOSWORTH acknowledged there is a certain appeal to being able
to pick and choose who is or is not dependent on subsistence,
culturally, nutritionally and so forth. However, they have never
found a way that was verifiable, fair to all of the considerations
that individuals might have about their dependency, and that wasn't
exorbitantly expensive and didn't involve an intrusive government
bureaucracy coming between people and their food. He pointed out
the importance of food to humans in general, and that government
involvement in that is offensive to many, many people; it is also
offensive to others who don't want to pay for the bureaucracy to
accomplish it. There are practical, philosophical, economic and
perhaps other reasons why the state has never been able to
successfully put together and get approval for that kind of system.
MR. BOSWORTH told members that was the essence of the effort at
Governor Hickel's task force level, to try to find an individual
criteria approach that worked, but it had all the problems he'd
just mentioned. There was really no way of validating someone's
claim. They had envisioned appeals of a negative finding on an
individual basis, and a process for adjudicating those appeals.
They had looked at the approach that the Commercial Fisheries Entry
Commission takes to identifying individuals who qualify for
fisheries; Mr. Bosworth noted the substantial bureaucracy
associated with that, for only 15,000 permittees.
MR. BOSWORTH said for all of those reasons, "rural" from the start
has seemed to be a shorthand or a proxy for solving the eligibility
problem, acknowledging up front that it is overinclusive and that
some people would be eligible who have less dependence than others.
By the same token, in nonrural areas, there are people who probably
should qualify, and it is under-inclusive. Those are built into
the "rural" eligibility approach. Mr. Bosworth noted that it
worked throughout the '80s with minimal problems and complaints, so
he believes there is some reason to think it could continue to
work.
MR. BOSWORTH pointed out that the boards have been careful to
provide alternatives for people in the cities; he mentioned
personal use fisheries as an example of a means to accommodate the
under-inclusive part of the equation. Likewise, in rural areas,
where some don't need to participate in subsistence fisheries and
hunts, many don't, or if they do, it is not at a noticeable level
in the tabulation of harvests. Mr. Bosworth said they manage the
animals based on harvest, but there is a point at which a little
extra harvest would really be unnoticed, even to the department's
biologists in the field. "So, it worked," he said. "And that's,
I think, why we're still talking about it."
Number 0936
REPRESENTATIVE JAMES agreed drawing a line around where they live
is easiest, but it also excludes people who are not city-dwellers
by drawing them out of the picture. She said it seems there is a
way to define who these people are. "They know who they are," she
added. "Let them mark a box and say, 'I'm one of those people,'
and let somebody challenge them that they're not."
REPRESENTATIVE ROKEBERG asked whether they have ever discussed
using somebody's word, relying on an honor system for Alaskans. He
further asked whether they couldn't solve this by using the
criteria in place, and by using something like the permanent fund
dividend check-off system to say, "Yes, I have a rebuttable
presumption that I am qualified."
Number 1031
MR. BOSWORTH replied that the closest parallel is the Tier II
application form, wherein people describe their individual
situations, which become the basis for eligibility. It has proven
to be stressful, divisive among neighbors and expensive, and more
than one person has called it a liar's game. "So, I wish it was as
easy as you described," Mr. Bosworth concluded.
Number 1065
REPRESENTATIVE PORTER observed that it begs the question of the
requirement of ANILCA. If they cannot craft something close to the
requirement for a rural preference, it is moot.
Number 1076
REPRESENTATIVE BILL WILLIAMS noted that Bethel, Sitka and Kotzebue
may be considered urban under this bill. He asked how they can
settle this for the long term for such areas.
Number 1136
MR. BOSWORTH answered that he and the chairman had talked about
whether it makes more sense to identify up front, in legislation,
which communities are in or out, as opposed to identifying in
legislation a process by which the boards would make that
determination. He suggested that is a legitimate public policy
question. If people feel like having certainty about eligibility
when this debate is through, then having something in statute
probably makes sense. If, on the other hand, people believe that
board deliberation is the appropriate level for these issues to be
debated, then probably that is the appropriate route.
