04/02/2007 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB203 | |
| HJR4 | |
| HB220 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 203 | TELECONFERENCED | |
| += | HJR 4 | TELECONFERENCED | |
| + | HB 132 | TELECONFERENCED | |
| *+ | HB 220 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 2, 2007
1:32 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Co-Chair
Representative Craig Johnson, Co-Chair
Representative Vic Kohring
Representative Bob Roses
Representative Paul Seaton
Representative Peggy Wilson
Representative Bryce Edgmon
Representative David Guttenberg
Representative Scott Kawasaki
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 203
"An Act creating the Kodiak Narrow Cape Public Use Area."
- MOVED CSHB 203(RES) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 4
Requesting the Federal Subsistence Board to reconsider its
decision regarding the subsistence fishery priority given to
Ninilchik residents.
- HEARD AND HELD
HOUSE BILL NO. 220
"An Act prohibiting computer-assisted remote hunting."
- MOVED CSHB 220(RES) OUT OF COMMITTEE
HOUSE BILL NO. 132
"An Act designating the first Tuesday of May as Alaska
Agriculture Day."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 203
SHORT TITLE: KODIAK NARROW CAPE PUBLIC USE AREA
SPONSOR(s): REPRESENTATIVE(s) LEDOUX
03/14/07 (H) READ THE FIRST TIME - REFERRALS
03/14/07 (H) RES, FIN
03/28/07 (H) RES AT 1:00 PM BARNES 124
03/28/07 (H) Heard & Held
03/28/07 (H) MINUTE(RES)
04/02/07 (H) RES AT 1:00 PM BARNES 124
BILL: HJR 4
SHORT TITLE: KENAI/KASILOF SUBSISTENCE PRIORITY
SPONSOR(s): REPRESENTATIVE(s) OLSON
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) FSH, RES
02/23/07 (H) FSH AT 8:30 AM CAPITOL 124
02/23/07 (H) Scheduled But Not Heard
02/26/07 (H) FSH AT 8:30 AM BARNES 124
02/26/07 (H) Heard & Held
02/26/07 (H) MINUTE(FSH)
03/02/07 (H) FSH AT 8:30 AM BARNES 124
03/02/07 (H) Moved CSHJR 4(FSH) Out of Committee
03/02/07 (H) MINUTE(FSH)
03/05/07 (H) FSH RPT CS(FSH) NT 3DP 1NR
03/05/07 (H) DP: JOHNSON, EDGMON, SEATON
03/05/07 (H) NR: LEDOUX
03/28/07 (H) RES AT 1:00 PM BARNES 124
03/28/07 (H) Scheduled But Not Heard
04/02/07 (H) RES AT 1:00 PM BARNES 124
BILL: HB 220
SHORT TITLE: BAN COMPUTER-ASSISTED REMOTE HUNTING
SPONSOR(s): REPRESENTATIVE(s) BUCH
03/26/07 (H) READ THE FIRST TIME - REFERRALS
03/26/07 (H) RES, JUD, FIN
04/02/07 (H) RES AT 1:00 PM BARNES 124
WITNESS REGISTER
SUZANNE HANCOCK, Staff
to Representative Gabrielle LeDoux
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke on behalf of the sponsor of HB 203,
Representative LeDoux.
JEROME SELBY, Mayor
Kodiak Island Borough
Kodiak, Alaska
POSITION STATEMENT: Encouraged the committee's support of HB
203.
RICK GIFFORD, Manager
Kodiak Island Borough
Kodiak, Alaska
POSITION STATEMENT: During hearing of HB 203, highlighted the
importance of the proposed Kodiak Narrow Cape Public Use Area.
LARRY DEVILBISS, Director
Division of Agriculture
Department of Natural Resources
Palmer, Alaska
POSITION STATEMENT: During hearing of HB 203, emphasized the
need for any land classifications not to eclipse the existing
grass leases.
PAT LADNER, President & CEO
Alaska Aerospace Development Corporation (AADC)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 203.
DICK MYLIUS, Director
Division Mining, Land and Water
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 203, answered
questions.
DOUG LETCH
Kodiak, Alaska
POSITION STATEMENT: Testified on HB 203.
CONRAD JACKSON, Staff
to Representative Kurt Olson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HJR 4 on behalf of the sponsor,
Representative Olson.
DARREL WILLIAMS, Resource Officer, Environmental Scientist
Ninilchik Traditional Council
Ninilchik
POSITION STATEMENT: During hearing of HJR 4, provided
information.
DANIEL REYNOLDS
Ninilchik, Alaska
POSITION STATEMENT: During hearing of HJR 4, opined that
Ninilchik has proven customary and traditional use on the Kenai
Peninsula.
JOHN HILSINGER, Director
Division of Commercial Fisheries
Alaska Department of Fish & Game
Juneau, Alaska
POSITION STATEMENT: Testified on HJR 4.
ROD ARNO, Executive Director
Alaska Outdoor Council (AOC)
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HJR 4.
JOHN SKY STARKEY
Ninilchik, Alaska
POSITION STATEMENT: Testified in opposition to HJR 4.
