Legislature(1997 - 1998)
02/03/1998 01:08 PM House RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
February 3, 1998
1:08 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Fred Dyson
Representative Joe Green
Representative Irene Nicholia
Representative Reggie Joule
MEMBERS ABSENT
Representative Ramona Barnes
Representative William K.(Bill) Williams
COMMITTEE CALENDAR
SUBSISTENCE WORK SESSION: OVERVIEW OF SUBSISTENCE PROPOSALS
PAST AND PRESENT
(* First public hearing)
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
THEODORE POPELY, Legislative Assistant
to House and Senate Majority
Alaska State Legislature
Capitol Building, Room 208
Juneau, Alaska 99801
Telephone: (907) 465-3720
POSITION STATEMENT: Answered technical questions.
RON SOMERVILLE, Contractor
to House and Senate Majority
4506 Robbie Road
Juneau, Alaska 99801
Telephone: (907) 463-3830
POSITION STATEMENT: Presented a cross comparison of existing
statutory provisions, the subsistence task
force proposal, and HB 320.
ACTION NARRATIVE
TAPE 98-4, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:08 p.m. Members present at the
call to order were Representatives Ogan, Dyson and Green. Co-
chairman Hudson arrived at 1:09 p.m. Representatives Nicholia,
Masek and Joule arrived at 1:10 p.m., 1:11 p.m., and 1:12 p.m.,
respectively.
SUBSISTENCE WORK SESSION: OVERVIEW OF SUBSISTENCE PROPOSALS PAST
AND PRESENT
Number 0107
CO-CHAIRMAN OGAN stated achieving a subsistence solution requires
navigating through very treacherous waters which takes a good
vessel, crew and compass. The House Resources Standing Committee
is the vessel and crew. And, the compass is the Constitution of
the State of Alaska to the north; the Alaska Statehood Act to the
south; the public trust doctrine to the west; and the Constitution
of the United States of America to the east. But, most
importantly, an accurate chart is needed which is what the House
Resources Standing Committee will attempt to create. There have
been quite a few soundings taken already including the current
Governor's task force and past governors' task forces. Today is an
overview of previous work on building the chart. In addition, any
time one looks at a chart there is always deviation from true
magnetic north; therefore, it is important to identify and look at
the deviations to prevent getting hung up on rocks somewhere.
Number 0301
CO-CHAIRMAN BILL HUDSON added a good lifeboat is also needed.
Number 0331
REPRESENTATIVE FRED DYSON added it always makes sense to pay
attention to the tide, weather and wind.
CO-CHAIRMAN OGAN called Mr. Popely and Somerville to the table to
continue their presentation from last week.
Number 0536
THEODORE POPELY, Legislative Assistant to House and Senate
Majority, Alaska State Legislature, stated he made a presentation
last week and called on Mr. Somerville to continue the presentation
with a statutory comparison of the provisions.
Number 0563
RON SOMERVILLE, Contractor to House and Senate Majority, explained
there are a lot of similarities between the existing state statute
and the proposals. And, there are some distinct philosophical
policy decisions made in the changes. The major issue is the
assumption and the necessity to pass a constitutional amendment.
The assumption is intrinsically tied to the implementation of the
proposal. This is primarily to give the legislature permission to
discriminate based on residency. There is a presumption that this
can not be implemented because of the McDowell and Kenaitze cases.
MR. SOMERVILLE further stated, in addition, the definition of
subsistence is the same as in state law, except for the elimination
of the clause, "by resident domicile in a rural area of the state."
It is not an attempt to shift the emphasis away from rural but to
reconstruct the statutes elsewhere. The subsistence task force
proposal defines subsistence as, "areas and communities classified
as rural." It also defines rural community or area as, "a
community or area substantially dependent on fish and wildlife for
nutritionally and other subsistence uses." There is a link even
though there is a slight change. In terms of policy, it is
basically the same.
MR. SOMERVILLE further stated, in addition, the subsistence task
force proposal retains a lot of what already exists in state
statute in terms of a tiered system. In other words, if there are
adequate resources to meet all of the needs, then all uses are
provided for including subsistence. If there is not enough
resources to accommodate all the nonsubsistence uses, the boards
are instructed to "ratchet down" the regulations in such a fashion
to give a preference to subsistence uses and to provide for other
uses. In the last tier under the subsistence task force proposal,
if there is not enough to meet the human consumptive subsistence
uses, then the boards are instructed to further restrict it amongst
the subsistence users themselves. This is the first time the
verbiage "human consumptive users" appears.
MR. SOMERVILLE further stated, in reference to the definition of
rural community or area, the language "substantially dependent" is
not defined in statute. In terms of implementing a rural
preference or priority, the subsistence task force proposal takes
the approach of institutionalizing the nonsubsistence areas
currently in law. However, boards would be given the opportunity
to review the areas in terms of their dependency to determine their
correct classification.