CHAIRMAN GREEN thanked the testifiers. He noted that
Representative Bunde, who was absent this day, had suggested
previously that if something like HB 406 were to become law,
subsistence would apply to all moose hunts because of their rarity.
Number 1262
MR. BOSWORTH noted that right now, all Alaskans are eligible for
subsistence. As he reads the bill, in times of relative abundance
all Alaskans would be eligible for subsistence, so there is no real
change in that specific case. There are many moose hunts in which
there is a sufficient abundance so that there is a subsistence hunt
on the books and also nonresident hunts on the books; that becomes
sort of the definition of an abundance. There are a small number
of Tier II moose hunts. He asked Mr. Regelin how many.
MR. REGELIN said 10.
CHAIRMAN GREEN suggested those are in isolated areas around the
state.
MR. BOSWORTH said if the Alaska population grows, and if Alaskans
continue to all be eligible for subsistence, presumably there could
be additional Tier II hunts. But now there are relatively few.
Number 1320
CHAIRMAN GREEN responded, "And so, by reference, if we were to
adopt the regulations in statute, you would still be able to
operate essentially as you are now, so you wouldn't be
automatically thrown into a Tier II wherever the moose occur."
MR. REGELIN said he believes that is correct.
Number 1329
REPRESENTATIVE ROKEBERG excused himself to chair the House Labor
and Commerce Standing Committee.
Number 1432
DICK BISHOP, Member, Board of Directors, Alaska Outdoor Council
(AOC) came forward to testify as the subsistence spokesperson for
that organization. He first responded to Mr. Bosworth's comment
about the efficacy with which the law worked in the '80s, when it
was under the federal guidelines by virtue of the state's being in
compliance. Mr. Bishop told members there are two reasons it had
appeared to work reasonably well. First, the subsistence priority
was seldom applied to either fisheries or game, relative to the
potential for application; there were very few instances where an
issue was presented as a high-profile issue that demanded that a
subsistence priority be applied in that particular situation.
MR. BISHOP said second, much of the difficulty with the application
of that law was not apparent to the general public. It was easily
ignored or not mentioned by people who would rather not mention it.
Dozens of lawsuits were filed while the state was in compliance
with the federal law, ANILCA. At any given time from 1986 to 1989,
and for some time thereafter, there were perhaps 30 or 40 lawsuits
that had been filed.
MR. BISHOP said those were principally the result of the provisions
of ANILCA that demand that a subsistence user who is sufficiently
displeased with how the priority is being made available to him or
her has the right, under federal rules, to take a complaint to
federal district court and have it heard there. "And when the
state was in compliance and running the federal law, there were
many complaints made about how the state allocated the subsistence
opportunities," Mr. Bishop stated. "The classic one, which
illustrates very well how the state will have to, to a large
extent, operate if the state ... does comply with federal law, was
the 1989 Bobby case."
Number 1518
MR. BISHOP commented on an earlier observation that day, saying,
"In the Bobby case, there are several important principles
enunciated in interpretation of the federal law that are really
important to still keep in mind. ... Unlike your bill, which I
compliment you on having it in there, under the federal law - and
it's still the same, regardless of Senator Stevens' amendments -
the standard is now a reasonable opportunity for a customary and
traditional use. And in the Bobby case, it was customary and
traditional use, and Judge Holland ruled that consistent with the
federal law, you could not substitute an abundance of caribou for
a scarcity of moose, because the standard was not need, was not
nutritional, it was not hunger. It was customary and traditional
use, and if, by golly, the custom and tradition was to shoot moose
in that particular area, then that was a tradition that had to be
upheld, under the terms of the federal law. And that's still the
case."
MR. BISHOP continued, "So, if you anticipate attempting to comply
to federal law, that may be something that really needs attention.
Otherwise, we're going to have that kind of problem. Can you take
chum salmon ... for a lack of red salmon? No. Can you take red
salmon for a lack of king salmon? No. Can you take whitefish for
a lack of chum salmon? No, not under the federal law, you can't.
So, that's a consideration."
Number 1599
REPRESENTATIVE PORTER said that is based on an interpretation of
ANILCA. He asked, "But if we got some fixes to ANILCA, that
situation would be changed, I presume?"
