HOUSE BILL NO. 406 "An Act relating to subsistence uses of fish and game." TED POPELY, LEGAL COUNSEL, HOUSE AND SENATE MAJORITY, ALASKA STATE LEGISLATURE explained that the legislation establishes a preference for subsistence law based on presumptions. The Boards of Fish and Game would establish stocks of populations throughout the state of Alaska where there is a customary and traditional dependence on the resource. The legislation would also identify the communities and populations around the stocks and populations that have traditionally and customarily depended on the food. Once this is done, the persons living within these areas would be presumptively afforded a preference to persons living in the current non-subsistence areas. The preference would only apply in times of shortage. The presumptions can be rebutted through civil standard preponderance of evidence. The presumption, once rebutted, establishes that a person is not entitled to the preference. The legislation is based on an individual criteria system, subject only to presumptions. Local advisory committees are retained. Six regional advisory councils would be free to reject recommendations based on established criteria. The existing state definition of "customary", "traditional", "usual opportunity", "subsistence use" and "customary trade" are retained. There is no constitutional amendment envisioned in the bill. RON SOMERVILLE, CONSULTANT, HOUSE AND SENATE MAJORITY, ALASKA STATE LEGISLATURE added that the establishment of non-subsistence areas on page 5 is the same as existing law. The Boards are given flexibility to apply and implement the six criteria for individual dependence. Co-Chair Therriault referred to the findings section. He questioned how closely the legislation is aligned with the Alaska National Interest Lands Conservation Act (ANILCA). Mr. Popely clarified that section 1 of CSHB 406 (JUD) reflects section 802 of ANILCA. They are not verbatim provisions, but fairly closely parallel ANILCA. Co-Chair Therriault referred to the use of land on page 1, line 5. He noted concerns that this provision would preclude possible future subsistence requirements. Mr. Popely stated that the language came out of ANILCA. "Public lands" is defined in ANILCA to include lands, waters and interests therein. He observed that two additional phrases that were added to CSHB 406 (JUD) that were not included in ANILCA, "the use of the land is practicable" and "to have no substantial adverse effects on subsistence users." Section 802 of ANILCA refers to the "least adverse impact possible." There is a slight difference between the legislation and ANILCA. He acknowledged that the concern is valid and that the section may need to be changed. Representative Grussendorf observed that the definition of "rural" is included in the legislative findings on page 2, line 10. He noted that "rural" is not used again, except in relationship to the repeal of the term. Mr. Popely clarified that the intent is to provide a definition of "rural" for use in interpreting a preference for a rural subsistence user in ANILCA. The definition of "rural" was not included in ANILCA. Representative Grussendorf noted that individual characteristics are being substituted for geographical location. He questioned if it would meet the constitutional test. Mr. Popely explained that page 2, lines 6 - 9 quote the Alaska Supreme Court's McDowell decision. He stressed that the Court referred to the classification scheme of employing individual characteristics as not running afoul of the Equal Access Clause in the Alaska State Constitution. Representative Grussendorf observed that subsection (3) on page 2, line 12 requests the congressional delegation to attempt to change ANILCA. He questioned the possibility of changing ANILCA to conform to the criteria list developed by HB 406. Representative Grussendorf emphasized that the list should be available before members decide if the congressional delegation has a chance to conform ANILCA. Mr. Somerville acknowledged that that changes to ANILCA would be required if CSHB 406 (JUD) is adopted. He observed that the dependency factor would have to be modified to comply with state law. The State would have to have authority to establish subsistence and non-subsistence areas. The definition of rural would have to be changed to comply with the legislation or the reference to rural would have to be eliminated from ANILCA. Representative Grussendorf questioned if the legislation would satisfy ANILCA. Mr. Somerville maintained that the legislation meets the intent of ANILCA, but acknowledged that it would not satisfy ANILCA. He emphasized that the law has been significantly changed by case law since 1986. Representative Martin observed that there is a large Native population living in East Anchorage that is not considered as subsistence users. He questioned if they would have subsistence rights under the legislation. Mr. Somerville replied that they could participate in subsistence activities if they identify with a particular stock or population. They would have to comply with the criteria. In response to a question by Representative Martin, Mr. Popely explained that state subsistence laws govern state lands. If the Department of Interior accepts