HJR 202 - CONST.AM: SUBSISTENCE CHAIRMAN KOTT announced that the only order of business before the committee is House Joint Resolution No. 202, Proposing amendments to the Constitution of the State of Alaska relating to use of renewable resources for subsistence by residents. Number 0120 REPRESENTATIVE ROKEBERG made a motion to adopt the proposed committee substitute (CS) for HJR 202, version 1-LS1137\G, Utermohle, 9/26/99, as a work draft. REPRESENTATIVE CROFT objected, specifically to subsection (c), page 2, lines 16 to 21, and to the fact that the committee and the public have not had time to review Version G for compliance issues. He wished to reserve consideration for these issues and simply discuss the original version of HJR 202. CHAIRMAN KOTT explained that to meet the deadline of Thursday at midnight, he had prepared Version G as quickly as possible to disseminate to all members. He added that the initial portion of Section 1 is basically the resolution that was referred to this committee, and it was the previous CS that this committee heard in the House Resources Committee. This is not a totally new idea, he said, although Section 2 is new. REPRESENTATIVE ROKEBERG noted that Section 1 is, verbatim, what was before them for four days, and the other sections have all been seen before in the past 18 months on numerous occasions. Number 0458 REPRESENTATIVE KERTTULA asked Chairman Kott from whom he got Section 2. CHAIRMAN KOTT answered that he had worked with a number of people. As Representative Croft maintained his objection, he requested a roll call vote. Representatives James, Murkowski, Green, Rokeberg and Kott voted to adopt the proposed CS as a work draft. Representatives Croft and Kerttula voted against it. Therefore, by a vote of 5-2, Version G was before the committee. The committee took an at-ease from 7:50 - 8:07 p.m. Number 0620 GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, came forward to testify. He explained that Section 1 of the resolution provides for an amendment to Article VIII, Section 4, the sustained yield section of the state constitution, adding a new subsection (b). This subsection provides that the legislature may grant a preference to and among residents for a reasonable opportunity to take an indigenous subsistence resource, and it sets out four bases on which the legislature may do that. It goes on to say, "The preference may be granted only when the harvestable surplus of the resource, consistent with the sustained yield principle and sound resource management practices, is not sufficient to allow a reasonable opportunity for all beneficial uses." MR. UTERMOHLE informed members that Section 2 of the resolution, which adds Sections 30 and 31 to Article XV of the constitution, provides an effective date and a repeal date under which the amendment added by Section 1 of the resolution would be repealed. The first provision of Section 30, which is added to the transitional provisions of the constitution, provides that the amendment would take effect immediately upon certification of election results by the Lieutenant Governor. Subsections (b) and (c) of this provision provide two instances where the constitutional amendment to Section 4 [of Article VIII] would be repealed: first, when a federal court decides that the rural subsistence priority under ANILCA violates the U.S. Constitution, and second, when the governor determines that state management of fish and wildlife on state land, including navigable waters, has been preempted by the federal government under terms of ANILCA. Also, Section 31 is added to the transitional provisions of the constitution; it would provide that the legislature may bring an action in the name of, and on behalf of, the state in an appropriate federal court to challenge the constitutionality of the rural subsistence preference under federal law. Number 0849 MR. UTERMOHLE noted that Section 3 of HJR 202 sets out the purpose of the amendment: to provide a preference for subsistence uses of fish, wildlife and other renewable resources; to ensure state management of fish and wildlife throughout the state; and to bring the state into compliance with Title VIII of ANILCA. Finally, Section 4 provides that this constitutional amendment shall be placed before the voters at the next general election. REPRESENTATIVE CROFT referred to page 1, subsection (b), which would be added to Section 4 of Article VIII of the constitution. He asked whether it allows the legislature to write a statute that would be in compliance with ANILCA. MR. UTERMOHLE answered that he doesn't believe it would allow the state to come into compliance, despite the provision in Section 3 of Version G that states the intent to do so. The terms are vague and subject to some interpretation and construction by the courts. He doesn't believe that this "purpose" section can be used to make those words say much more than what they actually do. In response to Representative Croft's restatement of his earlier question, Mr. Utermohle explained that there is significant tension between the two parts of the amendment. Section 3 is not