Legislature(1997 - 1998)
09/25/1997 02:00 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
Wasilla AK
September 25, 1997
2:00 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Lyda Green, Vice Chairman
Senator Georgianna Lincoln
Senator Loren Leman
Senator Bert Sharp
Senator Robin Taylor
Senator John Torgerson
MEMBERS ABSENT
All members present
ALSO IN ATTENDANCE
Senator Jerry Ward
Representative Scott Ogan, Co-Chairman, House Resources Committee
Representative Beverly Masek, Vice Chairman, House Resources
Committee
Representative Reggie Joule
Representative Vic Kohring
Representative Fred Dyson
COMMITTEE CALENDAR
Interim Hearing on Subsistence
WITNESS REGISTER
Mr. Rob Bosworth, Deputy Director
Department of Fish and Game
P.O.Box 25526
Juneau AK 99802-5526
POSITION STATEMENT: Explained the Task Force proposal.
Mr. Tim Schuerch
Maniilaq Association
P.O. Box 256
Kotzebue AK 99752
POSITION STATEMENT: Commented on subsistence issues.
Mr. Warren Olson
5961 Orth Circle
Anchorage AK 99516
POSITION STATEMENT: Commented on subsistence issues and opposed
constitutional amendment.
Mr. Peter Probasco
Alaska Outdoor Council
P.O. Box 861
Palmer AK 99645
POSITION STATEMENT: Supported Mr. Olson's comments and opposed
constitutional amendment.
Mr. Harry Wassink
1340 W 23rd #A
Anchorage AK 99503
POSITION STATEMENT: Opposed constitutional amendment.
Mr. Bruce Knowles
P.O.Box 873206
Wasilla AK 99607
POSITION STATEMENT: Opposed constitutional amendment.
Mr. Dean Babcock
P.O. Box 521491
Big Lake AK 99652
POSITION STATEMENT: Commented on subsistence issues.
Ms. Mary Babcock
P.O. Box 521491
Big Lake AK 99652
POSITION STATEMENT: Commented on subsistence issues.
Mr. Bud Smyth
P.O. Box 521362
Big Lake AK 99652
POSITION STATEMENT: Commented on subsistence issues.
Ms. Kathleen Harms
P.O. Box 521414
Big Lake AK 99652
POSITION STATEMENT: Commented on subsistence issues.
MR. Steve Miller
3325 Palmdale
Wasilla AK 99654
POSITION STATEMENT: Commented on subsistence issues.
Mr. Duane Anderson
HC5 - Box 6870
Palmer AK 99645
POSITION STATEMENT: Opposed a constitutional amendment.
Mr. Robert Hall
Houston Chamber of Commerce
P.O. Box 871906
Wasilla AK 99687
POSITION STATEMENT: Commented on subsistence issues.
Opposed Task Force.
Mr. Gene Straatmeyer, Pastor
Wasilla First Presbyterian Church
Alaska Christian Conference
P.O. Box 976711
Wasilla AK 99687
POSITION STATEMENT: Commented on subsistence issues.
Mr. Al Doner
700 Glenwood Dr.
Wasilla AK 99687
POSITION STATEMENT: Opposed constitutional amendment.
Mr. James Garhart
2480 Green Forest Dr.
P.O. Box 982533
Wasilla AK 99687
POSITION STATEMENT: Opposed constitutional amendment.
Mr. Rob Holt
P.O. Box 489
Talkeetna AK 99676
POSITION STATEMENT: Commented on subsistence issues.
Opposed Task Force.
Mr. Mark Chryson, Vice Chairman
Alaska Independence Party
Wasilla AK 99687
POSITION STATEMENT: Opposed the Task Force proposal.
Ms. Beverly Cloud
Pedro Bay AK 99647
POSITION STATEMENT: Commented on subsistence issues.
Mr. Jim Stocker
Wasilla AK 99687
POSITION STATEMENT: Supported impeaching Governor Knowles.
ACTION NARRATIVE
TAPE 97-41, SIDE A
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 2:00 p.m.
MR. ROB BOSWORTH, Deputy Director, Department of Fish and Game,
said he served as staff to the Task Force. He said he was not
present in the room for much of the discussion. The basic package
consists of three parts. The goals were to insure effective State
authority over fish and game management over all lands and waters
of Alaska and to recognize the importance of the subsistence way of
life to Alaskans. They believed the best way to develop those
goals was to develop a constitutional amendment, changes to ANILCA
and State statutes. This is what is referred to as the package.
The parts are all linked with each part dependent upon the others
for its implementation, so that no part will exist independently.
CHAIRMAN HALFORD asked him to detail the linkage as they heard
testimony yesterday that there wasn't linkage in every direction.
MR. BOSWORTH explained that the linkage might work different under
different scenarios. If ANILCA amendments were passed by the U.S.
Congress and the State statutes are amended by the legislature,
none of them would come into effect until the State constitutional
amendment is passed by the voters. The principal of the goal of
the group was when Alaskans vote on a constitutional amendment,
they would know precisely what they are voting on.
He said it seemed obvious to him if ANILCA amendments were not
passed by congress or if the legislature had not passed statutory
changes at the time of the constitutional amendment, a different
linkage arrangement would have to be worked out. He thought that
different language would be needed for the different scenarios.
Under the proposal the State Constitution would be amended to
permit, but not require, the Alaska legislature to grant a
subsistence priority based upon place of residence.
Simultaneously, State statutes would be amended to create a rural
subsistence priority. Those statutes and the ANILCA amendment
would not become effective unless the constitutional amendment was
passed.
In the second part of the package the Alaska fish and game statutes
would be amended to grant a subsistence priority to rural
residents. Communities outside the current non-subsistence areas
will be classified as rural the day the State regains management.
The Boards of Fisheries and Game acting jointly through regulations
would have the power to change community classifications in the
future as the community changes. The State statutes would also be
amended to improve the proxy hunting and fishing provisions and to
provide for educational hunting and fishing permits, to clarify the
definition of rural, customary trade, and customary and
traditional. It will make clear that the subsistence priority is
a reasonable opportunity to take, but not a guarantee of taking,
and to refine subsistence management system including adding a
State regional council system.
