Legislature(1999 - 2000)
09/28/1999 01:16 PM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
September 28, 1999
1:16 p.m.
Second Special Session
MEMBERS PRESENT
Senator Rick Halford, Chair
Senator Robin Taylor, Vice-Chair
Senator Lyda Green
Senator Sean Parnell
Senator Jerry Mackie
Senator Pete Kelly
Senator Georgianna Lincoln
MEMBERS ABSENT
None
COMMITTEE CALENDAR
CS FOR HOUSE JOINT RESOLUTION NO. 202(FIN) am
Proposing amendments to the Constitution of the State of Alaska
relating to use of renewable resources for subsistence by
residents.
MOVED CSHJR 202(FIN)am OUT OF COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS
PREVIOUS SENATE ACTION
CSHJR 202(FIN)am - No previous Senate committee action.
WITNESS REGISTER
Stephen White
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supports CSHJR 202.
Mary Pete, Director
Division of Subsistence
Alaska Department of Fish and Game
PO Box 25526
Juneau, AK 99802-5526
POSITION STATEMENT: Commented on CSHJR 202.
Julie Kitka, President
Alaska Federation of Natives
1594 C St. Suite 300
Anchorage, AK 99501
POSITION STATEMENT: Commented on CSHJR 202.
Chris McNeil, Legal Counsel
Alaska Federation of Natives
1594 C St. Suite 300
Anchorage, AK 99501
POSITION STATEMENT: Commented on CSHJR 202.
Carol Daniels, Legal Counsel
Alaska Federation of Natives
1594 C St. Suite 300
Anchorage, AK 99501
POSITION STATEMENT: Commented on CSHJR 202.
Dick Bishop, Vice President
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, AK 99707
POSITION STATEMENT: Opposed CSHJR 202.
Carl Rosier
8298 Garnet St.
Juneau, AK 99801
POSITION STATEMENT: Opposed CSHJR 202.
Mary Bishop
1555 Gus's Grind
Fairbanks, AK 99709
POSITION STATEMENT: Opposed CSHJR 202.
ACTION NARRATIVE
Tape 99-39, SIDE A
[THE FOLLOWING IS A VERBATIM TRANSCRIPT.]
CHAIRMAN HALFORD: The committee will be hearing CSHJR 202(FIN)
amended House. The first testimony will be from the
Administration. We will have essentially presentations. We've
had dozens of witnesses on this topic in this session, and of
course we've gone over it in the past, but we're going to have a
presentation from the Administration and a presentation from AFN
and supporters and the [Alaska] Outdoor Council and opponents.
We will try to keep the testimony to a minimum so that we can be
done within a couple of hours and the bill can go on from here.
So, the Administration, would you join us at the end of the table
and whoever? I think Steve White's going to lead the presentation
and whoever you wish to have with you at the table, please join
us. We could have the Commissioner of Fish and Game. Is he
here? In whatever order you wish to present it, proceed.
STEPHEN WHITE, ASSISTANT ATTORNEY GENERAL, ALASKA DEPARTMENT OF
LAW: Thank you Mr. Chairman, my name is Steve White, I am the
Assistant Attorney General here in Juneau for the Department of
Law. First of all I'd like to apologize for the temporary
absence of Bruce Botelho. His absence is due to an abscess.
He's had tooth problems all week and he scheduled a dental
appointment before recognizing when this incident would occur and
he is now at the dentist and I am told he'll join us as soon as
possible. So, if you have any direct questions for the Attorney
General I'm sure that he will be available at some point. In the
meantime, I'm here to represent the Department of Law and you can
ask me questions and if I can't answer the questions right now
I'll attempt to get you answers at a later point.
What Mary and I have done for other people, rather than giving
introductory comments of any sort, is to just describe the
contents of what we call our subsistence handbook which was
provided to all legislators. It's just a description of what's
in that document, sort of item by item. A lot of it's familiar
to you and if you would like for us, we can do that. If you
don't feel that's necessary and worth the time then we can
dispense with that and I'd be willing to answer any questions on
legal issues starting right out. Mary may have some introductory
comments but again, what we did in the past was just describe the
materials in this book and then opened it up to questions.
CHAIRMAN HALFORD: Why don't we, instead of going through the
book because we have had the book with regard to the Senate bill
which was the Governor's bill, the same in the House and Senate,
why don't you give us a description of the bill that the House
actually passed and the significance of the provisions of the
bill that the House actually passed.
ASSISTANT ATTORNEY GENERAL WHITE: Mr. Chair, starting out with
Section 1 of the bill, it offered an amendment to existing
Section 4, Article VIII of the Constitution which provides for
constitutional provisions on the use of natural resources. It's
fairly straightforward. It allows the legislature, it does not
compel but allows the legislature, consistent with the sustained
yield principle which is already provided for in that section, to
provide a preference to and among residents to take resources for
subsistence uses based upon federal criteria. The criteria are
customary and traditional use, direct dependence, the
availability of alternative resources, place of residence, or
proximity to the resource. The word "or" in there allows the
Legislature discretion to take any of those, a combination of
any of those, and put whatever priorities on any of them that
they wish. That's the section that deals with the users, that is
who may enjoy subsistence uses, which residents. The next
sentence in subsection (b) deals with uses, and it establishes a
priority for subsistence use over other uses -- other uses of
course being commercial, sport, personal uses. And that says
when a harvestable surplus of the resource is not sufficient to
provide for all subsistence -- excuse me, all beneficial uses,
other beneficial uses shall be limited to protect subsistence
uses. In other words subsistence is the highest priority use.
So this section of the bill deals with two things: who is
eligible as a user and secondly, which use, in this case
subsistence, has a priority over other uses.
Section 2 of the bill establishes the effective date of the
subsistence amendment and, as you can see, it takes effect
immediately upon certification of the election returns if adopted
and then passed to the electorate at the 2000 general election,
so to speak an effective date provision.
Section 3 is the purpose provision and it actually does not go in
the Constitution but acts as legislative history for court
interpreting. Section -- the words of (b), the new words would
actually go in the Constitution. This gives the courts guidance
as to why those, that new section, is added and what the purpose
is. And again, it's fairly self explanatory. The purpose is to
allow for a preference for subsistence uses, to ensure state
management of fish and wildlife throughout the state, and
particularly to deal with the two cases which the rural and
proximity criteria, in which those two criteria were struck down,
that is the McDowell case and the Kenaitze case. We believe the
purpose clause will help a court to understand why this amendment
is being made to the Constitution, helping to interpret any
challenge to the amendment.
Finally Section 4 just provides that the amendment would be
placed before the voters at the next general election.
CHAIRMAN HALFORD: For a few introductory questions. On line 9
of page 1 it says the legislature "may" and there was
considerable debate in the other body, back and forth between
"may" and "shall", and although they brought a bill to the floor
that said "shall", they changed it by a floor amendment back to
"may." What is the Administration's support in that place -
should it be the legislature shall or the legislature may?
ASSISTANT ATTORNEY GENERAL WHITE: The Administration is
comfortable with allowing the legislature the authority to do
this if they so choose and the voters of Alaska authorized it.
CHAIRMAN HALFORD: The Administration supports "may" and not
"shall" in other words?
ASSISTANT ATTORNEY GENERAL WHITE: The Adminis -- in fact the
Governor's bill says "may" so I think it's fair to conclude that
the Governor was proposing "may."
CHAIRMAN HALFORD: Okay. On line 12 in the list of reasons for
discrimination it says, it adds place of residence. Does place
of residence cover a complete statewide rural priority?
ASSISTANT ATTORNEY GENERAL WHITE: It's our interpretation that
place of residence would allow for a statute that provides a
statewide rural priority.
CHAIRMAN HALFORD: So place of residence means authorization for a
rural preference.
ASSISTANT ATTORNEY GENERAL WHITE: That's our interpretation.
CHAIRMAN HALFORD: With regard to the other categories that are
added to the Constitution, we're adding other reasons for,
essentially reasons for discrimination: one is customary and
traditional use, one is direct dependence, and one is
availability of alternative resources. Place of residence, or
proximity, or whatever the residency related issues have been
addressed in Kenaitze and McDowell -- is there any reason that
the other three reasons for discrimination are necessary to be
added to the Constitution? Have they been ruled on as not being
allowable or are they already allowable under the existing
Constitution? For example, direct dependence is probably a needs
standard and that is clearly a constitutionally permissible
reason for discrimination under the existing Constitution, is it
not?
ASSISTANT ATTORNEY GENERAL WHITE: To answer your question, these
other ones have not been challenged and there's been no decision
saying that they are not permissible under our existing
Constitution.
CHAIRMAN HALFORD: So they are not essential to the amendment to
comply with ANILCA?
ASSISTANT ATTORNEY GENERAL WHITE: You're correct about that.
CHAIRMAN HALFORD: Thank you. The third question that I have is
on line 14. It says the surplus of the resource is not
sufficient to provide for all beneficial uses. One of the
questions that the particularly commercial fishing interests have
asked is what level of subsistence harvest is protected with a
priority and what is the constitutional method of making sure
that that level of subsistence harvest doesn't expand to the
point where it engulfs other harvests far beyond what it is
today, for example? I mean now when your talking about five of
95, five percent of the resource on the personal use subsistence
individual side and 95 percent on the commercial side, what's the
guarantee that that won't change in an increasing population?
ASSISTANT ATTORNEY GENERAL WHITE: Mr. Chair, this statutory
amendment does not address that question. That question will be
resolved by statute. In past subsistence statutes we have used
reasonable opportunity for subsistence uses as the triggering
point for beginning to eliminate other users, other uses.
CHAIRMAN HALFORD: Would the Administration support putting the
words "reasonable opportunity" in this amendment?
ASSISTANT ATTORNEY GENERAL WHITE: Again, I believe it's
superfluous. It's the same kind of thing that perhaps the other
criteria that aren't necessary would be. We're not in favor of
putting things that are not necessary in the amendment, and
furthermore I believe the Secretary of the Interior remarked on
that in their letter looking at an earlier version, saying
putting "reasonable opportunity" in there could raise questions
of compliance with ANILCA.
CHAIRMAN HALFORD: So you're not in favor of things that are
unnecessary. Then you'd support taking out the unnecessary
provisions, customary and traditional, direct dependence or
availability of alternative resources?
ASSISTANT ATTORNEY GENERAL WHITE: Well I'm not in a position to
say I'm in favor of doing that or not. That's more of a
political question. In my opinion those things can already be
provided for by the Constitution. Whether they're in there for
additional statements is more of a political judgment so I guess
I can't say I'm not in -- I'm in favor or not.
CHAIRMAN HALFORD: Questions by other members of the committee?
Senator Mackie and then Senator Leman and then Senator Taylor.
SENATOR MACKIE: Thank you. My question is in regard to the
customary and traditional use section. In previous hearings, and
for several years now, I've heard legislators talk about and use
an example of saying an Alaska Native person that lives in an
urban area -- that clearly [indisc.] you know through their
family generations have demonstrated a need for a customary and
traditional subsistence lifestyle although they live in an urban
area. Would the ability for customary and traditional use -- is
it your opinion that an Alaska Native person or a non-Native
person that can demonstrate a customary and traditional use could
be allowed by statute or by regulation by the Board of Fish or
Game, by our managers, a preference in the event of a shortage,
the same as the other criteria? Is that person in the urban area
covered under this should the legislature choose to allow for
that opportunity?
ASSISTANT ATTORNEY GENERAL WHITE: If the legislature chose to
allow an urban person the customary and traditional uses to be a
subsistence user that would not be in compliance with ANILCA as
it now is. ANILCA says that only rural people have a subsistence
priority and then further customary and traditional is being used
to identify their uses in the populations that they are eligible
to harvest. So if the Legislature did that it would not be in
compliance with the existing ANILCA.
CHAIRMAN HALFORD: Senator Leman and then Senator Taylor, Senator
Lincoln.
SENATOR LEMAN: Thank you Mr. Chairman. I have two questions of
Mr. White. The first is, if you're looking at, I don't know if I
want to call it a minimalist approach, but not putting any
language that's superfluous -- is it absolutely necessary that
the second sentence of the amendment be in here to comply or is
that something that's added beyond what is absolutely necessary?
ASSISTANT ATTORNEY GENERAL WHITE: It's not necessary to bring us
in compliance with ANILCA establishing a priority amongst uses.
In reality we do that by statute. This would just put it in the
Constitution but it's not -- that issue was not one of the
reasons that we're out of compliance with ANILCA.
SENATOR LEMAN: I thought that was the case, Mr. Chairman, and I
just wanted to make sure that that's clarified. The second
question I have is the last clause under the purpose section
states that as the purpose -- with that statement and to bring us
into compliance with Title VIII, would that in any way harm the
state's case if the state were to challenge the constitutionality
of Congress to enact certain provisions in Title VIII? Would a
court look at that as saying, well, you intended to bring
yourself into compliance and the people voted for this so
therefore it must be a constitutional provision or, you know, in
some way, provide linkage. Do you think that would in any way
harm the state's case?
ASSISTANT ATTORNEY GENERAL WHITE: I don't think it would harm
the state's case. What we're doing is acknowledging that this is
necessary for us to come in compliance with the law. I don't
think it diminishes anyone's ability to challenge the
constitutionality of that law.
Number 259
CHAIRMAN HALFORD: Senator Taylor.
SENATOR TAYLOR: I'm sorry that Mr. Botelho was unable to make it
today. Can you tell me, Steve, how many provisions of the Alaska
Constitution are effectively amended or changed by the adoption
of this amendment? How many provisions are in the Constitution?
ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the
Chair, in my opinion there are four of them that are clearly
affected by this.
SENATOR TAYLOR: Can you list those for us please?
ASSISTANT ATTORNEY GENERAL WHITE: Those are the three in the
Title - Article VIII - the common use, the no exclusive right of
fisheries clause, the uniform application clause, and I think
also Article I, Section 1, general equal protection clause would
be affected by ....
SENATOR TAYLOR: Did you say equal protection clause?
ASSISTANT ATTORNEY GENERAL WHITE: Equal protection clause,
Article I, Section 1. Those four I believe would be directly
affected by this.