part of the constitution but is a guidance for construction; he doesn't believe it is sufficient to override the plain meaning of the words in the constitutional amendment. CHAIRMAN KOTT indicated he would allow other legislators who are present at the hearing to ask questions. REPRESENTATIVE ROKEBERG referred to Bess v. Ulmer and asked Mr. Utermohle if the addition of Section 2 would be classified as a revision, notwithstanding the fact that it is on the same topic. Number 1056 MR. UTERMOHLE responded that in prior statements regarding a number of subsistence amendments that provide an allocation of preference to engage in subsistence activities among Alaskans, he had advised various committees that they raised the issue of the Bess v. Ulmer decision: the amendment might pose a risk of being determined to be a revision rather than an amendment to the constitution, because the amendments implicate so many other provisions of the constitution. A provision providing for a rural subsistence preference addresses the following clauses: common use, uniform application and no exclusive right of fishery. Furthermore, litigation and decisions by the court have said such provisions implicate the equal protection and due process provisions. To Representative Rokeberg's specific point, the addition of language here authorizing the legislature to sue on behalf of the state implicates even additional provisions of the constitution by implicating the power of the governor to enforce the laws of the state, and it also has the effect of shifting powers among the branches of government. Each instance makes the case stronger - that this might be a revision - than it would be in the absence of that language. REPRESENTATIVE ROKEBERG followed up that Section 1 has the inherent problems that the committee has discussed numerous times, but the addition of Section 2 just adds "fuel to the fire." He referred to proposed Section 31 of Article XV and asked whether the state, even by its own constitution, can give itself standing in federal court. Number 1165 MR. UTERMOHLE answered no, there is no way that the state can alter federal law by altering its own constitution. REPRESENTATIVE ROKEBERG asked what the objective of Section 31 is. MR. UTERMOHLE answered that in many instances it has been argued that the legislature does not have the authority to represent the interests of the state. In the recent case brought by the Legislative Council against Secretary of Interior Babbitt, the District of Columbia Circuit Court of Appeals dismissed the case; one reason was that the court determined, under the Constitution of the State of Alaska, that the legislature did not have the authority to represent the state. The legislature had authority to bring suit on behalf of its own interests but not on behalf of the state as a whole. This particular language would at least address that particular issue, Mr. Utermohle concluded. Number 1224 REPRESENTATIVE DYSON referred to page 2, Section 3 of Version G. He asked whether that wording carries the implication that the legislature, in putting this forward, agrees with ANILCA as it now stands, thereby precluding efforts to challenge ANILCA in court or to negotiate some technical definitions in ANILCA. MR. UTERMOHLE answered that what the language does is say that the legislature, by passing this legislation, is attempting to come into compliance with ANILCA. However, as to whether or not that would moot a challenge by the legislature on behalf of the state to challenge the constitutionality of ANILCA, he doesn't believe so. Specifically by the terms of Section 2, it is clear that the amendment [to Section 4 of Article VIII of the constitution] which the legislature is adopting is to be repealed in the event that certain provisions of ANILCA are challenged. It is also clear at this time that the legislature is anticipating that challenges would be made to provisions in ANILCA. Mr. Utermohle said he doesn't see how that constitutional significance given to challenges to ANILCA would have the effect of mooting the supreme court challenge to ANILCA by the legislature. REPRESENTATIVE DYSON asked: If a future Congress sees the need for definitions of some terminology in ANILCA, could it be argued that Alaska had passed a constitutional amendment based on ANILCA as it was in place at that time, if there had been a subsequent change? And if the change were through congressional action or negotiated change, rather than the court, would the legislature be "prejudicing" itself there? MR. UTERMOHLE replied that he doesn't see how the state would be held to be prejudicing itself, nor does he see how it would be consenting to future changes that the state wasn't aware of at the present time. Number 1370 REPRESENTATIVE PHILLIPS referred to page 1, line 12, Version G. She asked whether changing "proximity to the resource" to "place of residence" would allow the legislature to write a statute that could bring the state into compliance with ANILCA. MR. UTERMOHLE said it would be a substantial step in the right direction. REPRESENTATIVE CROFT drew attention to page 