Number 1066
MR. SOMERVILLE further stated the subsistence task force proposal
strengthens the role of the advisory committees by requiring
deference to their proposals as they go through the process. It
requires the creation of regional subsistence councils similar in
structure to federal law today. Thus, all subsistence proposals
from advisory committees would have to go through the proposed
regional subsistence councils, and the boards would have to give
them deference, especially unanimous recommendations.
MR. SOMERVILLE further stated the subsistence task force proposal
expands the proxy system to accommodate some urban subsistence
users with family ties in rural areas. The subsistence task force
proposal also retains the concept of maintaining a reasonable
opportunity, not a guarantee of taking. The subsistence task force
proposal also establishes a provision for educational hunting and
fishing permits that clarifies what has been attempted by the
Department of Fish and Game.
Number 1196
CO-CHAIRMAN OGAN stated the root of the problem with subsistence is
the fact that both rural and Native people feel disenfranchised
with the process. He asked Mr. Popely whether there was a lot of
discussion about that in the meetings.
Number 1225
MR. POPELY replied there was a substantial amount of discussion and
input on local control and trying to regain local management
authority. The subsistence task force proposal tries to encompass
those feelings. It is an accurate depiction of the motivation; he
is not speaking for anyone on the subsistence task force, however.
Number 1265
CO-CHAIRMAN OGAN stated it is a point that the House Resources
Standing Committee members should keep in mind as an alternative
solution is drafted. Similarly, there has also been a lot of
discussion in regards to the trust-relationship that the United
States government has with the Natives. According to testimony
during the interim, there is a lack of trust on the part of the
rural people in the state of Alaska. It is a point that should
also be kept in mind as an Alaskan-first solution develops. The
advisory council now in place in statute is probably one of the
most democratic systems in the country in terms of input to the
boards. The advisory councils, however, feel that the main board
does not listen to them too well. It is something that will need
to be addressed during the deliberations.
Number 1325
REPRESENTATIVE REGGIE JOULE stated, in regards to the feelings of
a lack of involvement by rural Alaskans, it is also safe to say
that other user groups probably felt left out of the process.
However, there is a proposal now and the legislative session has
begun allowing the continuation of the public process.
Number 1386
CO-CHAIRMAN OGAN stated there are two processes being discussed -
people who felt left out of the subsistence task force process and
people who feel left out of the day-to-day management of the fish
and game in the state. He meant there was a genuine attempt on the
part of the subsistence task force to include the people who feel
they are left out of the day-to-day management of the fish and game
in the state.
Number 1440
REPRESENTATIVE JOE GREEN stated it is his understanding, and
according to comments made by Senator Frank Murkowski, that the
House Resources Standing Committee is operating from the premise of
a wide latitude to resolve the problem that might also involve
certain tweaks to the Alaska National Interest Lands Conservation
Act (ANILCA).
Number 1474
CO-CHAIRMAN OGAN read the following comments made by Senator Frank
Murkowski in the Anchorage Daily News dated Thursday, January 29,
1998:
"This Legislature has the opportunity to provide me with
recommendations on amendments to ANILCA. As chairman of
the Energy and Natural Resources Committee, my intention,
after Alaska lawmakers complete their work and make their
recommendations, is to conduct hearing and to legislate
any additional changes to ANILCA."
CO-CHAIRMAN OGAN stated the comments made by Senator Murkowski
afford an opportunity that he has not seen since following the
subsistence issue which is longer than he has been in the
legislature. He reiterated he intends to come up with an Alaskan
solution including support of the congressional delegation to make
the appropriate changes to ANILCA. He repeated, as Senator
Murkowski stated in his address to the legislature, that a repeal
of Title VIII is just not possible.
Number 1549
CO-CHAIRMAN OGAN explained the reason for his actions last week was
to remove the subsistence task force proposal as the only solution.
The Governor's bill is flawed in the fact that it is based on a
constitutional amendment and a rural priority.
Number 1579
REPRESENTATIVE IRENE NICHOLIA stated it will have to go through the
process whether there is a rural priority or not. She asked Mr.
Somerville whether the process to select a regional subsistence
council would restrict a nomination from the Tanana Chiefs Council,
Incorporated in the Interior, for example.
Number 1635
MR. SOMERVILLE replied Section 16.05.262(b) under the subsistence
task force proposal would read as follows:
"(b) Each regional subsistence council must have ten
members, four of whom shall be selected from nominees who
reside in that region of the state submitted by tribal
councils in the region and six of whom shall be selected
from nominees submitted by local governments and local
advisory committees. Three of these six must be
subsistence users who reside in the region and three must
be sport or commercial users. Sport or commercial
representatives may be residents of any subsistence
resource region."