SENATOR TAYLOR: Are there others that may also be affected at
least in their interpretation as to what they mean tomorrow,
should this thing ever be adopted by the people of Alaska? My
count - I actually had, I think, ten different provisions within
the Constitution. The amendment submitted by the Governor, I
believe, changed 13 different provisions within our Constitution.
This one I think -- I agree with you that it very definitely
amends the equal protection clause, common use clause,
exclusivity clause, uniform application clause. I think -- I
agree with you completely on that Steve, I just felt there were
an additional six that appeared to me to also be affected by
this. I don't want to go into each of those, it would take too
much time, but assuming that you and I agree that at least no
less than four provisions are affected, and then of course you'd
have to add to that this provision, the sustained yield
provision, because amending it certainly affects that. So we
have a minimum that you and I agree on of five provisions. Is
that right?
ASSISTANT ATTORNEY GENERAL WHITE: I think one of the ones I
mentioned already provides for sustained - was one of the ones
that provides for sustained yield. I don't think [indisc.] on
that.
SENATOR TAYLOR: I'm not going to quibble on that, but at least
four major provisions within our Constitution would be affected
or amended by this. Have you read Bess v. Ulmer and the decision
by our Supreme Court on that? And can you tell me whether or not
amending four different provisions of the Constitution, as you
and I have agreed, or maybe as many as 10 as I believe, does that
comply with Bess v. Ulmer and can we do that?
ASSISTANT ATTORNEY GENERAL WHITE: It's our opinion that it still
is an amendment. It's not a revision because the Supreme Court
[indisc.] says -- it looks at two things, whether there is
qualitative and or quantitative changes to the Constitution, so
it's not just a matter of how many provisions it affects. That's
one thing they look at -- qualitatively whether it substantially
affects the essence of the Constitution. In my opinion, this
does not go over the line of being a revision.
SENATOR TAYLOR: Well, having read the same case I thought the
Supreme Court, Steve, was very strong in their wording when it
came to little things within our Constitution that they seemed
really concerned about in that decision, which was the equal
protection clause in our Constitution. That one seemed to kind
of really ring a bell with them and you've already said that you
agree with me that this definitely changes the equal protection
clause of our Constitution. Don't you think that's a substantive
change that's not even mentioned in this amendment that the
Supremes might say, Bess v. Ulmer, and I'm sorry, if you want to
do this you have to go to a constitutional convention and thus
take it off the ballot?
ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I don't
believe because it affects equal protection for one particular
use of the resource and actually affects a relatively small
number of people it's a substantive change to our Constitution an
it would become a revision.
SENATOR TAYLOR: The numbers of people who would qualify in the
State of Alaska is larger than the number of people who would not
qualify in the State of Alaska in this definition? I'm surprised
to hear you say that because I believe it's over 65, 70 percent
of our population would no longer qualify.
ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I'm
speaking about the actual people, the people in urban areas who
are actually under our all Alaskans interpretation or are
actually using subsistence resources as a relatively small
number. Those people would be disqualified under a rural
priority. So I'm looking not only at numbers but the fact that
we're talking about one use of a resource, subsistence use, not
all the other uses, and I think quantitatively, although
subsistence is a very important use, I think quantitatively the
effect is not to the degree where it would call for a revision
either qualitatively or quantitatively.
SENATOR TAYLOR: Okay. If, in fact, your definition of uses --
I'd like to go ahead with that one now as opposed to Bess v.
Ulmer. On line 14 this amendment says, "to provide for all
beneficial uses, other beneficial uses shall be limited." That
sounds to me as though all of those other uses you were talking
about, be it Native resources by people living in Anchorage or
within my district, Ketchikan, anybody that uses any of those
resources for a beneficial purpose, they would no longer qualify
as soon as this triggering device takes place. In other words,
if all beneficial users of a specific resource can't be
satisfied, then this triggers and we must provide a priority only
for those people who don't live in Ketchikan, don't live in
Anchorage, don't live in Juneau.
ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I think
we're mixing the uses and users here. The first section deals
with users, the second one deals with uses. The second section
only says if the resource declines to the point then subsistence
is the last remaining use. So, I don't ....
SENATOR TAYLOR: And that's the reason I'm asking this question
Steve, because you see -- let me give you an example. Let's take
the herring sac roe fishery in front of Sitka. Our department
uses sustained yield to determine that x number of tons may be
taken. That's the total use of that resource. That is now being
taken by commercial fishermen. We give up our state's authority
to control resources within navigable waters which we got at
statehood, and embrace this federal law and begin to enforce it.
Under this law it says when the resource is not sufficient to
provide for all beneficial uses. Okay, now what we're going to
do is add a subsistence use of that resource on top of the
existing commercial use of that resource. Obviously, there is
not enough resource to supply both. That means that under this -
line 14 - when all beneficial uses can't be satisfied, then the
priority, the only beneficial use left, shall be limited to
protect subsistence use. I want to use that as an example
because it clearly fits what you're talking about in the
definition between uses, not users, but just uses, and it seems
to me that triggers it and you just shut down under our state
Constitution the herring sac roe fishery in Sitka. I don't think
you can allow it to open unless all beneficial users who would
claim a subsistence priority have used theirs. Now maybe you
wouldn't totally shut it down, you'd just say well half of it now
goes to someone else.
ASSISTANT ATTORNEY GENERAL WHITE: Senator, through the Chair,
it's important to recognize this does not require a subsistence
use be established on every stock and population. Subsistence
use does not occur unless there has been a demonstrated customary
and traditional use of it. That's what the state ....
SENATOR TAYLOR: The people in Sitka have traditionally and
customarily utilized the herring roe fishery since time
immemorial. Whether or not it is clearly established today - it
certainly is established under our state system and we allow the
people of that area, through personal use permits, to go out and
take that resource. So I don't know what you mean by dodging the
question, saying well we wouldn't have to necessarily allow any
subsistence use there because we never really had one in the
past. I think you have had one in the past. That's why I raised
that issue.
ASSISTANT ATTORNEY GENERAL WHITE: Senator I was just pointing
out that this doesn't require us to find a subsistence use among
resources. In reality there is a recognized subsistence on that
sac roe fishery. Following through with your example, if the
resource declined to the point, under the way we've implemented
that priority of uses, to the point where there was not
reasonable opportunity for the subsistence use, then the
commercial, sport and personal use would qualify and there would
only be a subsistence use allowed and indeed, under ANILCA, it
would only be available to the rural residents that have
customarily and traditionally used that resource.
SENATOR TAYLOR: I appreciate your answer to that but also
there's Senator Mackie's question when you deferred, as you now
have several times, to ANILCA. Because what we're really talking
about here is, who is going to enforce the federal law, aren't
we?
ASSISTANT ATTORNEY GENERAL WHITE: That's an aspect of ANILCA,
certainly federal court oversight.
SENATOR TAYLOR: The bottom line - it's not the question of who
is going to manage Alaska's fish and game, it's a question of who
is going to enforce ANILCA. Are we going to enforce the federal
law against our people or are the feds going to enforce their
federal law against our people? ANILCA doesn't -- as Senator
Leman pointed out to me earlier today -- he said my goodness,
Robin, there's no linkage here. We always had linkage before --
that we were linked with amendments to ANILCA that we could be
assured were going to occur before this law went into effect.
So, let me move on. Have you talked with the Secretary of the
Interior, or has anybody in the Administration, approving the
language that we currently have before us from the House? And do
you have anything in writing to tell us because I'd like to see
something in writing, and the others would I'm sure, whether or
not our great white father, Mr. Babbitt, is now allowing us to
move forward in this fashion.
ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, Senator
Taylor, I believe that the Secretary is looking at this at this
very moment. We do not have a response, nor do we have anything
in writing but I expect that -- I was told that that will occur
this afternoon.
CHAIRMAN HALFORD: But your statement in response to my question
is that a rural priority fits under the statement "or place of
residence."
ASSISTANT ATTORNEY GENERAL WHITE: It's my interpretation that it
can be implemented under place of residence. That's my
interpretation. Obviously the Secretary has to come to that same
conclusion.
SENATOR TAYLOR: If Mr. Babbitt doesn't approve it, what do we do
then? Do we all sit here as little children and wait for him to
tell us what he will accept? I mean I want to know why, what
difference this Administration is going to take when they called
this special session, on whether or not we have his approval to
proceed or not. If we don't will you continue to support the
bill?
If we do, will that make a difference in your position?
SENATOR MACKIE: Maybe we ought to wait and see what that
position is and where to go if we ....
CHAIRMAN HALFORD: Next person was Senator Lincoln.
SENATOR LINCOLN: Thank you, Mr. Chair. One of the questions
that I was going to ask was also about the Department of
Interior, whether they --you have had any inclination from them
whether they feel they can certify this? And also, several other
questions, but does the Administration feel, in your review of
this, that this complies with ANILCA, in your review?
ASSISTANT ATTORNEY GENERAL WHITE: In our review we believe it
will allow compliance with ANILCA. The answer is yes.
SENATOR LINCOLN: And in your response to the Administration
feeling comfortable with the word "may", that the Legislature
"may' -- isn't that also true that the Governor does not object
to the word "shall"?
ASSISTANT ATTORNEY GENERAL WHITE: That's correct. It's a matter
of choice of words. The reality is that even if you put "may" in
there to achieve the purpose of compliance with ANILCA in
regaining state management, you're going to have to implement a
rural priority, so whether it's "may" or "shall", the results
would be the same in order to achieve the purposes of the
amendment.
SENATOR LINCOLN: I just wanted to make it clear that the
Administration does not oppose the word "shall". I need you to
go back for a moment, Mr. White. You said, and I'm trying to
determine here on Section (b), page 1, you said that this was not
essential toward compliance in response to a question about the
last sentence, that it wasn't essential. I thought you said
something to that effect on the five criteria just above it.
Could you clarify what is essential for the Administration in
coming into compliance with ANILCA?
ASSISTANT ATTORNEY GENERAL WHITE: Senator Lincoln, through the
Chair, the reason we're here is the Supreme Court in two
decisions said that Alaska -- that we could not come into
compliance for two reasons. One, we didn't have the ability
under our Constitution to allow for an urban-rural priority, and
secondly, in the second case, we could not use proximity to
resources as a criteria for saying whether a person could or
could not use. So the two essential things that deal with those
cases are urban-rural, which we believe you can get to through
place of residence and proximity to the resource, which is
provided here. Those are the two critical things that are
necessary to get it back into compliance. The other provisions
are parts of ANILCA. They've been parts of the state law. They
have not yet been challenged. No court has found that they are
in violation of the state Constitution.
SENATOR LINCOLN: Thank you.
CHAIRMAN HALFORD: Senator Parnell.
SENATOR PARNELL: Thank you, Mr. Chairman. The Chair led you
kind of down the path of saying that place of residence means
rural preference, as if that's all it could mean and let me just
ask a question. Would our courts construe place of residence a
little more broadly than that? And I'm not talking about full
compliance with ANILCA but just this amendment - place of
residence - could be construed more broadly than that, could it
not, to apply to different use and users?
ASSISTANT ATTORNEY GENERAL WHITE: Place of residence you could,
in your statutory -- if you chose, you could choose place of
residence to mean urban-rural, or you could use place of
residence a lot of different ways, but it's certainly broader
than rural.
SENATOR PARNELL: And then Senator Mackie talked with you a
little bit about customary and traditional use. And I would ask
the same question there. It looked to me because of the modifier
"or" in there that you could - the legislature, if this passed,
if the people voted to pass -- that the legislature could
implement a preference on the basis of customary and traditional
use, period.
It would not comply with ANILCA as you said, but the language is
broad enough here that that's allowable. Is that correct?
ASSISTANT ATTORNEY GENERAL WHITE: You could do it on that one,
any one, or any combination of those five.
SENATOR PARNELL: Thank you.
CHAIRMAN HALFORD: Are there further questions? Senator Green
then Senator Mackie then Senator Taylor.
SENATOR GREEN: Thank you. I have a question about -- on line 13
the phrase "harvestable surplus" -- does that have a specific
meaning among resource developers or among the state statute
because it implies that if the surplus is not sufficient to
provide for all beneficial uses. Am I reading that incorrectly
or should that be abbreviated -- or when the harvest of the
resource is not sufficient to provide?
ASSISTANT ATTORNEY GENERAL WHITE: Senator Green, harvestable
surplus of course is not defined here or elsewhere in the
Constitution. It's what we've used in fish and game management
for our statutes to identify that part of any resource that can
be harvested without violating sustained yield. In other words
when you allow enough of the resource to pass through and
replenish, that which is left which can be harvested to provide
for conservation we have called in our statutes "harvestable
surplus."
SENATOR GREEN: Okay, this has to do with sustained yield.
ASSISTANT ATTORNEY GENERAL WHITE: Yes.
SENATOR GREEN: Okay, thank you, I just wanted to be sure. Then
the other question I have -- in the -- I think, perhaps it was in
another piece of legislation that I read but the thought came to
my mind that is there any way that there's any provisions in this
that could be extended to the rural preference, the rural
priority, toward minerals, water, oil and gas, or timber, any of
those other resources besides fish?
CHAIRMAN HALFORD: Water and timber, yes.
ASSISTANT ATTORNEY GENERAL WHITE: Again, the term here "wild
renewable resources" is not defined. Statutorily you could
define it as long as it was in the common meaning of that term.
SENATOR GREEN: Then as long as it was what?
ASSISTANT ATTORNEY GENERAL WHITE: Well as long as it makes sense
under the term of "wild renewable resources." Your statutory
definition would have to have some degree of reasonableness in
connection to the common meaning.
CHAIRMAN HALFORD: That would probably include timber but not
minerals?
ASSISTANT ATTORNEY GENERAL WHITE: In my mind timber is a wild
renewable resource and minerals are not.
CHAIRMAN HALFORD: What about water?
ASSISTANT ATTORNEY GENERAL WHITE: I can't answer that question.
I'm not sure whether water is considered renewable.
SENATOR GREEN: Thank you.
CHAIRMAN HALFORD: Senator Mackie.
Number 486
SENATOR MACKIE: Just to follow Senator Green, the legislature
would first have to provide a preference over timber for some
reason first, right? I mean it would have to be the ....