The third part of the package is the amendments to ANILCA which
would mirror the definitions put into State statute. This would
include a definition of rural which is a community or area
substantially dependent on fish and game for nutritional or other
subsistence uses.
CHAIRMAN HALFORD commented that that was a significant broadening
of the language.
MR. BOSWORTH said that question has been debated. In the existing
law a number of criteria were included for the Board to use in
making the call as to whether a community was rural or not. Under
the proposal the criteria is similar for the Boards. So the
Boards, through the regulatory process, would have to add guidance
to that term.
In addition customary trade is defined so that subsistence taking
of fish and game cannot become a commercial enterprise.
CHAIRMAN HALFORD asked if the intent of this section was to
actually limit the Peratrovich case.
MR. BOSWORTH answered absolutely. He said the intent was to allow
the Boards to limit the quantity of product that qualifies as
customary trade.
SENATOR TAYLOR said he didn't understand what they were trying to
accomplish through the definition because they all want to make
certain that subsistence will not be abused under barter and trade
in a fashion that would turn it into a commercial enterprise only.
He said there is apparently a desire to maintain barter and trade
for cash purposes at some lower level. He was concerned about what
objective standards we're going to use to judge whether that has or
has not occurred.
MR. BOSWORTH responded that the standards in the definition are not
as definitive as he is asking for. Under the proposal customary
trade means the limited, non-commercial exchange for cash of fish
or wildlife or their parts in minimal quantities as restricted by
the appropriate Board. The terms of this paragraph do not restrict
money sales of furs and fur-bearers. He said he wasn't party to
the minimal quantity discussion and didn't know why the group
decided to change it. He thought the operative word was minimal.
SENATOR TAYLOR said he thought the answer to Chairman Halford's
question was that this provision was intended to reverse or take
care of the Peratrovich case and asked if he thought those words
actually did that.
MR. BOSWORTH replied in his view the Board of Fisheries did an
excellent job in addressing the use of roe on kelp which is the
same product that was operative in the Peratrovich case. This
language does allow the Board of Fisheries to narrowly define the
limits on customary trade. In the case of herring roe on kelp they
used 138 lbs. per household or 50 lbs. per individual as the limit
that could be traded for cash. That's on the books now. He
thought this was a reverse of the Peratrovich decision.
CHAIRMAN HALFORD inserted that the problem is that it was a federal
court that decided the Peratrovich case and if that case stands,
why should anyone be involved in a limited entry permit or anything
else.
MR. BOSWORTH said he didn't disagree, but his understanding is if
the Federal Subsistence Board were to manage fisheries they would
interpret customary trade along the lines of the Peratrovich
decision. Another assumption he is making is if the State were to
manage under this proposal, the State Boards would be able to
narrowly limit customary trade as they have done in the case of
herring roe and kelp.
CHAIRMAN HALFORD asked if that was a federal law change in that
case.
MR. BOSWORTH replied that he doubted that fish as customary trade
would be included as one of the ANILCA amendments.
CHAIRMAN HALFORD said otherwise it would be a federal judge making
the decision no matter what the State does.
SENATOR TAYLOR said he thought that this was different from what
Mr. Julian Mason told the committee yesterday.
MR. BOSWORTH reiterated that the intent was to take the definitions
in State statute and have them inserted in ANILCA as well.
SENATOR TAYLOR asked if it was the intent of the Task Force that a
cash utilization of subsistence caught resources will continue.
MR. BOSWORTH replied yes, at a minimal and non-commercial level, as
defined by the Boards.
SENATOR WARD asked if the federal government was imposing a rural
preference, would that need to be part of the Canadian Treaty that
is currently being negotiated. He asked if the group discussed any
kind of definition of native subsistence and could he have a copy
of that discussion if they did.
MR. BOSWORTH responded that they did not discuss any sort of a
native preference.
SENATOR WARD said it would be helpful to this committee if there
was a definition of native subsistence mentioned by the Lieutenant
Governor in a speech to congress and he assumed there was one
somewhere because he didn't think you could just say something like
that to congress and not have a definition.
MR. BOSWORTH said he would be happy to provide the committee with
the text of the discussion on this topic.
SENATOR WARD said if the Lieutenant Governor mis-spoke and meant to
say rural subsistence, he wanted him to present to the committee
that language.
MR. BOSWORTH said they ended up with customary trade being the
definition that would be in the ANILCA amendments. Customary and
traditional is an operative, but undefined term in ANILCA.
Finally, he said, the concept of reasonable opportunity will be
defined to make clear that the priority is a reasonable opportunity
to take, not a guarantee of taking, and the Boards must consider
customary and traditional uses.
Regarding court oversight, section 807 will be amended to set the
standard of review for actions of the Fish and Game Boards to
require the federal courts to give Board decisions the same
deference that would be given to a federal agency decision. Adding
these standards does not seem to change current federal law, but
the standards are not explicit in Title 8.
CHAIRMAN HALFORD asked if he thought it was the intent of the
group, in defining reasonably opportunity, to reverse the other
case that stands out. The Bobby case.
MR. BOSWORTH said he wasn't part of discussions on that issue.
CHAIRMAN HALFORD informed them that the Bobby case says basically
that you have to have eliminated all other uses before you can, in
any way, set a season, bag limit, or any kind of a regulation on
subsistence.
MR. BOSWORTH responded that he thought it was a very important
case, but he wasn't part of the discussions concerning it.
SENATOR LEMAN asked if he recalled any conversations on whether or
not there was recognition of other customary and traditional use
patterns, not necessarily subsistence and how that might integrate
into an interpretation of what customary and traditional might be.
He said he could think of customary use patterns other than
subsistence activities in some areas. He asked if it was the
thought of the Task Force that they didn't want to upset those
other patterns with a preference for subsistence.
MR. BOSWORTH replied that he didn't know if that was discussed, but
it wasn't discussed in his presence. He knew it was one of the
guiding principles of the group that they would make only the
changes that were minimally necessary to come into compliance with
federal law.
SENATOR TAYLOR asked him to clarify if they wanted to minimally
change Alaska law to bring them into compliance with the confines
of ANILCA.
MR. BOSWORTH said that was one of the principles that was
articulated early in the process.
SENATOR TAYLOR asked if he knew where that principle came from.
MR. BOSWORTH said he couldn't answer that, but it was adopted by
the group.