MR. SOMERVILLE stated it is possible, depending on how the area is
defined, that some members of the Tanana Chiefs Council,
Incorporated that might not reside in the area, could be excluded
from that specific regional council. There are provisions,
however, to help solve interregional conflicts.
Number 1692
REPRESENTATIVE JOULE announced to the committee members that
Senator Murkowski favors a constitutional amendment.
CO-CHAIRMAN OGAN replied the point is well taken. A constitutional
amendment would be an easier solution for Senator Murkowski. But,
changing ANILCA would not be easy. Senator Murkowski also said he
would be willing to follow the recommendation of the legislature
which is a heartening departure from the past.
Number 1738
CO-CHAIRMAN HUDSON stated it is important that the committee
members understand that the subsistence task force proposal,
embodied in HB 320, has provided a blueprint for discussions. The
proposal was used as an item of discussion in the hearings in
Bethel, Ketchikan, and Kenai resulting in comments by constituents.
Therefore, it is important to recognize it as a valuable tool to
help formulate any changes that constituents do not support. It is
also important to identify any constitutional changes and/or
changes to ANILCA in order that a final solution reflects good
public policy. In his opinion, a constitutional change will
probably be the solution in order to satisfy everybody in the
state, not on a basis of rural residency, but on some other element
yet to be fabricated.
Number 1900
CO-CHAIRMAN OGAN stated he did not have a problem taking a look at
the current proposal and other proposals. The hearing today is not
on HB 320. It is important to understand constitutional
responsibilities and public-trust responsibilities before any
decisions are made.
Number 1947
MR. SOMERVILLE referred to a handout titled "A Cross Comparison of
Existing Statutory Provisions in AS 16 with the Subsistence Task
Force Proposal and HB 320 Submitted by the Governor" and explained
there are a relatively few minor differences between the
subsistence task force proposal and HB 320. But, there are some
reconstruction differences between the two which will be pointed
out later.
Number 1967
MR. SOMERVILLE referred to Section 16.05.258(a) and explained the
subsistence task force proposal would modify the section to read as
follows:
"In areas and communities classified as rural, the Board
of Fisheries and the Board of Game shall identify...."
MR. SOMERVILLE explained it is just a relocation of the emphasis of
the priority on areas and communities classified as rural. House
Bill 320 is the same as the subsistence task force proposal.
Number 1989
MR. SOMERVILLE referred to Section 16.05.258(b)(4) and explained
the fourth tier would include the language "human consumptive
uses." Otherwise, the tier process is the same as the current
statute.
Number 2002
MR. SOMERVILLE referred to Section 16.05.258(c) and explained the
subsistence task force proposal would use the nonsubsistence areas
as a tool to implement the consideration of outside areas as rural
and inside areas as non-rural. The boards would be empowered to
review the areas to determine their correct classification. House
Bill 320 would add a new section - Section 28 - to do the same
thing, it is just worded slightly different.
Number 2045
MR. SOMERVILLE referred to Section 16.05.258(d) and explained it is
included because of the addition of the reference to "areas or
communities classified as rural" under the subsistence task force
proposal. House Bill 320 is essentially the same with some minor
changes in the wording.
Number 2067
MR. SOMERVILLE referred to Section 16.05.258(f) and explained the
subsistence task force proposal and HB 320 retain the reasonable
opportunity standard/criteria. He noted the language "that
provides a normally diligent participant" should be included after
the word "fishery" under the state statutory provision. The
subsistence task force proposal would put emphasis on the language
"consistent with customary and traditional uses" and would delete
the language "that provides a normally diligent participant."
Otherwise, it would be the same as in existing statute. House Bill
320 is the same as the subsistence task force proposal.
Number 2135
CO-CHAIRMAN OGAN asked Mr. Somerville whether the language
"customary and traditional uses" has been a federal determination.
Number 2151
MR. SOMERVILLE replied currently the board must identify stocks
that are taken customarily and traditionally for subsistence uses -
the same in federal law. He thought the reference to "customary
and traditional uses" was included in the subsistence task force
proposal because of complaints from people in rural areas over the
methods and means of uses not being accommodated.
Number 2179
CO-CHAIRMAN OGAN stated there have been customary and traditional
findings by the Federal Subsistence Board that, according to the
Department of Fish and Game, are not consistent with the sustained
yield principle proscribed in the Constitution of the State of
Alaska. There is nothing in federal law that mandates management
on a sustained yield principle.
Number 2198
MR. SOMERVILLE replied ANILCA has a provision that refers to
conservation of healthy populations. It is not the same in state
statute, however. A change in 1992 put more emphasis on sustained
yield and there is a reference in ANILCA that subsistence is not
intended to drive the stocks to zero.