CHAIRMAN HALFORD: The Constitution provides it. The legislature
may provide that preference.
SENATOR MACKIE: My question was, and thanks for clarifying
Senator Parnell's question. That was the question that I was
asking, was could the legislature, under customary and
traditional use, provide that opportunity, and originally you
said no so maybe I had asked the question wrong. And I wanted to
go back to that for just a minute. I know Senator Ward has
raised the issue of the Kenaitze Indians, for example, who could
clearly demonstrate, you know, a traditional subsistence use --
whether or not we, the legislature, could provide for a
preference based on that customary and traditional use, based on
that one section of this thing?
ASSISTANT ATTORNEY GENERAL WHITE: You certainly could use that
as a criteria for subsistence uses.
SENATOR MACKIE: Then my second question, Mr. Chairman. In view
of the fiscal note that was provided by the Administration, and
just for the record, I understand that if the legislature places
this question on before the voters by October 1, $10 million then
becomes available which has been appropriated by the Congress for
our Department of Fish and Game to use for management. Is that
correct?
ASSISTANT ATTORNEY GENERAL WHITE: That's my understanding, yes.
SENATOR MACKIE: Well, it's in the fiscal note that says that.
I just wanted to get that on the record. So that $10 million
would become available, and what are the parameters under which
that $10 million could be used?
ASSISTANT ATTORNEY GENERAL WHITE: I might need to defer to the
Department of Fish and Game because I don't know what is the
direction for that money or how it might be used.
SENATOR MACKIE: Fair enough. Thank you.
CHAIRMAN HALFORD: Senator Kelly.
SENATOR PETE KELLY: You had spoken about the broadness of place
of residence. I think that's what Senator Parnell was asking
about. I'm not clear on it. If we provide -- if the legislature
provides a preference based on something other than rural, then
we're not in compliance with ANILCA. Then are we back here again
because the federal government is threatening a takeover because
it no longer complies with ANILCA?
ASSISTANT ATTORNEY GENERAL WHITE: That's correct.
SENATOR PETE KELLY: Place of residence really doesn't get us
anywhere. It means rural so, for all practical purposes, it
simply means rural.
ASSISTANT ATTORNEY GENERAL WHITE: That's correct. It may mean
other things but in order to become in compliance with ANILCA it
has to mean rural -- it has to be implemented as rural.
CHAIRMAN HALFORD: It's important to note the constitutional
change, which is broader than rural, includes rural, so therefore
the statute could comply with ANILCA.
SENATOR PARNELL: Could but doesn't have to, right?
CHAIRMAN HALFORD: It does license the Legislature to provide by
statute a rural preference, if you use the word residency.
SENATOR PETE KELLY: Correct, but in order to be in compliance
with ANILCA it would mean rural, So, essentially what this reads,
because you said a lot of this is superfluous, is that the
legislature may, consistent with the sustained yield principle,
provide a preference to and among residents to take wild
renewable resources for subsistence uses, based on place of
residence. That's all we're really saying here that isn't
already stated in the Constitution, isn't that correct?
ASSISTANT ATTORNEY GENERAL WHITE: That's correct.
SENATOR PETE KELLY: When you spoke of users versus uses, and I
don't know if Senator Taylor clarified this or if you clarified
this at the time, but you said there was - that you were making
the distinction between users and uses, but I think what Senator
Taylor was saying was once the beneficial uses are not sufficient
to provide for subsistence, then you'd have included users
because you have so many people outside of the constitutional
protection or statutory protection than you do inside, and
therefore it is a qualitative distinction that is being made. Is
that correct?
ASSISTANT ATTORNEY GENERAL WHITE: Once I understood his
question, yes, once the uses are reduced then you have to look at
the users and the users are reduced as well.
SENATOR PETE KELLY: Thank you. Thank you Mr. Chairman.
CHAIRMAN HALFORD: Senator Taylor.
SENATOR TAYLOR: Thank you. Steve, to get back to some of the
legal questions I'm concerned about here. I'm assuming you're
very familiar with the Dinkum Sands case. Direct action suit --
State of Alaska -- talk about getting some oil revenues -- took a
long time -- right?
ASSISTANT ATTORNEY GENERAL WHITE: I'm generally familiar with
that, yes.
SENATOR TAYLOR: Are you familiar with the -- Sandra Day O'Connor
wrote the majority opinion for the Court on that. It's a '97
Alaskan case so it's not like it's ancient law that may somehow
have been changed by our Supreme Court. In that case, her actual
words were that not only does Alaska own its submerged lands and
waters, navigable waters, but she also included the phrase "and
the fish that swim therein." Do you, or this Administration,
have some disagreement with that case, or some different
interpretation?
ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the
Chair. I think she said that ownership of certain submerged
lands carries with it the powers to control fishing. Ownership
and authority are, in my mind, two different things.
SENATOR TAYLOR: Let's clarify that then. Ownership of the land,
according to Sandra Day O'Connor, on behalf of all of our Supreme
Court in the United States, says that it carries with it the
ownership itself, carries with it the right to control the
resources within the water, doesn't it?
ASSISTANT ATTORNEY GENERAL WHITE: Yes, that's correct.
SENATOR TAYLOR: Crab, sea urchins, geoducks. The geoduck would
be a real good one to look at, wouldn't it, because he's right
down in our land, isn't he? Who does control the geoduck in the
State of Alaska today? We do, don't we? Like the [indisc.],
we've got a commercial fishery on it.
ASSISTANT ATTORNEY GENERAL WHITE: The state manages the
resource. I wouldn't say the state owns it. The state manages
the resource.
SENATOR TAYLOR: Sandra Day O'Connor says we have the right to
manage that resource because we own the submerged land, right?
ASSISTANT ATTORNEY GENERAL WHITE: That's right.
SENATOR TAYLOR: What part of that authority does this
Administration wish us -- or would like us to cede to the federal
government so that they control who gets to take a geoduck? And,
I guess my real question is, by what legal authority does this
Administration think they have the right to narrow the
sovereignty of this state? Can you cite me any authority?
ASSISTANT ATTORNEY GENERAL WHITE: Under the property -- Senator
Taylor, through the Chair -- under the property clause the
federal government has the constitutional ability to manage
affairs on its land and manage its property.
SENATOR TAYLOR: [Indisc.] talking about its land, are we? I
thought you and I both just agreed that the U.S. Supreme Court in
the 1997 case said that that is the land of the State of Alaska.
In fact, I don't know of any case by the United States Supreme
Court in its history that says that every state does not own its
submerged lands. In fact, I could cite you to a whole series of
them. We're not talking about lands owned by the federal
government. That's the Tongass National Forest. We're talking
about our submerged lands in this state. So tell me, by what
legal authority do you believe the Governor or this legislature,
or the Congress for that matter, has the right to narrow the
sovereign domain of the State of Alaska?
ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the
Chair, ANILCA, amongst other constitutional bases, is based upon
the property clause. That's what allows the federal government
to say that it manages fish and game resources on federal lands,
but give us the opportunity, if we wish, to manage it. So, it's
a property clause, constitutional basis. The Ninth Circuit Court
of Appeals in Katie John said that the federal government can
extend its jurisdiction in the navigable waters for fisheries to
serve the federal reserve rights concept - principle. That's why
we're here. That's what the federal government is doing to its
regulations, is going off federal land, which it has the property
right to do, using a federal court concept of reserve water
rights to reach into our fisheries. Furthermore, under other
U.S. Court decisions, they could even go further to reach extra-
territorially into state and privately held lands, migratory
birds, migrating fish, and so forth. They haven't done that yet
but they have the ability under U.S. Supreme Court decisions to
do that. We're not ceding anything, we're recognizing what the
federal law says under U.S. Supreme Court decisions.
SENATOR TAYLOR: You're just surrendering to it unchallenged I
guess. Let me cite you then, Steve, to a 1992 case, New York
versus United States, again by our United States Supreme Court,
and I'm going to read, just briefly, this language to you.
[Senator Taylor reads:]
If a power is an attribute of state sovereignty, it is
necessarily a power the Constitution has conferred, not the
Congress. The constitutional authority of Congress cannot
be expanded by the consent of a governmental unit whose
domain is thereby narrowed, whether that unit is the
executive branch or the states.
In other words, we the people of Alaska received 150 million
acres of land; 103 million in state land, 45 million Native land,
you add to that the University school lands totaling maybe
600,000, 700,000, privately owned lands -- your house here in
Juneau, so to speak, ballpark maybe ....
TAPE 99-39, SIDE B
SENATOR TAYLOR: ... 150 million acres. Are you telling me that
today, because of the Katie John case, that you believe that the
federal government, and not the State of Alaska, has control over
those lands? And if they do, why pass this amendment? They've
already got us.
ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the
Chair, no, I'm merely saying the federal government under the
Constitution could manage fish and wildlife on its lands and even
off its lands. We have examples of the Endangered Species Act,
Marine Mammal Protection Act, Migratory Bird Act, all these
things are federal regulations of fish and game on their lands
and off their lands. I'm sure they've been challenged in the
Constitution and we still have them.
SENATOR TAYLOR: In fact they never have been challenged by the
State of Alaska on that issue except for the Babbitt case, right?
ASSISTANT ATTORNEY GENERAL WHITE: I can't answer that question.
I don't know how many times or in what circumstances we've
challenged any of those authorities or if we've challenged any of
those authorities.
SENATOR TAYLOR: Well we have, in fact, challenged several on
submerged lands and we've won every one of them. In fact, we're
the State of Alaska that took that case to the Supreme Court for
the 1997 -- had Sandra Day O'Connor say yes, you own the land and
the fish and the resources therein. You have the right to manage
it and she said it's an essential aspect of state sovereignty.
How many federal, state versus federal, cases have we got going
right now any why does this Administration stay all action on
those?
ASSISTANT ATTORNEY GENERAL WHITE: The cases are set out in here
and I haven't counted them. All those that deal with who has
jurisdiction over subsistence and subsistence management have
been stayed by the federal court itself, stayed pending whether
or not the state comes into management. If the state comes into
management, the federal court no longer has jurisdiction over
those cases. If we don't come into compliance, those cases will
proceed through the federal courts but it's been the federal
court itself who has stayed action on those cases.
SENATOR TAYLOR: We didn't stay action on those? We didn't tell
our attorney general's office or you didn't send the word down to
any of these people to stay action on those?
ASSISTANT ATTORNEY GENERAL WHITE: I believe that the federal
court itself recognized why proceed with the case that they
wouldn't eventually have jurisdiction, so, as a matter of
judicial economy, I believe the federal court itself stayed
action pending action this week in Juneau.
SENATOR TAYLOR: You know I've questioned the Governor this last
spring -- publicly informed the legislature and then publicly
announced that he would be suing on behalf of the commercial
fishermen in Glacier Bay to protect our rights to manage the crab
resource and other resources in those navigable waters and then
he went publicly and said he was going to bring suit and sue to
the federal government over that. Can you tell us whether that
suit has been filed or not?
ASSISTANT ATTORNEY GENERAL WHITE: I do not know whether that's
been filed or not. Our attorneys in our Anchorage office work on
the Glacier Bay -- and I can find out whether they've filed suit.
I think I asked them that a few weeks ago and they hadn't, not
due to -- I don't know but I can get an answer to that question
for you.
SENATOR TAYLOR: Would the basis of our suit there be defense of
our submerged lands and the water above them and the fish and
crab that swim therein, just as Sandra Day O'Connor said? I
mean, is that the basis upon which we're suing?
ASSISTANT ATTORNEY GENERAL WHITE: I can't answer that question
but I'll find out for you. Again I don't the basis. I don't
very much about the Glacier Bay lawsuit because that's not in my
section here in Juneau but I can find out for you.
SENATOR TAYLOR: I should have phrased it another way. Do you
know of any other basis upon which we might possibly sue the feds
so that we would once again retain and regain management of the
Glacier Bay fisheries? You didn't ask on those bases ...
ASSISTANT ATTORNEY GENERAL WHITE: I don't know of any basis,
either supporting that case or the ones that we couldn't use but
again I'll try and find out what the bases are.
Number 547
CHAIRMAN HALFORD: Senator Pete Kelly.
SENATOR PETE KELLY: I just wanted to make comments on the
discussion about giving up portions of state sovereignty
unilaterally by public officials, one I think is kind of
interesting given that I think in Arizona recently there was a
case where they were trying to give up portions of their
submerged lands because it was actually to their benefit because
of this entanglement of title problems with the federal
government, with private ownership, and what not. The
legislature actually came up with a bill to give up their title
to those submerged lands and the governor wanted no part of it,
in fact vetoed it. I thought it was interesting that that
governor was Bruce Babbitt who didn't want to give up sovereignty
to his state.
CHAIRMAN HALFORD: A question with regard to the purposes
section. That wasn't in the Administration's bill. That is an
addition on the other side. The purposes section, Section 3 of
the bill before us on page 2. Does the Administration think
that's essential to the bill?
ASSISTANT ATTORNEY GENERAL WHITE: Mr. Chairman, the Governor's
bill did have a purpose section to it.
CHAIRMAN HALFORD: Was it the same language?
ASSISTANT ATTORNEY GENERAL WHITE: It wasn't the same language.
We did not actually cite the two cases that we wished to address.
On reflection we thought it was - would be even stronger and
clearer to the courts if we did do that so, on our suggestion,
those two cases were added to the purpose clause.
CHAIRMAN HALFORD: With regard to both the purposes section and
the language itself, the term "wild renewable resources" had some
people concerned about a resource conflict with another resource
use -- wild renewable resource at least including timber,
probably including berries or anything renewable on the surface,
maybe including water had, under the federal law and would be
allowed under this amendment, a constitutional priority. And
there has been a lot of concern about how that would affect a
conflicting development use of that property. I think that's
what Senator Green was trying to understand and the federal
diversions of this constitutional amendment have said fish or
game but they haven't said "wild renewable resource" and you've
gone back to the broader language. Does that cause you any
concern?
ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I don't
think it -- well, it should not be a concern to you because just
as you can have the discretion to do anything under here, under
this language, you could certainly define -- it says "to take a
wild renewable resource". It seems to me in your statutory
implementation you could describe which wild renewable resources
are subject to subsistence uses.
CHAIRMAN HALFORD: Doesn't the federal court have the real
control of the definition if we are, in our purposes section and
in our Constitution, allowing for whatever they want to expand
that definition to include?
ASSISTANT ATTORNEY GENERAL WHITE: To be in compliance with
ANILCA your definition of that would have to be consistent with
what ANILCA provides for subsistence uses.
CHAIRMAN HALFORD: That hasn't been litigated in any case that I
know of.
ASSISTANT ATTORNEY GENERAL WHITE: I'm not aware of it being
litigated either.
Number 510
CHAIRMAN HALFORD: Senator Leman.
SENATOR LEMAN: If I could continue on that. Steve, if we did
not provide the priority to rural residents for subsistence
harvest of other than fish and wildlife, would it not then mean
that the federal government would manage for subsistence on
federal land only for those things other than fish and wildlife,
perhaps berries, things like that, and wouldn't that be the net
result? It wouldn't necessarily mean that they would manage for
subsistence for fish and wildlife because we're out of compliance
with the other wild renewable resources. Do you understand my
question?
ASSISTANT ATTORNEY GENERAL WHITE: I understand your question.
I've never thought about that but I think that that would be
problematic because I think we have to have laws that provide for
the preference definition and participation and, if the
definition -- in order to regain compliance, the laws have to
provide for all three. If we somehow limit the resources and
don't provide the same definition of renewable resources in our
statutes as in ANILCA, I don't believe that we would regain any
management so I think the consistency has to be across the board,
but I really haven't -- that's my initial reaction. I'd have to
think about that some more.
SENATOR LEMAN: Mr. Chairman that would be very interesting if
the federal government would take that approach. We all know why
we're here but the immediate challenge before us is federal
management -- federal day to day management of fisheries in
Alaska for subsistence which could have an effect on all
management. I don't see people jumping up and down about the
impact of federal management of grass or berries on federal land.
I guess they do it -- well, timber they do it now on federal
lands.
ASSISTANT ATTORNEY GENERAL WHITE: Well, by and large all the
litigation has been on fish and game resources but what I'm
saying is I think the definition, I'd have to look at it in
ANILCA, but I think it's broader than just the fish and game.
It's not been interpreted as Senator Halford mentioned.
CHAIRMAN HALFORD: Further questions? Senator Taylor.
SENATOR TAYLOR: On extraterritoriality. Liz Ruskin, in a news
article in the Daily News, I think stated it very clearly when
she said, if by Friday the Legislature doesn't put a
constitutional amendment on the ballot allowing the rural
priority, the federal government says it will assume management
of subsistence fishing on the two-thirds of Alaska it controls.
Do you think that's an accurate statement? They haven't actually
taken over fisheries control on their own land yet and you said
this was under the property clause. They can do it on their
land. I'd debate that with you but what the heck, I'll give you
that point. In other words, to take the opposite side of her
statement, if we fail to act, other than your theory that they
can expand their jurisdiction, their sovereignty under extra-
territoriality, expanding beyond the borders of their rights,
other than that they have no jurisdiction over our waters or our
state lands, or my private land in Wrangell - I mean my property
in Wrangell. They don't have that jurisdiction today. Is that
correct? I mean did she state it correctly because I think she
did.
ASSISTANT ATTORNEY GENERAL WHITE: That's correct. They have --
if you look on the map in this thing, they have extended it to
the boundaries that the federal land management, including
patented but not conveyed lands, -- they cite in their -- they
make reference to the Kleppe case which talks about extra-
territoriality. In their commentary they say that they have the
authority but they're not exercising it at this point. But,
you're correct, that's as far as they've chosen to go at this
point. They've not used extra-territoriality to go any further.
They tend -- the federal government has not yet defined, under
the reserved water rights doctrine, how far beyond boundaries
they are going to manage our fisheries. We've asked them to do
that and they have not done it at this point. So that's an
uncertainty.
SENATOR TAYLOR: So to the extent that the extra-territorial
reach of the federal authority may come into our 150 million
acres that we call the State of Alaska, and may come into our
waters, as an attorney, isn't the issue of reserve water rights
by the federal government -- isn't that a very weak issue when
compared with the constitutional authority and stare decisis
decisions of our United States Supreme Court on the subject of
title to that water column and the resources within it. In other
words, aren't we on very strong ground when we defend this
state's Constitution and sovereignty under the submerged lands
act and the statehood act, and aren't they on very, very weak
ground when it comes to reserve water rights. In fact the only
extra-territorial case you mentioned to this committee today is
Kleppe, which involves the protection under the Endangered
Species Act of a bunch of burros. That's the only case anybody
can cite to me on federal land where they exercise any
jurisdiction over animals. Isn't one a very weak thing, reserve
water rights, and the state's position a very strong one?
ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the
Chair, I was not involved with the briefing in the Katie John
case in which we argued that federal public lands does not
include state navigable waters. The District Court found that it
did. We appealed to the Ninth Circuit. The Ninth Circuit
[indisc.] federal reserve water rights, which allowed the
extension. We asked for cert. to the U.S. Supreme Court and it
was denied. We litigated it and I'm not sure of the grounds but
the result of that was the federal reserve water rights which
allows them to extend beyond the exact borders of the federal
land units.
SENATOR TAYLOR: In conclusion, failing the constitutional
amendment or failing the approval by the voters of the State of
Alaska to cede their sovereign state to federal enforcement, will
this Administration bring suit to defend this Constitution and
our sovereign state?
ASSISTANT ATTORNEY GENERAL WHITE: I'm not in a position to
answer that.
SENATOR TAYLOR: It will be a political decision. Thanks.
CHAIRMAN HALFORD: Further questions? Nobody has asked anything
of Mary Pete and she sat there so patiently. Just as a matter of
curiosity, do you think there would be more fish in the Yukon and
the Kuskokwim River under federal management than there has been
in the last decade under state management?
MARY PETE, DIRECTOR OF THE DIVISION OF SUBSISTENCE, ALASKA
DEPARTMENT OF FISH AND GAME: I can't answer that.
CHAIRMAN HALFORD: Regardless of other implications, I certainly
think there would. If there are not further questions we thank
you very much for your .... Next, we'll go to AFN - Julie and
whoever you wish to have join you today.
Number 428
JULIE KITKA, PRESIDENT OF THE ALASKA FEDERATION OF NATIVES:
Thank you, Mr. Chairman. I would like it if it's possible to
patch in one lawyer by phone, Norman Cohen in Anchorage, if that
is possible to do that.
CHAIRMAN HALFORD: Well, if you've got somebody here -- what we
did is we said listen only, and we had other people that wanted
to testify by teleconference.
MS. KITKA: He would just be available to answer any questions
that you would have, not that he would be testifying.
CHAIRMAN HALFORD: Okay, if we have any questions we'll try to go
to him but I'd just as soon not change the teleconference in the
middle of this.
MS. KITKA: Okay.
CHAIRMAN HALFORD: If I'd known that I would have tried to deal
with it differently.
MS. KITKA: Okay. Thank you Mr. Chairman. For the record my
name is Julie Kitka and I'm the President of the Alaska
Federation of Natives. To my right is attorney Carol Daniels,
who I've asked to join me this afternoon. To my left is AFN
attorney Chris McNeill. I appreciate the opportunity to testify
and we'll keep our comments brief. The House has taken a major
step forward last night in passing a constitutional amendment and
we would like to thank those legislators who voted to allow the
people of the state to have an opportunity to vote on this issue
in November of 2000. We know that it was a difficult decision
for many of them and we listened to much of the debate and
participated in the process as much as we could. It is one step
in a many step process. We know that it is pending consideration
here in the Senate and, should it pass out of the legislature, it
will need to be certified by the Secretary of the Interior, voted
by the people in the state as well as further steps in the
process of having a state statute and regulations, and so we're
looking at it that this is a process that continues and not
everything is going to get resolved during this special session.
AFN again repeats we support a constitutional amendment that
allows the state to come into compliance with ANILCA. We support
no amendments to ANILCA. We support no lawsuits, standing or
appropriations to overturn the federal policy that's contained in
Title VIII of ANILCA because we believe that that is good public
policy. AFN, as well as I'm sure many in this room, awaits
further information from the Department of Interior on whether or
not the House-passed legislation is something that the Department
of Interior will certify or not. And so that is of great
interest to us as well as I'm sure everybody here. We'd like to
also state for the record that we're very pleased that sports
fishermen, commercial fishermen, business and community leaders
have been standing up, both coming down here to Juneau as well as
standing up with us both here in the state as well as across the
nation. It is something that is very heartening to us,
especially over the long time system going on for almost ten
years and so I'd like to, for the record, express appreciation to
the other individuals again which have been standing up and
conveying to you their wishes to also see this go on the ballot
in November and have a resolution to the conflict. I'd like to
also say, you know we appreciate that they have recognized the
importance of subsistence to the Native people in the state as
well as the rural people and we do recognize that it is to some
effort that they have come down here or expressing their support
and we appreciate that.
As I mentioned earlier, we are awaiting further information from
the Department. I think one of the key questions that we have
testified on the House side is the question in the list of
criteria
on the question of rural. We have testified that we thought that
adding rural in that criteria would strengthen the amendment but
we made it crystal clear that we are awaiting the Department of
Interior's decision whether or not the amendment, as passed,
accomplishes that and, should it be adopted by the people of the
state, allow the state to come into compliance with ANILCA.
Basically that's our testimony this afternoon and I'd be glad to
answer any questions.
CHAIRMAN HALFORD: Senator Mackie and then Senator Taylor.
SENATOR MACKIE: Thank you. Julie, should the Department of
Interior feel that the House-passed version is something they can
certify, is AFN willing to support this particular passed
version?
MS. KITKA: I think that we would like to await -- you know
discussions with the Department of Interior if they find that
that is acceptable and are willing to certify as well as what
happens in the [indisc.] but certainly if the [indisc.] proposal
is certified by the Department allows the state to come into
compliance with ANILCA we will be supporting it.
CHAIRMAN HALFORD: Senator Taylor.
SENATOR TAYLOR: Jerry just asked the same question I was. Thank
you Julie.
CHAIRMAN HALFORD: Senator Leman.
SENATOR LEMAN: Mr. Chairman, Julie, you made a similar statement
today that you made a few days ago that AFN would support -- I
think you said would support no amendments to ANILCA, which I
interpreted to mean you wouldn't support amending ANILCA and yet
I think it's nearly universal that we can agree that there is
vagueness in terms, there are some things that ought to be
changed, that ought to give us the authority to define certain
things like rural, what's customary trade, reasonable
opportunity, and things like that that I believe if we get away
from almost adversarial position of dealing with this type of
thing, probably even you would agree. [Indisc.] but those are
things that need to be defined so we don't argue over what those
things mean. I would think that in the interest of bringing this
to a resolution, that it would be a more reasonable approach for
AFN, and others similarly situated, to support changes like that
that that would help bring this thing to Alaska so we can have
the solution be actually pulled together within our state, within
our family of Alaskans. I suggest that and I don't know if
you're posturing to ensure that certain other things stay in or
if you really would follow through on that, but it seems to me
that it would be an unreasonable position and I would hope that
you would reconsider that and maybe look at some reasonable
changes to ANILCA that could bring this thing to a conclusion.
MS. KITKA: Mr. Chairman, to respond to that, I do not believe
it's an unreasonable position and it is our position, but I also
testified yesterday the Alaska Federation of Natives and the
Native community has never said Title VIII of ANILCA is perfect.
We have always been open for discussion about things that improve
Title VIII of ANILCA. What we have objected to and are very
concerned about is it seems like what always comes back to us on
amendments to ANILCA is proposals to overturn court cases that
our people have won and our people have seen a situation that
they thought was not right and exercised their rights as a
citizen and pursued it in the courts and it was successful and it
seemed to us that everything that was coming back to us was
overturning all of those ones and we just will not support any
weakening of Title VIII of ANILCA and we'll -- that's the
reasonableness of what our position is. Like I said, we've never
said it's perfect. We've never said it cannot be improved but we
cannot support any weakening of it. It's the only federal
protection that we have and we're going to do everything we can
to protect our people's interests including our federal
protection.
CHAIRMAN HALFORD: Senator Lincoln, then Senator Taylor.
SENATOR LINCOLN: Mr. Chairman, somewhat on that same line, Julie
could you or how would you respond to the charges that we have
heard from various individuals that AFN is not willing to
compromise? They're not willing to come to the table to
compromise. How do you respond to that?
MS. KITKA: Well maybe I'd go ahead and ask Chris McNeill to
respond to that as far as ANCSA and the conference report and so
forth. Chris?
CHRIS MCNEILL, ALASKA FEDERATION OF NATIVES LEGAL COUNSEL: Thank
you. In order to review this you do have to look at the origins
of the discussion and that those rights were recognized but not
fully resolved in ANCSA itself and the legislative history so
stated. And because they were not resolved in ANCSA, that's how
the progression moved into the discussions in D-2 and ANILCA.
And the provision as it stands in ANILCA is a compromise because
the Native community definitely wanted a Native preference and
what finally came out of it was this provision, which we felt
came a long ways towards a compromise and thought it would have
been implemented many years ago.
CHAIRMAN HALFORD: Senator Taylor?
SENATOR TAYLOR: Yes, thank you. Julie, I think we all probably
agree, we've certainly heard it for I guess very consistently for
about ten years now, that ANILCA will not be changed at the
congressional level. Ted tells me that. I hear Bill Clinton say
it. Bruce Babbitt. I don't know anybody that has said that it's
going to be changed. They tried to, you know, tried to pull some
of the commercial fishermen to believe that somehow they were
going to get some changes and got some linkage on prior bills but
there's certainly no linkage here now so.... I guess my concern
is what is AFN's opinion on how will state enforcement with the
passage of this law be different or better for AFN than federal
enforcement of exactly the same law, rules, and regulations?