the state of Alaska's scheme for state lands then the State would also have the privilege of managing federal lands. MARY PETE, DIRECTOR, SUBSISTENCE DIVISION, DEPARTMENT OF FISH AND GAME provided an overview of the current implementation process. The subsistence issue and how the current law is implemented are complex and misunderstood. She provided a handout outlining the issues. The outline was distributed to the Board (copy on file). Whenever there is a subsistence concern, the Board moves through the following process: ? Non-subsistence Area Filter. Is the fish stock or game population in question in a non-subsistence area? If all of the fish stock or game population is in a non-subsistence area, there is no need for the Board to address subsistence uses--subsistence harvests are not allowed in a non-subsistence area. If any portion of the fish stock or game population is outside a non-subsistence area, then the Board goes to step 2. ? Customary and Traditional Use Determination. The Board determines if there is a customary and traditional use of the fish stock or game population by applying eight criteria established under 5AAC 99.010, considering information about the use pattern. If there has been a previous positive finding, then this step is unnecessary, and the Board goes to Step 3. If there has been a previous negative finding, there is no need to address subsistence uses further, unless the proposal is for reconsidering a negative finding. Also, the Board may periodically reconsider previous customary and traditional use findings. ? Harvestable Surplus Filter. Can a portion of the fish stock or game populations be harvested consistent with sustained yield, considering biological information? If there is no harvestable surplus, then the Board authorizes no fisheries or hunts on the stock-population, and there is no need to address subsistence uses further. If there is a harvestable surplus, then the Board goes to Step 4. ? Amount Reasonable Necessary for Subsistence. The Board determines the amount reasonably necessary for subsistence uses, considering information about the subsistence use pattern. If there has been a previous determination on the amount, then the Board goes to Step 5. The Board may periodically reconsider and update these determinations. ? Subsistence Regulations and Reasonable Opportunity A. If the harvestable portion of the stock or population is sufficient to provide for all consumptive uses, the Board adopts subsistence regulations that provide a reasonable opportunity for subsistence uses, and provide for other uses of those stocks or populations, subject to preferences among beneficial uses. B. If the harvestable portion of the stock or population is sufficient to provide for subsistence uses, and some, but not all consumptive uses, the Board adopts subsistence regulations that provide a reasonable opportunity for subsistence uses, and may adopt regulations that provide for other uses of those stocks or populations. The regulations that differentiate among consumptive use shall provide for a preference for subsistence uses. Also, nonresident hunting for moose, caribou, elk, and deer must be restricted before resident hunting for these species is restricted (AS 16.05.255d). C. If the harvestable portion of the stock or population is sufficient to provide for subsistence uses, but no other consumptive uses, the Board adopts regulations that eliminate other consumptive uses in order to provide a reasonable opportunity for subsistence uses. If subsistence regulations do not provide a reasonable opportunity for subsistence uses after eliminating all other uses, then the Board goes to Step 6. ? Tier II Subsistence Regulations. If the harvestable surplus is not sufficient to provide a reasonable opportunity for subsistence uses for human food, the Board adopts regulations that reduces or eliminates subsistence harvests for other subsistence uses (such as feeding sled dogs). If the harvestable surplus is still not sufficient to provide a reasonable opportunity for subsistence uses, the Board adopts regulations providing for a Tier II fishery of the fish stock or Tier II hunt of game population, following 5 AAC 92.062. Ms. Pete addressed concerns and problems with CSHB 406 (JUD), which changes the current process. She noted that the bill: ? Does not get back State management on all lands and waters. ? Does not provide for customary and traditional subsistence uses for communities that depend on subsistence. ? Would require a constitutional amendment. ? Would create a costly, cumbersome bureaucracy to provide for "qualified subsistence users". Ms. Pete maintained that HB 406, as currently written, is basically an "anti-subsistence" bill. It would dismantle the process described above and place a vague, cumbersome and costly system that is very difficult for the Department of Fish and Game to manage and enforce. ? It mandates a "substantial increase" in non- subsistence areas. ? It would require all uses (not just subsistence) be provided a reasonable opportunity. This has allocation implications. ? It would set up vague criteria and procedures for determining "qualified subsistence users" for both residents within and outside of customarily and traditionally dependent