Number 2236
CO-CHAIRMAN OGAN stated, in an attempt to adequately enfranchise
locals in rural areas to the process, the Federal Subsistence Board
is flawed. The board's customary and traditional findings have
given too much deference to local folks harming the wildlife
populations.
Number 2276
MR. SOMERVILLE stated, as a former member of the Department of Fish
and Game, there are cases where the Federal Subsistence Board and
the state boards have disagreed on the stocks. The Federal
Subsistence Board can allocate a number for subsistence use thereby
requiring the state boards to shut down the season in order to
maintain a sustained yield and healthy population as mandated in
the state constitution. The Federal Subsistence Board and the
state boards run under different mandates.
Number 2324
MR. SOMERVILLE referred to Section 16.05.258 and explained the
subsistence task force proposal would add the following new
subsection:
"(g) No provision of this section requires the Board of
Fisheries to close non-retention fishing if the board has
made a finding that the mortality caused by non-retention
fishing does not jeopardize subsistence uses or the
conservation of healthy stocks."
Number 2341
MR. SOMERVILLE referred to Section 16.05.260 and explained the
subsistence task force proposal would add the following new
subsection:
"(c) Recommendations from the advisory committees on
subsistence uses shall be sent to regional subsistence
councils. If the regional subsistence council does not
adopt the recommendation of the advisory committee, the
council shall inform the advisory committee, state the
reasons, and forward the advisory committee
recommendation to the board."
MR. SOMERVILLE explained the council could not stop the process,
but it would require the recommendations to go through the regional
councils before being sent to a board.
Number 2369
CO-CHAIRMAN HUDSON asked Mr. Somerville to explain the relationship
between the advisory committees and the regional councils.
Number 2378
MR. SOMERVILLE replied there are around 80 advisory committees
throughout Alaska that were created in state law. The subsistence
task force proposal would not do away with the advisory committees,
but would attempt to strengthen their roles by forcing them to use
the regional councils and by giving them deference in the process.
Number 2407
CO-CHAIRMAN HUDSON asked Mr. Somerville whether the advisory
committees go beyond subsistence into bag limits and sports
fishing, for example.
Number 2425
MR. SOMERVILLE replied, "Correct." However, the subsistence task
force proposal would require only subsistence proposals to go
through the regional councils. Personally, it would be impossible
for the regional councils not to look at proposals in terms of a
total context.
Number 2444
REPRESENTATIVE NICHOLIA stated she is a former member of an
advisory committee. The subsistence task force proposal is the
same as what is practiced. Every proposal adopted by a local
advisory committee is sent to a regional council anyway for more
support in front of a board.
TAPE 98-4, SIDE B
Number 0000
MR. SOMERVILLE explained the subsistence task force proposal would
add a new section - Section 16.05.262 - and read the following
subsection:
"(b) Each regional subsistence council must have ten
members, four of whom shall be selected from nominees who
reside in that region of the state submitted by tribal
councils in the region and six of whom shall be selected
from nominees submitted by local governments and local
advisory committees. Three of these six must be
subsistence users who reside in the region and three must
be sport or commercial users. Sport or commercial
representatives may be residents of any subsistence
resource region."
MR. SOMERVILLE stated seven members would be from the region while
still allowing for commercial and sport interests in the remaining
three members.
MR. SOMERVILLE continued reading the following subsections:
"(c) Councils shall strive for consensus but may decide
by a majority vote.
"(d) Each council has the authority to make
recommendations to boards on regulations, policies, or
any matter related to subsistence uses; comment on
nonsubsistence proposals; make recommendations on
permits; submit annual reports to state and federal
agencies concerning subsistence identification, needs,
strategies, policies, standards, guidelines and
regulations.
"(e) Assist local fish and game advisory committees in
achieving local participation.
"(f) Requires regulatory proposals relating to
subsistence be reviewed by appropriate regional council
before the board takes action.
"(g) Provides for councils to meet on interregional
proposals.
Number 0104
REPRESENTATIVE NICHOLIA explained the Yukon River Drainage Fishing
Association was formed in response to interregional issues. The
Yukon River is the longest river in North America. There are major
differences. The association gets together twice a year to tell
their differences before going to the Board of Fisheries.
Number 0124
MR. SOMERVILLE continued reading the following subsections:
"(h) The appropriate board shall consider the reports and
recommendations of the regional subsistence councils and
shall give deference to their subsistence
recommendations. If the council recommendation is
unanimous, there is a presumption in favor of adoption.
The board may decide not to adopt a recommendation that
violates the sustained yield principle, is not supported
by substantial evidence, is detrimental to subsistence
uses, involves an unresolved statewide or interregional
subsistence management issue, or is contrary to an
overriding statewide fish or wildlife management
interest. A written statement shall be provided for all
rejected recommendations.