SENATOR TAYLOR said he understood that they had at least two
teleconferences with Secretary Babbit with one sit-down meeting in
which he told them the administration would tolerate no changes
significant or substantive to ANILCA and, in fact, threatened veto
by the President, if that was attempted by our congressional
delegation. So this was the group's idea of the least possible
changes that could be made to ANILCA that would pass muster with
Secretary Babbitt. In this case, he thought they were trying to
please the powers in Washington D.C. at the administrative level as
opposed to resolving this concern for Alaskans.
MR. BOSWORTH said that he agreed that they need an Alaskan solution
developed by Alaskans.
REPRESENTATIVE MASEK questioned, dealing with section 7, the two
new sentences.
MR. BOSWORTH said he didn't know the answer, but would find out for
her.
REPRESENTATIVE MASEK said she thought that section would be
basically enforcing a federal mandate providing a priority for
rural Alaskan with federal court oversight - that the State would
be implementing a federal law under this section.
MR. BOSWORTH said this is unfamiliar ground for him. It is his
understanding that the group of seven determined that it was not
possible to completely eliminate federal court oversight, that
congress would simply not permit it.
REPRESENTATIVE MASEK said that instead it looks like the proposal
is asking us to change our State Constitution to allow for a rural
preference, but then the State court won't have the authority to
enforce statutes and provisions. Instead we would be enforcing a
federal mandate again. She asked if that was correct.
MR. BOSWORTH answered that he wasn't qualified to speak to the
details of how the courts would interact on this. But it is his
understanding that it was determined that is would not be possible
to completely remove the oversight of the federal courts.
CHAIRMAN HALFORD said the amendments to 807 basically say that the
federal court has to treat State agencies in the same way with the
same deference they treat federal agencies, but that's all we get.
It's still a federal judge in a federal court that is still
accountable to the Ninth Circuit, the most overturned circuit in
the country. It's not federal management by federal wildlife
biologists; it's federal management by federal judges in San
Francisco.
SENATOR TAYLOR said this subject has obviously been discussed that
has a been a problem. The big key words have been we are going to
get back management. Well, we're not going to get it back if we
still have federal oversight. He asked who said we couldn't have
management over our fish and game. He asked if it was the
administration through Secretary Babbitt and was that the threat
where we surrendered.
MR. BOSWORTH responded that he wasn't party to those discussions
although he knows they did take place. There were many
conversations that the staff was not involved with.
SENATOR TAYLOR said he wanted to be absolutely certain that this
proposal does not return fish and game management to the State of
Alaska free of federal oversight.
MR. BOSWORTH responded that federal oversight is not fully
eliminated with this proposal. He said the next category of
amendments pertain to State management. Title 8 would be amended
to make it clear that the State manages subsistence on all lands
and waters whether federal, State, or private. Section 814 would
be amended so that the Secretary of Interior cannot interfere with
State regulations. The definition of federal public lands will be
clarified to be sure and exclude all private and State lands. The
collective purpose of these amendments is to make perfectly clear
that the State has full management authority while the State is in
compliance with ANILCA.
SENATOR TAYLOR asked if the definition of federal lands included
waters, because the question of navigable waters and the regulation
of fisheries through the subsistence panels is unclear.
MR. BOSWORTH said this was not an area where he was an expert, but
he read from the ANILCA land definitions on pages six and seven.
The term land means lands, waters, and interests therein. That is
not affected by the amendments.
SENATOR TAYLOR said that he understood the short answer to be that
nothing in the proposal changes the definition in ANILCA of waters
subject to subsistence priority.
MR. BOSWORTH said the last category of ANILCA amendments speaks to
the congressional seal of approval of non-compliance and neutrality
on Indian Country. Section 805 will be amended to declare the
State in compliance and to make future non-compliance a
determination of the courts rather than the Secretary of Interior.
SENATOR TAYLOR commented again that even after this passes we would
be in front of the same federal judge.
MR. BOSWORTH replied yes and said that concluded his overview.
REPRESENTATIVE OGAN asked him to clarify the language on the first
page regarding the constitutional amendment. He asked what other
natural resources meant and asked him to explain the ramifications
of the word "sold."
MR. BOSWORTH said he thought that language applied not only to fish
and wildlife, but also to plants including aquatic plants which are
clearly managed for subsistence, but don't fall in the fish and
wildlife category. If the legislature chose not to pass a law that
provided a priority for subsistence taking based on the place of
residence, he thought other parts of the package would not come
into effect and we would be back where we are today, basically.
REPRESENTATIVE OGAN said he understood it to mean that if the
legislature decided not give a rural priority, they would be back
with a federal take-over.
MR. BOSWORTH replied yes.
SENATOR SHARP said he thought the wording would be misunderstood by
the general public, because it doesn't say that 85% of Alaskan
residents would not be able to qualify for a priority preference.
So he thought the language needed cleaning-up.
CHAIRMAN HALFORD asked if this proposal applies only in times of
scarcity or does it apply all the time.
MR. BOSWORTH said it is meant that the Boards must provide
regulations that provide a reasonable opportunity for subsistence
use, first and foremost. All other uses are secondary to that.
CHAIRMAN HALFORD said that sometimes people misunderstand that
because they perceive that this happens in times of shortage, but
in fact, it happens all the time, but sometimes it has no impact
because there's adequate opportunity for everyone and there's no
shortage at all.
MR. BOSWORTH said he thought that was an accurate characterization.
SENATOR TAYLOR asked if the term renewable natural resources
included timber.
MR. BOSWORTH answered that he had never heard a discussion of that
by the group of seven. Personally, he thought it did. It's been
acknowledged that trees used for log construction were considered
a subsistence use.
SENATOR TAYLOR asked why the group wanted to expand the resource
category in areas where they had never really contemplated
subsistence - like timber.
TAPE 97-41, SIDE B
MR. BOSWORTH replied that issue wasn't discussed in his presence.
REPRESENTATIVE OGAN said it seemed to him that with the expanded
version that any number of lawyers could argue that there's a
subsistence use of virtually any renewable natural resource beyond
fish and game and this really concerns him.
CHAIRMAN HALFORD asked if there was a definition anywhere for
renewable natural resource.