MS. KITKA: Well, Mr. Chairman, I think that requires an
understanding of why AFN for at least the last ten years, through
the McDowell decision, has been participating in every regular
session and every special session, virtually every committee
hearing, is we have been interested in helping the state regain
management. We recognize that is important to many people. We
do recognize that there's difficulties if you have a dual
management system, however we're at the point now that if the
state is unwilling to put a constitutional amendment out to the
ballot and let the people decide, and unwilling to come into
compliance, we are willing to live with and accept the federal
implementation of the federal law. But I think that it has been
our desire to try to help the state regain management to have a
single unitary management -- was why we have participated, but,
as I said it has remained our view if the state's unwilling to
do that we think that our people's interests can be protected
with the federal implementation of the law and so we support
that, but we're here hopefully to [indisc.] last minute if that's
what it takes to help urge the state along. In fact, we also, in
our efforts on the national level on that, have seen quite a bit
of interest in what is going on and it is also our desire that
the legislature resolve this in a positive manner because there
is a lot of interest nationally in what is going on and I would
much rather have the pride of knowing that we can solve things
here at the legislative level and put it out to the people and
allow them to vote on that and see the view that the people
nationally get of how we handle things here in the state as
opposed to say we failed again in another special session after
so many years and the divisiveness continues. I think that that
gives the state a very big black eye and, in particular, the
legislature -- a very big black eye.
SENATOR TAYLOR: I understand those things. My question though,
really, was how do you believe federal enforcement or, if you
will, how would state enforcement be different than federal
enforcement since it's the same law, rules and regulations? I
cited a couple of examples in earlier questions to Steve. Is the
False Pass fishery going to be left open if state management
takes over? Or is the False Pass fishery going to be closed
under state management just as it would be closed under federal
management because each of those managing entities, and I hate to
use the word "management" because it's not a management law,
ANILCA was never intended to be a game management law, it's an
allocation law but -- I would think that if AFN sees, assuming we
pass all of this stuff, AFN sees the State of Alaska continuing
to allow the False Pass fishery to occur, then I think you're
going to go to federal court and sue and say that's violating our
considerations under subsistence for up river uses -- we want
that fishery closed. Even though the state's biologists may well
like to keep it open, you will not want that, I'm assuming.
You'll go to court and a federal court will tell us how to do it.
And that's why I'm having a hard time understanding how you think
that state management will be any different than federal
management.
MS. KITKA: Well I think that people will bring petitions to the
federal agency in the system if the federal government is
implementing the law. Probably one of the positive things that I
would see happen if the federal government did implement it -- I
think that there would probably be a greater willingness for co-
management and cooperative agreements between the federal
agencies and the Native communities and therefore that might be
some ability to bring people in at the local level in some
positive way which, again, we think if the state regained
management it could also move in that direction to involve more
local decision making and we see that across the Arctic as
something that's positive and kind of the natural growth in the
management system. I think there's probably a greater interest
in the federal agencies in moving along and I wish that there was
a greater interest on the state level but the state's not
precluded from moving in that direction if they regain
management.
SENATOR TAYLOR: You know, as you and I have talked with others,
I favor a regional management system. I always have as opposed
to a statewide. But I think we still need some overall uniform
worries about biology but I think regional would be better.
You've mentioned now, two or three times, co-management. You
talked about co-management in terms of the federal government
working with Native communities. I listened to Bill Clinton's
comments and I assume, since you were there when he made them, at
least on the television thing back in D.C., he also talked about
resolving the ANILCA concerns on a government to government
basis. What two governments do you believe he was talking about?
Do you believe he was talking about the federal government and
the State of Alaska or is it the federal government and tribal
governments?
MS. KITKA: I'd like to ask Chris to respond to that.
SENATOR TAYLOR: Whoever. I don't know what he meant by
government to government and each time you said co-management
you've talked about federal government sitting down with Native
governments to talk about management.
MR. MCNEILL: The federal government always has a policy of
working with all of the states. In context of that statement, he
was referring to his own policy, which is, in fact, an executive
order, that he'll have a relationship also with tribal
governments on certain issues.
SENATOR TAYLOR: Okay, that's what I thought he said too, was
federal governments, tribal governments, we'll work it out - if
the state's hanging around I guess that's fine, but I didn't hear
it as a triumvirate agreement and I don't hear co-management
being mentioned as involving the State of Alaska either. Maybe
I'm not hearing that correctly, and if I'm not, please correct
me.
MS. KITKA: Well, Mr. Chairman, I think that there is a lot of
room for cooperative agreements and co-management agreements to
develop and it should be viewed as very positive, constructive
development in the management in the state, and so when I look at
that and the potential in the state, I view that as the wave of
the future, how management should evolve. I don't think we ought
to stay in the same system that we've had for years and years and
if, like I said, we can get some of these big tier levels
resolved maybe we can move forward on some of that. I view it as
constructive, not negative.
CHAIRMAN HALFORD: Further questions? Senator Mackie.
SENATOR MACKIE: Yes, just to go down that road a little further.
Julie, isn't it true that AFN is not afraid of federal
management, and as a matter of fact, a lot of my constituents and
a lot of Native communities that I represent, on the issue of
subsistence would welcome federal management. I mean a lot of
Native people believe that under a federal management system that
the Native people are truly going to be taken care of better than
the State of Alaska can. So why wouldn't AFN, and any of the
tribal governments, want to pursue a government to government
relationship for a co-management system for the benefit of their
people?
MS. KITKA: I think you're correct. No, we're not afraid of the
federal management because all it is is federal implementation of
the existing law, and we will work, if the state is unable to
resolve this, to try to make that transition as smooth and as
fair as possible and try to address the needs that we see that
are out there.
SENATOR MACKIE: So is it safe to say, through the Chair, that
should the legislature not place the question before the voters,
and federal management will happen on October 1st, that then the
focus of the Native community will be towards how to maximize the
opportunities for the Native community in the state under a
federal management scheme and do that with open arms if the
Legislature chooses to not stop it from happening?
MS. KITKA: Yes.
CHAIRMAN HALFORD: Senator Lincoln.
SENATOR LINCOLN: Mr. Chairman, thank you. Julie, Chris or Carol
- this may be the last opportunity that you have to testify on
this issue, and hearing the previous testimony that was given by
the Administration, and I don't know if there were questions that
you might have anticipated that were going to be asked that
wasn't, I would just like to ask if there's anything further that
you would want to add, because it sounds like there might not be
any more questions at this table of you and this might be the
last opportunity. For either one of you three, or all of you.
MS. KITKA: Well, I guess I'll go ahead and start and then ask if
they have any other comments. I think that this committee and
this Senate needs to recognize the historic importance of what
you are doing and how important it is for you to resolve this, in
as far as the future of the state as a whole. I think that the
divisiveness that's been generated, the divisiveness that will be
generated if you put your head in the sand, so to speak, and not
take any action, will just grow. I don't think that is healthy
for the state. I think that the people of the state deserve to
have the opportunity to vote on this and you should not let your
personal views, if you like it or not like it, allow you to block
the people from voting. You have the opportunity to pass on an
amendment to say, I'll pass on the amendment but I'll work hard
against it because I don't believe in it but I believe in the
ability of the people to vote on that, and if that's the position
that you need to take, again people would understand it. What we
would be frustrated with, if it gets continued to be road
blocked, again by a small segment in the Senate, and the people
are frustrated. Again, I think that this is an historic period
of time. I don't think that that window of opportunity just
stays open forever and it certainly does affect relationships in
the state between Natives and non-Natives, between urban and
rural. It affects relationships between the state and people
outside of the state, the federal and state governments, so on on
that. I just want to let you know that there's a lot at stake
riding on you taking action and I really urge you not to say, you
know, we're just going to block it and kill this and see where we
go because I think that that will lead us down the path that all
we'll have is more confrontation, more conflict, and a lot more
litigation than trying to resolve problems. And I think a
constitutional amendment helps resolve problems, it doesn't
resolve everything but it is a step forward. That's all I have
to say on that. Carol? That's it.
CHAIRMAN HALFORD: If there's no further questions, thank you
very much. We will now go to three people from the opposition,
Dick Bishop and then Carl Rosier and then Mary Bishop. You can
all be there together or you can be one at a time, however you
wish to do it.
DICK BISHOP, VICE PRESIDENT OF THE ALASKA OUTDOOR COUNCIL: Thank
you Mr. Chairman. I guess according to the list that I was
shown, I guess I get to go first. My name is Dick Bishop, I'm
the Vice President of the Alaska Outdoor Council. The Alaska
Outdoor Council is a statewide conservation oriented outdoor
users group. It's an umbrella organization for about 45 groups
in the state that enjoy Alaska's outdoors and resources and it
has a total of about 10,000 members. We appreciate the
opportunity to again testify here. I'd like to remind the
committee that the Alaska Outdoor Council does support
subsistence uses and subsistence lifestyles, and personally
that's how I got into this business, for better or worse, 25
years ago - as an advocate of subsistence uses and subsistence
lifestyles. There have been days when I wish I'd never heard of
it but it's too late to have those kinds of regrets. However, as
much as we support those uses and lifestyles, we do, and have,
consistently opposed discriminatory priorities with regard to the
uses of those resources, Alaska's fish and wildlife and other
resources, such as the rural zip code priority that is
institutionalized in ANILCA. And we oppose bad conservation laws
and ANILCA is demonstrably bad conservation law. I think that
the Legislature should take heart in the fact that they owe no
one an apology for turning down proposals to institutionalize, in
our Constitution, discriminatory priorities or bad conservation
law. Contrary to the way the actions of the Legislature have
often been characterized publicly, the refusal to
institutionalize or propose to institutionalize such provisions
as a rural priority or bad conservation law measures, is not a
failure to act, but an act to prevent bad misjudgment. It's
pretty clear that the dilemma lies in the terms of ANILCA and
I've characterized the situation that we all find ourselves in
right now as being in a box, a box built of good intentions and
bad judgment. Frankly, Mr. Chairman, to adopt a conforming
amendment to our Constitution so that the state would not only
have the opportunity, but the obligation, to administer federal
law according to the dictates of the federal court, would simply
nail the lid on that box good and tight, and it could be likened
with regard to our civil rights and sound conservation, to
nailing the lid on the coffin.
Mr. Chairman, with regard to the bill that passed last night in
the House, HJR 202 Finance amended, the Alaska Outdoor Council
not only opposes that bill but condemns it as irresponsible,
misleading, and unAlaskan, and a violation of the civil rights of
all Alaskans. It's an Alaskan surrender, not an Alaskan
solution. Several issues in the House debate were treated either
like the proverbial skeleton in the closet. That treatment is,
if you don't open the door, you won't know it's there and you
won't have to deal with it, or like such an unpleasant sight that
you avert your eyes as you pass by rather than face the
unpleasantness of the reality. So the Bess v. Ulmer issue, which
I really was pleased to hear substantial discussion of here this
morning, relating to the amendment versus revision question, in
the House after acknowledging that it was pretty much put back in
the closet where a good skeleton belongs. The civil rights
issue, on the other hand, got all of the attention of a maggot-
ridden moose carcass. When you happen upon one of those in the
woods, and I have, most people will walk around it upwind so they
don't have to have the full experience of encountering it, or
simply hold their nose and plunge ahead to more comfortable
surroundings and hope like heck that none of the aroma has clung
to your coattails. State management, as another issue, was
smothered in any discussions in the House, and the Governor's
myth, that if you comply with the federal law you get state
management back - an oxymoron that has taken on a life of its
own. And the fact that under ANILCA subsistence uses are second
best to non-consumptive uses didn't even make ANILCA advocates
blink. The final insult in HJR 202 is that the purpose section
was put back in it, having previously been there. That provision
effectively eliminates any wiggle room Alaska might have
negotiated by explicitly stating that the purpose of this
proposed amendment is to conform to Title VIII of ANILCA. Well,
that may be good enough for the Governor and for those who
supported passage of HJR 202 but it's really not good enough for
Alaskans. It's not good enough for sound management and it's not
good enough for the State of Alaska which should have clearly the
responsibility and authority to manage resident fish and wildlife
in the state, all of the gray areas and uncertainties with regard
to federal law notwithstanding. So, we ask you please do not
pass this maggot-ridden imitation of an Alaskan solution as we
have often stated a constitutional amendment is not necessary to
fairly and adequately provide for subsistence uses. But if the
Legislature chooses to propose an amendment to strengthen
subsistence provisions, it should do so within the current
constitutional bounds which have been elaborated on very well by
the Alaska Supreme Court and then ...
TAPE 99-40, SIDE A
MR. BISHOP: ... so that just about the only effective leverage
that the state has, it can use the possibility of, or could use
the possibility of, a constitutional amendment to negotiate
needed changes in ANILCA and those changes are well documented.
Basically what they would do is help put Alaska back on an equal
footing with the authorities and responsibilities granted to
every other state in the nation and which Alaska, if it conforms
to federal law, will be deprived of. In our view ANILCA is the
problem. Whatever the Legislature decides is the best course of
action however, Title VIII of ANILCA still needs amendment
regardless of whether that involves a conforming amendment or
not. So I thank you for your time. I'd be happy to try to
answer particular questions about the circumstances, call them
technical or whatever if you will, but that concludes my remarks
unless you have questions. Thank you.
CHAIRMAN HALFORD: Senator Parnell.
SENATOR PARNELL: Mr. Chairman, can we hear from the whole panel,
from Mr. Rosier and ....
CHAIRMAN HALFORD: We can ask questions if you want, if you have
any specific questions, or we can come back to anyone after.
SENATOR PARNELL: I'd like to hear it all before [indisc.].
CHAIRMAN HALFORD: Okay. Commissioner.
CARL ROSIER, ALASKA OUTDOOR COUNCIL AND FORMER COMMISSIONER OF
THE ALASKA DEPARTMENT OF FISH AND GAME: Thank you Mr. Chairman
and members of the Committee. I appreciate the opportunity to
get away from putting away the moose I killed this fall and
coming here to testify so.... But anyway it's been my pleasure
to have been a resident of this state since the mid '50s and it's
truly, truly been a privilege to see the recovery of our
resources during that period of time under the state management
program. I guess I could truthfully say that I've seen the high
points, and now I'm seeing the low points, of history in Alaska.
