04/19/2002 02:01 PM House RES
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 19, 2002
2:01 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
Representative Mary Kapsner
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 29
Proposing an amendment to the Constitution of the State of
Alaska relating to subsistence uses of fish and wildlife.
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 4
Proposing amendments to the Constitution of the State of Alaska
authorizing a priority for subsistence users of replenishable
natural resources; and providing for an effective date.
- HEARD AND HELD
HOUSE BILL NO. 14
"An Act relating to subsistence use of fish and game, to fish
and game advisory committees, and to permits for historic or
traditional uses of fish and game and harvest practices;
amending the definition of 'domicile' for purposes of the Fish
and Game Code; and providing for an effective date."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 11
Proposing amendments to the Constitution of the State of Alaska
relating to subsistence use of wild food resources and to the
harvest of fish and wildlife.
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HJR 29
SHORT TITLE:CONST AM: SUBSISTENCE FISHING AND HUNTING
SPONSOR(S): REPRESENTATIVE(S)DYSON
Jrn-Date Jrn-Page Action
01/14/02 1946 (H) PREFILE RELEASED 1/4/02
01/14/02 1946 (H) READ THE FIRST TIME -
REFERRALS
01/14/02 1946 (H) RES, JUD, FIN
01/14/02 1946 (H) REFERRED TO RESOURCES
03/27/02 (H) RES AT 1:00 PM CAPITOL 124
03/27/02 (H) -- Meeting Postponed to
4/5/02 --
04/05/02 (H) RES AT 1:00 PM CAPITOL 124
04/05/02 (H) Scheduled But Not Heard
04/05/02 (H) MINUTE(RES)
04/19/02 (H) RES AT 1:45 PM CAPITOL 124
BILL: HJR 4
SHORT TITLE:CONST. AM: SUBSISTENCE USERS
SPONSOR(S): REPRESENTATIVE(S)DAVIES
Jrn-Date Jrn-Page Action
01/08/01 0019 (H) PREFILE RELEASED 12/29/00
01/08/01 0019 (H) READ THE FIRST TIME -
REFERRALS
01/08/01 0019 (H) RES, JUD, FIN
01/08/01 0019 (H) REFERRED TO RESOURCES
03/27/02 (H) RES AT 1:00 PM CAPITOL 124
03/27/02 (H) -- Meeting Postponed to
4/5/02 --
04/05/02 (H) RES AT 1:00 PM CAPITOL 124
04/05/02 (H) Scheduled But Not Heard
04/05/02 (H) MINUTE(RES)
04/19/02 (H) RES AT 1:45 PM CAPITOL 124
BILL: HB 14
SHORT TITLE:SUBSISTENCE USE OF FISH AND GAME
SPONSOR(S): REPRESENTATIVE(S)DAVIES
Jrn-Date Jrn-Page Action
01/08/01 0027 (H) PREFILE RELEASED 12/29/00
01/08/01 0027 (H) READ THE FIRST TIME -
REFERRALS
01/08/01 0027 (H) RES, JUD, FIN
01/08/01 0027 (H) REFERRED TO RESOURCES
03/27/02 (H) RES AT 1:00 PM CAPITOL 124
03/27/02 (H) -- Meeting Postponed to
4/5/02 --
04/05/02 (H) RES AT 1:00 PM CAPITOL 124
04/05/02 (H) Scheduled But Not Heard
04/19/02 (H) RES AT 1:45 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Testified as sponsor of HJR 29.
EDWARD FURMAN
P.O. Box 1791
Cordova, Alaska 99574
POSITION STATEMENT: Testified in opposition to HJR 29.
GARY CHARLES PATTON
P.O. Box 873436
Wasilla, Alaska 99687
POSITION STATEMENT: Testified on HJR 29; opposed any
legislative Acts or anything else that should interfere with the
exclusive economic zone west of the Copper River to Icy Bay.
DON WESTLUND
P.O. Box 7883
Ketchikan, Alaska 99901
POSITION STATEMENT: Testified on HJR 29; expressed
disappointment in the removal of the section relating to the
availability of alternative food resources.
DICK BISHOP, Lobbyist for
Alaska Outdoor Council (AOC)
1555 Gus's Grind
Fairbanks, Alaska 99707
POSITION STATEMENT: Testified on HJR 29; said AOC had no formal
position on HJR 29 but urged the committee to take action that
demonstrates that subsistence uses of fish and game for personal
and family consumption are provided for under the Constitution
of the State of Alaska.
DENNY WEATHERS
P.O. Box 1791
Cordova, Alaska 99574
POSITION STATEMENT: Testified on HJR 29; opposed legislation
that will take away the urban use of subsistence.
DALE BONDURANT
Alaska Constitutional Legal Defense Fund
31864 Moonshine Drive
Soldotna, Alaska 99669
POSITION STATEMENT: Testified briefly on HJR 29, noting that
the Alaska Constitutional Legal Defense Fund currently has a
suit in court with the federal government.
DELISE CALCOTE
P.O. Box 1105
Chickaloon, Alaska 99674
POSITION STATEMENT: Testified in opposition to HJR 29; claimed
[Alaska Natives] didn't get to vote for statehood, ANCSA, or
ANILCA, and suggested [HJR 29] is an attempt for everybody to
think that [Alaska Natives] are having their rights represented.
MARY BISHOP
1555 Gus's Grind
Fairbanks, Alaska 99707
POSITION STATEMENT: Testified on HJR 29; submitted alternative
language she said she believed was identical in meaning, but
easier to read and understand.