areas. ? Individuals and areas will have to qualify on a species, stock and population basis. ? The last two points have the Department working under one scenario where a minimum of 120 thousand applications would have to be adjudicated each year. ? It is unclear if the license application and adjudication processes will be required of individuals each year. If they were awarded annually, then it would be common for adjudication to take more than the hunting and fishing season lasts. A huge backlog of interim licenses or permits would make in-season management very difficult. ? Each Board adjudicates the rebuttals and challenges for qualification, on top of everything else they have to do. ? The license and adjudication process will require a considerable bureaucracy. Using Bethel as an example: If Bethel were determined to be non- subsistence, hunters and fishers in a family, that for generations participated in the common subsistence hunting and fishing activities, would now have to appeal their disqualification for salmon fishing in their fish camp, moose hunting, caribou hunting, spring water fowl hunting and whitefish fishing-5 separate appeals for each harvester in that family. Representative Hanley asked if a resident of Anchorage, who did not depend on subsistence, would be able to hunt or fish under any of these areas? Ms. Pete stated under current law, they would not qualified. Subsistence uses are open to all Alaska residents, but within Anchorage and other non- subsistence use areas, there are no subsistence uses. Representative Hanley pointed out that he could go to Bethel under current law. Ms. Pete stated that was correct. Representative Hanley acknowledged that he would be "squeezed out" under Tier II. Representative Hanley asked, under current State law, are there people who have not been able to obtain subsistence resources? Ms. Pete said no. Representative Hanley noted that there is not a problem under state law with people getting access to state resources. Ms. Pete replied that was correct. There has been an increase in Tier II hunts, because all Alaskans qualify. There are game populations that can't possibly satisfy all subsistence users, since all Alaskans qualify. There has been a proliferation of Tier II hunts under current law. Representative Hanley noted that true subsistence users have been able to get the resources short of areas not having enough. Ms. Pete agreed, barring crashes such as the 1993- chum crash. Representative Hanley observed that the State manages by giving equal access to almost everyone. There is a problem with some people not being able to get subsistence resources under federal law. He observed that there are people under state law who could subsist, that under the federal law, as it currently gives rural preference, could not, if applied to all state lands. Ms. Pete acknowledged that there is a potential for qualified subsistence issues under state law that would not be qualified in federal hunts on federal lands. Representative Hanley stated that Alaska has a better system then would be implemented under federal law. It guarantees more people subsistence resources in a fair manner, without discrimination based on drawing a line. Representative Hanley stated that he likes Alaska's current system. He maintained that it is better than the federal law. It protects rural people in many cases better than the federal law does. "We are trying to change the system to something that is going to create problems." He observed that, under the current federal definition of rural and continued growth, Bethel could find itself no longer in a rural subsistence area. Ms. Pete agreed. Representative Hanley voiced his frustration in trying to create a system that is less fair and less successful for rural residents, and will create more problems because of federal law that was not thought out well. He observed that the intent was to protect the subsistence use. Ms. Pete stated that "if the State does comply with Ninilchak, we would be able to use our system on all state lands and waters. Not just on non-federal lands and waters." Representative Hanley stressed that his concern was that the Legislature should work to change federal law to conform with state law since it protects rural resident's rights. He suggested that the current state law is more beneficial to rural residents. Co-Chair Therriault questioned why regulations would be adopted when the population is sufficient to provide for all consumptive uses. Ms. Pete explained that two standards used are. The first standard is to provide a reasonable opportunity. The second standard is that subsistence uses must be customary and traditional. If the customary and traditional pattern is a longer season or bigger bag limit, it makes sense to distinguish subsistence uses from non- subsistence uses. Representative Martin questioned why a constitutional amendment would still be needed. He added that Anchorage Natives would prefer to be dependent on subsistence rather than be dependent on welfare. Ms. Pete observed that most hunting activities by Anchorage residents occur within non- subsistence areas. Ms. Pete acknowledged that Anchorage Natives do not have subsistence rights under current law. Representative Martin