MR. BOSWORTH answered that he would have to check to see if there
was a definition already in statute.
REPRESENTATIVE MASEK asked where the funding would come from to,
under the State statutory amendments, section (e) refine the
subsistence management system including adding a State regional
subsistence council. She asked if the regional councils would have
any decision-making authority.
MR. BOSWORTH replied that somewhere in the amendments there is a
statement saying the councils will be adequately funded which, he
realizes, is intent language. Beyond that there is talk of ANILCA
being a funded federal mandate because it contains language
providing for up to $5 million to the State to be used for
implementation. Prior to 1990 the Department of Fish and Game did
received $900,000 out of the $5 million that was split in numerous
ways.
Regarding the regional councils, they are advisory and that role
does carry over into State statute. There is language saying that
an official recommendation of a regional council must be adopted by
the Board unless certain other conditions are met. Those
conditions are on page 39 and say unless it violates the sustained
yield principle, is not supported by substantial evidence, is
detrimental to subsistence users, or involves an unresolved State-
wide inter-regional subsistence management issue, or is contrary to
an overriding State-wide fish or wildlife management interest. The
last two conditions are new; the others are in ANILCA.
REPRESENTATIVE MASEK said she hoped the funding for the councils
would not come out of fish and game funds or Pitman/Roberts dollars
because she hoped money from the hunters and fishers of the State
would be used for management of the resources.
CHAIRMAN HALFORD asked if these councils make recommendations on
subsistence seasons and bag limits or do they make recommendations
on commercial fisheries, sport fish, etc. Is there any limitation
on what they can make recommendations on, he asked.
MR. BOSWORTH answered there was language specifically inserted to
make it clear that the recommendations only apply to subsistence
proposals.
CHAIRMAN HALFORD asked what the current federal law says.
MR. BOSWORTH said he thought that prior to 1990 interpretation of
the federal law was an issue of considerable debate among the
regional councils. They interpreted their mandate as extending
beyond subsistence uses and the State did not agree. He said he
would research that for him.
SENATOR GREEN asked regarding page 40, line 10 why that was amended
to subsistence users. The implication is that the subsistence user
is the only voice that will be listened to.
MR. BOSWORTH said he thought the reason it speaks to subsistence is
because it is a subsistence statute. In the discussions he was in
there was never a suggestion that that would be the only
information that would be useful to the Boards and councils.
He said there are two places that he recalled with language
specific to that issue. One is on page 37, line 6.
SENATOR TAYLOR asked if they used the terms recommendation and
proposal interchangeably.
MR. BOSWORTH said no and explained that a proposal is used to refer
to the types of proposals that go before the Board and, hearing
those, this language requires that any subsistence proposal from
anyone and an advisory committee must go to the regional council.
Some of those would advance to the Board simply as proposals, some
would advance as proposals with comments by the regional council,
and some of them would be recommendations. It's only when they are
recommendations do they carry the special weight and ANILCA.
He directed them to page 39, line 7 where it says the appropriate
Boards shall consider the reports and recommendations of the
regional subsistence councils and shall give deference to their
subsistence recommendations.
MR. BOSWORTH said there was some lack of clarity yesterday
regarding whether the Department of Fish and Game supports this
package and he stated that they do. They think it's a workable and
balanced approach.
CHAIRMAN HALFORD noted that the feds had already taken over
management on game in 1989 - 90 and asked if they are really
talking of the fisheries in the current perceived crisis.
MR. BOSWORTH replied that we certainly are and the immediate issue
is federal intervention in subsistence fisheries on federal lands
and reserve waters.
CHAIRMAN HALFORD again said that the feds had taken over management
of game years ago and Mr. Bosworth added that things are getting
even worse since it's taken a while for the federal program to get
rolling.
SENATOR LINCOLN said from a trip through eleven communities she
found that it was possible they were dividing this State with all
the subsistence discussion along racial lines and stated that was
a concern. Yet, when she talks to people off the road they say
they need to work together as a whole State, that we are talking
about times of shortage and no one wants to see our fish and game
come to that point. She visited a group of four communities where
a lot of non-Alaskan hunters took 100,000 lbs of game out by one
airline. The airline people told her there was spoiled meat and
that there were not enough people to monitor whether or not our
resources were being abused.
She said she did not feel assured that the resources would be there
for her great-grandchildren. She thought we had done a poor job of
managing our fish and game in many areas. She supports State
management, but asked if ADF&G supports this proposal, how can he
say that so soon since the proposal just came out. She asked if
the Department actually went through the whole package and were
there areas in it that needed red flagging.
MR. BOSWORTH explained that the original draft came out in July.
There are some recommended changes that have already been
incorporated in this draft. They didn't hear from anyone who was
comfortable with the awkward position the State was in having to
comply with federal law that didn't meet all of our needs. The
Department feels it's absolutely imperative that the State get back
to the point where it could manage on all lands and waters in the
State. Dual management for their staff has been extraordinarily
stressful. It has led to some people feeling their jobs are
redundant because Board decisions are being second-guessed by
federal managers. They often attend a federal subsistence meeting
with the intention of providing information that will clarify a
resource issue and find their comments and data to be absolutely
ignored. He said it's repetitive, duplicative, costly, wasteful of
time and effort, confusing to the public, and results in risk to
the resources. In some cases the federal boards allocate a certain
portion with the State having already fully allocated that portion
of a population. In these cases our Board has to go back and
change the regulation to avoid a resource problem.
REPRESENTATIVE DYSON said he had a conversation with the Department
of Interior and asked if the feds did take over, would they
subcontract most of the hands-on management to the Alaska
Department of Fish and Game. And she said they would be delighted
to use them in any way they could. He asked if there any
preliminary discussions in that regard.
MR. BOSWORTH replied there had been no communication to that effect
and quite the contrary he was contacted last week by one of the
federal subsistence board members who represents the Forest Service
and he described the federal board's intention to proceed with the
draft regulations on or about October 1, followed by a public
process of hearings, with the final regulations coming out March 1
that would implement federal management of subsistence fisheries on
federal reserve waters. There was no suggestion whatsoever that
the State would have any unusual role. He thought part of the
problem was that the necessary discussions hadn't taken place yet;
and he wasn't saying that wouldn't happen.