REPRESENTATIVE JOHN DAVIES
Alaska State Legislature
Capitol Building, Room 415
Juneau, Alaska 99801
POSITION STATEMENT: Testified as sponsor of HJR 4 and HB 14.
ACTION NARRATIVE
TAPE 02-33, SIDE A
Number 0001
CO-CHAIR BEVERLY MASEK called the House Resources Standing
Committee meeting to order at 2:01 p.m. Representatives Fate,
Green, Chenault, Stevens, Scalzi, and Masek were present at the
call to order. Representatives McGuire, Kapsner, and Kerttula
arrived as the meeting was in progress.
HJR 29-CONST AM: SUBSISTENCE FISHING AND HUNTING
[Contains testimony on HJR 11, HJR 4, HB 14, and SCR 25]
CO-CHAIR MASEK announced that the first order of business would
be HOUSE JOINT RESOLUTION NO. 29, "Proposing an amendment to the
Constitution of the State of Alaska relating to subsistence uses
of fish and wildlife."
Number 0056
CO-CHAIR MASEK told the committee that due to scheduling,
testimony would be limited to approximately one minute. She
also recognized that Representative Davies was present during
the meeting.
Number 0165
REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor,
testified. He said:
Two or three years ago, ... Mark Hanley said, "... I'm
very concerned about all the subsistence solutions
that are presently being discussed, because they do
not protect most or many Alaskans from their community
becoming urban under the federal definition." He
rightly pointed out that Dillingham, Bethel, and
Barrow ... are in danger of becoming urban, and
therefore disqualified. He said, "I'm not interested
in a solution that doesn't protect those folks and
their subsistence usage." That got me thinking about,
How do we put that in our ... subsistence solution?
[Former Governor] Jay Hammond has ... [said] a
solution for us on the subsistence issue is one that
gives the priority to the people in the area, the so-
called local, as opposed to rural, solution. The bill
is before you, and we're ... into several iterations
of it. The bill that is before you - we've
accomplished both of these - protects communities from
an arbitrary classification as "urban" under federal
law, and it institutes proximity and direct use for
... livelihood as the criteria for who gets the
priority on use of the resource during the times when
there is not enough of the resource to go around for
all users. It is my hope that if we put it in our
constitution, that [in] times of shortage, real
subsistence is the highest and best use of the
resource and trumps all others.
Number 0426
REPRESENTATIVE GREEN moved to adopt CSHJR 29, version 22-
LS1100\O, Utermohle, 4/6/02, as the working document before the
committee. There being no objection, CSHJR 29, Version O, was
before the committee.
Number 0480
REPRESENTATIVE DYSON continued:
If this were to become part of our constitution, we
establish that in times of shortage the highest and
best use is for subsistence for livelihood, and ...
the folks who get the first priority ... are the ones
that live closest. ... So, you'll notice ... [Section
1, subsection (b)] ... anticipates that the
legislature will pass laws ... addressing how that
happens; ... it's the lawful use, and it also ... puts
in the constitution the sustained yield principle of
management. I have talked with a number of folks
around the state; ... when we marched on the
subsistence march in Anchorage, ... I passed it around
to several of my Native leader friends, and everyone
of them said, "Yeah, that'll work"; ... two who have
sat in this body said, "That's just real close to what
the Hickel task force came up with." I think it has
real merits.
Number 0558
REPRESENTATIVE DYSON continued:
There will be ... three categories of criticisms. ...
It doesn't answer the rural preference in Title VIII
of ANILCA [Alaska National Interest Lands Conservation
Act]. There's a body of thought that says that the
Secretary of the Interior could certify the proximity
to the resource meets the intent and the spirit of the
word "rural" in Title VIII. Now, by the time we get
to Special Session, I hope to have opinions both from
one of our attorneys here and from the Department of
[the] Interior, and I've asked, for that, ... what are
the possibilities of that happening, because ...
that's a key question that we've got to get answered.
If we've got a chance, I think this is one of the
better solutions that's on the table, if it could be
certified as meeting the intent and spirit of Title
VIII of ANILCA.
The other concern ... is that once you put it in the
constitution, ... subsistence use in an area trumps
all others. Then there's the worry by commercial
fishermen - like I've been for the last 25 years -
that that might be interpreted that until the last
person who subsistence fishes at the end of the last
creek that feeds the system that produces salmon [gets
the opportunity to catch fish], ... all commercial
interests will be shut down. The fishery I've been
involved [in] ... only lasts about three weeks; 50
percent of the fish will go through in about three or
four tides, ... and if the fishery is shut down,
waiting for the last subsistence user on the last
creek, ... the opportunity to harvest will be gone
(indisc.). I think the managers ... have gotten quite
good at it, and with our help ... any needed
legislation can take care of them, but it's a
legitimate concern.
Number 0762
REPRESENTATIVE DYSON continued:
I'm hoping that my friends in AFN [Alaska Federation
of Natives] and other groups will be able to say, "You
know, this is what we wanted; we always wanted
subsistence ...." I think this meets that criteria,
because it protects Native and other subsistence
hunters and fishermen from getting arbitrarily
disqualified because their community gets too big,
like Dillingham, Barrow, or Bethel. It also protects
- it's a major concern of mine - the folks who are in
the urban areas, who are very legitimately involved in
subsistence hunting and fishing, and the very
delightful people that I've represented for 12 years
now, the Eklutna's. Under the Babbitt-Knowles-Clinton
solution, they can't fish in their own fish camp,
where the evidence is they've been for at least a
1,000 years, and I would argue probably at least 3,500
years. So, I hope it ... has a chance at meeting the
requirements of ANILCA; it gives a great deal more
protection for rural residents, and does not preclude
... people who live near urban areas or [are]
participating in a legitimate subsistence activities.