expressed concern that constituents in his district have been denied their subsistence rights. Representative Grussendorf questioned how challenges and petitions would work. Ms. Pete clarified that anyone can offer a challenge to a petition. A person can bring an appeal on his or her own disqualification. She estimated that staff to implement the adjudication process would cost approximately $2 million dollars. There are potentials for four levels of qualification. There would be about five hearing officers for five different regions in the state. Representative Grussendorf referred to page 7, line 19. He asked if concerns have been expressed regarding representation of the regional councils. Ms. Pete expressed concern that the regional advisory councils are able to comment on all of the Board's proposals. STEVE WHITE, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW reviewed legal issues relating to HB CSHB 406 (JUD). He discussed constitutional concerns. A presumption is given on page 4, subsection (d), based on residency. The presumption can be rebutted. A resident in an area that is determined by the appropriate board to be customarily and traditionally dependent on the stock or population is presumed to be a qualified subsistence user. A person living outside of an area that is determined by the appropriate board to be customarily and traditionally dependent on the stock or population is presumed not to be a qualified subsistence user. He maintained that the access is based on residency. He asserted that this runs afoul of Article VIII of the Alaska State Constitution. He noted that the McDowell decision stated that residents could not be distinguished based on rural and urban residency. The Alaska Supreme Court ruled in the Kenaitze decision that subsistence priority could not be based on proximity to the resource. He quoted from the Kenaitze decision: "residency based criteria are not permissible. People who reside near a fish or game population do not have a higher claim to that population than state residents whose domiciles are more distant." Mr. White concluded that the presumption would be unconstitutional unless the Equal Access Clause is amended. Mr. White reviewed differences between ANILCA and CSHB 406 (JUD). He emphasized that the State can resume management of federal lands if state law is consistent in the definitions, preference and participation under ANILCA. The preference under ANILCA, establishes a preference for subsistence uses over all other uses. He observed that CSHB 406 (JUD) does not give subsistence priority over all other uses until the resource has decreased to a certain degree. If there is enough for some uses but not all uses, subsistence receives an advantage. Subsistence use is given priority when there is only enough resource for subsistence use. Mr. White added that, under ANILCA, rural residents have subsistence priority. "Rural resident" has been interpreted by federal boards as residents of communities in areas that are customarily and traditionally dependent on the stock or population. He observed that CSHB 406 (JUD) establishes an individual criteria basis. He stated that how the individual criteria and the presumptions based on residency work together in CSHB 406 (JUD) is confusing. Individual criteria are substantially different than the criteria used in ANILCA. Mr. White stated that there are also differences in the regional subsistence advisory councils and local advisory committees. Both call for six regional subsistence regions. There is a significant difference in how members are selected. Under ANILCA, the governor selects members. Under CSHB 406 (JUD), the Board selects members. The only qualification, under CSHB 406 (JUD), is that members be well informed. Under ANILCA, regional advisory councils only give recommendations and advice on subsistence issues. Under CSHB 406 (JUD), they can give advice and recommendations on any issues in their area. Under ANILCA, the state boards can reject a recommendation by a regional council for one of three reasons. He observed that CSHB 406 (JUD) includes the three reasons and adds an additional ground for rejection. He concluded that these areas must be conformed in order to regain management by December 1, 1998. Mr. White discussed ambiguities in CSHB 406 (JUD). He questioned if the individual criteria are part of or separate from the presumption process. He asked who decides the application. How long a permit would be available? Would applications be for specific stock and populations or be for any stock or population identified by the board? He noted that if there is sufficient resource to provide for all consumptive uses, that all users shall have reasonable opportunity for all uses of the stock or population. He questioned the use of "reasonable opportunity" in relation to commercial fishing. In response to a question by Representative Kelly, Mr. White explained that ANILCA provides that subsistence uses are automatically given priority when harvest is restricted to protect the resource. The legislation does not give a priority to subsistence if there is enough for all uses. The next step is when there is enough for some, but not all uses. Then subsistence is given an advantage, not an absolute