When statehood came, there was a great outpouring of support for
statehood, state management of these resources were finally going
to have the - we're going to finally have the decision process
close to home and where we can, in fact, effectively influence
the things that in fact affect our lives here in Alaska. I say
this is the low point because it seems to me that, in the case of
subsistence, it's really a great, great use of the resources and
it's one that I feel has been given great deference under the
state system over the years. And for the life of me, as I sit
here today, I still have great difficulty understanding why we
are going to go back to a system that we saw decimate our
resources, go back to a system that is continuing to decimate
resources. I believe earlier in this special session I testified
about the disaster regarding beluga whales in Cook Inlet. What
about sea lions and so forth in the rest of the state - that are
now closing down major fisheries around the state because -
involving species that the federal government was damn well
responsible for managing and yet they didn't manage and they
won't manage. They will for the time being, then they'll build
their bureaucracies on this. It will be an eight to five job,
just like other federal jobs on this and, believe me, your
resource will in fact go down the drain. Having worked for the
federal government I've seen what happens in terms of the
politics of these issues. If you think that you're going to get
local management through the federal process here in Alaska, just
think again. The politics of the federal government is in
Washington, D.C. and that's where you're going to go to get your
regulations. That's where you're going to go to get your
fisheries policies. That's where you're going to go if you're
going to participate in the federal regulatory process. That's
where the decisions get made. There are political entities out
there that we haven't even - don't even know exist that will be
in fact involved in making fisheries and game policy in this
state - bodies that were in fact excluded unless they wanted to
come to Alaska in recent times. But anyway, that's where we are
in my view today. A couple of things that I would like to say
about HJR 202 Finance amended. At least the bill, in fact, talks
about sustained yield. ANILCA doesn't even speak to sustained
yield, so at least that's an improvement in terms of the wording.
It's not in compliance with ANILCA so I'm not sure that the feds
will in fact accept that. The general wording of the Article
VIII, Section 4 provisions goes far beyond fish and wildlife,
obviously. It makes the application down to all natural
renewable resources in the state. It's not just natural either,
it also applies to introduced species as I read the wording here.
So, species that have not been customarily and traditionally
used, unless yesterday was a customary and traditional use of
that resource, are included in the general wording that's
included here on this. I do say that there's an improvement in
terms of when the harvestable surplus, when there is a
harvestable surplus that's provided for here, it seems to me that
there are great questions associated with when the shortage
occurs. This certainly is an improvement over that particular
definition. I think one of the greatest faults of this
particular piece of proposed legislation is that there is no tie
to ANILCA. I think that's a fatal flaw associated with this
particular bill. The state, if it's going to deal on any kind of
an equal footing with the federal government, is going to have to
have some leverage. If the state is not willing to go after the
provisions of ANILCA that in fact give it back, get back the
management of these resources, then the federal government is
just going to bury us. They will in no way deal with the state
on a fair and equitable basis on this, lacking some leverage on
the state's part. That leverage, in my mind, has to be a
withdrawal of state and private lands from the provisions of
this. It has to be -- the state has got to stand up on its hind
legs and fight for navigable waters. It just seems to me that
lacking this we have totally capitulated state's rights to the
federal government and we're essentially back in the same
position we were in prior to 1959. I think one of the most
misleading statements in this document is to ensure state
management of fish and wildlife throughout the state, to address
the constitutional issues in the various court decisions and
ANILCA. There's just no way that you're talking the state
getting back state management. I mean anybody that thinks that
has obviously been smoking something that they probably shouldn't
be in this day and age. But on the other hand, it's been a
statement that has in fact been fed to the public so long, that
we're going to get back state management, that as Dickens said,
it kind of takes on a life of its own and there's just no way
that you're in fact going to get state management back under
this. Nobody's really able to answer the question to me, anyway,
of how do you get state management back when you have a federal
law, you have federal agencies that are overseeing the
implementation of that law, and when there's a violation of that
law you go to federal court to resolve it. That doesn't seem
like state management, at least the kind of state management that
I've been used to and aware of for the last 40 years. I think
that the final point that I'd like to make is I think under the
purpose section here where we talk about to bring the state into
compliance with Title VIII, seems to me that this forecloses
further legal opportunities for the state down the road on this.
For these reasons, Mr. Chairman, I, as a long term manager and
having a great love for the resources, fish and game resources of
this state, just cannot come down in support in any way of this
particular document and I would hope that the Senate finds that
same to be the case with the body. Thank you very much.
CHAIRMAN HALFORD: Mary?
Number 177
MARY BISHOP: My name is Mary Bishop. I live in Fairbanks. I
want to reiterate our strong support for subsistence use and
continuation of Native cultures and other cultures that make up
the great diversity we see in Alaska. We must respect all those
cultures and this diversity and I hope others will respect my
culture. It holds many aspects of the hunting, gathering culture
but it also -- but also aspects of civil and equal rights.
Starting with our founding fathers who said no to the mandates of
a distant King George and established a nation on principles of
equal opportunity and civil rights. It's certainly not perfect -
women didn't get to vote until I think it was 1926, but
improving, as staunch supporters of those principles, like Rosa
Parks, Martin Luther King, Jr., and Elizabeth Peratrovich, who
refused to sit at the back of the bus. And they marched for
equal rights. All this is part of my culture, equal to and along
with my hunting and gathering culture. This is a civil rights
issue and my civil rights, my culture, is shown grave disrespect
by this federal law. And you, I'm counting on you as elected
legislators, as guardians of my civil rights, please do not take
that responsibility lightly under the stress of today's
situation. Look around the world. Internationally we see what
happens when nations put one group over another. Think about our
grandkids and our children's children. Think past seven days,
past seven years and on to seven generations down the line. Will
our grandkids living in Juneau have the respect they should for
our children's children in Sitka? Will our grandkids in Nenana
respect our grandkids in Fairbanks? What will these funny little
lines separating rural from urban do to us in seven generations?
In spite of the stress of today, please remember you are the
guardians of our civil rights. You understand the issue. You
have not been -- as an example, you have learned over the last
two days, perhaps longer, that there are myths out there, like
the priority is only in times of shortage. The priority -- or we
will get back state management. Those myths continue, probably
95 percent of the people believe them, they have never been
informed otherwise. You have, you've heard all sides of the
story. You are the guardians of my civil rights and I'm sort of
counting on that. One of the questions is, Julie Kitka says this
is an historic moment. What you do will be of historic
importance. Earlier Senator Leman, you asked the AG's office a
question with regard to the purpose section. I believe you asked
if the purpose section, where it says the purpose is to bring the
state into compliance, would affect a challenge through our -- a
challenge to the constitutionality of the federal law, and the
AG's office replied no, they didn't believe so. On the other
hand, think about if the purpose of this section is to bring the
state into compliance with federal law. Think about a court
challenge to our state regulations or our state statutes - not
the constitutionality but a regulation or a statute which anyone
in the state can bring whose got the money to do it. Where will
the court look for interpretation as to what our Constitution
says. Will they look at the words on this side of the page or
will they look to the purpose which says we're doing this because
we want to bring it into compliance with Title VIII therefore we
will look and see what Title VIII says. I don't think, with that
language, what you say on this side of the page is going to make
a lot of difference because the court is going to say the purpose
was to bring you in compliance with Title VIII and therefore
we'll look at Title VIII -- the ultimate in federal court
oversight using the federal law. In the end I urge you to
remember to think about what will happen seven generations down
the line. Please be guardians of our civil rights. Thank you.
CHAIRMAN HALFORD: Questions? Senator Pete Kelly.
SENATOR PETE KELLY: Mr. Bishop, you have said something about
the subsistence uses being secondary to non-consumptive uses.
Could you point out where that is and kind of explain that to me?
MR. BISHOP: Mr. Chairman, Senator Kelly, it is in ANILCA and,
let's see, I can look it up here quick. It's on page 66 of the
subsistence handbook that I think was provided to all legislators
by the Administration. Under Section 802, number 2, of ANILCA it
says: [he reads]
nonwasteful subsistence uses of fish and wildlife and other
renewable resources shall be the priority consumptive uses
of all such resources on the public lands of Alaska.
And it goes on. So what it -- all that it concedes is that
nonwasteful subsistence uses shall be the priority consumptive
uses of those resources, leaving a higher priority for non-
consumptive uses.
SENATOR PETE KELLY: Would you say a higher priority or leaving
that question open?
MR. BISHOP: I'd say a higher priority.
SENATOR PETE KELLY: I don't follow the logic.
MR. BISHOP: Well the logic, Mr. Chairman, is that subsistence is
limited to being the priority use, consumptive use of different
resources. The only other kinds of uses in that sort of
breakdown is non-consumptive and so it essentially elevates non-
consumptive uses to a higher position. In other words, if the
question comes down as to relative importance of consumptive and
non-consumptive uses, subsistence -- let me rephrase that,
between non-consumptive uses and subsistence uses, the only thing
that subsistence has going for it is being the highest priority
consumptive use.
SENATOR PETE KELLY: I guess I'd probably be more comfortable in
saying that it isn't well addressed and that certainly that it
could be open to interpretation and could find itself as
secondary to non-consumptive use.
MR. BISHOP: Mr. Chairman, that's probably a reasonable alternate
approach to it.
CHAIRMAN HALFORD: Further questions? Senator Taylor.
SENATOR TAYLOR: Yes, for Carl. Carl you talked about federal
management and what a travesty that had been under the federal
government prior to statehood. What is the difference between
the viability of species standard used in ANILCA and sustained
yield standard which is -- now we're attempting to amend in our
Constitution.
MR. ROSIER: Well, viability, of course, is a much broader term,
at least in my vocabulary. Viability. Conceivably that could be
the last male and female of any given species in my estimation.
Sustained yield is a much broader term that narrows it down to
maintaining populations at a much higher level.
SENATOR TAYLOR: And when we were talking in terms of the
definition, which nobody seems to have but they tell us we can
create this out of whole cloth, wildlife resource or wild
resource, I guess the first thing that came to my mind was what
about the expansion of an open pit mine, like Fort Knox which is
very important to the economy of Fairbanks right now, would that
conflict on a subsistence basis with somebody who had
traditionally been picking berries in a given area up there?
And, under ANILCA, which use would prevail? Would we have the
expansion of Fort Knox or would we have a berry picking patch?
MR. ROSIER: I don't know but I know within my own back yard when
Tlingit and Haida wanted to build houses in a very popular local
berry patch back there they built houses in it, so that's, you
know, there are human needs here that have to be met and I think
the question is an open question, Senator.
SENATOR TAYLOR: Thank you.
CHAIRMAN HALFORD: Further questions? Senator Mackie.
SENATOR MACKIE: Carl, I asked you the other day and we've been
friends a long time, [indisc.] associates, swooped down and
nailed me with my little net when you were an enforcement officer
when I was about ten years old but ....
MR. ROSIER: At two o'clock in the morning.
SENATOR MACKIE: I thought you were asleep. You've always been
truthful and I can respect your opinion a lot. The one thing
that we've talked about, both privately and here, is some of the
concerns that I have that I'm sure you share, you indicated you
did, and that is what happens under a federal management scheme?
I mean all the legal jargon aside and everything else, I'm trying
to look at it from a realistic standpoint as to realistically
what does it mean under a federal management scheme and you have
experience both federally and obviously as the head manager for
the state. I'm really concerned with that and I have a real hard
time getting over that. Assuming the legislature is able to find
something that we could place before the voters, that I know
there's varying agreement as to what getting back state
management actually means and I certainly respect those opinions,
what if -- the thing that I keep hearing Mary talk about, and she
does a very good job articulating the civil rights issue --
that's -- you can make a very strong case for that. And
certainly I understand where people are coming from when they
have that position. What if there was a way, and I guess my
question is to all three of you, what if there was a way to have
something placed before the voters that would allow for some
compliance of ANILCA and ultimately allow for state management of
our resources which I may [indisc.] to everyone? All my
colleagues, everybody that I know of, prefers to have the State
of Alaska managing. What if we were able to do that and, in
addition, hypothetically, look at a constitutional amendment that
would grant standing to the Legislature to, based on the federal
constitutionality of ANILCA dealing with your issue -- is there
room within the Outdoor Council's position, or you as
individuals, to look at something like that where, from my
standpoint, somebody who isn't really familiar with all of the
legal cases and some of the things that have been articulated
here today -- if we could find a way? Number one, ultimately, I
believe the people want to see state management in the State of
Alaska continue which I believe is an outstanding management
program, yet address the issue that Mary has articulated. What
if the legislature came down with two constitutional amendments:
one to grant a standing which the legislature clearly does not
have right now to carry that lawsuit. If the Administration is
unwilling to file that lawsuit, as Senator Taylor has requested
on numerous occasions, what if the legislature was able to pursue
that with proper standing granted by the people of the state
which would have to be done through a constitutional amendment?
Then, in the event that the lawsuit were to prevail in a federal
court, obviously that section of ANILCA goes away. Is there room
for those types of discussions to address, which, I believe, are
two very legitimate cases that could be made on either side of
this issue. I guess I just kind of wanted to get your thoughts
about that type of an approach that we can -- that both sides can
have their particular, the meat of their argument addressed?
MS. BISHOP: There's certainly room from my standpoint and I'm
just delighted that you're discussing it. There's certainly
room, I think, for us to talk. The problem we had is a constant
effort to do nothing but comply with ANILCA which, in my mind,
destroys my civil rights and a lot of other peoples'. But if we
can approach it some other way, with amendments to ANILCA, with -
- and it would require amendments to ANILCA. You see, a lot of
times -- I don't know if I can express this correctly-- a lot of
times what I'm hearing Representative Williams and the other
House speaking, and others who are advocating for Native - or
subsistence rights, and they speak about the history of ANILCA
and ANCSA as providing subsistence rights. When I read the
portions that I have of ANCSA and the legislative history which
is a shelf of books this wide, but I can't find anything in there
that talks about subsistence rights. It talks about protecting
the subsistence needs of Alaska Natives. But we know the
[indisc.] doesn't have anything to do in the first cut with needs
or with shortage. It has simply to do with these funny little
lines that are drawn around communities. For example, in Nenana,
if you live in Nenana, which is a little South of Fairbanks, if
you live in Nenana you have the priority. But if you live five
miles down the Parks Highway or five miles up the Parks Highway
out of town you're not rural. If you live in the town you're
rural, when you live outside the town you're not rural. It's
just this kind of priority that takes away your civil rights,
that's not based on need, that has these funny little lines that
separate one part of us from another for irrational reasons.