REPRESENTATIVE BOB BUCH
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 220.
ROD ARNO, Executive Director
Alaska Outdoor Council (AOC)
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 220.
JOE KLUTSCH, President
Alaska Professional Hunters Association, Inc. Board of Directors
Alaska Professional Hunters Association, Inc. (APHA)
Copper Center, Alaska
POSITION STATEMENT: Testified in support of HB 220.
RONNIE ROSENBERG
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 220.
ACTION NARRATIVE
CO-CHAIR CARL GATTO called the House Resources Standing
Committee meeting to order at 1:32:35 PM. Representatives
Gatto, Johnson, Seaton, Roses, Guttenberg, and Wilson were
present at the call to order. Representatives Edgmon, Kawasaki,
and Kohring arrived as the meeting was in progress.
HB 203-KODIAK NARROW CAPE PUBLIC USE AREA
1:32:52 PM
CO-CHAIR GATTO announced that the first order of business would
be HOUSE BILL NO. 203, "An Act creating the Kodiak Narrow Cape
Public Use Area."
1:33:08 PM
SUZANNE HANCOCK, Staff to Representative Gabrielle LeDoux,
Alaska State Legislature, speaking on behalf of Representative
LeDoux, sponsor of HB 203, specified that the updated version of
the sponsor statement states that there are five public use
areas recognized in state law. Therefore, it acknowledges the
existence of the Knik Arm River Public Use Area.
1:33:53 PM
REPRESENTATIVE WILSON moved to adopt CSHB 203, Version 25-
LS0732\E, Bullock, 4/2/07, as the working document. There being
no objection, Version E was before the committee.
1:34:31 PM
MS. HANCOCK noted that the committee packet should include a
conceptual amendment addressing some of the concerns brought
forth at the prior hearing. Ms. Hancock explained that the
changes incorporated in Version E were primarily the legal
description of the Kodiak Narrow Cape Public Use Area. The
Department of Natural Resources (DNR) eliminated about 10,000
acres from the original land designation. The term "may" was
changed to "shall" with regard to the management plan.
1:35:33 PM
CO-CHAIR GATTO turned to public testimony.
1:35:52 PM
JEROME SELBY, Mayor, Kodiak Island Borough, said that HB 203 is
an important bill to Kodiak. He related that several years ago
there was an attempt to transfer this land to the University of
Alaska, which indicated that it was going to dispose of a
significant amount of the land. The land, which he
characterized as a significant piece of public recreation land
on the Kodiak road system, was at risk. He pointed out that
most of the land on the road system is privately owned and
there's little land that is easily accessible by automobile for
the Kodiak community to utilize for recreation purposes. After
the land was withdrawn from the university legislation, the
community came together to discuss the best classification for
the land, one that allows multiple uses such as hunting,
fishing, grazing, and the rocket launch. He thanked
Representative LeDoux and Senator Stevens who worked with DNR to
develop this classification. Mayor Selby acknowledged that
designating the area as a public use area doesn't mean the land
is locked up forever. However, it raises the threshold such
that it requires returning to the legislature if another use of
this land is allowed. In conclusion, Mayor Selby requested the
committee's support of HB 203.
1:39:27 PM
CO-CHAIR GATTO asked if the rocket launch is the same as the
Alaska Aerospace Development Corporation (AADC).
MAYOR SELBY replied yes. In further response to Co-Chair Gatto,
Mayor Selby explained that the AADC is a wholly-owned state
subsidiary corporation. The AADC has a lease on a portion of
the area to be designated as the Kodiak Narrow Cape Public Use
Area, which the community fully supports.
1:39:58 PM
CO-CHAIR GATTO posed a scenario in which AADC leaves, and asked
if the land would revert back to the state.
MAYOR SELBY said that the AADC has a lease from the state and
thus it will continue to be state land. In further response to
Co-Chair Gatto, Mayor Selby related his belief that [the
proposed Kodiak Narrow Cape Public Use Area] amounts to about
46,000 acres.
1:40:27 PM
RICK GIFFORD, Manager, Kodiak Island Borough, reiterated the
importance of the area to the public. He, too, thanked Senator
Stevens and Representative LeDoux for introducing HB 203.
1:41:38 PM
LARRY DEVILBISS, Director, Division of Agriculture, Department
of Natural Resources, related that his only concern is that
everyone should be aware that this proposed public use area lays
over existing cattle leases. This would not be as valuable a
recreation area if it were not for the prior cattle ranching.
The cattle leases exist with the existing leases stating that
the recreational use is available. He explained that he wanted
to be sure that any new classifications don't eclipse the
existing grass leases.
1:44:03 PM
PAT LADNER, President & CEO, Alaska Aerospace Development
Corporation (AADC), Department of Administration, began by
relating AADC's support for HB 203. He also related support for
public recreation. The AADC has 3,717 acres under an inter-
agency agreement from DNR as well as around 8,000 acres total
for safety and security. Mr. Ladner said that he reviewed HB
203 in order to ensure that AADC's operations are not hampered.