priority. When there is just enough for subsistence level the legislation parallels ANILCA. Mr. White observed that the Court recognized that there is a difference from distinguishing among users based on their qualification to hunt or fish and distinguishing between beneficial uses. The Court said that Article IV allows the state of Alaska to distinguish between beneficial uses. Therefore the State can allocate between different uses. As long as reasonable criteria is used there does not have to be an equal allocation between uses. Problem with the Equal Access Clause occurs when there is qualification within the use. Rural residency cannot be used as the criteria. He explained that the Constitution would have to be amended to give a presumption based on residency. A constitutional amendment could be crafted to allow an urban/rural priority or a presumption based on residency. He did not think that CSHB 406 (JUD) sufficiently moves toward ANILCA. He stressed that the biggest difference between CSHB 406 (JUD) and ANILCA is who qualifies. They qualify two different groups of people. For the court to find CSHB 406 (JUD) consistent with ANILCA they would have to qualify the same groups of people. He observed that the state of Alaska was sued because its definition of rural wasn't the same as the federal definition of rural. The state of Alaska's definition described rural in terms of socio-economic characteristics. The Court ruled that "rural" is not defined by the socio-economic characteristics of an area. The Court held that "rural" referred to population density. Representative Grussendorf summarized that the legislation could conform to ANILCA, or ANILCA could be conformed to the legislation. He stressed that the state constitutional test would not be met by the use of individual characteristics. (Tape Change, HFC 98 -98, Side 1) Mr. White clarified that there is not a constitutional problem with the individual criteria. He explained that the presumptions in favor and against people based on residency create a constitutional problem. He maintained that individual criteria could stand a constitutional challenge as long as they are well drafted. Co-Chair Therriault summarized that, under current law, the subsistence priority is always in effect because there are no conditions where there are no restricts on the resource. Mr. White agreed. He added that it is not implemented until the resource is in such low abundance that other uses are curtailed. Co-Chair Therriault questioned why an absolute subsistence priority is needed when there are enough resources to cover all the uses. Ms. Pete explained that the priority is needed because the law states that subsistence uses are customary and traditional uses. To comply with the reasonable opportunity standard the traditional and customary pattern must be included. She pointed out that it has been traditional and customary for subsistence hunters to take moose while they swim across the river at Onion Portage. Taking moose while swimming is prohibited everywhere in the State except at Onion Portage. To honor the traditional and customary patterns subsistence is provided for all the time. Other uses are not eliminated until there is a shortage. She emphasized that it is more than harvest levels. Methods, means and season bag limits have to comply with the customary and traditional use pattern. In response to a question by Representative Grussendorf, Mr. White observed that subsistence as an advantage first appeared in CSHB 406 (JUD). He observed that there is a difference between "reasonable opportunity" as contained in the legislation and in ANILCA. The legislation refers to normally diligent hunter or fisherman as a qualification of "reasonable opportunity." REPRESENTATIVE SCOTT OGAN maintained that ANILCA is not rational. He stated that it is arbitrary. In response to a question by Representative Kelly, Mr. Popely noted that the terms "in time of shortage" is not contained in ANILCA. He observed that CSHB 406 (JUD) was drafted to apply the priority only when all consumptive uses cannot be met. He explained that case law is not delineated in a way that gives a clear path to whether CSHB 406 (JUD) would be constitutional. He did not believe that the legislation would require a constitutional amendment. He noted that it is most likely to run afoul of the Uniform Application Clause, under Article VIII, Section 17. This section provides that residents of the state will be treated equally in respect to the state's natural resources. He argued that the residence criteria is used only for presumption. The McDowell case discussed residency as an exclusive bar to participation in the preference scheme. He quoted from the McDowell case: "We do not imply that the Constitution bars all methods of exclusion. Exclusion is required for species protection reasons. We hold only that the residency criteria used in the 1986 Act, which conclusively excludes all urban residents from subsistence hunting and fishing, regardless of their individual characteristics, is unconstitutional." Mr. Popely concluded that the Court would look favorably on some exclusionary scheme, based on individual characteristics, as opposed to open and closed classes through which one cannot