MR. SOMERVILLE noted that the changes to ANILCA are not identical
to this provision.
MR. SOMERVILLE continued reading the following subsections:
"(i) Regional councils shall give deference to proposals
from local governments, tribal councils and local
advisory committees related to subsistence.
"(j) Authorizes use of mediation process.
"(k) Requires use of knowledge of subsistence users.
Authorizes the department to contract with subsistence
users and local groups for utilization of local special
knowledge.
"(l) Requires adequate funding for councils."
Number 0175
CO-CHAIRMAN OGAN asked Mr. Popely whether subsection (l) would bind
future legislatures.
Number 0192
MR. POPELY replied a subsequent legislature could refuse to fund it
and by defacto amend the statute. However, as long as the statute
is in effect, the current legislature would be required to fund the
councils under the terms of the statute.
Number 0211
REPRESENTATIVE JOULE wondered how the regional councils existed in
the past.
Number 0229
MR. SOMERVILLE replied in 1992 the regional councils were
eliminated from state law by the legislature when the federal
regional councils came into effect.
Number 0247
REPRESENTATIVE JOULE stated he took some exception to the unanimous
recommendation. It would also mean less deference or weight would
be given to a recommendation if the outside people on the councils
disagreed.
Number 0309
MR. SOMERVILLE replied the provision does not say a degree of
deference. A board would be restricted as to how to reject a
proposal whether it was unanimous or not. But, Representative
Joule is correct because the three people who do not reside in the
area could create a stumbling block.
Number 0369
REPRESENTATIVE NICHOLIA suggested inviting the former commissioner
of fish and game in the audience to the table to answer
Representative Joule's first question.
CO-CHAIRMAN OGAN replied he did not want to take testimony at this
time from anybody other than Mr. Somerville and Mr. Popely.
REPRESENTATIVE NICHOLIA made the suggestion because they could not
answer his question.
CO-CHAIRMAN OGAN stated he did not want to open up the meeting to
other testifiers. Mr. Popely and Mr. Somerville could research
questions further and get back to the committee members.
Number 0406
REPRESENTATIVE GREEN asked Mr. Somerville how differing
interregional opinions would be resolved and has it been an issue
in the past.
Number 0428
MR. SOMERVILLE replied the board would probably send a
recommendation back to the adjacent regional councils to
consolidate and come up with a unified recommendation. The
provision would also allow the regional councils to use the
mediation process in the event there was a real stumbling block.
Number 0466
REPRESENTATIVE GREEN wondered whether a board could reject a
mediated or agreed upon compromise.
Number 0481
MR. SOMERVILLE replied, yes, as long as it meets one of the
rejection criteria provided for in the provision.
Number 0492
CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task
force discussed the balance of the advisory councils. The
membership would boil down to three sport and four commercial
members. It seemed there would never be a majority.
Number 0559
MR. POPELY replied he did not know. He was no there for the
discussions. He does not know the rationale behind the numbers
chosen.
Number 0580
MR. SOMERVILLE stated the primary responsibility of the regional
councils is related to subsistence. They could make
recommendations on a variety of things, but their only legal
authority is with subsistence uses. The potential problem would be
in defining which regulations are subsistence regulations.
Number 0610
REPRESENTATIVE JOULE announced the subsistence director is in the
audience who could answer the question.
CO-CHAIRMAN OGAN stated he did not want to bring to the table other
testifiers.
CO-CHAIRMAN OGAN stated a perception of bias is not in the best
interest of anyone. It would just exacerbate the hard feelings
between the different user groups.
Number 668
REPRESENTATIVE JOULE said, "Within our state we have 200 some
communities some of which choose to have municipal government and
others which choose to have tribal governments, others choose to
have boroughs. Those are local decisions because that is the area
they are looked to make decisions on because that's the area that
they live in. And, with regards to the makeup of the councils, the
resources are out in those areas. And, I think, in part, that was
how some of the recommendations were made to say this is why it may
be weighted this way because these are the people that live closest
to the resources, and understand the resources and the patterns of
them."
Number 0709
CO-CHAIRMAN OGAN stated no one really owns the resources, according
to the public trust doctrine. The common use clause of the state
constitution was founded in the public trust doctrine. In
addition, there is quite a bit of case law that says no one really
owns the resource until he or she takes possession by skillful
apprehension. Nonetheless, a solution needs to be balanced and
fair. Rural people have a leg up because of the fact that they
live in a rural area. He called it a priority by natural
selection.
Number 0764
REPRESENTATIVE NICHOLIA stated the best "biologists" are the people
who live in the area. They know exactly what is going on with the
resources. The fish and game biologists depend on the local
advisory committees and people to tell them what is going on which
creates a good working relationship.