He opined that public safety and environmental [safety] are of
paramount importance. When AADC embarks on dangerous
operations, access to the area is closed. The aforementioned
only occurs during a launch, which is about six hours prior to
the launch. Helicopters are utilized to ensure no one has
wandered into the area and local vessels are utilized to form a
corridor in the water to ensure that a vessel doesn't wander
into the area during the final count of the launch.
1:47:16 PM
REPRESENTATIVE GUTTENBERG asked if there are public airstrips
[located in the proposed public use area]. He then asked if
AADC has an air strip.
MR. LADNER specified that AADC does not have an airstrip.
Although AADC's long-range plan has reviewed the possibility of
an airstrip, the organization doesn't have the funds or the
plans to do so at this time.
1:48:26 PM
DICK MYLIUS, Director, Division Mining, Land and Water,
Department of Natural Resources, offered to answer any
questions.
1:48:43 PM
REPRESENTATIVE SEATON asked if it's necessary to include a
provision specifying under Section 1 that one of the purposes is
the continuation of the missile launch facility.
MR. MYLIUS opined that the missile launch facility is already
adequately protected by the language in Section 1(b) and (c) of
HB 203.
1:50:08 PM
REPRESENTATIVE SEATON surmised then that the conceptual
amendment that would include a provision to continue to allow
grazing uses is just a reiteration of what is contained in
Section 1(b) and (c).
MR. MYLIUS said that although that's generally correct, he
related his understanding that some desired for the grazing use
to have a bit higher profile in the purpose section. In further
response to Representative Seaton, Mr. Mylius said that from
DNR's regarding the launch facility's use Section 1(b) and (c)
is sufficient.
1:51:21 PM
REPRESENTATIVE EDGMON, referring to page 2, lines 24-25,
inquired as to the differences between public use area and a
state park system.
MR. MYLIUS clarified that state park units are lands that are
generally not considered multiple use. As a general rule the
lands are typically set aside specifically for recreation-
related purposes. Therefore, as a general rule parks are closed
to mineral entry and there are usually limitations on leasing.
Grazing is usually not allowed. Mr. Mylius said that the least
intensively managed areas are generally public recreation areas,
such as Chena State Recreation Area or Nancy Lakes. However,
those recreation areas are closed to multiple use, such as
grazing. The next higher level is state parks that may have
additional restrictions and regulations.
1:52:48 PM
REPRESENTATIVE EDGMON related his understanding that a
management plan is required for state parks.
MR. MYLIUS said that although DNR has prepared management plans
for most state parks, he was unsure if there is legislation
requiring such.
1:53:10 PM
REPRESENTATIVE GUTTENBERG inquired as to what Version E changes
in regard to the legal description of the proposed public use
area.
MR. MYLIUS characterized the change as primarily a drafting
change. The legal description in HB 203 versus Version E aren't
significantly different, except in how the tidelands are
described. Basically, Version E squares off the boundary in the
tidelands area. In HB 203 the tidelands were established at a
certain distance from the shore. However, Legislative Legal and
Research Services felt that the language in HB 203 was
inconsistent with similar language in other legislation. Mr.
Mylius specified that the new legal description doesn't
significantly change what areas are included in the proposed
public use area.
1:54:38 PM
REPRESENTATIVE KAWASAKI inquired as to why the provision on page
2, line 14, provides such a strict definition of "additional
uses."
MR. MYLIUS related that HB 203 was, to some extent, patterned
after the legislation for the Knik Arm Public Use Area in which
existing uses were specifically identified. He further related
that DNR doesn't have a strong concern whether the list is
specified or not.
1:56:10 PM
CO-CHAIR GATTO inquired as to what would happen if the specified
additional uses become a conflict with grazing leases.
MR. MYLIUS responded that such an issue would need to be sorted
out through a management plan. Although the language on page 2,
line 14, specifies that "the commissioner shall allow additional
uses," it doesn't necessarily mean that every use listed would
be allowed in all areas. The department doesn't view the list
as all-inclusive or that all the listed uses have to be allowed
throughout the public use area. He noted that some of the
earlier public use areas don't include such a list.
1:57:56 PM
CO-CHAIR GATTO asked if DNR would have any problem with changing
"shall" to "may" on page 2, line 14.
MR. MYLIUS answered that would be fine, and perhaps even
preferable.
1:58:14 PM
CO-CHAIR JOHNSON pointed out that use of the term "may" could
result in not allowing the uses as well as allowing the
additional uses. Therefore, he expressed the need to be
specific such that it's not restrictive but rather inclusive.
1:58:44 PM
REPRESENTATIVE SEATON surmised that under the "shall" language
DNR would have the authority to limit uses for habitat
degradation or does having that language in statute mean that
DNR loses its ability to regulate for the protection of habitat
or the purposes of the legislation.
MR. MYLIUS replied no because the lead-in sentence says,
"Consistent with the purposes of AS 41.23.240(1) and (2), which
refer to maintaining, protecting, and enhancing year-round
public recreation and enjoyment and use of fish and wildlife.
Although AS 41.23.240(1) and (2) does not specifically refer to
habitat protection, the language could be read to allow DNR to
regulate a use that is degrading a resource for which the public
use was established.