SENATOR SHARP said he didn't know if the feds could do a worse job
than the Division of Commercial Fisheries has done on escapement up
the Copper River for personal and subsistence use. He explained
that last year was the biggest run of reds ever and they shut it
down to a two-day season. The same happened this year.
SENATOR TAYLOR said ADF&G decided there weren't enough moose in his
area of the Stikine River for anyone to hunt and shut the area
down, but the federal subsistence board opened it up and allowed
one moose. So there was a time when you could not hunt on State
land, but you could hunt on federal land and you were checked
almost daily if you were camped up the River by a U.S. Forest
Service person. To get a permit for the feds, he explained, you
have to take a test and watch a video. He thought that the State
would do just about anything to get rid of dual management.
He asked if the Forest Service is going ahead with navigable waters
regulations, that would mean there would be fish traps in his area.
If the Bobby Case means anything, he didn't know of a single
restriction they could impose on the taking of those fish and still
be in compliance with that federal law. He asked if Mr. Bosworth
did.
MR. BOSWORTH replied that he didn't know enough about the Bobby
Case to be able to comment. He thought the point needed to be
clarified, however.
SENATOR LEMAN said that Statehood did not come about to abolish
fish traps. The timing of the two happened to coincide. The
primary public reason for abolishing fish traps was not because the
traps were taking too much fish and outside ownership of them, but
the issue of the State managing its own resources.
CHAIRMAN HALFORD announced a 15-minute break. When they reconvened
he announced that public testimony would begin.
MR. TIM SCHUERCH, Maniilaq Association, said this region is known
as the Nana Region and is about as big as Oregon. He said 90% of
the 7,000 people in his region are Inupiat Eskimo. Almost everyone
hunts and fishes to feed their families. Traditionally and
modernly all their subsistence foods on the coast and inland are
shared among all Inupiats of both groups. They prefer a native or
rural preference rather than a local or community preference. The
latter option has too much potential for disrupting their tradition
of sharing their food with each other. He said subsistence is a
primary means of support for all of them; it is how they define
themselves as individuals, as a community and a society, and as a
part of the great cycles of nature and part of a greater spiritual
reality.
Just as important as any economic or social cost would be the moral
harm that would befall families in the bush. Hunting and
butchering game is a way for families to teach their children
wilderness skills, the value of hard work, the value of team work,
and the importance of sharing one's abundance with those in need.
Rural subsistence helps families in the bush to feed themselves.
It imposes little or no burden on urban Alaska. A well-established
rural subsistence priority would be a major step in preserving
Alaska's traditional bush culture, including native culture in the
face of an ever-expanding urban population. A rural subsistence
priority is in the best interests of all Alaskans.
TAPE 97-42, SIDE A
CHAIRMAN HALFORD asked him what would happen with federal
management of fish in his area.
MR. SCHUERCH answered the impact on the small commercial chum
fishery would be minimal.
SENATOR TAYLOR asked him to explain what subsistence rights he
thought would be diminished if the legislature would adopt the Task
Force proposal.
MR. SCHUERCH replied that he hadn't had time to review it. After
the McDowell decision subsistence rights were diminished because
large amounts of people including those in urban areas currently
have a right to subsistence hunt and fish. They are afraid too
many people will be able to go in and take fish and game from their
area.
SENATOR TAYLOR asked for the population of Kotzebue.
MR. SCHUERCH answered a little over 3,000 people.
SENATOR TAYLOR commented that under federal law he could live in
Wrangel and go to Kotzebue and take a bunch of caribou and this is
the law we are all trying to comply with.
MR. WARREN OLSON urged them to watch his video on the Public Trust
Doctrine narrated by Mr. Joseph L. Sax who was legal aide to
Secretary of Interior Babbitt. It is about individual rights above
subsistence. He also suggested they read "Putting The Public Trust
Doctrine to Work" which was created by 29 coastal states, including
Alaska. It explains fundamental rights about subsistence rights.
He also brought an AOC resolution, the Public Trust Doctrine in
Alaska by Gregory Cook, and a statement from the Colorado Supreme
Court stating that life, liberty and property are not [indisc]
items.
MR. OLSON quoted from a pamphlet written in 1977 by former
Secretary of Interior Udall about Alaska native and their
subsistence rights. It states that it is not surprising that the
Alaska legislature dealt gingerly with the native subsistence issue
and made no effort to deal with the rights of the Alaska native as
a special class of citizen. Under its constitution the State
cannot single-out its natives or any other distinct class of
citizens and grant them special rights. This is particularly true
with respect to fishing in Article 8, Section 15. The Alaska State
Constitution stopped the mark-up of ANILCA in its tracks at that
time and the players were aware of it.
A subsistence bill was passed by the Alaska legislature in 1978
which created a privilege among users. At this moment the Alaska
legislators damaged the Constitution forever by weakening its
regulatory powers of public trust and public trust doctrine. The
intent of passing the State subsistence law in 1978 was not
protection of certain users as the bill stated, but to damage the
management and regulatory responsibility of the State - the public
trust pertaining to uplands and public trust doctrine pertaining to
waters.
This allows the federal government to assume regulatory powers held
by the State on federal lands and waters. Legally, in all other
states, the federal government can designate use on federal
properties, but cannot manage users. With the Alaska Constitution
damaged by the Alaska legislators, ANILCA was passed by congress in
1980 with management of users on federal lands and waters assumed
by the federal government.
Alaska's Supreme Court has strengthened Alaska's Constitution,
Article 8, by acting favorably on numerous cases on resource use
and users since 1958. He said research would show that before and
after statehood many cases saying no to allocating privileges and
creating preferences. The Alaska legislature continues to have a
foot on both sides of the stream.
The State of Alaska in recent regular and even special sessions of
the legislature, have given active consideration to what the
subsistence law of Alaska should be. They have neither amended the
current Alaska subsistence law, nor proposed a constitutional
amendment. They have deliberately taken a position on subsistence
contrary to plaintiffs in McDowell II.
In conclusion he said the Alaska Supreme Court is doing its job on
public trust and public trust doctrine in regards to use and users,
but the legislature is going to have to look at the law and say
that any law creating a preference is going to have to be removed.
He said he is weakened as a plaintiff before Judge Holland in the
McDowell II case by their position.