Number 0839
MR. SOMERVILLE referred to Section 16.05.330(c) and explained the
subsistence task force proposal would add the following language:
"To be eligible to take fish or wildlife in a rural
community or area using the subsistence priority in AS
16.05.258, a person must be a resident domiciled in that
community or area."
MR. SOMERVILLE further explained the subsistence task force
proposal would add the following new subsection:
"(e) Provides authority for the Commissioner to issue
permits for taking fish and wildlife in order to teach
and preserve historic or traditional uses and harvest
practices. Does not have a priority."
MR. SOMERVILLE referred to Section 16.05.405, "Taking fish and game
by proxy" and explained the subsistence task force proposal would
add the following new subsection:
"(g) Authorizes a permit for a resident who is member of
the family of a resident of a rural community or area or
any person who is a resident of a rural community or area
to participate in subsistence harvest activities as a
proxy, regardless of the eligible resident's age or
physical ability to hunt or fish. Fish or wildlife taken
by proxy under this section shall belong to the person on
whose behalf it was taken and the majority of the fish
and wildlife taken by proxy shall remain in the community
or area. No person may give or receive cash remuneration
in connection with any proxy harvest."
MR. SOMERVILLE explained the provision is an expansion of the
existing proxy system. House Bill 320 is the same as the
subsistence task force proposal.
Number 0946
CO-CHAIRMAN OGAN stated the proxy system is tough to enforce. The
provision appears to be a nightmare.
Number 0970
MR. SOMERVILLE referred to Section 16.05.940, "Definitions" and
explained the subsistence task force proposal and HB 320 would use
the term "wildlife" rather than "game." A difference between HB
320 and the subsistence task force proposal is in (7), the
definition of "customary and traditional." Existing law calls for
the consistent taking of "and" reliance upon fish or game, while
the subsistence task force proposal would call for the consistent
taking of "or" reliance upon fish or wildlife. House Bill 320
would call for the consistent taking of "and" reliance upon fish or
wildlife. There is a difference between "and" and "or."
CO-CHAIRMAN OGAN stated "or" would mean one or the other, while
"and" would be all inclusive.
Number 1046
MR. POPELY explained, according to the attorney's general office,
there should not be a difference between the subsistence task force
proposal and HB 320. House Bill 320 should read "or" instead of
"and." It was a typo.
Number 1062
CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task
force proposal would broaden the criteria of who would qualify for
subsistence with the addition of the language "or."
Number 1092
MR. POPELY replied, "Correct." He could have the intention
backwards. It could be "and" instead of "or."
Number 1113
CO-CHAIRMAN OGAN stated, according to the hearings earlier in the
year, there was discussion in regards to the expansion of who would
qualify under customary and traditional by using the language "or"
instead of "and." He asked Mr. Popely what was amended in ANILCA.
Number 1131
MR. POPELY replied it would include the "or" language.
Number 1153
CO-CHAIRMAN OGAN stated the amendment to ANILCA would expand the
group defined under the customary and traditional provision.
MR. POPELY replied he believed so but he would double check.
MR. SOMERVILLE referred to Section 16.05.940 "Definitions" and
explained under the subsistence task force proposal "minimal
quantities" would be set rather than "minimal amounts of cash" as
in state law because of the varying types of species and their
financial worth. A limited amount of cash in one species could
severally restrict another species. Similarly, a little bit of
herring roe is very valuable while a lot of something else might
not be very valuable. It is a policy decision.
MR. SOMERVILLE referred to Section 16.05.940(11) and explained the
subsistence task force proposal would delete the following language
in existing law:
"domicile may be proved by presenting evidence acceptable
to the Boards of Fisheries and Game;"
MR. SOMERVILLE referred to Section 16.05.940(27) and explained the
subsistence task force proposal language would read as follows:
"(27) 'rural community or area' is a community or area
substantially dependent on fish and wildlife for
nutritional and other subsistence uses;"
MR. SOMERVILLE explained HB 320 is the same as the subsistence task
force proposal.
MR. SOMERVILLE referred to Section 16.05.940(30), (31), and (32)
and explained the subsistence task force proposal would delete the
following language from the provisions:
"by a resident domiciled in a rural area of the state"
MR. SOMERVILLE further explained HB 320 would add the following new
section:
"Section 31. Provides that the Act takes effect on the
effective date of an amendment to the Constitution of the
State of Alaska, approved by the voters in 1998,
authorizing a priority for subsistence uses of renewable
natural resources that is based on place of residence."
MR. SOMERVILLE lastly explained the present subsistence law would
revert to 1986 law on January 1, 1999, if the 1992 law is not
extended. The legislature has been extending the law every year by
one year.