2:00:32 PM
CO-CHAIR GATTO turned attention to page 2, line 27, which
specifies that the "commissioner may prohibit or restrict uses
determined to be incompatible." If it's hunting season and
someone shots a moose, would the person who owns the leases be
able to say that's dangerous. He asked if something such as
that has been envisioned.
MR. MYLIUS replied no, and explained that the leases don't grant
rights to the grazer to prohibit public uses, including hunting.
He reminded the committee that the proposed public use area
would still be state land and the only right the grazer has is
to have the animals present and the construction of fences, if
those are consistent with a plan. Still, the leaseholders can't
restrict public use and can't control hunting.
2:02:21 PM
DOUG LETCH indicated that although he is staff to Senator Gary
Stevens and has done some work on this legislation in the
Senate, he is speaking on his own behalf today. He noted his
agreement with Representative Johnson that the legislation is
trying to protect the existing uses of the Kodiak Narrow Cape.
As a resident of Kodiak, Mr. Letch indicated that he likes HB
203.
2:03:51 PM
CO-CHAIR GATTO, upon determining no one else wished to testify,
closed public testimony.
2:03:54 PM
REPRESENTATIVE SEATON moved that the committee adopt Conceptual
Amendment 1, as follows:
Section 41.23.240 is amended to read:
(3) Allow for the continued use of this area
for grazing uses and operations consistent with state
land use plans and other applicable laws and
regulations.
Renumber accordingly.
There being no objection, Conceptual Amendment 1 was adopted.
2:04:41 PM
REPRESENTATIVE ROSES related his understanding that the language
doesn't supersede any of the existing laws or regulations, and
thus leases would have to be obtained and go through the
process.
2:05:35 PM
REPRESENTATIVE WILSON moved to report CSHB 203, Version 25-
LS0732\E, Bullock, 4/2/07, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 203(RES) was reported from the
House Resources Standing Committee.
HJR 4-KENAI/KASILOF SUBSISTENCE PRIORITY
2:05:58 PM
CO-CHAIR GATTO announced that the next order of business would
be HOUSE JOINT RESOLUTION NO. 4, Requesting the Federal
Subsistence Board to reconsider its decision regarding the
subsistence fishery priority given to Ninilchik residents.
[Before the committee is CSHJR 4(FSH).]
2:07:03 PM
CONRAD JACKSON, Staff to Representative Kurt Olson, Alaska State
Legislature, explained that HJR 4 requests that the Federal
Subsistence Board reconsider its November 2006 decision
regarding the subsistence fishery priority given to Ninilchik,
Happy Valley, Hope, and Cooper Landing residents. He noted that
the committee packet should include a map illustrating the
location of the aforementioned communities. The customary and
traditional (C&T) use determinations provide subsistence
priority to the residents of Ninilchik and Happy Valley for
waters north of and including the Kenai River drainage within
the Kenai National Wildlife Refuge and the Chugach National
Forest as well as parts of the Kasilof River. A similar C&T
determination grants the subsistence priority to the residents
of Cooper Landing and Hope for the Kenai River drainage. He
noted that the committee packet should include the request for
reconsideration (RFR) filed by the Alaska Department of Fish &
Game (ADF&G).
2:09:23 PM
MR. JACKSON turned attention to the RFR for Ninilchik, and
highlighted the following language from it: "Reconsideration is
required because, in adopting that final rule, 'the Board's
interpretation of information, applicable law, or regulation
[was] in error or contrary to existing law.'" The same language
is found in the RFR for Ninilchik for the Kasilof River
drainage. With regard to Hope and Cooper Landing for the Kenai
River drainage and waters north of the drainage, the RFR says,
"Reconsideration is required because, in adopting the final
rule, 'the Board's interpretation of information, applicable
law, or regulation [was] in error or contrary to existing law,'
and because new 'information not previously considered by the
Board' demonstrates that the Board's determination was based on
incorrect information and assumptions." These [RFRs] clearly
illustrate that the C&T determination is flawed. Mr. Jackson
informed the committee that there were some studies [referenced
in the document titled "ADF&G Comments on FRFR06-02/03/08
Ninilchik C&T for the Kenai River"] that may have been
misinterpreted. One such study showed that only 7 percent of
the Ninilchik households claim annual use of the Upper Kenai
Area fisheries and a total of 28 percent of Ninilchik residents
claimed any such usage ever during their lifetime. The survey
found that Ninilchik residents experienced the highest use from
fisheries closest to Ninilchik, such as the Ninilchik River and
Deep Creek. The sponsor, he related, agrees with ADF&G that the
C&T determinations are flawed. Therefore, HJR 4 requests that
the Federal Subsistence Board revisit those considerations and
take a closer look at the eight criteria upon which the board is
required to follow in making C&T determinations.
2:12:30 PM
CO-CHAIR GATTO asked if on page 2, line 2, the intent is for the
term "reconsider" to mean "reverse." He further asked if such a
language change would be clearer or go too far.
MR. JACKSON said use of the term "reconsider" is appropriate as
the desire is to request that the board review the eight factors
that it's supposed to utilize when making the C&T
determinations.