2, line 16, proposed Section 30(c) of Article XV, where it has the governor determining whether state management has been preempted by the federal government under ANILCA. He expressed concern that if the state were out of compliance for a brief period, this would operate to drop the constitutional amendment providing authority to do it. He also asked whether Mr. Utermohle knows of other provisions in state or federal constitutions where the governor or the president can make a determination that changes the constitution. MR. UTERMOHLE first answered that he is not aware of a similar provision in the constitution in any state. He then said he believes there is protection if the state temporarily comes out of compliance with ANILCA, because this relates to state management of fish and wildlife on state land, including navigable waters to which the state holds title, whereas under ANILCA it applies to only federal public lands. To the extent that federal public lands reach into the navigable waters by virtue of a federal property right - the Federal Right in Reserved Waters - it is questionable whether that is indeed a preemption on state property or state land, and therefore it is questionable whether that would constitute a basis for determining preemption. REPRESENTATIVE CROFT asked: If a future governor just decided that state management was preempted by the federal government, would a court be able to say the governor was wrong? And would that determination just rule? MR. UTERMOHLE answered that it is hard to speak to hypothetical situations, but he does not see this provision encroaching upon the power of the judiciary to make the determinations and to interpret the constitution. There would still be some role left for the court to play in this determination. REPRESENTATIVE CROFT suggested a governor could make that determination and the court could say it is wrong. MR. UTERMOHLE replied that he could see that as a possible scenario. Number 1588 CHAIRMAN KOTT asked: If the committee eliminates the "governor determines" language, would that leave it subject to someone's litigating for declaratory judgment, which would then effectively leave the courts to do it? MR. UTERMOHLE answered that by removing reference to the governor, the committee leaves it open-ended as to who makes that determination if the state has been preempted. It would become unenforceable because it would not be clear who has the power to make this determination. Number 1624 REPRESENTATIVE MURKOWSKI asked: Can the committee leave "proximity to the resource" in and include "place of residence"? Or are those phrases redundant or not compatible? MR. UTERMOHLE replied that he sees them as somewhat redundant and overlapping. However, adding "place of residence" to this list of criteria along with "proximity to the resource" would do no harm to the amendment, and perhaps it would clarify that certain options are available to the legislature, without having to construe "place of residence" broadly. Number 1712 REPRESENTATIVE KERTTULA suggested the committee doesn't need to get rid of "proximity" because that is done under Tier II, and that is established. She asked whether the committee needs to do "step one" or is still in the "McDowell problem." MR. UTERMOHLE answered yes. Number 1731 REPRESENTATIVE GREEN asked for a thumbnail sketch on Section 2 of Version G, as to why it might cause a problem with Bess v. Ulmer. MR. UTERMOHLE answered that under criteria set out in Bess v. Ulmer, a revision is to be found based on quantitative and qualitative factors. The more provisions of the constitution that are affected by a particular amendment, the greater the chance that the amendment will be found to be a revision. And the more substantive the effect of the change is to the constitution to the powers of the various branches of government, the more shifting between powers of the branches of government, the greater the chance it would be a substantive change, and thus more likely that it would be found to be a revision. REPRESENTATIVE GREEN asked whether, even though the committee is really talking about an effective date or an amendment repeal, that could stretch to the criteria of Bess v. Ulmer. MR. UTERMOHLE said there is a significant issue contained in proposed Section 30 [of Article XV], in that the power to amend or repeal the provisions of the constitution has been shifted to the governor and away from the people. REPRESENTATIVE ROKEBERG asked if the committee could add a severability clause in this amendment that would give direction to the supreme court. MR. UTERMOHLE answered that if the committee were to include a severability clause in the amendment, it might be helpful, although the court has not had a problem to date redacting provisions of the constitution or proposed amendments which it deems somehow inappropriate to be put before the people. REPRESENTATIVE ROKEBERG asked if Mr. Utermohle was suggesting that the supreme court is going to be rewriting the constitution. MR. UTERMOHLE specified that he was referring to the fact that the court has, particularly in the Bess v. Ulmer