MR. BISHOP agreed that if an amendment to ANILCA were accomplished
that addressed that, it could be fixed. "But I have heard from a
reliable source that ANILCA can't be amended," he added.
CHAIRMAN GREEN said they are going to take a shot at it.
REPRESENTATIVE PORTER commented, "We're here for naught if that's
the truth."
Number 1624
REPRESENTATIVE CROFT asked: If there is a customary and
traditional use of moose, and possibly of caribou in the same area
or a similar area, and there is a shortage of either one, why
should it be the local residents with a customary and traditional
use who must shift from one to the other, rather than the sport
hunter who is flying out to hunt?
MR. BISHOP asked whether that question was for him, saying he was
hoping it was for someone else. He suggested that by the time it
gets to that stage of the game, the nonsubsistence hunters have
been shut down.
Number 1681
MR. BISHOP again discussed the interpretation of ANILCA, which
dramatically affects state administration of the federal law if the
state is in compliance. A second aspect of customary and
traditional use is that under the interpretation of the federal law
in the Bobby case, the subsistence priority demands that all other
uses must be eliminated before customary and traditional use is
restricted. Mr. Bishop said as far as he knows, except for the
modification of reasonable opportunity added by Senator Stevens'
amendment - which changes it a little bit - that mandate is still
there, under federal law. Therefore, that is another, very
important, consideration with regard to the balance of benefits and
costs of complying with the federal law. Mr. Bishop concluded by
saying that Judge Holland in that case had said they cannot
restrict customary and traditional uses of a fish or game
population until all other uses have been eliminated.
Number 1741
CHAIRMAN GREEN responded, "Actually, I think that's what we're
saying in here, that we aren't going to restrict it in the
subsistence area. We're saying that the customary and traditional
use would be maintained. All the other uses would be excluded
first."
MR. BISHOP added, "In that local area."
CHAIRMAN GREEN affirmed that.
REPRESENTATIVE PORTER suggested it is on a discrete basis.
CHAIRMAN GREEN agreed, adding that there is no need otherwise.
Number 1760
MR. BISHOP provided reasons that the AOC doesn't favor a
constitutional amendment. The Alaska constitution upholds a
concept of common use of fish and game resources by all Alaskans,
and equal opportunity for access to those. That doesn't mean a
cookie-cutter allocation but equal opportunity to try to qualify,
for example, as a subsistence user. The AOC believes that is a
very important principle. Mr. Bishop pointed out that the Alaska
Supreme Court has said that the use of fish and game to obtain
basic necessities is a very important value that runs to all
Alaskans.
MR. BISHOP advised members that the AOC feels strongly that to
compromise that by establishing an arbitrary rule based on
residency or some other arbitrary closed-class distinction is a bad
idea, both in terms of fairness in allocation - because he believes
there are alternative ways to accomplish that - and to accommodate
subsistence uses. It is an abridgement or an erosion of people's
civil rights, and it is a very important issue. He said there are
other problems with ANILCA that he would not address that day.
Number 1840
MR. BISHOP said with regard to the bill itself, one important
question discussed a lot within the AOC is that if legislation is
passed establishing a subsistence priority, then people should be
able to know upon reading the bill - or having a good reading of it
for them, if necessary - whether they qualify. "And I think that
it's fair to say that, under the terms of the current version of
House Bill 406, that people will be in a fairly continuing state of
uncertainty about whether they qualify or whether they don't, other
than the nonsubsistence areas," he added.
Number 1879
MR. BISHOP told members some nagging problems persist both in terms
of ANILCA and state law. "Culture" is undefined and, in his view,
undefinable; unless it is defined specifically as including all
cultures, it is left open to an unending series of interpretations
that will demand additional privileges under the context of
culture. Mr. Bishop noted that they are talking about a common
property resource. He doesn't believe it is appropriate to have an
open-ended opportunity to, by various subjective interpretations,
say that more and more use of that should be made.