2:13:38 PM
DARREL WILLIAMS, Resource Officer, Environmental Scientist,
Ninilchik Traditional Council, began by relating that he is a
federally qualified subsistence user. He further related that
he participated in the delivery of the information provided to
the Federal Subsistence Board in the C&T process. Mr. Williams
said that he's present today because it seems that there has
been some misinformation. He noted that he provided the
committee with a document [titled "HJR 4 Reasons to Oppose By
Ninilchik Traditional Council"] that reviews some of the
instances that have arisen through the [C&T] process. Mr.
Williams pointed out that this process has gone on for seven
years and he said he was sure that no one has been able to
review all seven years of the documentation. The aforementioned
is evidenced, he said, in discussions of the survey information
and how it was used to prove or disprove or to meet the
thresholds of the eight factors of the Alaska National Interest
Lands Conservation Act (ANILCA). He recalled a survey performed
by Jim Fall that has been held up as a reason to scrutinize [the
C&T process]. One of the problems that resulted from the survey
information was the use of stratification techniques to be able
to determine subsistence use in various communities; these
techniques were inconsistent. For example, in the community of
Nicolai the survey was stratified into new believers and old
believers within the same community and who would be eligible
for subsistence use and who wouldn't. He recalled that in the
Fall survey, the longest residency identified and surveyed was
10 years. In a community such as Ninilchik, which has written
documentation back to the 1840s, that doesn't seem realistic.
The target population seemed to be missed, he said. The state
addressed this many times throughout the process by various
staff. Since it's been one of the longest C&T processes that
the Federal Subsistence Board has performed, it has been
carefully done with legal counsel through the Office of the
Solicitor. If the state had significant new evidence that [the
C&T determination] was wrong, it would be submitted in a
proposal to the Federal Subsistence Board and go through the
process. Mr. Williams pointed out that during this process
there have been RFRs and special action requests and has
required extensive legal counsel. He further pointed out that
the RFRs and special action requests have been reviewed
federally and withstood the threshold of the C&T determination
on the eight factors.
2:18:13 PM
MR. WILLIAMS, in response to Representative Guttenberg, opined
that there tends to be fear with this particular C&T
determination that there will be a large number of people taking
a large amount of fish. As a comparative example, Mr. Williams
inquired as to how many minutes it would take to catch 500 fish
if one was commercial fishing. The 500 fish was a threshold
that was taken into consideration through the C&T process.
2:20:47 PM
DANIEL REYNOLDS said that Ninilchik has proven customary and
traditional use on the Kenai Peninsula and has provided
substantial evidence to support the C&T determination. Drawing
from the meetings he attended, Mr. Reynolds said that [the
Regional Advisory Council and ADF&G] had substantial time to
obtain evidence to support their claims.
2:22:02 PM
JOHN HILSINGER, Director, Division of Commercial Fisheries,
Alaska Department of Fish & Game, stated that the state is
deeply troubled by the C&T determinations that were granted to
Ninilchik, Happy Valley, Hope, and Cooper Landing. As Mr.
Jackson noted, the [department] has filed a RFR. Mr. Hilsinger
informed the committee that the aforementioned communities,
under state law, are considered nonrural and part of the
Anchorage, Mat-Su, and Kenai nonsubsistence area. The Federal
Subsistence Board regards these communities as rural even though
they are surrounded by nonrural communities. Furthermore, the
Federal Subsistence Board has found that these communities have
C&T use in the Kenai and Kasilof River drainages as well as
other waters in the northern portion of the Kenai Peninsula.
Mr. Hilsinger opined that the Federal Subsistence Board didn't
base its decisions on evidence that adequately meets the eight
factors required by federal regulation for making a C&T
determination. For example, the regulations require
demonstration of a long-term and consistent C&T use pattern of
the fish resource on federal lands by a community. As Mr.
Jackson noted, the Federal Subsistence Board misused the data
provided by the department and reviewed the number of people who
have ever used the area in their entire lifetime. However, when
one reviews the proportion that uses it any given year, it's
less than 7 percent. The same pattern existed with the
communities of Hope and Cooper Landing for many of the species
in the area. The Fall report was well done and one must
understand that the methodology utilized in that report was by
random sample. Only by using a random sample, can a survey
represent the usage by the entire community. Although there
have been other studies performed regarding subsistence use in
Ninilchik, they were targeted to certain portions of the
community and certain user groups. Therefore, they don't
represent the entire community. Moreover, the fact that many of
those surveyed had not lived in Ninilchik for very long is a
characteristic of that community. Because of the low usage of
many of the stocks on federal public lands, the Federal
Subsistence Board used a new definition of stock. The Federal
Subsistence Board found that the stocks traditionally used by
the people of Ninilchik were the same stocks that occur in the
Upper Kenai River. However, the aforementioned is inconsistent
with any commonly understood definition of fish stocks. The
board also failed to take several factors into consideration,
such as the changing demographics of the communities, the impact
the available road system has on use levels, and type of use.