case, removed a provision of a proposed constitutional amendment, such that that particular provision was not submitted to the people for their vote in regard to the marriage provision. In response to a comment by Representative Rokeberg, he noted that the power to propose constitutional amendments is given to the legislature and not to the courts. REPRESENTATIVE ROKEBERG asked if the committee could or should put in a provision that would delete the amendment if the state were decertified, thereby not running afoul of Bess v. Ulmer. MR. UTERMOHLE indicated the legislature could provide for a constitutional amendment that would not take effect if the Secretary of Interior did not provide compliance certification before October 1, 1999, and which would not raise greater Bess v. Ulmer problems in the amendment. In response to remarks by Representative Rokeberg, he emphasized that this amendment would not take effect if the Secretary of Interior did not certify the state. There is a certain difficulty in accepting that, he said, because that provision would only go into effect if it were put to the people, passed and adopted by the people, in which case the people would be voting "yes" to nullify the constitutional amendment. The same effect could be achieved by voting "no" on the constitutional amendment. Number 2015 REPRESENTATIVE DAVIES pointed out that a step in the process was left out: if the constitutional amendment is passed, the state legislature still has to enact a statute that would instruct the Boards of Game and Fisheries to do something. The boards wouldn't automatically act just because the amendment passed, especially if it were permissive. Number 2034 REPRESENTATIVE MURKOWSKI asked why the committee was using the term "indigenous" and whether it would raise possible complications down the road. MR. UTERMOHLE answered that the intent he had heard in the House Resources Committee [HJR 201] was to provide that only native resources and resources indigenous to the state - as opposed to resources that were introduced, such as elk and possibly bison - would be subject to a subsistence preference. He agreed that there are certainly problems down the road. For example, he wondered how musk oxen would be treated because they were exterminated in 1850 but reintroduced in 1930. A greater issue is whether that would allow the state to come into compliance with ANILCA and whether ANILCA distinguishes between indigenous and nonindigenous resources for subsistence uses. When asked about the latter, he indicated he didn't know the answer. MR. UTERMOHLE, responding to a comment from Representative Hudson regarding the governor's ability to verify that the state has come into compliance, said his best guess at this point is that this language would not allow them to come into compliance with ANILCA. He explained that there are two requirements in ANILCA that the state needs to satisfy under existing law to comply with ANILCA. One is to provide for a preference based on place of residence in the state, which is currently a rural residence preference. The second is to allocate access to the resource, in Tier II situations, to state residents, based on their proximity to the resource or local residence. Both have been determined to be prohibited to the state and the equal access provisions of the constitution, and those two provisions are the ones which the legislature has to provide for in the constitutional amendment. REPRESENTATIVE HUDSON asked if that is how the line of questioning came about, as far as having both "place of residence" and "proximity to the resource" in there. MR. UTERMOHLE answered that currently, as it is written, "proximity to the resource" does not reach what the legislature needs to do in order to provide the "rural resident" preference or a preference based on residence. Number 2202 REPRESENTATIVE MURKOWSKI asked if Section 31 would hurt the certification process because it is not one of the criteria that must be included in the state constitution. MR. UTERMOHLE responded that the certification process on a constitutional amendment such as this is not specifically going to point to what the legislature needs to do to satisfy ANILCA. It would leave a considerable amount of discretion on the part of the Secretary of Interior to determine whether or not the state comes into substantial compliance with ANILCA and thus could be certified. There is no provision in ANILCA that requires the state to surrender its ability to go into court to challenge provisions of ANILCA. He couldn't say whether or not the Secretary of Interior would determine that this would be such a matter as to keep the state from compliance with ANILCA. CHAIRMAN KOTT asked whether the state is trying to second-guess what the Secretary of Interior might do or think, based on what is included in this amendment. MR. UTERMOHLE affirmed that. CHAIRMAN KOTT referred to Bess v. Ulmer. He asked whether the court could look at this particular amendment and find perhaps that it is a one-time, one-issue piece of legislation that is tied to a greater piece and, therefore, could