MR. BISHOP said similarly, the definition of "customary and
traditional use" should be tightened up. One way specific to
Senator Stevens' amendments is to remove the words "and practices"
from "patterns and practices," because that implies recognition of
some practices that are, and have been historically, patently
illegal, such as the well-known example of spotlighting deer cited
in the Totemoff case. Mr. Bishop offered to provide a draft
definition, which specifies that historically illegal past or
ongoing practices should be precluded from being considered
customary and traditional uses.
CHAIRMAN GREEN said they would appreciate that very much.
Number 1963
MR. BISHOP suggested it would be helpful, in being definitive with
regard to the difference between subsistence and nonsubsistence
areas, if the wording was, "where subsistence is not the principal
element of the economy." The converse would be that subsistence is
the principle element of the economy in a subsistence area. If the
intent is to ensure an ironclad priority for subsistence use to the
people who are substantially dependent on the use of fish and game
for their livelihoods, lifestyles and basic necessities, then they
should say it: The principle element of the economy. Not many
people are in that circumstance, he added.
Number 2010
CHAIRMAN GREEN asked whether Mr. Bishop would consider it
acceptable if that were the criteria for determining the area that
would be permissible, rather than the individual.
MR. BISHOP answered that he believes, and the AOC has always held,
that there ought to be an individual criteria, too. They had
considered some way to allow that kind of consideration to be
broadened, and that could be a way to do it. In addition, he
believes there is need for providing the opportunity to pursue a
subsistence lifestyle based on how one lives, not where; he
suggested some provision for people who may need to be identified
as subsistence users, but who don't live in an area like that.
CHAIRMAN GREEN asked whether Mr. Bishop believes all other
potential subsistence users should have the right to impact a
designated area in Southwest Alaska, for example, above the rights
of those who live in the area, in times of a low surplus above the
sustained yield level. He pointed out that it could create
problems in that area. He said their concept is to say it is just
for the local area, for that particular species; even then, if
there isn't enough, there would be some sort of allocation among
those people. There would be other areas where that same species
would be more harvestable; logically, people wouldn't want to go
into that low-surplus area anyway, so that they really wouldn't be
depriving anybody.
MR. BISHOP agreed. He said the principle he is trying to express
is that there be an opportunity for people who may be just over the
line to exercise their interests and satisfy their values by being
able to qualify in some fashion.
CHAIRMAN GREEN indicated he thinks that could be accomplished
through the rebuttable presumption.
Number 2120
REPRESENTATIVE PORTER noted that there are two levels of shortage.
One would allow anyone in the area an adequate opportunity. In
addition, someone who met the criteria that would kick in for the
second tier would be qualified to come in.
CHAIRMAN GREEN explained that they have in mind that someone could
rebut the presumption. If a person could show that he or she is
just as qualified as those inside the line, but the line excluded
that person by accident or whatever other reason, that person could
qualify. However, a person three drainages away who had no history
of going to that particular area wouldn't qualify.
MR. BISHOP said it sounds like they are headed the right direction.
Number 2214
REPRESENTATIVE JAMES suggested they are getting somewhere. If
there are criteria that individuals need to meet, those people will
know who they. It excludes the necessity of having a line drawn,
which is the issue. Representative James then said she understands
the business of meeting the requirements of ANILCA, the underlying
purpose of which is to provide an ongoing opportunity for Alaskans
who have depended on a subsistence lifestyle for years. She said
if that can be done without labeling them as rural, she cannot
believe it wouldn't be acceptable.
Number 2227
REPRESENTATIVE PORTER suggested that someone who lived a
subsistence for four generations in a subsistence area, then moved
to Mountainview, would no longer qualify according to ANILCA.
REPRESENTATIVE JAMES said that is because that person wouldn't want
to live a subsistence lifestyle anymore.
REPRESENTATIVE PORTER replied, "No, they may want to, but they lose
their ability under ANILCA, and that's one that I don't think that
we'll ever be able to change."
CHAIRMAN GREEN said that is why they have it listed to an area,
rather than statewide.
Number 2251
REPRESENTATIVE WILLIAMS referred to Mr. Bishop's opening statements
regarding common use for all Alaskans, erosion of civil rights, and
customary and traditional use. He suggested that Mr. Bishop had
expressed, in other hearings, that he had sat in on public hearings
held when the Alaska Native Claims Settlement Act (ANCSA) was
passed.