MR. OLSON said the State was not being represented very well by the
Attorney General's office.
MR. PETER PROBASCO, Alaska Outdoor Council, said they had appointed
Mr. Dick Bishop as their spokesman on subsistence and he had
testified yesterday. Mr. Probasco said he supported that testimony
fully and agreed that subsistence is a basic human right which
doesn't allow for discrimination between individuals. They also
believe in the Alaska Constitution and don't think an amendment
should be proposed. The federal government should not be dictating
to us what we need to do to our Constitution. Amendments need to
be made to ANILCA and he asked the legislature to follow that path.
SENATOR TAYLOR asked if he thought the State should bring a direct-
action suit in the United States Supreme Court and challenge the
very constitutionality of ANILCA.
MR. PROBASCO answered that Alaska is the only state in the union
that is being treated in this manner in regards to dictation on our
constitution. If it was before the U.S. Supreme Court and executed
in a fine manner he thought we would prevail.
MR. HARRY WASSINK said he had been following this issue for the
last 25 years or so. He thought the most effective way to solve
the dilemma would be to first change Section 807 of ANILCA,
although the Secretary of Interior doesn't like that idea, and then
see what other actions were needed.
He wanted to know what would happen if an agreement wasn't reached
immediately by October 1.
CHAIRMAN HALFORD responded that nothing was going to happen
legislatively, but they would take testimony. The seasons that are
really in question probably don't come into conflict until next
April, May, or June. The federal deadline has to do with adopting
regulations. He personally believes that ANILCA, when applied to
fisheries, can't possibly work because it's been modified, extended
and defined by cases like the Bobby Case and the Peratrovich Case.
His opinion is if the legislature does absolutely nothing, congress
would change at least those two cases before they ever get it
applied to commercial fisheries, because those two provisions are
absolutely disastrous to commercial fisheries.
MR. BRUCE KNOWLES said he had a career in the military and had lost
a lot of friends. He would not sell their lives cheaply. As an
American he has certain rights. When a foreign national is sworn
into American citizenship, she or he has those same rights. He
will not give up his rights for a few fish or a few moose, he said.
That's what the federal government wants us to do.
MR. KNOWLES said there is a shortage of fish and game in many areas
and that is why we are here today.
MR. DEAN BABCOCK, Ojibwa Indian, said he was in favor of all
peoples sovereign right to subsistence, but he wanted to help them
understand the native way-of-life. He said that natives who live
in a town can't go to the store and buy their native food like a
Spanish, Japanese, or Greek person. People come in from the
villages to Anchorage, bring in traditional foods, and share it
with other natives. So it's not a preference, it's a sovereign,
traditional way-of-life. He didn't think any native wanted
preference, but they do want their way-of-life.
SENATOR TAYLOR asked him if he had a chance to read the Task Force
proposal.
MR. BABCOCK said he just saw it three hours ago. He said he hadn't
seen a draft yet that he would vote for, however. He thought the
State should stand up for itself and when it comes down to
management of fish and game, the traditional people of Alaska did
very well.
SENATOR LINCOLN asked what he thought native people would do in
times of shortage to have subsistence food.
MR. BABCOCK said he thought it came down to a simple matter of
genocide, because it hasn't been too many years that it was totally
traditional. He explained that the Lieutenant Governor had been in
the villages and said that 60% was on an economy basis and 40% was
subsistence. If you took the 60% away, the 40% would become 100%,
but if you took the 40% away, people would die.
REPRESENTATIVE OGAN asked if he honestly thought people would die.
MR. BABCOCK replied yes.
REPRESENTATIVE OGAN asked if he perceived the Alaska legislature
was trying to commit genocide.
MR. BABCOCK said he didn't see that, but he thought they needed to
take a hard look at his people.
REPRESENTATIVE MASEK said she grew up in Anvik on the Yukon River
and chose to leave about 10-years ago. She has heard the culture
is diminishing, but that there are people in the public and private
sector who are trying really hard to protect and enhance health and
to continue on with the traditional life-style. But, she asked,
what kind of culture is there left when there is so much
alcoholism. She said we can't go back into the past; we have to
move forward and what the federal government is doing to people in
rural areas is a disgrace. If people back there want to be proud,
they can't have all these handouts and the benefits they are
getting and still want more and more and more. She said there's
more to it than just subsisting and having a traditional and
cultural life-style. She said it's o.k. to help out people, but
there has to be a check system along the way for all the benefits
that are going out there. Currently, it's the saddest state since
ANCSA and ANILCA came about.
In the late 60's when she was growing up they didn't have food
stamps and welfare. No one was fighting about fishing and hunting;
they had to work to survive. Today that life-style is totally
changed. No one wants to take away the tradition and life-style,
but the question goes way beyond their right to hunt and fish. It
goes to the future and where do we want to go as a State. What is
rural Alaska going to in 20-years when there's no fish or caribou
because there is no State management to protect the resource for
the future of all Alaskan people.
MR. BABCOCK responded that he thought there needed to be co-
management. Our children is our most precious resource. Tradition
carries the values and morals forward with it.
REPRESENTATIVE MASEK said yes we can look at everything in the
past, but we have to move forward. In this society today we are
all Alaskans and U.S. citizens even though our skins may be a
different color. We are all here as humans and we have to be
treated equally. She said we have to work together.
MS. MARY BABCOCK, Yupik native, said that there are people in
villages who don't have translators to tell them what is going on.
She came from a very well-to-do family and she is very proud of her
culture. They had their own doctors, psychologists, and dentists.
They didn't need certificates. She said she would like to eat her
native food, but she can't. She said she would like her
grandchildren to have what she has.
SENATOR LINCOLN thanked her for speaking and for bringing her
daughter. She said she thought that both sides, if there were
sides, would have to give a little bit. She asked what was her
greatest worry for her child and her grandchildren if subsistence
is no longer available as she knew it.
MS. BABCOCK said there are those that go around and kill, but don't
need it. People that don't care and don't use the animals. She
said her family does not waste anything. She grew up using moose
and caribou.
TAPE 97-42, SIDE B
SENATOR TAYLOR said there is a lot of misinformation. The federal
government in 1980 passed a law saying if you live in a city that
is too large, you do not qualify for subsistence and this is the
law that we are fighting. Alaska should have a solution that will
take care of all people.
