CSHJR 4(RLS)-KENAI/KASILOF SUBSISTENCE PRIORITY  4:49:43 PM CHAIR HUGGINS announced HJR 4 to be up for consideration. [CSHJR 4(RLS) was before the committee.] CONRAD JACKSON, staff to Representative Kurt Olson, sponsor of HJR 4, said it had been amended to ask the Federal Subsistence Board to rescind its recent customary and traditional use determination that grants subsistence priority for four communities on the Kenai Peninsula - Ninilchik, Hope, Cooper Landing, and Happy Valley. He said an amendment would be offered and the sponsor did not object. MR. JACKSON explained that at this point the Federal Subsistence Board has ruled against the state on its request for reconsideration. CHAIR HUGGINS asked if there was any resistance. MR. CONRAD replied that resistance has come from the Ninilchik Tribal Council. 4:50:44 PM TINA CUNNING, special assistant to the Commissioner of Alaska Department of Fish and Game (ADF&G) on subsistence and federal issues, supported CSHJR 4(RLS). She explained that the State of Alaska was deeply troubled by the recent Federal Subsistence Board decision on the Kenai Peninsula to grant the communities of Ninilchik, Happy Valley, Hope and Cooper Landing a subsistence priority in the Kenai and Kasilof River drainages. She said the state has filed several requests for reconsideration over the last year, most recently in January and it was heard again last week. HJR 4 is consistent with the state's various appeals. MS. CUNNING explained: Under state law these communities are regarded as non- rural in nature and are part of the Anchorage/Mat-Su, Kenai non-subsistence area. The Federal Board regarded these communities as rural even though they are surrounded by non-rural communities and it found that they have a customary and traditional use of the Kenai and Kasilof River drainages. The state argues that the board did not base its decisions on evidence that fulfills the eight criteria required by federal regulations for making such customary and traditional use determinations. For example, the regulations require demonstration of a long-term customary and traditional pattern of consistent use by a community of the fish resource on federal land. Instead, the board ignored and misused the available data indicating that at most a very small percentage - up to 7 percent - of Ninilchik residents had fished in the area of the proposed subsistence fishery in the study year. The data did not demonstrate that required long-term pattern of community use. The board also neglected to take several factors into consideration such as the changing demographics of Ninilchik, the impact that Ninilchik's connection to the available road system has on use levels and the type of use - such as sport fishing, Ninilchik's access to and more common use of local fisheries on their doorstep, historical tribal use areas, which do not include the Upper Kenai River area, and the purposes of Kenai Refuge. Considered collectively, these factors do not appear to support a long-term consistent pattern of community use. The state is concerned that the Cook Inlet fisheries are already fully allocated and the board's decision will eventually result in unnecessary restriction of existing established uses, such as commercial, sport, and personal use fishing. The state is also concerned that the Federal Board does not consistently apply the eight criteria with the substantial evidence required by regulation before making its C&T determination, does not consider impacts of its decisions on other beneficial uses as required by the Ninth Circuit Court decision in 2000, has not adopted an applied criteria in regulations that require substantial evidence before implementing restrictions on closures on state-authorized fisheries. This issue before us is not about putting food on the table; the state provides substantial opportunity for personal and family consumption through personal use fisheries and for cultural and educational purposes through our educational fishery permits, which also provide for consumption. The amounts of fish allowed to be taken under the state fisheries far exceed the numbers actually taken by the residents of Hope, Cooper Landing, and Ninilchik. 4:54:19 PM SENATOR WAGONER asked if - due to the federal board's blatant disregard for its own criteria - this would open up an avenue for the state to bring legal action against it. MS. CUNNING answered that she believed so. 4:54:48 PM MIKE SEWRIGHT, Assistant Attorney General, Department of Law, said he wondered if the question was in the context of suing the federal government for some type of damages or pursuing a court action to the effect that the customary and traditional use determinations are illegal and invalid. SENATOR WAGONER said the reason he asked is that he thought the only community that really should have any subsistence claims is Ninilchik and more likely than not, probably just the Ninilchik Tribe. For instance, Hope was a community that was developed at the turn of the twentieth century as a gold mine town. Cooper Landing was developed far later than that as was Happy Valley. This is what happens when the federal government comes in and decides what is rural based on zip codes. He urged that the state bring legal action against the board. 4:56:43 PM ROD ARNO, Executive Director, Alaska Outdoor Council, supported HJR 4 saying he has been attending the federal board meetings for years and he was at the last one when it denied the state's request for reconsideration. He also agreed that the board had been inconsistent in following its own regulations and the C&T regulations were just one example of that. However, Mr. Arno said he thought HJR 4 would be strengthened by adding a clause that speaks to the intended use of the Kenai National Wildlife Refuge. This refuge was created by Congress and was renamed from the Kenai National Moose Range when ANILCA was passed. In ANILCA Congress established nine new refuges across the state and every one of them except the Kenai included in its purpose the priority for continued subsistence uses by local residents as a use. The one refuge that Congress didn't include was the Kenai Refuge and Congress did not treat the Kenai Refuge different by accident. MR. ARNO said the questions on the purpose of the refuges were exhausted in (d)(2) debates in the late 1970s. A preponderance of the testimony then was the fact that these people recreated on the Kenai. With that in mind, while language for subsistence in the Kenai Refuge was purposely left out of section 303 (b)(5) of ANILCA, language listed as a use "the opportunities for fish and wildlife recreation." He explained: That language was included, Mr. Chairman, because Congress recognized that while subsistence uses of local residents in the Kenai National Wildlife Refuge was no longer characteristic of the area or its people, recreational and personal use - taking of wild fish and game by all the residents, 470,000, was highly characteristic of the area. The Outdoor Council believes that providing that opportunity for 1,800 residents that qualify for that would be detrimental to Alaska.... 5:00:53 PM CHAIR HUGGINS moved Amendment 1. 25-LS0201\O.1 AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR HUGGINS TO: CSHJR 4(RLS) Page 1, line 15, following "priority;": Insert "and WHEREAS the United States Congress determined that, unlike purposes of other federal refuges established or expanded by the Alaska National Interest Lands Conservation Act, the rural subsistence priority was not an appropriate purpose of the Kenai National Wildlife Refuge, and, therefore, purposefully omitted "continued subsistence uses by local rural residents" from the list of purposes of the Kenai National Wildlife Refuge; and WHEREAS, unlike its determination of purposes for other federal refuges, the United States Congress chose to make fish- and wildlife-oriented recreational opportunities a purpose of the Kenai National Wildlife Refuge;" CHAIR HUGGINS pointed out that Amendment 1 consists of two elements. The first part is that Congress expressly omitted continued subsistence uses by local rural residents on the Kenai Refuge and secondly, it chose to make fish and wildlife-oriented recreation opportunities a purpose of the Kenai National Wildlife Refuge. There were no objections and Amendment 1 was adopted. 5:01:45 PM SENATOR STEVENS moved to pass from committee CS for HJR 4, as amended, with individual recommendations and attached fiscal note. There were no objections and SCS CSHJR 4(RES) moved from committee.