MR. BISHOP clarified that as a staff person for the ADF&G, he had
sat in on many hearings on ANILCA, but not ANCSA. However, he had
commented on ANCSA from time to time.
REPRESENTATIVE WILLIAMS mentioned the push to get ANCSA signed in
1971, and promises to take care of the customary and traditional
subsistence lifestyle of Alaska Natives, which he said was also
stated in ANILCA. He asked Mr. Bishop, "Would you say that the
state of Alaska and the federal government helped erode the civil
rights under ... the Alaska Native Claims Settlement Act?"
Number 2376
MR. BISHOP said no, he doesn't believe ANCSA eroded civil rights at
all. While he wouldn't vouch for its perfection or imperfection,
it was a sincere attempt made by a lot of people, including Alaska
Native leaders and the best legal counsel in the country, to create
a fair and just settlement.
REPRESENTATIVE WILLIAMS asked whether the promise made to take care
of the subsistence lifestyle of Alaska Natives wasn't part of that
erosion. He commented, "That's why we're here today, trying to
take care of that subsistence lifestyle of the rural communities
today. It just didn't happen. ... It wasn't because the state of
Alaska asked us to bring subsistence into being. It just didn't
happen then, in 1980, when ANILCA was passed."
MR. BISHOP acknowledged Representative Williams' reference to the
content of the committee reports and correspondence relating to
ANCSA. He said there was a recognition that the federal and state
governments had a responsibility to see to the subsistence needs of
Alaska Natives, and that was very clear. As he recalled, it was
general; it did not specify any particular plan or provision. But
it certainly was there. There was a legitimate concern about that
being badly eroded by the creation of vast conservation system
units under ANILCA, and a legitimate concern that at that point
there be some provision given, or attention paid, to subsistence
uses. Mr. Bishop said he shares that concern.
TAPE 98-47, SIDE B
Number 0006
MR. BISHOP said it was conscientiously but clumsily addressed in
ANILCA. He believes the Alaska Supreme Court has confirmed that,
by saying the rural priority as an attempt to accommodate the basic
necessities of Alaskans to obtain food is extremely crude. "And I
agree," Mr. Bishop said. "It is. There's a better way to do it,
and it doesn't require a constitutional amendment. It depends on
the individual criteria."
CHAIRMAN GREEN asked whether that would prevent federal takeover
and comply with ANILCA.
MR. BISHOP said it would not, and he thinks that is a different
matter. He believes there is no way the state can reach a fair and
therefore lasting settlement based on sound conservation without
amendment of ANILCA and the elimination or serious modification of
the rural priority. The bottom line is that the rural priority is
an arbitrary, closed-class rule that violates Alaskans' civil
rights, and it is a basis for a host of mischief counter to sound
conservation. It needs to be changed, and there is nothing
sacrosanct, in his view, about ANILCA.
Number 0064
CHAIRMAN GREEN pointed out that the congressional delegation has
told the legislature repeatedly that without modification toward
that end, the state will lose control of fish and game. He added,
"They haven't discounted the fact that we can make some
modifications to ANILCA, but we can't change the thrust of it." He
asked whether Mr. Bishop was saying he would prefer to take that
risk than to try to move toward the center somewhere.
MR. BISHOP answered with a qualified yes, in that if the state
changes its constitution and complies with federal law, it will be
required to operate under the mandates of the federal law, Title
VIII of ANILCA, which may possibly be amended further to an unknown
degree. On the other hand, if the state decides not to conform to
federal law, then the federal government takes over management of
fisheries and expands management of game. The basic framework
under which the state functions would be the same, in essence.
There would be a rural priority and federal court oversight of
anything that goes on there, and all of the terms of ANILCA would
be virtually the same and in place.
MR. BISHOP stated, "And what you lose, however, is any opportunity
for the state to have legal standing to challenge some of the
unsettled and uncertain questions relating to navigability, the
extent of federal authority over fish and game management in
Alaska, which we might had found out, had not the Governor dropped
that lawsuit, Alaska v. Babbitt; but the state is not at liberty to
pursue that now, unless the legislature can."