SENATOR LINCOLN said she took exception to Senator Taylor's
comments about the federal government. She didn't want anyone
leaving this room thinking it's just the federal government because
we, the State government, have some ills. We make laws and can
change some of those rules. She said this body could have put the
question of rural preference before the people, but they chose not
to.
MR. BUD SMYTH said he had spent some time on a reservation and it
was a pretty good place for those who could hunt there. He didn't
believe, necessarily, in that kind of privilege. Subsistence is a
life which is pretty hard to take away from everybody. The issue
will shape all of Alaska's future. He thought they needed to put
some choice before the people to a vote on, but he didn't know if
they wanted to vote on the Task Force proposal or any question that
smacks of any politician questionnaire. If there is a preference
they should name it for what it is.
He said the natives who testified didn't testify for subsistence;
it was for sovereignty and autonomy - to have a voice in what
happened in their own backyard. He said they feel powerless and
are threatened by some of the ways and postures that the
legislators, in particular, put out.
Former Governor Jay Hammond said something about local subsistence
which he didn't think was a bad idea. He didn't think anyone
wanted someone else running over their backyard.
He said there is obviously less game around Anchorage, but if we
manage our game properly we can tell the people in Anchorage where
to go. There is no need for a preference, if there's no shortage,
if everyone has a reasonable chance of getting it. He didn't
think we had to amend the Constitution which is pretty fair, but it
could be one of the choices to vote on.
He concluded saying that he believes in state's rights, but mostly
he believes in individual rights.
MS. KATHLEEN HARMS said she thought we are failing to address the
real matter and how it affects our future as Alaskans. The depth
and significance of the real matter at stake has rendered Alaskans
afraid of any ordinary resolutions; it is the reason we fight so
ferociously and intransigently for our side of the argument. She
said she is very proud that we are struggling.
She said there can be no balance struck between identical forces.
The truth is that the earth is our mother; her gifts are our
lifeline; we human beings must not and cannot be turned away from
her by law, alienation, misbegotten altruism or self regard. The
fighters for subsistence all believe in and love the same truth.
The real conflict she sees is the way of the past and the
necessities of the future and these are sucking the energy out of
our ability to visualize a future and to give our children a
reformed and regenerated culture through which to live.
She said we must ask the real questions which are: Who do we as
Alaskan people want to be? Do we wish to be many, several - one?
How do we want to become? What kind of culture do we want to be?
She said it is their duty to bring this matter to an election that
has not one yes or no choice, but several choices that represent
different directions our people may envision for us.
MR. STEVE MILLER said he felt this matter is a bitter pill that is
being shoved down Alaska's throat and is a wedge for demagogues to
use to try and divide the people of Alaska and conquer.
MR. MILLER said he has great respect for people in the bush. They
have many problems, but they have many assets. He said that
subsistence is a way of life for his family, too. He told the
committee that this issue has to be dealt with now rather than
later.
MR. DUANE ANDERSON said he had taught in the bush and knows that
they primarily have a system of welfare and subsistence with
exceptions for certain communities. He urged the committee to
resolve the issue and to read an article that he wrote for the
Anchorage Daily news on Friday. He said he knew of no Alaskan who
would vote to convict another Alaskan of a federal fish or wildlife
subsistence charge.
He related how in 1964 he visited Arctic Village and found the
inhabitants had a dollar economy, but went out to the huge caribou
herd that came by and slaughtered them only to use a quarter of the
meat. He strongly supported Representative Masek's words that life
in the villages is a dead-end and urged villagers to face that fact
and create a new future.
In conclusion he said he would never vote to sacrifice Alaskan
people on the block of the federal government just as much as those
fifty-five who said, "Give me liberty or give me death." He
implored them to find the difficult answers.
MR. ROBERT HALL, Houston Chamber of Commerce, said fishing king,
red, and silver salmon on the Little Su has been a popular major
local activity for many years. Before the Parks Highway came
through in the late 60's, local residents fed their families
throughout the winter on salmon they caught in the Little Su and
many of them still live there today. However, they are limited to
the few salmon they are allowed to harvest pursuant to sportfishing
regulations. For many of them fishing is a way of life, but
unfortunately the opportunity to harvest all salmon of all species
has been decimated.
He asked the committee to use the subsistence issue as a way of
retaining control of fish and game, but also to review and make
major positive changes in the way we manage fish and game in
Alaska. He asked them to consider aspects of the modified Hammond
proposal that was just distributed to them which defines all of
Alaska as a subsistence area and all Alaskans as subsistence users
and grant subsistence users are priority in the game management
area they reside. This proposal has received wide support.
SENATOR LINCOLN asked if in listening to Mr. Mallott's rationale of
locking the members of the Task Force together to work on a
solution, would he have conducted the resolution of this matter any
differently than what is being done now.
MR. HALL answered that he hoped the proposal was just a springboard
for discussion.
TAPE 97-43, SIDE A
He thought this whole crisis was being driven by the fear of
reallocation from commercial fishermen. He said he appreciated the
opportunity to testify.
MR. GENE STRAATMEYER, Pastor, Wasilla First Presbyterian Church,
said they have a long relationship with RuralCap which sponsored a
subsistence round-table that drafted a proclamation. They
encouraged Alaska native and their efforts to maintain their
culture, their subsistence, their way of life, and exercise
stronger control over their own communities as the Alaska Native
Review Commission has recommended.
The churches of Alaska believe this is a moral issue and believe
that subsistence and sovereignty are understood.
SENATOR LEMAN said he was trying to figure out how his position was
consistent with the AFN and the Task Force proposal. He asked what
he wanted Alaskans to vote on.
MR. STRAATMEYER replied to amend the Constitution to allow a rural
preference on subsistence.
SENATOR LEMAN said he also got into other issues like co-management
and wondered if he really understood what he was asking for.
MR. STRAATMEYER responded that their position is that whatever
position keeps subsistence for native people gets their support.
Including rural subsistence would be appropriate.
SENATOR LEMAN asked if he sensed there was any organized effort by
the legislature to deny that.
MR. STRAATMEYER answered that he feels that.
SENATOR LEMAN asked him explain the moral issue.