suggest that it is no big deal in the greater scheme as the state tries to get to the heart of subsistence. He also wondered if the court would overlook it if it is a qualitative issue. TAPE 99-72, SIDE B Number 0001 MR. UTERMOHLE replied that the court could well find that it does not rise to the level of constituting a revision and thus would find that this amendment would be within the power of the legislature to propose. CHAIRMAN KOTT asked Attorney General Botelho for his comments on the proposed CS [Version G of HJR 202]. Number 0101 BRUCE BOTELHO, Attorney General, Department of Law, came forward, telling members that this draft causes him to suggest that there are two objectives. First, the committee is seeking to pass an amendment to enable the legislature to provide for the definitions, preference and priority found in sections 803, 804 and 805 of ANILCA, so that the state can regain management. This draft causes him to point out something that disturbs him: the legislators are in the shoes of the framers of the constitution because what they do will be part of the basic law of the state. A constitutional amendment is not just some other piece of legislation. He suggests that the language chosen have meaning, and in that context, he is concerned about the freewheeling use of words, which makes it very difficult to identify what is meant here. He pointed out that he wasn't commenting about the merits of any version in terms of content. Rather, he was looking at whether the content is clearly, succinctly put, so that Alaskans can understand it, quite apart from courts and lawmakers. That leads him to focus on several things, he said. ATTORNEY GENERAL BOTELHO referred to page 1, lines 11, 15 and 16, "reasonable opportunity." He pointed out that the Secretary of Interior has already communicated to the legislature that the use of "reasonable opportunity" is inconsistent and in conflict with ANILCA. Furthermore, a committee member has raised concerns about the use of "indigenous subsistence resource," and he noted that ANILCA uses a different term, "wild renewable resources." He cautioned that if the goal is both clarity and compliance, it probably makes sense not to inject words that appear to be contradictory to ANILCA. ATTORNEY GENERAL BOTELHO noted that he had testified earlier in the week that "proximity to the resource" satisfies Tier II, the local preference in ANILCA, so its wording is not inconsistent; however, it isn't sufficient to bring the state into compliance. There needs to be a concept which encompasses rural, and it might be "place of residence." "Rural" and "proximity" will satisfy the requirements of ANILCA; "place of residence" may satisfy both the rural preference and Tier II; and "place of residence" and "proximity" will satisfy Tier I and Tier II. Referring to his own use of the word "may," he noted that the state is looking to the Secretary of Interior, who may have some suggestions to help resolve this, as one looks at Section 3, Purpose. ATTORNEY GENERAL BOTELHO identified a major concern on page 1, lines 13-16. It baffles him, he said. Although he suspects it is trying to get at "only in times of shortage," he isn't sure that is what the sentence expresses. Suggesting that perhaps Commissioner Rue could speak to that, he said at this point the state doesn't try to determine reasonable opportunity for commercial, sport or personal use. It gets back to his original thesis: the words must make sense, and he isn't sure he has heard an explanation. ATTORNEY GENERAL BOTELHO told members that although "sound resource management practices" is perhaps a good statement in theory, he isn't sure what it means either. It may be defined in statute, but Article VIII of the constitution is a basic statement about what resource management practices will be exercised in Alaska. In fact, that is a large part of what Section 4 of that article currently is set out to achieve: to look at sustained yield and look at the state's developing its resources to the maximum extent consistent with the public interest. ATTORNEY GENERAL BOTELHO told members that, like Mr. Utermohle, he would express several concerns about Section 2 of Version G. Although he thinks there is a Bess v. Ulmer issue, neither he nor probably any other lawyer can say precisely whether this has exceeded the threshold in terms of being a revision as opposed to an amendment. There are some fundamental shifts here, he noted. Section 30(c) is a fundamental shift of power, in essence, from the legislature, although one might identify it with a very narrow "trigger." The power to repeal this, in a discretionary way, is in the power of amendment, he pointed out. However, this draft basically empowers the governor to amend by repeal. He asked: Why is it different from subsections (a) and (b), particularly subsection (b), the repealer. He answered that there is an objectively measurable basis over which no reasonable person could dispute the finality; subsection (c) is purely discretionary. ATTORNEY GENERAL BOTELHO noted that there is also a shift of power in Section 31 of Article XV, from