HB 406 - SUBSISTENCE USES OF FISH AND GAME MR. JIM JANSEN, President of the Lynden Companies and representing Alaskans Together, spoke in support of doing whatever necessary to avert a federal takeover. MR. JANSEN voiced his opinion that we have one opportunity to keep the feds out and we need to take it. MR. JANSEN declared a federal takeover would negatively affect all resource-based industries in the state and federal management of fish and game would be unacceptable. TAPE 98-37, SIDE B Number 560 CHAIRMAN TAYLOR questioned MR. JANSEN about his testimony, asking what benefit would be derived from passing a constitutional amendment to comply with the federal law. MR. JANSEN said state management would allow Alaskans to keep their concerns and problems within the state. MR. DICK BISHOP, representing the Alaska Outdoor Council, testified to his organization's support of the concepts within HB 406. MR. BISHOP suggested that with some amendments, the bill could improve management of subsistence uses of fish and game under state law. MR. BISHOP indicated relating an individual priority to the reliance on food is the right way to go. He said the Outdoor Council has maintained that a subsistence priority in law is not necessary to properly provide for subsistence uses, but if a priority is to remain in law, it should be based on "how you live, not where you live." MR. BISHOP agreed that the ability to take fish and game for food is a basic human right, as enunciated by the Alaska Native subsistence summit and the Republican Party. MR. BISHOP said the Alaska Supreme Court had also validated this idea in their decision that said the common use of fish and game to meet the basic necessities of life is a "highly important interest, running to each person in the state." MR. BISHOP asked how anyone can advocate discrimination against others if we all agree that subsistence is a basic human right. He recounted testimony on the House floor by members who pointed out that the Alaska Constitution protects against discrimination. He quoted Representative Ethan Berkowitz who spoke of the sanctity of the Constitution and its moral imperative to treat all Alaskans as Alaskans. MR. BISHOP also recalled members extolling the virtue of maintaining Alaska's sovereignty. MR. BISHOP said HB 406 avoids moral and civil rights travesties by preserving the emphasis on the importance of Alaskans to maintain the ability to harvest fish and game regardless of where they live. He suggested this value is paramount and cuts across cultural, ethnic, racial and geographic lines. MR. BISHOP said the criticism that HB 406 does not comply with ANILCA is "just so much rhetoric." MR. BISHOP stated ANILCA is not a standard to aspire to; he said it institutionalizes discrimination among Alaskans, compromises sound fish and game management and abrogates the state's rights. MR. BISHOP explained that conforming to ANILCA, especially as it was amended last Fall, would leave the state without a legal leg to stand on in defending its rights afforded by statehood. MR. BISHOP argued the priority demanded by ANILCA is not triggered by a shortage and would be there all the time, mandating the elimination of other uses should it be necessary to accommodate customary and traditional subsistence uses. MR. BISHOP also reported that the need for food is not the standard in ANILCA, and the sale and barter of food taken for subsistence is protected in ANILCA. If the state agrees to ANILCA, the federal courts will enforce their interpretation of that law and the manner in which the state administers it. This would not amount to the state regaining management, according to MR. BISHOP. MR. BISHOP concluded that the Outdoor Council recommends that the legislature stick to the principles in HB 406, consider some refinements to the bill, and go on to seek the necessary changes to ANILCA, where the real problem lies. SENATOR WARD asked MR. BISHOP what he thinks will happen if the state does not change its Constitution. MR. BISHOP replied that will depend on what the legislature does between now and then and how the Congressional delegation and the Secretary of the Interior respond to it. MR. BISHOP added if we put forward a good bill, we will have a good argument toward changes in ANILCA. MR. BISHOP said if nothing changes, he has no doubt the feds will begin propagating their own regulations on fish and game. MR. BISHOP also answered CHAIRMAN TAYLOR's question about the difference between state or federal management under ANILCA. He said there really is no difference and he would characterize it as "shot or hung." Under federal management, we will have a "zip code rural priority" statewide. This will be the same under the state plan, according to MR. BISHOP. He went on to illustrate how state and federal management will amount to essentially the same thing. He added that federal court enforcement will be the last word in all these cases. MR. BISHOP said a federal takeover will leave us with unresolved legal questions surrounding fish and game management and the end of Alaska's constitutional protection of common use and equal access to fish and game uses. MR. BISHOP said the state would also cede any future arguments on these issues. CHAIRMAN TAYLOR commented that he has been asking these same questions for years and a big part of his frustration is the idea people have that the state will be able to retain some sort of management rights and make certain amendments to ANILCA. CHAIRMAN TAYLOR said his reading of the bill shows we won't be able to do anything. SENATOR WARD said this is a very important issue to him and he is bothered by how some people within the media and government treat it. He reiterated that Senator Murkowski has said he will begin hearings on this issue as soon as we can present him with an "Alaskan solution." SENATOR WARD noted this solution does not have to be a constitutional amendment, and we don't have to buy into that rhetoric. He concluded by saying he truly believes that if we do not come up with an Alaskan solution, "the commercial fishing industry as we know it in Alaska will be gone." CHAIRMAN TAYLOR said if the state does not