MR. STRAATMEYER said a vote would allow them to vote on an
amendment that would keep a rural preference for the State and
which he personally favors.
SENATOR LINCOLN asked if he believed if it were rural preference
that the sharing and caring with friends and relatives in urban
Alaska would be forgotten.
MR. STRAATMEYER answered that he didn't think they would be
forgotten.
MR. AL DONER said as a taxpayer and a citizen of Alaska and the
United States, the only thing that's important is for both
constitutions to not be trashed. Any proposal to amend the
Constitution is a step backwards. He thought we are all equal
under our Constitution and we have to keep that in there. He
thought we should use our time and energy to enhance our resources
rather than try to deal with this issue. He supported
Representative Masek's remarks and thought the rural provision was
terrible.
MR. JAMES GARHART said he wanted to remain a sovereign State. If
we compromise our rights, we've just kind of given up. Harvesting
a resource for non-commercial life-sustaining personal use is
subsistence. Denying subsistence is not management, it's genocide.
It has to be based on need.
MR. DON CHRYSON said he disagreed with the overall plan and with
our State coming under the federal rule as far as subsistence is
concerned. On pages 10 and 19 sport hunters are to be on advisory
boards and regional boards. In most cases the number of sport
hunters are so miner or they don't exist at all. There is no
reference to sport hunters being on any of the park committees.
He suggested adding a section that would take care of unit 13 moose
and caribou subsistence hunters, the Kenai moose hunters at
Tustamena, the Lake Clark/St. Elias sheep hunters, and the Round
Island walrus hunters all of whom are trophy hunters. He suggested
that subsistence hunting in general have the trophy value of their
game destroyed. This would not interfere with their food, but
would reduce the problem of people coming into reserves for
trophies.
MR. ROB HOLT, professional hunter, said he thought the issue was
the eastern environmental establishment and their ability to
control whatever happens on federal public land. The native people
who live in the villages and live the subsistence lifestyle will
not go hungry. He said that federal regulations don't enter into
their lives; however, they can regulate guiding away. They could
use the rural priority without going through the federal
subsistence board to deny a permit. He thought everyone needed to
get together to do whatever we can to get rid of Title 8.
MR. HOLT thought the fact was that the native people who truly live
that lifestyle will continue to live it no matter what happens, and
that's fine with him. The only way they could get rid of Title 8
was to offer some serious concessions to the organized native
community. He informed them that subsistence precludes natives
from becoming professional guides and entering into another
lifestyle because no one can hunt professionally on their land.
SENATOR TAYLOR thanked him for his comments and said there is
another alternative which is to bring a direct action suit against
the United States Supreme Court challenging ANILCA, Title 8.
SENATOR LINCOLN also thanked him for his comments, but said in her
district it's not that simple to go out and get a moose or caribou
whenever you want. Some people do poach, but that isn't a
recognized practice. She also wanted to clarify that there were
many people who are rural who are also non-native. There is
another alternative which is to let people vote on rural
preference.
MR. HOLT responded that when he travels to villages, the people he
sees are hunters. However, there are a lot of people who don't
hunt. He was not suggesting that they poach, he was suggesting
that the federal government will not regulate subsistence. They
might like to think they will regulate that lifestyle, but they
will not.
TAPE 97-43, SIDE B
He reiterated that in the long run, if there were concessions made
to natives to get this behind us, it would be o.k.
MR. MARK CHRYSON, Vice Chairman, Alaska Independence Party, agreed
with the gentleman from Houston in that all Alaskans are
subsistence users. He did not think that taking of food to feed
people would stop just because someone doesn't live in what is
designated as a rural community. Regarding the Task Force proposal
he thought its acceptance would be submission to blackmail. He
thought we need to challenge Title 8 in the Supreme Court because
it is unconstitutional. It denies Alaskans, regardless of their
color, the ability to feed themselves.
MR. CHRYSON said they, as legislators, should stand up for Alaska
and quit cow-towing to the federal government.
REPRESENTATIVE OGAN commented that they have attempted to stand up
for Alaska with the Babbitt suit that was dropped. Unfortunately,
the Constitution does not allow the legislature to litigate; that
comes from the Governor's office.
MR. CHRYSON responded that the legislature has only been in power
for a few years and his point is that we have to do something now.
SENATOR LEMAN asked him how he thought they were trying to shove
this plan down their throats.
MR. CHRYSON said he just wanted them to understand that he did not
want the Task Force proposal.
MS. BEVERLY CLOUD said she serves on the Board of Directors for the
Pedro Bay Village Corporation since 1989. She goes there to
subsistence fish. She said it is very important for these
activities to continue especially for the people who live in the
cities, because they go back to the villages to hunt and fish. She
didn't really care who was in charge of subsistence, the State or
the federal government. She just wanted to continue to do what she
had been doing as her grandmother had and her grandmother before
her. She opposed tying income to subsistence.
SENATOR TAYLOR asked who or what was threatening her subsistence
lifestyle right now.
MS. CLOUD replied if it was suddenly illegal for her to live here
and travel to her tribal lands and fish.
SENATOR TAYLOR explained that today that is illegal under ANILCA
because she lives in a large community, but they have chose to not
yet to enforce that law. He said the threat is that they are going
to start enforcing it.
MS. CLOUD stated that she is for a rural preference and thought
that was the only way to have co-management. She said that people
in Pedro Bay know what the conditions are when the fish come in.
SENATOR TAYLOR explained that a rural preference would exclude 60%
of the native people who qualify now in the State of Alaska.
REPRESENTATIVE JOULE commented that the State suggested using the
term "rural" in ANILCA.
CHAIRMAN HALFORD said that it was suggested by the Department of
Law saying it would not be enforceable otherwise and the Governor
who didn't think it was fair back in 1980.
MS. CLOUD said without apology that because of her history she
feels she does have a right whether it's the federal government or
the State of Alaska that grants it.
MR. JIM STOCKER, 23-year Alaskan resident, said we could argue
subsistence until the cows come home and not get anywhere. He is
wondering why no one has begun to impeachment Governor Knowles
because he took the Babbitt case away. He thought that was an act
of treason against the State of Alaska and the people. As long as
the federal government is involved, management is only going to get
worse.
CHAIRMAN HALFORD thanked everyone for their participation and
adjourned the meeting.
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