Thank you.
Number 0866
REPRESENTATIVE GREEN mentioned that past administrations were
opposed to solutions that required "easing up" of the
interpretation of ANILCA. Referring to [Section 1, subsections]
(a) and (b), he expressed concerns about the legal
interpretations of those subsections. Those subsections, he
suggested, could be interpreted to mean that subsistence would
be the highest and best use. He remarked, "That I can't handle;
that obviously goes against the intent of our constitution."
Representative Green brought attention to a change in subsection
(b) relating to the availability of alternative food
[resources], and suggested the change was good. Expressing
concerns about proximity, he said, "Constituents that live in my
town are not going to be part of that subsistence issue, even
though if we go back to traditional use, they would"; he also
suggested that constituents in Anchorage - including Natives -
"fail in both of these."
Number 1032
REPRESENTATIVE DYSON remarked:
No matter what we do, including doing nothing, we have
the problem of, if we get a court decision that says
anytime we have season and bag limits, you're in, ...
de facto, the default position of having not enough
for all beneficial users, we won't decide that; my
guess is that'll be a court decision ....
REPRESENTATIVE GREEN, referring to proximity, said, "If you live
there and there's a shortage, ... before outsiders or others
come in, you should have the right to it."
Number 1147
REPRESENTATIVE DYSON remarked:
Subsistence ... is doing it near where you live. ...
Most of Alaska's aboriginal people went ... to fish
camp in the summer, and if caribou changed their
migration pattern, they'd go ... where they were at,
not where they weren't at. And that all makes sense,
and I'm open - if there's a way to fix that - I'm open
to it; ... I'm just reluctant to go very far down the
road of this all being decided based on what you have
been doing.
REPRESENTATIVE DYSON mentioned a friend of his who had changed
his lifestyle to raise his children in a subsistence lifestyle.
He remarked, "It doesn't allow somebody to make a conscious
change about how they're going to do it," and he suggested that
he didn't want people in those circumstances to be precluded.
Number 1306
EDWARD FURMAN testified via teleconference [his testimony was
read by the LIO moderator] as follows:
How are the members of Congress, and Senators, and
state legislators - from the President to the attorney
general's office, supposed to uphold the
constitutional rights when they don't even know the
constitution themselves?
MR. FURMAN stated, "And this is the way I feel, ... and I've
heard the cry - I hear you're knocking but you can't come in."
Number 1467
GARY CHARLES PATTON testified via teleconference. Indicating he
is a member of the Katalla Nation, he remarked:
Our territory stretches ... from the Copper River to
Icy Bay out to Middleton Island; we're going to ...
enter a petition of facts onto the table here for all
eyes to see. We are opposed to any legislative Acts,
or anything else, that should interfere with our ...
exclusive economic zone west of the Copper River to
Icy Bay, and we'd like to lay this petition of facts
on the table here today. We'll have an affidavit
that's a proof of claims; we'll have a synopsis
containing the major thesis of this Katalla/Tlingit
multiple-issue complaint, a bill of particulars with a
conclusion, and there will be an attached complaint
addendum that will go with this. The management under
the regime, currently, has done a terrible job; it has
allowed our resources to fall into the hands of
somebody else. This land, these waters - these are
for our needs; I have no problem with people who live
here, but I have a problem with the resource fate
[being put] into the hands of somebody else. They've
done a terrible job of mismanagement.
Number 1618
DON WESTLUND testified via teleconference. He said he was
disappointed that Representative Dyson had removed the portion
of the bill relating to the availability of the alternative food
sources. He remarked, "If you have a run of sockeye salmons
that don't make it up the river that year, but you have an
adequate amount of chums or pinks or silvers going up the
stream, why should you not be satisfied with that alternative
food source to the residents?" He continued, "The state's
constitution is one thing, and we still haven't proven that it
needs to be changed." Mr. Westland suggested that until the
matter goes to court, he didn't see [the bill] as a worthwhile
alternative.
Number 1718
DICK BISHOP, Lobbyist for Alaska Outdoor Council (AOC),
testified via teleconference He suggested that the legislature
had the opportunity to take the lead on the subsistence issue.
The best alternative for the legislature, he suggested, is to
take action that clearly demonstrates that subsistence uses of
fish and game for personal and family consumption are provided
for under the Alaska constitution without resorting to
discriminatory criteria. Mr. Bishop said the legislature could
help with ANILCA amendments that he believes are needed to
remove the taint of discrimination, ensure sound management, and
restore Alaska's equal footing with other states in the
management of its fish, wildlife, and waters. He suggested that
if by conforming to ANILCA none of those goals can be
accomplished, then of the proposed constitutional amendments on
subsistence, the only ones that would allow this to happen under
their terms are HJR 11 and HJR 29.
MR. BISHOP said AOC hasn't taken a formal position on the
proposed CS for HJR 29 [Version O], but is very encouraged by
Representative Dyson's efforts to find a fair and clearly stated
approach to providing for a subsistence priority. He suggested
there were several elements that would need to be included in
language [being considered], and [HJR] 29 covers a lot of them.