surrender to the federal mandate and comply with ANILCA, wouldn't we retain management of fish and game on state and private lands, more than 150 million acres. MR. BISHOP replied this is correct and the federal government was authorized to manage for subsistence only on federal lands, however, the rules recently proposed would extend this authority to make regulations off federal lands if necessary to protect the subsistence priority. MR. BISHOP said this authority, if held up under review, would impinge on the authority of the state. CHAIRMAN TAYLOR advised, "if the state surrenders its sovereignty, complies with the federal law, amends its constitution, then we've handed over all of the rest of the statehood lands and all of the private lands in the state - we've handed those over to be regulated under the federal standard and available to the federal courts for oversight." So in fact, if we do not comply with the Babbitt-Knowles plan we at least retain our rights on our state and private lands, according to CHAIRMAN TAYLOR. MR. BISHOP said that is correct, and that is a good additional comparison to make. Number 278 MR. DONALD WESTLUND, testifying from Ketchikan, agreed with SENATOR WARD, saying we should not give away any sovereign rights or we risk becoming a territory again. MR. WESTLUND read a summary from a document entitled "An Examination of Federal Authority to Manage Fish and Game in Alaska". MR. WESTLUND concluded that the Legislature should not pass a constitutional amendment regarding subsistence on the basis of the argument that the state, as a trustee, may not appropriate a trust asset to one class of citizens to the exclusion of others. Number 135 CHAIRMAN TAYLOR asked MR. WESTLUND if he supports the lawsuit filed by the Legislative Council. MR. WESTLUND indicated he does. MR. PETE AMUNDSON testified from Ketchikan and urged the committee not to compromise on the subsistence issue and create another Washington D.C. in Alaska. MR. AMUNDSON informed the committee he did not wish to be classed nor to be included in anything not allowed by the State Constitution. MS. KAY ANDREW agreed with the previous speaker and encouraged the committee to enforce the position taken by Mr. Ralph Seekins through support of the Legislative Council's lawsuit. TAPE 98-38, SIDE A Number 001 MR. ROB BOSWORTH, Deputy Commissioner of the Department of Fish and Game (ADF&G), outlined problems the department sees with HB 406. First, the bill will not avert a federal takeover. Second, HB 406 will not protect subsistence uses in Alaska, as the standard for a non-subsistence economy requires a cash based economy, present in many rural areas. For example, under this bill Bristol Bay and the North Slope would not be considered subsistence areas. Third, MR. BOSWORTH said HB 406 would be enormously costly and nearly impossible for ADF&G to manage. MR. BOSWORTH concluded that the concept of identifying users dependent on subsistence is attractive but unworkable. Number 100 CHAIRMAN TAYLOR asked MR. BOSWORTH how subsistence could be structured without violating Alaska's Constitution. MR. BOSWORTH replied that he is working with his fourth Governor on this issue and there really is nothing new under the sun. He has concluded that the rural distinction works. Number 153 SENATOR WARD remarked that he has a problem with the zip code approach which will take hunting and fishing rights from one half of Alaska natives. MR. BOSWORTH responded that access would be impaired only in times of shortage. SENATOR WARD stated that a rural preference would still be unfair to people like him, around whom Anchorage grew up; he suggested the Governor should instead pursue the lawsuit filed by the Legislative Council. Number 219 MR. BOSWORTH conceded that the rural preference plan is imperfect. The plan is both over inclusive and under inclusive in regard to people who should receive subsistence rights in times of shortage. He maintained that the plan is the best compromise. CHAIRMAN TAYLOR asked if there wasn't a third plan, allowing the feds to take over federal lands and leaving state managers to manage state and private lands. MR. BOSWORTH agreed this was possible with some qualifications. Number 347 CHAIRMAN TAYLOR cited some examples in which federal regulations would supersede state management even if Alaska did change the constitution. MR. BOSWORTH remarked that a state regional council, much like the federal regional council, would be used under the task force proposal. CHAIRMAN TAYLOR argued that any challenges to the state board would be taken to a federal judge. MR. BOSWORTH insisted that management by the state's expert biologists could be supported in court and is preferable to management from outside. Number 411 CHAIRMAN TAYLOR thanked MR. BOSWORTH for his help and invited his further input on amending HB 406. MR. STEVE WHITE, Assistant District Attorney for the Department of Law, testified that the vast majority of subsistence challenges stay in state court. MR. WHITE also observed that the amendments proposed bring ANILCA closer to state law and in fact benefit Alaska. CHAIRMAN TAYLOR expressed his concern for the sustainability of the resource. MR. WHITE said that the state board is a multi-user board and will be able to manage for multiple use. He feared the federal government may not have the concern nor the resources to manage for multiple use. CHAIRMAN TAYLOR interjected that the feds only have the authority to manage for subsistence and MR. WHITE replied that is true but this management will also affect other uses. CHAIRMAN TAYLOR countered that if the last person up the stream attempting to get at the resource is unsatisfied, they can go to federal court and the court will regulate all other users in an attempt to satisfy that one person. MR. WHITE concluded that he has confidence in state management and fears federal management. CHAIRMAN TAYLOR expressed his interest in working further on HB 406. He asked MR. WHITE for his continued help. TAPE 98-38, SIDE B Number 001 CHAIRMAN TAYLOR asked if there was anyone else wishing to testify on HB 406. Hearing none, CHAIRMAN TAYLOR adjourned the meeting at 7:30 p.m.