Number 1365
CO-CHAIRMAN OGAN referred to Section 16.05.940(8) and asked Mr.
Popely what were the changes to ANILCA in this section. According
to the Peratrovich case, herring, roe and kelp can be sold for up
to a total of $15,000 per person creating a legal precedence. A
lot of people feel this is commercial use, not subsistence use.
Number 1440
MR. POPELY replied Section 803(4) "Customary Trade" in ANILCA was
changed to read, "except for money sales of furs and furbearers,
the limited, non-commercial exchange for money of fish and wildlife
or their parts in minimal quantities."
Number 1460
CO-CHAIRMAN OGAN asked Mr. Popely whether the language was tight
enough to prevent litigation.
Number 1508
MR. POPELY replied the idea of the subsistence task force proposal
and Stevens' amendment was to affect the Peratrovich decision. The
decision could judicially increase over time to the point of
blurring the line between true subsistence fishing and a commercial
venture. Most of the policy makers involved with the task force
and Stevens' amendments wanted to preclude that from happening thru
restricting the customary trade of subsistence caught resources.
In a lot of cases it is appropriate to recognize the use and
benefit of allowing subsistence resources to be sold to acquire
other subsistence resources. He believed the language was
reasonably tight. The terms "minimal" and "noncommercial" could
have been defined so that reasonable people could understand what
they mean. In addition, the terms "amounts" and "quantities" could
also have been defined in statute to directly pinpoint what is
customary and commercial trade. The danger, however, is that
times, markets and the value of the dollar change so that an
arbitrary figure picked in 1998 might not be applicable in ten
years or so. It is up to the committee members to decide. The
standard put to the language in a time of litigation would be a
reasonable understanding of the terms "noncommercial" and "minimal
quantities."
Number 1673
CO-CHAIRMAN OGAN stated a lot of time federal law looks to the
state law. He asked Mr. Popely whether it would be helpful to
expand the definitions to include a more articulated wording of
each term in statute. He also asked Mr. Popely whether that was
considered in the subsistence task force.
Number 1703
MR. POPELY replied he believed a conscious decision was made by the
subsistence task force to leave the determination of the precise
figures of noncommercial exchange to the boards. But, yes, the
surest way to prevent problems in the future is to identify figures
in statute leaving no room for judicial interpretation.
Number 1765
REPRESENTATIVE NICHOLIA stated for the record she agreed with Mr.
Popely's answer. It is hard to predict the future in terms of the
price of the dollar. She cited an example where elders give money
for gas to get their favorite meat that is not available in the
village - beaver. The barter is money for gas; they are not going
to the store to buy food.
Number 1825
CO-CHAIRMAN OGAN stated this is an area that needs to be explored
given that there is a lot of local knowledge of the committee
members. Identifying the types of customary and traditional things
as part of a definition could remove any ambiguity. Most people
believe subsistence is a noncommercial activity.
Number 1859
REPRESENTATIVE JOULE stated there were people from the Department
of Law in the audience and suggested hearing from them on this
issue.
Number 1884
CO-CHAIRMAN OGAN replied he would call on people from the audience
to testify if there was enough time.
Number 1945
CO-CHAIRMAN OGAN asked Mr. Popely whether the term "rural community
or area" was amended in ANILCA, and was it the same under the
subsistence task force proposal.
Number 1962
MR. POPELY replied, "Yes."
Number 1980
CO-CHAIRMAN OGAN stated, according to his understanding, the term
"rural community or area" could be interpreted broader than in
current state statute. He wondered what was meant by "rural area."
He lives in a farming area where bears and moose go through his
yard yet, it is classified as urban. In addition, the area of
Fairbanks has relied substantially for a number of years on fish
from the Copper River. People from Anchorage travel to the Copper
River to dip net for salmon as well. The problem with a definition
of "rural priority" is that it does not meet the needs of those
living in "urban" Alaska that have a substantial dependency on fish
and wildlife resources as a sustenance. He asked Mr. Popely how
much wiggle-room is there in the description since it has been
amended in the proposed changes to ANILCA.
Number 2084
MR. POPELY replied a rural definition is not contained in ANILCA
today which causes the biggest problem when implementing Title
VIII. The definition under the subsistence task force proposal has
a certain level of intentional breadth. For procedural purposes,
an existing list of rural areas would go into effect. Beyond the
list, the boards would be directed to apply the definitions and
other principles to determine what communities would be considered
rural. Thus, there is a substantial amount of latitude given to
the boards to determine the meaning of the term "substantially
dependent." There was talk in the subsistence task force to
specifically layout the rural areas in the state. A specific list
would nail down the issue with certainty. It is a policy decision,
however, and it would be a difficult decision to make.