The standard, he continued, should be the same for any Alaskan
who wishes to qualify for priority use; allocations to priority
use should be activated by a resource shortage, not just by the
existence of regulations; and the priority should only apply to
fish and game. The [priority] should go to Alaskans whose self-
sufficiency is linked to the uses of fish and game. He said the
legislature shouldn't be tempted by the illusion that if a
discriminatory rural-priority amendment is approved, then the
conflict will end. It won't, he said; it'll get worse.
Number 1866
CO-CHAIR SCALZI, referring to proximity of the [population],
asked Mr. Bishop if he supported that section of the bill.
MR. BISHOP reminded the committee that AOC had not taken a
formal position on the bill. He remarked, "If you combine that
element with other elements, then you aren't leaving it open to
simply a rural priority, and that, I think, provides some
latitude for a more rational approach."
Number 1919
DENNY WEATHERS testified via teleconference. Noting that she
had provided the committee with written testimony on HJR 29, HJR
11, HJR 4, and HB 14, she remarked:
After viewing all three House resolutions and bills, I
find that I must oppose all four. Both Representative
Dyson and Davies' plans will take away the urban use
of subsistence, ... which is wrong. I am a 27-year
rural resident. The Alaskan people are the owners of
the state's resources, not the government; Alaskan
people include both rural and urban dwellers. I
thought Alaska's constitution, the one that you took
an oath to protect, basically stated that ... the
natural resources of Alaska are to be managed as a
public trust; ... the public should have the broadest
possible access to the use of the state's natural
resources; ... most important, management of renewable
resources must be on the basis of a sustained yield.
Let's not amend the constitution; let's defend it.
It is time to tell the [federal government] to pack up
and get out. Alaska is supposed to be a sovereign
state, according to the Alaska Statehood Act, approved
on July 7, 1958, and signed by the President, January
3, 1959. I would like to see more bills like SCR 25,
relating to the public trust for fish and wildlife in
Alaska. This is what Alaska needs, legislators that
put Alaska first and foremost. Thank you for the
opportunity to testify, and I also appreciate the fact
that Mr. Dyson and Mr. Davies are trying to do
something, but I would really like you to uphold the
constitution first; are there any questions?
Number 2051
DALE BONDURANT, Alaska Constitutional Legal Defense Fund,
testified briefly via teleconference. He said, "We have a suit
in court with the federal government over this," and noted that
he was submitting additional [written] testimony.
Number 2085
DELISE CALCOTE testified via teleconference, noting that her
mother's [family originated] from Afognak Island near Kodiak
Island, and her grandfather [originally came] from an area south
of Naknek. She said she moved to the Cook Inlet area in 1969,
had worked on the Exxon Valdez oil spill, and is part of the
class of 700 subsistence-damaged claimants that has still not
been paid. She noted that she had worked for Chickaloon
[Native] Village, the Cook Inlet Marine Mammal Council, and the
Cook Inlet Treaty Tribe, which she said had been working on the
beluga [whale] issue with tribes in the area. Ms. Calcote
remarked:
We have all this information, and [have been]
gathering information on damages that are occurring
here in the Cook Inlet, and on the fishing, and the
limitations of subsistence fishing; ... being in law,
you have to go all the way back to do the research of
where all this law came from; ... looking at
constitutional law, ... this Article XII, Section 12;
the State of Alaska, its employees and agencies still
have no codes and ordnances behind that. We have
never given up. ... We didn't get to vote for
statehood, and if P.L. [Public Law] 280 was attached
to it, there was a little provision section that said
that we all should've voted in every village, and had
it certified by Secretary of [the] Interior - that
never happened.
Number 2173
MS. CALCOTE continued:
If we had the Indian citizenship rights of the 1920s,
then why didn't we get to vote for it, and why was
[there] that little provision that we had to vote,
have to speak English, and write English in order to
vote for [the] constitution? We didn't get to vote
for ANCSA [Alaska Native Claims Settlement Act],
ANILCA, and to diminish us ... as ... an ethnic
minority in our own land. I don't want to even see
any kind of a vote on the constitution, because for us
to even go and vote at this time, when we didn't get
to vote for it in the first place, is just a sham, and
an attempt for everybody to think that we really are
having our rights represented. We have international
rights; we have never ever given up; we have never
voted, and I don't want to see one Alaska Native vote
for this.
Number 2246
MARY BISHOP testified via teleconference, noting that she would
submit alternative language for HJR 29. She said she believed
[the alternative language] was identical in meaning, but was
easier to read and understand, and she suggested it was really
critical in a constitutional amendment. She recommended using
the term "depleted resource", which she said makes it clear that
the shortage is not due to regulations. Ms. Bishop suggested
that subsistence is a holy word and remarked, "Government cannot
decide who holds which values or who belongs to which religion,
and no government can tell a person whether he or she is a
subsistence user." These are personal identities, she said,
often strongly held, often poorly defined, and in the case of
subsistence, with multiple definitions. She remarked that it is
"the state, the [federal government], and everyone's separate
personal definition."
MS. BISHOP asked, if Katie John moved to Fairbanks, whether the
federal government could logically tell her that she was no
longer a subsistence user. She said she has spent 25 years
listening to and participating in the subsistence debate, and
she has come to some conclusions, which she would offer in the
hope that it can help resolve or at least move "us" toward some
better understanding of one another, and a possible solution.
Ms. Bishop remarked, "I think HJR 29 is a move toward that
because it recognizes that subsistence is something that all of
us can do, but that 'priority' is not, and I think that's what
we have to recognize." She continued, "Subsistence is a holy
word, priority use is not"; she noted that she would submit the
remainder of her testimony in writing.
Number 2409
CO-CHAIR SCALZI turned attention to Section 1, subsection (b),
and suggested amending the section for clarity by adding the
word "resource" to the word "population".