move. He acknowledged that the presumption uses place of residence, but it does not give anyone an automatic right to participate or automatically exclude anyone. It is merely an administrative means to afford the preference on an individual basis. Mr. Popely quoted from the Kenaitze case: "Inconvenience is in no sense the equivalent of a bar to eligibility for participation in subsistence hunting and fishing and does not suffice to trigger an analysis under the equal access clauses." Mr. Popely argued that the presumption is merely a convenience and would not trigger a uniform application challenge that would make it fatal under the Constitution. The court looks at the individual interest that is at stake. In this case it would be the equal access to natural resources in the state of Alaska. If a law threatens that right, the court asks if there is a legitimate purpose for the law. The purpose is weighed against the right. The court asks if it is a tight enough fit. He reiterated that the legislation does not require equal access provisions to be changed. Co-Chair Therriault questioned if the Court found that the state law was not tight enough because "rural" was a blanket line. He observed that the line is not firm under the presumption. GEORGE UTERMOHLE, ATTORNEY, ALASKA AFFAIRS AGENCY stressed that CSHB 406 (JUD) does not raise the same kinds of issues that caused the prior rural preference to be struck down. He acknowledged that eligibility cannot be based on geographical location. He observed that under CSHB 406 (JUD), eligibility for subsistence is limited to people that show a customary and traditional dependence on the resource. The legislation provides that certain people, who reside in an area, which has also shown a customary and traditional dependence on the resource, have a presumption of satisfying the criteria. The individual's ultimate ability to participate is not determined by the presumption. He acknowledged that the presumptions would be subject to review, under the uniform application section. The value of the presumption will be balanced against the ability of residents to get into a subsistence group on a reasonable basis. The court will determine if the state of Alaska's interest prevails over the individual interests. The court will then determine if the means the State has chosen to achieve its goal of administrative convenience is sufficiently tailored to achieve the end. He stressed that the court's decision is undeterminable. In response to a question by Representative Kelly, Mr. Utermohle did not see any negative impacts from the adoption of a constitutional amendment. He observed that HJR 66 would provided for a subsistence preference in the state Constitution. He observed that HJR 66 would not amend other provisions of the Constitution that would be at tension with a subsistence preference based on proximity of the resource. He noted that HJR 66 would be confined strictly to subsistence. The Equal Access Clause, the Due Process Clause, the Common Use Clause, and the Fishery Clause would be implicitly amended to the extent necessary to provide for the constitutional subsistence preference. Representative Ogan pointed out that Mr. Utermohle issued a legal opinion regarding a constitutional amendment, dated 3/27/98 (copy on file). Mr. Utermohle reiterated that the preference, established in CSHB 406 (JUD), meets constitutional requirements by providing individual criteria. The constitutional issue is how significant is the presumption given to determining who is entitled to the preference. If the presumptions were struck down, the criteria for individual users would still remain valid. In response to a question by Representative Mulder, Mr. Utermohle observed that the procedure that the Boards now follow is pursuant to current subsistence law. The Boards would develop a procedure to implement CSHB 406 (JUD). He anticipated that current law would be amended to conform to CSHB 406 (JUD). In response to a question by Representative Grussendorf, Mr. Utermohle agreed that the Common Use Clause allows people to use the resources of the state in common where they occur. Representative Grussendorf asked how an advantage could be given to particular individuals over others. Mr. Utermohle explained that the state of Alaska, under the Common Use Clause, has the ability to limit access to the resource to achieve a sustained yield. Limitations cannot be strictly based on residence. Co-Chair Therriault observed that the Common Use is linked to maintenance of the sustained yield principle. Mr. Utermohle agreed that complementary constitutional provisions must be balanced. Co-Chair Therriault stressed that sustained yield will always receive priority because if the resource is depleted there is nothing to divide. REPRESENTATIVE CON BUNDE asked for clarification regarding when the subsistence priority takes place. Co-Chair Therriault summarized that the priority exists all the time under ANILCA. The access to the resource is not impacted until there is a shortage. The priority is in place whenever there is any restriction to the resource. If state law were amended to conform to ANILCA, there would always be a subsistence priority. HB 406 was HELD in Committee for further consideration.