Number 2349
CO-CHAIRMAN OGAN stated the two egregious cases that stand out in
his mind as an irrational description of rural are Saxman and
Ninilchik. Saxman is a one-square-mile area inside a classified
urban area. Ninilchik is on an intrastate highway within a few
miles of jobs, stores, trails and boat ramp launch. The same type
of accesses as Anchor Point, for example. It causes hard feelings
between neighbors, families, and communities.
TAPE 98-5, SIDE A
Number 0000
REPRESENTATIVE JOULE stated the impetus is to manage the resources
well enough so that there is not a problem. Under a good
management system, both personal and sport users have access to the
resources. A rural priority would only be invoked in times of a
shortage of the resources. The incentive is to manage the
resources well.
Number 0128
CO-CHAIRMAN OGAN stated there is not anything in ANILCA that talks
about a rural priority in a time of shortage.
Number 0155
MR. POPELY replied it is a popular misconception. In fact, there
is nothing in Title VIII that specifies in times of shortage, it
specifies restrictions. It is open to interpretation, however,
because there are restrictions on virtually every game and fish
stock in the state. But the language referring to restrictions
does not mean the same as a shortage. He understood the argument
under the tiers of use as a resource shortens, but at all times
there is a subsistence priority.
Number 0240
REPRESENTATIVE NICHOLIA stated, according to her understanding, a
restriction really means a shortage. For example, there was a
restriction placed on fall chum because of a low run. The only
activity allowed was a subsistence take. There was no commercial
or personal take allowed. The fishermen gathered for a summit and
decided to take only what was needed for the winter. "Right now,
you don't see those restrictions very often in the state of Alaska.
What you see is the general hunt, it's none of the general hunt,
and that's where it applied to everybody. Everybody and anybody
can come into any area in Alaska and hunt and they do that. It's
done in Tanana. We get hunters not only from in the state, but we
also get hunters from anywhere from Texas to New York. You know,
they're all there. That's what....I just wanted to give you what's
these interpretations mean to us there and what's in place."
Number 0355
CO-CHAIRMAN OGAN stated, if there was an abundance and no shortage
anywhere in the state, there would not be seasons or bag limits.
There is a shortage because there is virtually a season and bag
limit on almost everything in the state, except some of the caribou
herds in the north.
Number 0439
CO-CHAIRMAN HUDSON stated the entire proposal leans on a rural
application. The major policy question is found in Section
16.05.258(c). The legislature should make the decisions to
determine what is in or out rather than a citizen board.
Number 0583
REPRESENTATIVE DYSON stated, according to the governmental system,
when ANILCA was passed some folks assumed it was designed to fix
things that were not right in the Alaska Native Claims Settlement
Act (ANCSA). Some say because ANILCA came later Congress did it
differently to fix ANCSA. He asked Mr. Popely whether that was a
logical assumption.
Number 0669
MR. POPELY replied there is a faction that believes ANILCA is
remedial Indian legislation and was designed to fix the ills of the
past in regards to Native subsistence rights. There are an equal
number of people who believe it was designed to establish the
opposite - a non-Native subsistence preference. There was at one
time an amendment to ANILCA that included a Native rather than a
rural preference that did not pass. Therefore, there are people
who believe the rural preference was designed to be a defacto
Native preference. And, there are an equal number of people who
argue that the non-Native population exceeds the Native population
in the rural areas causing tension between the groups. At the time
ANILCA was passed, there was language from the conference committee
report that discussed the notion of a Native preference.
Number 0789
REPRESENTATIVE DYSON stated it seems illogical to assume that a
later law supersedes an earlier law in areas of conflict. He asked
Mr. Popely whether it would take a court challenge and
interpretation to determine if a later law superseded an earlier
law.
Number 0835
MR. POPELY replied it is not a legally sound argument to say "last
in time is first in right." But, at the same time, there is no
clear answer until a judge determines the true congressional intent
in order that one supersedes the other.
Number 0880
REPRESENTATIVE DYSON stated he is trying to find all the old laws
and make the necessary corrections when crafting new legislation.
He assumed that the national legislators also made the necessary
corrections, if the intent of a new law is to supersede the old
laws.
Number 0907
MR. POPELY replied the intent should be explicitly stated in the
new law. Otherwise, the last law in time is the current law.
Number 0945
CO-CHAIRMAN OGAN stated the more ambiguous a law is the more
litigation. Therefore, the more specific the contentious
definitions are in statute the less time will be spent in court.
CO-CHAIRMAN OGAN announced in the coming weeks there will be at
least one hearing a week on subsistence. He would also like to
meet individually with the committee members during the week. Next
week there will be a presentation on former Governor Hickel's
proposal.
ADJOURNMENT
Number 1165
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 2:58 p.m.
| Document Name | Date/Time | Subjects |
|---|