REPRESENTATIVE DYSON said the bill was technically accurate in
the way that it's written, but was confusing to read. He said
he thought about adding the phrase "fish and game" before
"population", and remarked, "This bill does not talk about
gathering, and we thought about that, and we didn't want to get
into the logging issue particularly." He suggested that it is
fish and game where the issues are, and remarked, "It is not my
sense that we need to ... protect berry gathering, which really
comes to mind in the same way, first of all because those things
are not subject to management." Representative Dyson remarked,
"One of the folks that called in and testified didn't like the
fact that [in Version O] we had taken out the phrase
["availability to alternative food resources"]; what we were
thinking when we took that out was access to grocery stores."
He said the thought was not about the fish and game population,
but about people not being disqualified because they live too
close to [a village].
Number 2539
REPRESENTATIVE McGUIRE offered a conceptual amendment [Amendment
1], inserting the language "fish and game" before the word
"population" on lines 7-10 and 13-16.
Number 2581
CO-CHAIR MASEK asked if there was any objection to [Amendment
1]. There being no objection, she announced that Amendment 1
was adopted.
Number 2590
REPRESENTATIVE KAPSNER pointed out that for consistency line 13
should be changed, because it referred to "fish or wildlife".
REPRESENTATIVE DYSON said, "It already says fish and wildlife,
and probably we ought to ... make it consistent and make it fish
and wildlife all the way through."
CO-CHAIR MASEK again asked if there was any objection to
[Amendment 1]. There being no objection, it was so ordered.
Number 2638
CO-CHAIR MASEK indicated HJR 29 would be held for further
consideration.
Number 2690
REPRESENTATIVE DYSON, sponsor, withdrew his request to have HJR
11 heard by the committee. He explained:
This was my first attempt, and I believe that what you
have just heard HJR 29 supersedes the need for this.
If there's some wording in here that strengthens the
case, I'd be open to it, maybe as a subsequent
discussion, ... but ... I withdraw my request for you
to hear HJR 11.
HJR 4-CONST. AM: SUBSISTENCE USERS
HB 14-SUBSISTENCE USE OF FISH AND GAME
[Contains discussion of HJR 29]
CO-CHAIR MASEK announced that the next order of business would
be HOUSE JOINT RESOLUTION NO. 4, "Proposing amendments to the
Constitution of the State of Alaska authorizing a priority for
subsistence users of replenishable natural resources; and
providing for an effective date," and HB 14, "An Act relating to
subsistence use of fish and game, to fish and game advisory
committees, and to permits for historic or traditional uses of
fish and game and harvest practices; amending the definition of
'domicile' for purposes of the Fish and Game Code; and providing
for an effective date."
Number 2746
REPRESENTATIVE JOHN DAVIES, Alaska State Legislature, sponsor,
testified. Noting that HJR 4 and HB 14 are companion
legislation, he said he appreciated the fact that the committee
was hearing [HJR 4, HB 14] and Representative Dyson's bills
simultaneously. He remarked, "I think that [Representative
Dyson] and I are trying to get to the same place, but we're
coming from opposite sides ... of a very important line in the
sand that's been drawn relative to amending our constitution."
He continued, "And I think Representative Dyson's assumption is
that we can get to the point where we want to be without
amending the constitution in a way that's consistent with the
present version of ANILCA [Alaska National Interest Lands
Conservation Act]." Representative Davies said his assumption
was the opposite: he didn't think [the objective was
attainable] without amending the constitution to be consistent
with ANILCA.
Number 2801
REPRESENTATIVE DAVIES suggested that despite some significant
but relatively small differences, he and Representative Dyson
[had the same objective]. Representative Davies said he called
his general proposition the "dotted line proposal," because he
has listened to the debates and the concerns about the solutions
being characterized as "zip code biology" - an emphasis on
people's zip codes and places of residence. He said he was
trying to blur the distinctions that are in those zip code
lines, areas that are rural-versus-urban or areas that are
subsistence-versus-nonsubsistence. Representative Davies
expressed concerns about people living in remote areas such as
Bethel that may be classified as urban in the future, and people
living in areas classified as urban, such as Eklutna and
Fairbanks, who live a subsistence lifestyle. He remarked, "I'm
trying to, within the constraints that we find ourselves in, get
to a place where most of us agree we want to go." He continued,
"I start off, then, with the presumption that for a variety of
political, ... legal, and historical reasons, it is not
practical to change ANILCA." Representative Davies indicated it
was his goal to amend the constitution as minimally as possible
in obtaining the objective. He indicated HJR 4 doesn't contain
the word "rural"; instead, it refers to place of residence.
REPRESENTATIVE DAVIES called attention to Section 19, which read
[original punctuation provided]:
The legislature may, consistent with the sustained
yield principle, provide a priority for subsistence
users in the taking of fish and wildlife and other
replenishable natural resources based on place of
residence, dependence on replenishable natural
resources for subsistence uses, or customary and
traditional use of replenishable natural resources for
subsistence uses.
REPRESENTATIVE DAVIES reiterated that the bill does not contain
the word "rural" and said, "That's why you'll see Steve White's
[Assistant Attorney General, Department of Law] opinion in
there, that maybe this could get us there." He continued, "It's
true: this by itself doesn't get us there; you have to enact a
statute that's also consistent with this, ... so it's permissive
in that sense. ... This constitutional amendment does not
require us to be consistent with ANILCA." He continued, "It
only allows us to be consistent with ANILCA." Representative
Davies reiterated that he wants to amend the constitution as
minimally as possible to allow [the state] to eventually come
into compliance, but also [obtain the objective].