In the case of Ninilchik, its access to and use of more common
local fisheries in either the marine waters near Ninilchik or in
the Ninilchik River in Deep Creek [wasn't taken into
consideration]. The Federal Subsistence Board also failed to
consider historical tribe use areas, which in the case of
Ninilchik didn't include the Upper Kenai River.
2:26:41 PM
MR. HILSINGER pointed out that when Congress established the
Kenai National Wildlife Refuge under ANILCA, subsistence uses
were left out of the purpose of the refuge. When all of the
aforementioned is considered collectively, the state doesn't
appear to support a long-term consistent pattern of community
use. With regard to other issues, he highlighted that Cook
Inlet fisheries are already fully allocated and the Federal
Subsistence Board's decision will ultimately result in
unnecessary restrictions of existing established uses, such as
commercial sport and personal use. Mr. Hilsinger said that
there are conservation issues involved with this. If the
department felt there was additional harvest allowable of those
stocks, the department would've already supported the many
proposals for increased harvest. Although the recommendation
that the Southcentral Regional Advisory Council is going to make
on these fisheries to the Federal Subsistence Board is more
conservative than the original proposal of the residents, it's
not conservative enough, particularly for certain stocks such as
rainbow trout and steelhead. Mr. Hilsinger then opined that the
Federal Subsistence Board has failed to adopt written policies
and procedures for C&T determinations and closures that have
been required by the U.S. Secretary of Interior. Mr. Hilsinger
said this isn't really a question of putting food on the table
because the state provides a broad array of personal use,
educational, and recreational fisheries that provide ample
opportunity for people to harvest fish for personal and family
consumption. Furthermore, in most of these communities the
amount of fish harvested under those state fisheries is a small
fraction of what people would be allowed to take if they took
all that they were allowed.
2:29:38 PM
CO-CHAIR GATTO asked if the eight factors that have to be met
are clear.
MR. HILSINGER said that the eight factors mainly refer to the
patterns of use. For example, the first factor is a long-term
consistent pattern of use, excluding interruptions beyond the
control of the community. The second factor is a pattern of use
recurring in specific seasons for many years. Mr. Hilsinger
said that the eight factors "refer not only to the pattern of
use but the handling, preparation, preservation, handing down
knowledge." Therefore, [the department] looks for the
background information that supports that the community has met
each of these patterns. The [department] believes that it
should be substantial information because a preference that
restricts other users is being provided. Therefore, the
information supporting that should be fairly clear.
2:31:22 PM
ROD ARNO, Executive Director, Alaska Outdoor Council (AOC),
related that the AOC supports passage of HJR 4. He highlighted
that the intent of ANILCA was not to have a subsistence priority
on the Kenai Peninsula. There is no provision in the Kenai
National Wildlife Refuge to provide for a subsistence
opportunity. "Instead, unlike all the others, it's to provide
in a manner compatible with these purposes, opportunities for
fish- and wildlife-oriented recreation. And also, unlike any of
the other parks created by ANILCA, the Kenai Fjords National
Park does not have a provision for subsistence priority in that
national park," he related. He then reminded the committee that
the state designates the Kenai Peninsula as a nonsubsistence
area.
2:32:59 PM
CO-CHAIR GATTO asked if ANILCA established parks, refuges, or
both.
MR. ARNO answered that ANILCA established both parks and
refuges. He noted that the Kenai National Wildlife Refuge was
an extension under Title 3. Under Title 2 of ANILCA falls the
establishment of new parks, under which the Kenai Fjords
National Park was established. Both of those exclude a priority
for subsistence. Mr. Arno related that in the late 1970s he
attended the meetings on ANILCA that U.S. Representative Mo
Udall had and recalled that over 70 percent of the Alaskans that
testified at the Anchorage meeting said that the Kenai Peninsula
was the area at which they recreationally hunted and fished. In
response to Co-Chair Gatto, Mr. Arno confirmed that U.S.
Representative Udall was involved with the lands referenced in
Section 17(d)(2) of Alaska Native Claims Settlement Act (ANCSA).