Number 0155
CHAIRMAN GREEN said Mr. Bishop had named two of perhaps five or six
conditions that would have to be changed in ANILCA to be palatable
to most Alaskans. He asked whether it would be acceptable if the
constitution were narrowly changed, with a package that demands
that these changes in ANILCA occur.
MR. BISHOP agreed there is quite a list of changes. He indicated
that idea would be well worth consideration, although he could not
make that commitment for the AOC. From his own standpoint, it
would a last-gasp, when-all-else-failed consideration, not the best
alternative.
CHAIRMAN GREEN asked if Mr. Bishop was saying he would prefer that
the state draw a line in the sand and say, "You've got to change
ANILCA; we're not going to change our constitution, and we'll take
the consequences."
MR. BISHOP said the state doesn't have a lot to lose by challenging
the usurpation of management authority and responsibilities by
federal agencies.
CHAIRMAN GREEN noted that if the pending lawsuit prevails, this
would all be moot.
Number 0231
REPRESENTATIVE WILLIAMS asked whether the federal government can't
do just about anything they want anyway, by passing a law, as they
are the supreme law of the land.
CHAIRMAN GREEN replied, "Of their land, at least, not ours."
REPRESENTATIVE WILLIAMS asked what happened to the 90/10 split.
CHAIRMAN GREEN said, "That's their land, though."
REPRESENTATIVE WILLIAMS said we have 60 percent of their land here
in Alaska. He asked how we deal with that.
CHAIRMAN GREEN said with great difficulty.
Number 0256
MR. BISHOP said that is one of the unsettled legal questions. The
issue remains of whether Congress gave the federal administration
the authority to manage fish and game in Alaska, either on federal
public lands or on state and private lands and waters. He said in
looking at the complaint the state filed in 1992 or thereabouts,
where it carefully documents the history of ANILCA, that authority
was not given to the federal government. He suggested that is
still a valid question for the legislative lawsuit, for example, to
pursue.
CHAIRMAN GREEN agreed, noting that it is in the 1998 lawsuit by the
legislature.
MR. BISHOP added, "And similarly, on the navigable waters. So, I
think the short answer is no, the federal government is not
necessarily at liberty to do whatever it wants, because under the
property clause, unless Congress - as I understand it - has
explicitly authorized the federal government to do something, it
cannot exercise spontaneously its property right."
CHAIRMAN GREEN replied, "And that, I think, is the essence of this,
saying, 'All right, on one hand we are suing the federal government
for three reasons, one of which you just expounded on; and now, on
the other hand, we're trying to negotiate should we lose in the
lawsuit.' ... And that requires that we erode a little of our
stance, our own state constitution very narrowly. That's what
we're, in effect, trying to do, and get a concession from the
federal government."
CHAIRMAN GREEN continued, "Now, can we trust them in the future?
I don't know. But I think that certainly would stand a strong case
if, on one hand - and I think that would come to pass long before
the resolution of the lawsuit - it would certainly go a long way to
say, 'Hey, federal government, you made a deal again, and now you
broke it again.' I think the Supreme Court, as we saw in the
recent case ..., I think they would look at the fairness of that
issue, and that's what we're really trying to do."
CHAIRMAN GREEN thanked Mr. Bishop and asked him, as he had asked
others, whether the committee may call upon him again in its
deliberations. He noted that it is an Alaskan issue that must be
solved by all Alaskans working together.
Number 0359
REPRESENTATIVE WILLIAMS told members he feels strongly about not
having the federal government come in and start managing our lands.
He pointed out that in Southeast Alaska, there is no longer a
timber industry because the federal government manages it.
CHAIRMAN GREEN said that is an excellent point.
MR. BISHOP concluded by saying he likes a sure thing, too. "And if
you really want a sure thing as far as federal management, go right
ahead and amend the constitution, we'll have it," he added.
Number 0397
CHAIRMAN GREEN announced at 3:38 p.m. that the House Judiciary
Standing Committee meeting was recessed until Saturday, March 28,
at 1:00 p.m.
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