CO-CHAIR MASEK mentioned that HJR 4 was "tied in" with HB 14.
Number 2977
REPRESENTATIVE DAVIES said he thought it was necessary to draft
HB 14 at the same time as HJR 4 to demonstrate that a statutory
framework could be constructed that would be consistent.
TAPE 02-33, SIDE B
Number 2989
REPRESENTATIVE GREEN remarked:
Have you and Steve [White] talked about line 8, where
it talks about users rather than uses, and would this
then be contrary to ... Section 4 of Article VIII,
where it talks about uses? The reason I bring that up
is, "users" was a real sticking point when we went
through this battle about three years ago.
REPRESENTATIVE DAVIES said he hadn't had discussion on that
point with Mr. White, but from his point of view "we" have to
remain consistent with ANILCA.
REPRESENTATIVE GREEN remarked, "So, ... then, we would think
that perhaps there might be yet another change to that where we
use "uses". I think in the other section you'd probably go to
"users", then, ... so there's not a conflict."
REPRESENTATIVE DAVIES said if it could be shown that one or the
other is preferable to somebody and it works, then he'd be happy
with that.
REPRESENTATIVE GREEN asked whether he cared as long as it was
consistent.
REPRESENTATIVE DAVIES replied that he didn't care and eventually
[the statutory language] would have to be consistent.
Number 2902
REPRESENTATIVE DAVIES turned attention to HB 14 and said:
What it ... says is ... subsistence is ... the primary
use. Then it has this sort of onion skin approach to
it, and it backs off; when ... there's plenty of game
and there's no ... shortages. The dotted line thing
says ... if you're in rural Alaska and your area's
classified as subsistence areas, then you
automatically have a subsistence preference, but if
you live in a nonsubsistence area or a rural area, you
can apply for one based on some of these criteria that
the boards of fish and game would establish under this
constitutional amendment. So, ... it's as close as I
can come to providing a subsistence preference for ...
everybody, but be consistent with ANILCA; that's ...
what I'm trying to do there. Then, I also take a look
at the situation of shortages ... versus ... plentiful
supply.
When fish and game are plentiful, any subsistence user
anywhere in the state can hunt subsistence anywhere in
the state under my statute, so it's wide open. As
[fish and] game becomes more ... restricted, ... the
... restrictions on your bill - you hunt and fish as a
subsistence user - get [tighter]. ... It's
complicated. There's a whole long string of
circumstances, but it eventually narrows down to this
idea of locality - subsistence users whose ... life
really depends on that stock [or population] in their
back yard.
Number 2808
REPRESENTATIVE DAVIES remarked, "It starts off very broad, ...
and it moves down to a preference that's based on this idea of
locality." He said a lot of the concepts that Representative
Dyson talked about are, in a sense, incorporated in "what I'm
talking about here."
Number 2782
CO-CHAIR SCALZI referred to a portion of the sponsor statement,
which read in part, "allow the Legislature to provide a priority
for subsistence users of fish, wildlife, and other replenishable
natural resources on state land, based on place of residence,
dependence upon, or customary and traditional uses of the
replenishable resources." He asked if that meant that a person
may live in an urban area. He pointed out that that was a
distinction between Representative Dyson's bill and [HB 14].
Co-Chair Scalzi referred to residency and asked who would
determine eligibility [for a subsistence priority].
REPRESENTATIVE DAVIES answered, "The boards."
CO-CHAIR SCALZI asked if the criteria would also be developed by
the boards.
REPRESENTATIVE DAVIES responded, "Correct."
Number 2737
REPRESENTATIVE GREEN said:
I brought up the fact that any restriction ... - the
same problem of Representative Dyson's bill - that
says anytime there's a bag limit, then this is in
effect, because there is a restriction, ... so if
there's a bag limit, you are in a restricted zone.
So, this is what we'd be living with, unless they
removed any kind of bag limit, and we know that's not
going to happen.
REPRESENTATIVE DAVIES said this scheme will not satisfy those
people who don't want to have a subsistence preference in place
all the time, because this would be in place all the time; the
nature of the preference would change given the relative
plentitude of [fish] and game.
Number 2689
REPRESENTATIVE GREEN responded, "That's my concern," and
remarked:
A few years ago, ... some of the people on the
[committee weren't here], and this was one of the big
sticking points, ... anytime you impose this, then ...
you've got a problem. What Representative Davies
talks about is ... on the very close edge to doing it,
because when we were doing it ourselves, before the
Katie John [lawsuit] triggered this, ... [the Alaska
Department of] Fish and Game did it very similar to
that. The bill that I brought out a few years ago was
predicated on that same general idea, that those
people closest to the area, that live on that, should
have first priority, ... and it shouldn't be coming in
whether you're Native or anything else; you shouldn't
be coming into that area at the jeopardy of those
people. I think everybody in the state agrees with
that, and it was working wonderfully by [ADF&G]; then
we ran afoul of the Secretary of the Interior and the
insistence on [complying with] ANILCA ....
REPRESENTATIVE GREEN continued:
So, ... can we get Secretary [of the Interior] Norton
to look at this? If we can't change ANILCA, can we
change ... the interpretation a little bit? If so,
then maybe we can work ... a deal like this without
changing our constitution. When the governor dropped
the Katie John suit after the 9th Circuit Court of
Appeals had ruled, ... in the expansion period, rather
than the ... time allotted to it, that forbade the
legislature from coming in, because they said we
hadn't filed timely. The concern I have is that until
we go to the ... Supreme Court, we're constantly going
to have this kind of a problem.