2:34:55 PM
JOHN SKY STARKEY testified in opposition to HJR 4. Mr. Starkey
related that the bill addresses the C&T determination for
Ninilchik. After checking with the solicitor, he said that
although he didn't get a clear answer, he isn't sure that it
includes Happy Valley. With regard to the Kenai Peninsula being
different from the rest of Alaska as far as ANILCA is concerned,
he related that notion has been legally rejected many times. He
said the solicitor's opinion, the Katie John decision, and other
decisions by courts are based on public lands, which are on the
Kenai Peninsula and have nothing to do with whether or not the
refuge itself was set aside for subsistence. Mr. Starkey then
recalled that part of the sponsor statement and ADF&G's
justification of this resolution is that there would be a
crippling impact on the Kenai Peninsula that may result in the
shutting down of other fisheries. In the tribe's opinion, this
is a counterproductive way to approach the issue and has caused
much fear. In fact, there have been threats against Ninilchik
people on the Kenai Peninsula. The fact is that a couple of
weeks ago, the Southcentral Regional Council forwarded a
recommendation to the Federal Subsistence Board, which won't
impact any other fisheries. According to Office of Subsistence
Management fisheries staff and wildlife fisheries staff, there
aren't conservation problems. Therefore, he encouraged a more
productive approach, rather than the fear-mongering that's
occurring. Mr. Starkey pointed out that many of the arguments
are legally based, such as whether there's substantial evidence
and whether the Federal Subsistence Board has followed its
regulations. If the aforementioned is what needs to be
addressed, then the board or the courts will decide. However,
the legislature is being asked to weigh-in because it's a policy
matter. The legislature is being asked to use its political
clout to ask the board to do something. From the standpoint of
the Native community, it seems a bit unbalanced that the
legislature would weigh-in against the tribe that has
established C&T use rather than letting the process go through
the normal legal channels, he opined. For example, if the
legislature wanted to become involved in policy issues on an
equal basis, the community of Saxman has recently been found to
be nonrural by the Federal Subsistence Board. However, the
legislature isn't weighing in and asking the Federal Subsistence
Board to review what's occurring in Saxman. Mr. Starkey opined
that [the legislature is involved] because the Kenai Peninsula
has always been a controversial area regarding subsistence. In
fact, this controversy started years ago and the eight criteria
were developed because of the controversy on the Kenai
Peninsula. At a joint meeting of the Board of Fisheries and the
Board of Game, the eight criteria were used to deny C&T use
throughout the Kenai Peninsula. The state was sued in the
Kenaitze Indian Tribe vs. State of Alaska based on the findings
that no one on the Kenai Peninsula was entitled to subsistence.
In that case, the Ninth Circuit Court found that the State of
Alaska was not following the law. The history was reviewed by a
federal judge last March. The judge found that the Ninilchik
Indian Tribe had been poorly treated for 50 years and it was
time to do something administratively to allow the Ninilchik
Indian Tribe subsistence use. The most important criteria of
the eight criteria, is the long-established pattern of use of
the resource. He said it was important to note that the
criteria includes an essential aspect that says that the Federal
Subsistence Board must consider interruptions beyond the control
of the community when making such a determination. "It's beyond
dispute that Ninilchik has been denied for 50 years ... their
opportunity for a traditional subsistence fishery on the Kenai
Rivers ... because of commercial and sports fishing and
conservation reasons for one reason or another the State of
Alaska and the federal government have denied them that use," he
opined. Therefore, the Ninilchik Indian Tribe has had to
survive for 50 years, catching what they can to maintain their
way life. The Federal Subsistence Board reviewed the current
pattern of use and how the 50-year period of regulatory
prohibition of their way of life impacted things. The Fall
report was reviewed in detail by the Federal Subsistence Board
and people disagreed about the outcome, he said.
2:41:57 PM
MR. ARNO highlighted that a federal judge said that the intent
was that all federal land would be used for subsistence.
However, that's not what's on the record with regard to the
intent of ANILCA when the Kenai National Wildlife Refuge was
created, as there was a specific exclusion for the priority for
subsistence use on the refuge. Furthermore, the specific
exclusion for subsistence hunting in the Kenai Fjords National
Park was based on the testimony gathered prior to the passage of
ANILCA.
2:42:56 PM
MR. STARKEY clarified that nothing in ANILCA says that
subsistence isn't allowed on the Kenai Peninsula.
2:43:31 PM
CO-CHAIR GATTO, upon determining no one else wished to testify,
closed public testimony.
2:43:55 PM
REPRESENTATIVE SEATON moved to report CSHJR 4(FSH) out of
committee with individual recommendations and the accompanying
fiscal notes.
2:44:05 PM
REPRESENTATIVE GUTTENBERG objected. Representative Guttenberg
said that for him it boils down to the following statement by
Mr. Hilsinger: "Cook Inlet resources are already all
allocated." Representative Guttenberg related his understanding
that Mr. Hilsinger is saying that the matter has been taken care
of and [the department] likes the result. However, there are
other processes that allow, through the Federal Subsistence
Board, others to have input. This resolution seems to relate
that [the legislature] doesn't want to consider [other
processes]. He opined that the aforementioned is inappropriate.
Representative Guttenberg said he viewed this as an opportunity
outside of the state's Board of Fish and Board of Game.
2:46:02 PM
REPRESENTATIVE WILSON opined that this is difficult because one
side says the eight factors have been met and one side says they
have not.
2:46:54 PM
REPRESENTATIVE KAWASAKI noted his agreement with Representative
Wilson that there's a lot of information, but there isn't
information with regard to the original language from the
Federal Subsistence Board regarding the claim that the eight
factors have been met. Therefore, he suggested that more
information and time is necessary. In response to Co-Chair
Gatto, Representative Kawasaki said that he was in favor of
holding HJR 4.
2:47:31 PM
REPRESENTATIVE ROSES reminded the committee that ADF&G had
already filed an appeal, which is going forward whether the
legislature takes action or not on HJR 4. He remarked that he
sees validity on both sides of the issue, which makes it
difficult to come to a decision.