It's what's driving me and what's driving many other people. If
we could amend ANILCA somehow or other to resolve some of these
problems so people wouldn't feel so - that it's so irrational and
their rights are gone for no rational reason.
SENATOR MACKIE: Thank you Mr. Chairman, or Mr. Vice-Chairman. I
guess my - obviously any ANILCA changes would need to come from
our delegation. We don't have that ability today and certainly
not before the first of October. You know I listen with interest
about the issue of civil rights and obviously I support allowing
the people to vote on a rural preference but I do listen and I
understand where people are coming from when they talk about that
particular issue of civil rights. My understanding is that the
biggest heartburn people have with ANILCA with that section is
that they believe it violates the federal constitution -- ANILCA
itself -- you know being able to manage within the state like
that and that would be the subject of a challenge. Now, in order
to show some -- you know you hear the words compromise or some
movement -- those kinds of things. If that particular issue was
able to be addressed through a lawsuit with proper standing and
proper funding where the issue of civil rights was being
addressed under the -- in the federal court, you know,
challenging under the federal constitution, is that something
that would go a long ways to address your concern and still have
the people of the State of Alaska be able to try to resolve
whether or not we want to be able to allow the Legislature to
grant a preference as well and so you kind of have both sides of
the issue being addressed at the same time. To me -- you know I
see -- I'm not advocating for any one way or another but it seems
to me if there were some way to look at how those two very
important things can be addressed that we might be able to move
forward. So that was kind of the jist of what I was wondering
your individual thoughts on.
VICE-CHAIR TAYLOR: Go right ahead.
MR. ROSIER: Yes, I think that's one issue but it still comes
down, to my way of thinking, that the key to this is putting the
State of Alaska on the same footing as every other state when it
comes to managing fish and game resources, Senator. I see no
reason for Alaska to be a second class state as related to fish
and game management. Yet that seems to be the path that we're
moving down. I think the civil rights thing is very important
and I have right from the very beginning. It has certainly been
part of the driving force that I've been faced with. Beneath
that is still the need to make Alaska a first class state as far
as fish and game management is concerned. It's one of those
things that statehood was all about. It was one of those things
that the people of this state coalesced around in the statehood
battle and it was a good feeling to feel that with the populace
of this state, prior to statehood -- man, we're finally going to
get this back. I have records that go back to pre-statehood
hearings in which the issue was traps. It was interesting
because when the feds would come around, their comment at the
beginning of the public is, we're not here to talk about traps,
we're here to talk about fishing regulations and the subject was
a closed book. Jerry, I know -- or Senator, I know that you, in
fact, support state management and I guess my -- again I would
point to the very methodical thoughtful way that previous
legislatures have in fact dealt with subsistence. When you look
at the benefits that are there currently in terms of state law,
what are we talking about here? I mean I just find it very, very
difficult to understand why we might be in a position -- or
beating the drum so to speak for any federal involvement here.
Why are we not gathering around the problem that's presented to
us by ANILCA? I mean -- and I'm sorry. I just have great
difficulty understanding that. The system has worked, it's
worked well. No one has gone hungry in this state. No one has
gone without resources in this state. The legislature has dealt
with individual problems as they have arisen on this. The proxy
taking that you were so instrumental in putting together, and we
supported you on this -- such things as that. That's the way to
deal with this. But this going all out for a priority that steps
on people's civil rights and so forth makes people unequal, so to
speak, within the state. It's -- surely we've learning something
from history, that this system will not work over time and it
just continues to pit one Alaskan against another.
Number 475
SENATOR MACKIE: Mr. Chairman, what I guess my -- my question is
a hard one to answer so I'll ask you a different one. Under
federal management is it safe to say that you would believe the
commercial fishing industry would be a disaster under a federal
management system?
MR. ROSIER: Mr. Chairman, I would say this, that the feds will
only have one priority. Their priority will be subsistence.
Anything that impinges upon that will in fact be imposed on the
other user groups.
SENATOR MACKIE: It potentially could be a disaster for the
commercial fishing industry?
MR. ROSIER: It very well could be. Such things as -- everybody
uses False Pass as the example here on this and you know, I mean
that's been a sore that's been boiling for a long time and it's
almost a religion in certain parts of the state in opposition to
that particular fishery. The feds cannot, in fact, respond the
same way, and as I say, we're not going to have federal agents
like, say, the area management biologists of the Department of
Fish and Game that can set somewhere on a boat and write a
regulation, for God's sake, called an emergency order on the spot
closing a season and this type of thing. The federal system just
can't work that way. We tried this under the North Pacific
Council doing joint management on the tanner crab fisheries. The
feds were ten days behind us, for God's sakes, in promulgating
regulations to close a fishery in the Bering Sea. Not a very
efficient system.
SENATOR MACKIE: Thank you.
CHAIRMAN HALFORD: Senator Taylor.
SENATOR TAYLOR: On the same subject that it's disconcerting to
continue the talk about federal management or state management
when neither entity would have, with the passage of this
amendment, any management authority, they only retain enforcement
authority. Enforcement by the feds is no different than
enforcement by the state when they're both enforcing the same
law. The 55 mile speed limitation placed on all 50 states by
Congress had to be enforced by the state or you didn't get your
federal highways money. That was state enforcement of a federal
mandate. What's happening here today is we're being asked by the
Administration and other advocates to embrace a federal mandate
and then to go out and enforce the federal law. I believe that -
I'd like you to elaborate further on Senator Mackie's question
because it seems to me that if the underlying law is the same for
both federal and state administrative agencies, and if the
underlying regulations are the same, how in the world can my fish
and game officers do any different thing on management, or
enforcement I should say, of this law than a federal agency can?
Very same question I've asked about three other people. Is it
more pleasant to be arrested by an Alaska State Trooper than a
U.S. Forest Service employee? Is that -- or will it feel better
because the local guy threw us in jail? I don't understand that
distinction and that's what Liz Ruskin said in her article and I
think she said it correctly. They've got you on two-thirds of
the state. We still owe them 150 million acres and the navigable
waters. Now if you want to surrender it, maybe you ought to take
a look at your oath of office before you do that. How is it
different Carl, one from the other? Because there's an illusion
around here. There's a whole bunch of advocates running around
saying, oh state management's going to be so wonderful because we
can do it different. Every time I ask them where can you do it
different - well, we don't know but we'll try. Tell me where
they can do it different Carl.
MR. ROSIER: Mr. Chairman, if I might. No, initially, as we've
said before, initially the feds will in fact adopt the fisheries
regulations pretty much the same as we've got on the books right
at the present time under state management on this. But, as each
issue is raised before the federal subsistence board and the
regional councils, you'll see the federal regs begin to in fact
diverge. It's exactly what we saw with the -- and then Senator
Taylor's comment is quite correct because once they diverge from
the state's regulations on this thing, that becomes the
responsibility of the state to in fact enforce that if we're in
fact -- you know been patted on the back and told, you know, you
now can act as federal agents to in fact enforce the state -- or
the federal regulations on this. So I would see no difference
but believe me, they're going to continue to be sore spots as
they divert. I mean everytime, you know I mean it's just like
the deer situation in your own district down there. I mean
Ketchikan nearly had a revolution when that deer season was at
stake down there on this. We had great problems with the moose
season on the Kenai Peninsula when the subsistence issue was
tackled down there, and a priority was in fact given. You can
anticipate those kind of things occurring on an annual basis
because the federal system will in fact be king and the state
will be required to in fact modify its seasons and bag limits and
whatever according to whatever the federal government says it has
to do to protect the subsistence priority.
SENATOR TAYLOR: If I could follow up. That is -- the Prince of
Wales question is the reason I was asking this. Right now I can
kill under state law four deer male bucks on Prince of Wales --
today I can go do that. My fish and game department told the
federal subsistence panel they did not want a doe season out
there. But today I can also kill one deer of any sex under
subsistence law on Prince of Wales, and I can use any method or
means of taking by the way, so pit lighting has become common. I
find that very frustrating as far as the management of a game
species, that that quote dual management system would be going
on. And that's why I asked the question. Under this
constitutional amendment and us embracing this law and now we're
going to enforce it -- how does the subsistence panel, the very
same panel that decided you could shoot the doe on Prince of
Wales, how do they decide the issue? Do they continue to shoot
does? I think they do. Now let's decide, let's say -- oh no,
they've decided they are going to listen to the Department of
Fish and Game, they're not going to shoot does anymore. Guess
what? A group of subsistence users on Prince of Wales files suit
in the federal court and a black robed judge in San Francisco
says, no, you don't manage fish and game on Prince of Wales
anymore. You are under ANILCA. ANILCA says the panel gets to
say and this panel just said start shooting does on Prince of
Wales. And the additional one on that that caused the revolution
-- the very same panel was the panel that suggested in a proposed
regulation that no person living in Ketchikan could any longer
hunt deer on Prince of Wales, that it would be their exclusive
hunting zone for just people who lived on Prince of Wales. I saw
a thousand signatures on a petition within a week. That's what
we're talking about. Now tell me how it's going to be different
under the state embracing it or only under the feds enforcing it,
because I believe it's the same. And if I'm wrong I want to be
told where you can point me to that shows that I'm wrong.
MR. BISHOP: Mr. Chairman. Carl has a wealth of experience on
which to base his projections of what is liable to happen, both
with state and federal agencies and the management. To carry
that further or to illustrate it further, during the period 1986
to 1989, Alaska had a rural priority in state law and was in
conformity with federal law and it gave us the opportunity to
have a very good experience with that situation that is now being
entertained again. And the progression of regulations that had
to conform with the federal law is exactly what happened during
that period of time, during those three years. And also during
that time, it demonstrated quite clearly another provision of the
federal law, and that is the federal court enforcement because
there are literally dozens of cases that were filed in court,
some of them in state court admittedly, but a number of them,
many of them, and the most important ones were filed in federal
court because the federal law provides the opportunity for an
aggreived subsistence user to take a complaint about a
regulation, be it federal or state, to the federal district
courts. As a result of that three year experience and a number
of those cases going to federal court, we got one case that was
most complete in explaining how the federal law would be and had
been interpreted by the federal court. That was the Bobby case
that involved taking a moose out of season near Lime Village and
it very clearly showed that if the state was in compliance with
federal law, the state would be obligated to regulate subsistence
uses to the satisfaction of the federal judge. And, if it was
not satisfactory, then they were to go back to the drawing board,
redraw the regulations, bring them back to the judge, and if he
approved then they could implement them. So it was quite
illustrative and it's worth taking a look at how it all works
because that's the very same prospect that we're looking at at
this moment. Thank you.
CHAIRMAN HALFORD: Just to amplify this a little bit further.
All of these provisions apply to subsistence management. When we
have the discussion about management of fisheries, does the
federal judge, or has any federal judge yet gone as far, or can
he -- does he have any basis to go as far as saying that he -- he
obviously controls the subsistence opportunities and he may,
through the state process, go to the state and enforce the
closure of a commercial season or a non-subsistence use. Can he
ever open a commercial fishery season? Can he ever set a
commercial fisheries regulation or bag limit? Can he set a sport
fish season, an opener? It looks to me like all they have is
conflict closure authority and no opening authority for any piece
of their management structure, and I wonder if I'm mistaken.
MR. BISHOP: Mr. Chairman, I think you're right. I think that
under the federal law the authority that is extended to the
federal government in this case is to provide for subsistence
uses under the terms of the law. It does not address -- I'm
trying to recall now and could look it up but -- either
specifically or in general terms, to the best of my recollection.
TAPE 99-40, SIDE B
MR. BISHOP: ... empowerment for regulating, that is, opening
other fisheries or doing anything other than regulating them so
that subsistence use is not impaired. That is, I think Carl said
it before, that is their sole responsibility in that regard.
CHAIRMAN HALFORD: So it's an incomplete ability to even manage.
Senator Mackie did you have further questions?
SENATOR MACKIE: Yes. You know I'd asked the question and I
didn't get an answer for it out of all three of them. I think
it's safe to say that, you know, Carl your experience and Senator
Taylor described the Prince of Wales situation -- I mean under a
federal management system we have a lot to be worried about. We
have a public policy nightmare to worry about. We've got all
kinds of things to be really worried about. And I have --some of
my friends say don't pass a constitutional amendment, just sue
them. Some of my friends say don't sue them, just pass a
constitutional amendment. Why don't we do both?
UNIDENTIFIED SPEAKER: You agree with your friends, right?
SENATOR MACKIE: I mean that's really a legitimate question.
CHAIRMAN HALFORD: I don't think you can get the votes on both
sides of this question.
SENATOR MACKIE: You know clearly where I stand but I mean it's -
- I'm trying to -- as a state how do we come together and try to
give people what they deeply feel strongly about, their day in
court for one side and state management on the other?
MS. BISHOP: But it's refreshing that you're at least thinking of
a different solution. I really appreciate that.
SENATOR MACKIE: I'd appreciate it if you'd give that some
thought [indisc.].
CHAIRMAN HALFORD: Senator Parnell.
SENATOR PARNELL: Thank you. We've had a lot of talk today about
why the proposed amendment is bad or poor and that to me goes to
the merits of the amendment and why people should vote no on it.
What are the arguments that say, in your mind, what are the
arguments against even letting the voters have a say on this
amendment? Are they the same, are they different?
MS. BISHOP: I have, and I don't know if I speak for all three, I
have been so distressed for so long about this myth that the
priority is only in times of shortage, and I speak to my friends
and they all are astounded when they realize that maybe that
isn't the truth. Practically everybody in this state thinks the
priority is only at times of shortage and it relates to Natives.
And neither one has any bearing on when you get a priority. This
is what the people have been led to believe. So, until the
people are as well educated as you, and are we going to do that
with 30 second sound bytes paid for by whoever's got the most
money, no truth in advertising required? I don't think it's
going to happen. That's why I don't want to vote. You people
have been educated. You are the guardians of our civil rights.