We can get close, but we can't get there, because
there are some of us who feel that if we give our
standing position in the state constitution, then ...
when some fisherman or some other person can show
damage, and is willing to take it through the steps
that we had gone through on Katie John - got right to
the door of the Supreme Court and lost it - until
we're ready to do that, and the Supreme Court accepts
it, drops the hammer and [says] this is the law of the
land - you now will live with it, and all of us will
say ... good, better, and different ... we have to
live under that - until that happens, I'm afraid
little nuances like this are going to be a sticking
point, because there really isn't anything new here
that we haven't already gone through, and that's my
problem.
Number 2537
REPRESENTATIVE DAVIES replied that he disagreed that it was the
Secretary of the Interior [Bruce Babbitt] that caused that
issue. Instead, he said, it was the McDowell case [which was
heard by the Alaska] Supreme Court that said [Alaska's] law was
inconsistent with its constitution. He remarked, "The problem
is, ... we have a federal law that's under ... treaties that we
have with aboriginal [people]." Representative Davies remarked,
"My reading of history and my reading of the current politics in
the nation is different [from] yours, and that's ... why my
presentation here was saying that I think that we're going to
have to amend our constitution to be, in some way, consistent
with ANILCA." He continued, "I don't believe that, in any
substantive way, ... the politics of the land will allow us to
change that, and so if you concur on that, ... then I think that
this is the best approach."
Number 2470
REPRESENTATIVE DAVIES remarked:
There are people that are concerned about the equal
access clause in our constitution, and I am too. This
does not repeal the equal [access] clause, even though
some people think that it's tantamount to doing that;
it does not; it's still there. We had those laws in
place - I believe that 99.99 percent of the time, you
would not, ... in practice, be able to see one whit of
difference in the way people would live under that
constitutional amendment than they did before with our
previous interpretation of it.
So, it's a question of, do you want to ... insist on
that last hundredth of percent of principle, and
suffer the consequences that we're suffering now with
federal management, or do you want to swallow your
pride just a little, ... [and] amend the constitution
in the minimal. I submit that this is the minimal
possible way to do it and still be able to be
consistent with [ANILCA]. This is not mandatory
language; many of the Alaska Native folks want
mandatory language now. I asked the bill drafter to
take the previous status quo prior to [the] McDowell
[case], and draft the minimum possible change to be
consistent with the new reality. That's what I think
this is; ... it's obviously a compromise; it's not
going to be what you want in your preference, and it's
not, ... probably, what my friends at the Alaska
Federation of Natives want in there. I think it is a
compromise that could get us there, and ... the vast
majority of the time ... you wouldn't be able to tell
the difference between having that constitution
amendment or not. The equal access clause would be
paramount, and it would be the law of the land.
Number 2387
REPRESENTATIVE GREEN remarked:
My concern is, as we were told before, if you're
looking at the Yukon [River] and we had this enacted,
would we still have potential problems moving up the
Yukon [River], where there could be a subsistence
priority granted over a downstreamer who didn't have
that priority, and then back to a priority, and then
back to a nonpriority. I'm sure you've seen that
possible ... coral snake approach going up the Yukon
[River], and I'm concerned that reasonable people, we
don't have a problem .... It's the unreasonable
people that I'm concerned about .... There is that
potential, and where it is there are going to be ...
unscrupulous lawyers who'll say yes, here's an
opportunity to create a lot of problems, ... and so
that's my concern. The unintended consequences of
that one-hundredth of a percent or whatever that
number might be.
Number 2309
REPRESENTATIVE DAVIES said the bill provided a significant
amount of deference to the boards of fish and game. He
remarked:
My personal belief is, whenever we have a chance to
get primacy, that we ought to go for it, and I think
that it's those people that live here and make their
homes here, ... who have their mind set as Alaskans,
are going to be the ones that are best able to make
those [choices]. I think that if we have the ...
Alaska boards of fish and game setting the rules, that
... situation, that coral snake issue that you're
talking about, while it could be a sticky thing, and
it probably will [be], there will be difficult
decisions to be made about ... possible shortages;
you're going to have to anticipate those, but I think
our boards will be able to do that.
REPRESENTATIVE GREEN commented:
I would certainly concur with that, if left to their
own devices; if they weren't hamstrung in certain ways
or ... didn't have the fear that ... here comes a
sticky point litigation, I agree, I think we've proven
it. When we became a state, we said ... we can
establish a fish and game [department] that will
restore the salmon runs. I mean, the federal
government just about did us in, and we did, we built
those things up way beyond anybody's expectation. I
don't think anybody in 1959 dreamed that you'd have
the escapement and the returns that we've had in the
past through [ADF&G]. They've done a wonderful job,
and I support that 100 percent; if they could do it
without encumbrances, I'd be all in favor of it. But
when ... litigation comes, I'm thinking we've got to
be able to have a place to stand; otherwise, we'll be
at the will of the federal government ....
Number 2198
REPRESENTATIVE McGUIRE thanked Representative Davies for
tackling a problem she referred to as very complex, and said
it's been a travesty to watch people, who would otherwise be
friends, become enemies over this issue. She remarked, "It's
taken away so much time and energy that people could be using in
other areas." She turned attention to Section 4, which read:
(c) The Board of Fisheries and the Board of Game may
adopt regulations providing for the issuance and
expiration of subsistence permits for areas, villages,
communities, groups, or individuals as needed for
authorizing, regulating, and monitoring the
subsistence harvest of fish and game. [THE BOARDS
SHALL ADOPT THESE REGULATIONS WHEN THE SUBSISTENCE
PREFERENCE REQUIRES A REDUCTION IN THE HARVEST OF A
FISH STOCK OR GAME POPULATION BY NONSUBSISTENCE
USERS.]