2:48:21 PM
REPRESENTATIVE SEATON related his understanding that there is
quite a bit of data regarding that the eight criteria were not
met and that the written policies required by the U.S. Secretary
of Interior weren't adopted. Furthermore, there wasn't a road
to the area on the Kenai Peninsula where the C&T expansion is
desired until 1952, and until that time it has been by sport
methods and means. Therefore, Representative Seaton said he
feels comfortable requesting that the Federal Subsistence Board
review the criteria and policies and reconsider the decision.
He pointed out that this isn't overriding the decision of the
Federal Subsistence Board. He characterized this as a logical
step rather than going straight to court.
2:50:14 PM
CO-CHAIR GATTO announced that HJR 4 is being held for another
day and that it will possibly be taken up at the next committee
meeting. [The objection to the motion to report CSHJR 4(FSH)
from committee was left pending.]
HB 220-BAN COMPUTER-ASSISTED REMOTE HUNTING
2:50:59 PM
CO-CHAIR GATTO announced that the final order of business would
be HOUSE BILL NO. 220, "An Act prohibiting computer-assisted
remote hunting."
2:51:08 PM
REPRESENTATIVE BOB BUCH, speaking as the sponsor of HB 220,
paraphrased from the following sponsor statement [original
punctuation provided]:
This bill would outlaw computer assisted remote
hunting in Alaska. This practice began in Texas in
2005 when an entrepreneur offered "hunters" the
ability to shoot big game on
his land via remote control technology.
Computerized hunting - or internet hunting, as it is
sometimes called - enables a person anywhere in the
world to hunt big game from the comfort of their
homes. Through the use of the internet, a computer can
be hooked up to a webcam and rifle mounted on a remote
control rig. The "hunter" is able to control the
aiming and firing of the rifle from their keypad and
to make a kill with the click of a mouse.
Currently, twenty five states have passed legislation
to ban internet hunting. Nine other states have
legislation pending to outlaw it.
HB 220 has three important provisions. First, it would
prohibit individuals from engaging in internet hunting
in Alaska. It would also prohibit anyone from
providing services or operating facilities in the
state to enable computerized hunting activities.
Finally, it would make sure that future technology
designed to assist the legitimate needs of handicapped
or disabled hunters would not be subject to the ban
created in the bill.
I urge your support of HB 220.
REPRESENTATIVE BUCH informed the committee that those in support
of HB 220 include the Humane Society, the National Rifle
Association (NRA), the American Society for the Prevention of
Cruelty to Animals (ASPCA), hunting organizations, and the
Alaska Department of Fish & Game (ADF&G).
2:53:55 PM
CO-CHAIR GATTO asked if there could be a situation in which an
individual is watching television and when a commercial comes
on, he/she could aim a rifle, press a button, and an animal
could fall somewhere in Alaska. Someone in Alaska would pickup
the animal and butcher to ship to the person.
MR. BUCH said that could potentially occur. He stated that he
doesn't agree to such and wants to ensure that it doesn't occur.
2:54:54 PM
ROD ARNO, Executive Director, Alaska Outdoor Council (AOC),
related AOC's support for HB 220. He further related that the
AOC is built on the premise of being outdoors and computer-
assisted remote hunting flies in the face of that.
2:55:27 PM
CO-CHAIR GATTO characterized computer-assisted remote hunting as
an abomination.
2:55:58 PM
JOE KLUTSCH, President, Alaska Professional Hunters Association,
Inc. Board of Directors, Alaska Professional Hunters
Association, Inc. (APHA), informed the committee that APHA
represents guides and outfitters around the state. Mr. Klutsch
related his support for HB 220, as written. He emphasized that
computer-assisted remote hunting is not hunting. He noted that
the committee should have a letter he wrote related to hunting,
which he characterized as a real life drama. Computer-assisted
remote hunting is the organized killing of an animal via
cyberspace and robotics. Therefore, he requested that this not
be referred to as "hunting." Mr. Klutsch commended the sponsor
of HB 220.
2:58:09 PM
REPRESENTATIVE SEATON moved to adopt CS for HB 220, Version 25-
LS0795\C, Kane, 4/2/07, as the working document. There being no
objection, Version C was before the committee.
2:58:54 PM
RONNIE ROSENBERG testified in support of HB 220. She opined
that computer-assisted remote hunting reduces animals to nothing
more than a pawn in a video game. She said that computer-
assisted remote hunting shouldn't be allowed in Alaska.
2:59:21 PM
CO-CHAIR GATTO, upon determining no one else wished to testify,
closed public testimony.
2:59:37 PM
REPRESENTATIVE ROSES related his understanding that HB 220 would
prohibit computer-assisted remote hunting in Alaska as well as
such hunting in another state from a computer in Alaska.
MR. BUCH confirmed that to be the case.
3:00:01 PM
REPRESENTATIVE GUTTENBERG referred to page 1, line 5, and asked
if the sponsor would want to consider inserting the term "and
service" following the term "facility".
MR. BUCH said that he would take that under advisement.
3:00:30 PM
REPRESENTATIVE WILSON moved to report CSHB 220, Version 25-
LS0795\C, Kane, 4/2/07, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 220(RES) was reported from the House
Resources Standing Committee.
3:01:01 PM
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:01 p.m.
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