You're supposed to know what's going on. I'm afraid the people
of Alaska won't until they get the same education that you have.
SENATOR PARNELL: So, the people won't understand, they won't be
able to vote intelligently on it. What other reasons are there
why we shouldn't put forth a constitutional amendment?
MR. BISHOP: Mr. Chairman, Senator Parnell. I think another
reason is, and it's related I think to what Mary has said, is
that the way the Constitution frames the opportunity for
constitutional amendments, gives the responsibility for deciding
what amendments should be put before the people to the
legislature. And implicitly, at least, it says then that the
legislature has the responsibility for deciding what are
legitimate questions to be put on the ballot for public vote as a
function of representative government in contrast to mob rule
where you simply put any question up for public vote and a
decision is made by popular vote and that's it, willy nilly,
whether people are well informed, whether a rational proposition,
a lawful proposition or whatever. So, there is a process there.
There's a reason for the process being there. It's important for
that process to function. Things like initiatives, for example,
which this is kind of the same thing, tend to make an end run on
the rational processes and the systematic processes that are in
place under the Constitution and the laws of the State of Alaska.
And I don't think that despite the popular appeal of having a
public vote on an issue, I think we ought to resist the
temptation to believe that the appropriate way to address
especially such a fundamental issue as this is to simply put a
question on the ballot and let people vote. Then if you take into
account the circumstances under which they are going to be
voting, that is, being subject to, as Mary said, a barrage of 30
second sound bytes and whoever has the most money to buy those,
it has a very good chance to win. Senator Lincoln on ...
CHAIRMAN HALFORD: Except back in September.
MR. BISHOP: Senator Lincoln brought that up the last time we
spoke and questioned my statement along that line because the
vote went the opposite way of where the most money was spent.
SENATOR PARNELL: Dick, what's troubling me is what is my
criteria? What is our criteria as legislators for deciding
whether we're going to be in that two-thirds or one-third or 50-
50 -- no, and all I've heard so far is that this issue is pretty
confusing and people won't understand it the way they should. I
thought you were going to go to talk about discriminatory
treatment, equal footing -- going back to those arguments because
those are what have troubled me for years. Those arguments have.
And I guess my question is how do you get to -- what's the forum
for those issues?
UNIDENTIFIED SPEAKER: ANILCA.
SENATOR PARNELL: Just let me go here please. It's the court,
that's what I think anyway, to resolve those issues. My next
question is, what Alaskan citizen today, after nine years of
federal management on game on lands, do we have a lawsuit going
now on those two issues, either equal footing or discrimination?
MR. ROSIER: I'm sorry I ...
SENATOR PARNELL: Do we have a lawsuit right now, ongoing,
challenging -- does a private citizen have a lawsuit now
challenging the constitutionality of ANILCA and how it's impacted
them on federal lands?
MR. BISHOP: Mr. Chairman, Senator Parnell, to the best of my
knowledge there is no lawsuit presently active addressing that
question, either by the state or by a private citizen. To make a
long story real short and oversimplified, it hasn't been possible
to get there for technical reasons in court so the issue has
never been actually fully addressed in court. There have been
various reasons and one of the reasons, as came out the other day
in the House discussion of this, I was asked, well, you know, you
have a whole bunch of members and so on, why don't you have a
case in court challenging whatever you want to challenge about
this issue? Money. We don't have corporate sponsors. We don't
have government subsidies. Most of our members are working
people or business people who have limited means. We don't have
a war chest to challenge the federal government. I was speaking
with a friend who acted as a consultant to a rancher in Wyoming
recently on a case involving wolves on a ranch next to
Yellowstone, where wolves have been reintroduced. I don't know
that much about the case except he decided to challenge the
federal government, I think, or maybe he decided simply to defend
himself. At any rate they're in court and it looks like he has
prevailed but it cost him $2 million.
CHAIRMAN HALFORD: There was a case that was withdrawn when the
state case was [indisc.] and I understood they were refiling that
case but they have not yet done so. Is that correct?
MR. BISHOP: Mr. Chairman that is correct and I don't know for
sure what the considerations are about refiling that. My
understanding of it is that it may be best to wait until things
have developed a little further because like the Leg Council
lawsuit, you know, one of the questions was ripeness, other
questions were standing. From past experience in lawsuits that
the Alaska Outdoor Council has been involved in, standing and,
well ripeness, I guess, was a problem. In a case we were
associated with the federal court threw it out because we had
filed nine days too early. So as the safe suspended over our
head -- the safe being the federal regulations -- until somebody
snipped the rope and it squashed us we didn't have any grounds
for complaint so it was dismissed.
Number 477
SENATOR PARNELL: It seems to me Dick, that - I mean I've given
some thought to the proposal here that Senator Mackie just threw
on the table, and it seems to me that if you can have an Alaska
solution where the people who have strongly supported conforming
to ANILCA and a rural preference, if as our Chairman has
indicated, that very important issue to them is resolved in place
of residence, and if we can give the Legislature some standing,
if possible, on key issues which you've set forth here today,
mainly discriminatory treatment or the rural preference, could
that not be a win-win for all Alaskans?
MS. BISHOP: You know what I wish I had right now? I wish we had
some attorneys. You've got three biologists here.
SENATOR PARNELL: This is probably not the place where we're
going to be able to hammer something out but that's - I think
that those are important considerations here.
MR. BISHOP: Mr. Chairman, I'm not sure I can fully address that
question. All I would say is that I think that it would be
extremely dangerous, both from the standpoint of the interests of
Alaskans with regard to their opportunities for the use of public
resources and with regard to their civil rights, as well as for
the interests of the State of Alaska to bet on the [indisc.]. By
that I mean to assume, to go ahead -- and I maybe misconstruing
your question so correct me if I'm wrong, but to go ahead and
adopt or propose to adopt, an amendment that would conform state
law to the federal rural priority law and bet on the possibility
that the legislature, number one, will legally have that
standing, and number two, could succeed in a court case
challenging whatever needed to be challenged. I guess I've been
in this issue a little too long to be willing to take a great
deal on good faith.
SENATOR PARNELL: And that's where the other side is at this
point too. And that's what we're trying to do here is work on
bringing us all together. Thank you.
CHAIRMAN HALFORD: Just as a matter of -- Senator you asked a lot
of questions about what standard.
SENATOR PARNELL: I didn't get quite as much time as Senator
Taylor did in a previous ....
CHAIRMAN HALFORD: I would say that I'm not willing to put on the
ballot any of the major civil rights, whether they're freedom of
press, freedom of religion, right to keep and bear arms, in the
sense of any limitations on any of those, any large categorical
way. I don't think they belong on the ballot but that's -- you
know the Bill of Rights - they're all alike -- the state
declaration - that's the standard that I ....
SENATOR PARNELL: You mean those amendments that were ratified by
public vote?
SENATOR TAYLOR: Yes. Do you really believe we can put up before
a vote the equal protection clause? Is that what ....
SENATOR PARNELL: No because I don't think that's the issue.
SENATOR TAYLOR: Well I was told by Steve that if the equal
protection clause of our Constitution will be amended by this --
which rights are we going to put up, the civil rights of various
people in the state and say, well if you live in the right zip
code you get to keep having rights, if you don't, you don't, and
we're going to do that by plebiscite? Would you really support
that Sean?
CHAIRMAN HALFORD: Let's come back to these witnesses. I started
that and I apologize. Senator Lincoln.
SENATOR LINCOLN: Mr. Chairman, I have to go back because I was a
bit bothered by Mary's response and I appreciate your point of
view and you haven't varied on it, of not coming into compliance
with ANILCA in this manner. I guess I'm a bit bothered by saying
that the general public is unaware or not as informed as we are
therefore cannot make the proper choice. This is not a new
issue. It has been out there for 16 years, I guess, and this is
the fifth special session. I don't know if you saw some of the
polls that just recently went out and people were asked do you
understand what is being asked here. That it's a rural
preference. Do you understand that. I think it was high 70s,
low 80 percent that said yes, responded yes. I think that these
were mostly super voters, if not all super voters, that have been
here a long, long time. Do you agree with a rural preference,
and the vast majority again, yes. So I don't know if I really
can buy into that, that the general public is so naive that they
could not decide on an issue as important as this. I believe
that all sides will get out with the information and let the
general public know those areas that we feel they need to have
further education on. But I really can't believe, after all of
these years, that we can still say that the general public truly
doesn't understand the issue.
MS. BISHOP: Senator Lincoln, I did a little survey in Fairbanks.
I wrote out, maybe I have it here, on a pink sheet of paper, and
I wrote a number of questions out about the specifics of the law.
Such things -- some simple questions like, is this a priority for
Native people, is the priority in times of shortage, will the
priority give people in Nenana a priority over people in the
Fairbanks North Star Borough, do the people South of Nenana ten
miles have a priority over the people in Nenana, some stuff about
Kodiak, just, you know some basics. People looked at that and
they said, they couldn't answer it and these are people who have
been involved in politics -- I mean I gave this to people who
were involved in politics. And then I go around to my friends
and I ask them about in times of shortage and will we get
management of fish and game back. I've actually done some
surveys. People don't understand the issue.
CHAIRMAN HALFORD: Go ahead and then Senator Kelly will ask the
last question. The list just got closed. You guys answer and
then Senator Kelly's question, Senator Pete Kelly's question.
MR. ROSIER: Thank you Mr. Chairman. I've gone through kind of
the same thing here locally. I'm a member of the Juneau Yacht
Club which includes quite a few highly educated people, people
that are active in politics in the state on this and when you ask
them the question of the rural subsistence priority, that's okay.
But then you begin to talk about what are the ramifications to
state management under this system, they have no idea what you're
even talking about. They haven't the slightest idea what you're
talking about. Yes, well the paper says .... Well the paper
continues to put forth the falacies that Mary has enumerated here
in terms of state management, in terms of only in times of
shortage, and those types of things. So there's a great amount
of confusion out there in the public about nobody is arguing with
subsistence but they certainly, when you get down to telling them
about what the ramifications of that priority is under federal,
it becomes a totally different question.
MR. BISHOP: Mr. Chairman, I'd just like to give one example of
the extent to which the public is not well informed or is
misinformed or something. I think it was probably now close to
three weeks ago that there was the Alaska Public Radio Network
program called Talk of Alaska where there were three guests on
the program: former Governor Hammond, former Senator Clem
Tillion, and a lady named, I believe her name was Helen MacLean,
who I think formerly lived here or at least Southeastern and now
lives in Anchorage. The introduction to the program by Steven
Heimel (ph), the moderator, was very interesting because it went
a little like this: We're going to talk about subsistence today
and try to answer the question why are people trying to eliminate
the subsistence way of life. That was one of his opening
statements. What is wrong with a subsistence priority when there
is a shortage of game? That was another one. And it went
downhill from there. The introduction given by a member of the
media, introducing to a statewide audience, call-in show as well
as a talk show, almost completely misrepresented the issue at the
outset. The public that was listening to that got a darn good
dose of misinformation and thank goodness former Governor Hammond
and McKie Campbell from Juneau straightened out a lot of those
misconceptions before they got too far along. In fact I think
Jay did a little bit too good of a job because it seemed like
after awhile he didn't get a chance to say anything any more.
But that is an example of not only why, but how, and to what
extent the public is misinformed. I happen to know that Mr.
Heimel (ph) has received the correct information because quite
frequently the issue of shortage comes up and I don't know how
many times we've called them and said look, that's not a
criterion of the federal law, and yet it keeps reappearing and
reappearing and reappearing in stories in the media. I must give
credit to many of the reporters on the various papers. They
have, finally, honed through the old files and sorted a lot of
that out.
CHAIRMAN HALFORD: Senator Pete Kelly's last question.
SENATOR PETE KELLY: It isn't really a question, I just think we
wandered away from what was really the topic here, and it isn't
about whether people understand what's on the ballot or not, it's
what's on the ballot. We're all -- I, unlike most of the people
who vote for a rural preference, have probably voted for a lot
more options than those who support a rural preference. We've
had a lot of things that have been set out there that have been
summarily rejected by Babbitt and a lot of other parties involved
that I think had no business being involved. There's been a lot
of people voting for a lot of things to go on the ballot so that
we could decide this. The fact is in all of these five special
sessions it's basically been the same thing: rural preference,
period, take it or leave it, under every Administration that has
been here. So we have had a lot of things that we have put
forward and we have been willing to put something on the ballot,
assuming people will understand it, however, the line is drawn on
those things that are simply not appropriate to put on the
ballot. We said it last week when we were talking on I think
this exact same subject, is that you didn't put on the ballot in
1955 whether Rosa Parks should sit on the back of the bus or not.
The fact is everybody in Alabama would have understood that very
well. [Indisc.] put it on the ballot. They would have
understood very well what it meant to whether the University of
Alabama should have been segregated or not in 1963. They all
would have understood that. That wasn't the question whether
they understood it or not. It simply was not appropriate to put
on the ballot.
CHAIRMAN HALFORD: Thank you for your testimony.
MR. ROSIER: Thank you Mr. Chairman.
MR. BISHOP: Thank you.
CHAIRMAN HALFORD: Back to committee discussion. Senator Mackie?
SENATOR MACKIE: I was going to point out that there's 80 percent
of the people living in urban areas. It's not like the deck is
stacked but I won't say that, I'll just wait until another time.
CHAIRMAN HALFORD: With that we conclude the public hearing
portion. The legislation is before us. What is the will of the
committee?
SENATOR MACKIE: Mr. Chairman, I'd like to move the bill from
committee with individual recommendations.
CHAIRMAN HALFORD: There's a motion to move the bill from
committee with individual recommendations. I do not intend to
object although I do not support the legislation. I think in a
special session the issue will be decided on the floor. Is there
objection to the motion to move the bill? Senator Taylor.
SENATOR TAYLOR: I do object for the record but withdraw it for
the same reasons you have stated.
CHAIRMAN HALFORD: Without objection the bill moves from
committee with individual recommendations and the accompanying
fiscal note. With that, the committee is adjourned [4:05 p.m.].
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