REPRESENTATIVE McGUIRE asked, "What was the wisdom in requiring
the Board of Fisheries and the Board of Game to eliminate their
requirements that they already have, that says that will provide
a subsistence permit when the subsistence preference requires a
reduction of harvest by nonsubsistence users?" She said in
giving those people who need the resource the most the ability
to access it, there is still a responsibility to manage the
resources wisely and see how they relate to other uses.
Number 2108
REPRESENTATIVE DAVIES replied that the point isn't to eliminate
subsistence permits. Instead, he said, the language that he was
replacing it with is much more general and is inclusive of most
of that; the key change - a sticking point - requires that the
regulations are only in effect when there's a shortage. He
said, in his view, to be consistent with ANILCA, the regulations
have to be in place consistently; what he is trying to do is
have the regulations in place all the time but have their effect
[be broadened].
REPRESENTATIVE McGUIRE, referring to Representative Davies'
notion of trying to do the least amount to try to solve the
constitutional problem, asked if he believed that allowing the
board to continue to issue those permits, even when it isn't a
time of shortage, would in some way undermine the
"constitutional part of it." She asked if that was a "giving"
point.
REPRESENTATIVE DAVIES remarked, "I don't think you could do it
without doing that, ... and that's why I ...think that's ... one
of the sticking points that we get to; ... my finesse of that is
to have the regulation in place all the time, but to have its
effect differ ... depending on the plentifulness of game."
Number 2063
REPRESENTATIVE McGUIRE, referring to Representative Dyson's
bill, said he talks a lot about consumption, and that a key
element of [the objective] is the ability of people to put food
on their table. She said it is a valid concern, and it's more
valid in places where people can't get to a grocery store;
however, there are also people in the [Anchorage] district that
are subsistence users. She said she was supportive of the idea
of establishing regulations that would allow them to prove
customary traditional use; she suggested people in her
neighborhood [in Anchorage] would be able to do it.
Representative McGuire expressed concern that consumption was
not mentioned in Representative Davies' bill and asked, "So, how
do you envision the part about being able to use subsistence to
make money," and whether the earning limit was $5,000. She
asked Representative Davies if he viewed subsistence as a
consumptive issue or viewed it as such that a user could profit
in order to [purchase] different types of food; she asked how
the bill addressed that issue.
REPRESENTATIVE DAVIES remarked, "That specific issue, ...
mostly, is ducked in this bill." He offered his view that,
fundamentally, there is a significant difference between
subsistence and the cash economy; his idea of subsistence is
people using fish and game for their own and their families'
nutrition. He pointed out that the word "nutritional" was
included in the language of the bill, and referred to HB 14,
page 4 [line 15]:
A subsistence area is an area or community where
dependence on fish and game for nutritional and other
subsistence uses is a principal characteristic of the
economy, culture, and way of life of the area or
community.
REPRESENTATIVE DAVIES, referring to page 4, line 23, said
[paragraphs] 1-13 were factors that the board can consider in
"making those kinds of determinations." He remarked, "Not
because I don't want to make the decision myself but because I
think it's best made by the boards, ... with the advice of the
regional advisory councils, ... to make those determinations."
Representative Davies said he thought there were some issues
with the way game was shared in Native communities. He
remarked, "And to a more limited extent, barter, and an even
more limited extent, actually, sale, that are customary and
traditional and ought to be honored, but they ought to be
limited significantly."
Number 1852
REPRESENTATIVE McGUIRE said she shared that same philosophical
value, and remarked, "I have repeatedly stated, I want to work
toward a solution on subsistence, but to preserve those basic,
basic goals." She continued, "There is also a distinction
between barter and then the actual cash sale, and those things
can be worked out; ... I think that [ADF&G] could probably spend
some time working out how that is." Representative McGuire,
referring to Canadian subsistence, expressed concern that the
sale of skins and fish has had a resulting negative effect on
the resource. She remarked, "I think in doing this, we're
trying to preserve the ability to have a subsistence way of life
and put food on your table, but we also have to keep in mind, I
think, that we have an obligation to make sure that the resource
itself is managed wisely."
REPRESENTATIVE DAVIES, in response to Representative McGuire,
said subsistence use in general is only few percent of the total
[amount of fish taken annually].
REPRESENTATIVE McGUIRE replied, "And that's what I want to keep
it at. I just don't want it to get to a point where it becomes
a ... commercial means."
Number 1753
REPRESENTATIVE KERTTULA asked if urban residents who customarily
and traditionally rely on subsistence [receive] a type of
priority, and whether the urban subsistence priority would
diminish the rural subsistence priority in times of shortage.
REPRESENTATIVE DAVIES said in [extreme shortage situations] the
local rural subsistence will [have priority]. He remarked, "You
have to get to that point eventually or you won't be consistent
with ANILCA. ... I think that's going to be so rare that you'll
hardly ever see it."
REPRESENTATIVE GREEN remarked, "I think you're absolutely right,
... with the exception of trying to manage this from the other
side of the Mississippi ...."
Number 1658
CO-CHAIR MASEK indicated HJR 4 and HB 14 would be held for
further consideration.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:15 p.m.
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