the governor to the legislature, again on a very narrow circumstance, which may mitigate against the Bess v. Ulmer analysis. However, it shifts from the executive to the legislative branch the power to file in the name of the state. Each of these standing alone may not reach the threshold, but perhaps in concert with Section 1, in particular, he believes this is a highly litigable issue. ATTORNEY GENERAL BOTELHO told members that quite apart from the Bess v. Ulmer concern is that raised by Representative Croft in terms of the discretion that might be exercised to trigger this. There are many circumstances where the federal government might conclude that the state is out of compliance, such that it might exercise its preemptive role. That could occur if the state did not provide the participation that is provided in ANILCA. It has happened, in fact, when the state's definition of "rural" was different from the [federal government's]. The usual form of correction is simply to correct the statute, he pointed out, not to repeal the constitution. He would be concerned because it is not clear to him whether this is primarily looking at an extraterritoriality issue, which seems to be implied at line 18, page 2, but which is certainly not expressed. He noted that the federal government has made clear in Katie John that it will regulate on navigable waters. ATTORNEY GENERAL BOTELHO clarified his point: he believes there are circumstances where the state could lose management, which could easily be corrected by statutory "fixes" without the extreme remedy of having a governor - who may not agree with ANILCA or this constitutional amendment - simply being able to repeal it. ATTORNEY GENERAL BOTELHO next referred to Section 3, Purpose. In terms of strengthening the likelihood that a constitutional amendment would pass muster, particularly looking at Section 1, he suggested that there should be some reference indicating that the legislature is also attempting to solve the McDowell decision and the Kenaitze decision. That reference should illustrate that the legislature is attempting to reach both the Tier I and Tier II issues. He believed that to be less of a concern if "proximity" remains because then that message would be understood. However, if "place of residence" stood alone, that would need to be clarified. The state may come into compliance with ANILCA, though that may be questioned if the state isn't dealing with Tier II because that is a provision of ANILCA. The state does need to satisfy both supreme court decisions, not simply the McDowell decision. Number 0992 REPRESENTATIVE GREEN referred to the language, "reasonable opportunity," on page 1, subsection (b), and asked Attorney General Botelho if the problem is the issue or the way it is worded. ATTORNEY GENERAL BOTELHO answered, probably both. He referred to the Solicitor's opinion dated September 23, 1999. Although the Solicitor's opinion refers to an earlier amendment, it is directed at "reasonable opportunity." He read the following portion of the Solicitor's opinion: The amendment also adopts the "reasonable opportunity" approach to providing the subsistence priority which was previously contained in amendments to ANILCA enacted by Congress in 1997, but which expired in 1998 without ever taking effect because the state legislature did not approve a constitutional amendment as the Act containing the amendments required. By focusing on criteria like these, which are not in the federal law, the proposal risks creating new conflicts with ANILCA. ATTORNEY GENERAL BOTELHO noted that his first concern is that this has been highlighted by the Solicitor as problematic. Second, the committee is now adding a requirement in which the Board of Fisheries and the Board of Game are required to make determinations between commercial, sport, and personal use. He pointed out that "reasonable opportunity" has been directed exclusively at subsistence and has never been applied in the context of commercial, sport or personal use. He was also not clear as to whether the intent "is to say if 'reasonable opportunity' isn't available in one or more of these other categories, then the preference kicks in at which point only 'reasonable opportunity' is triggered." The concept to be achieved is not clear; and furthermore, "reasonable opportunity" becomes a problem for the Secretary of Interior. Attorney General Botelho suspected "reasonable opportunity" may mean something different in line 11 than it might in lines 15-16. REPRESENTATIVE GREEN recalled that Attorney General Botelho said that "sound resource management" on line 15 is covered in other parts and thus would not be necessary here. Early there was testimony that perhaps, that language did not hurt and may be helpful. Representative Green asked if there is any problem leaving the language "sound resource management" in line 15, even though it is covered in another part of the constitution. ATTORNEY GENERAL BOTELHO responded that he couldn't say that it brings harm, except to his sense of propriety about the constitution itself and wanting to ensure that these words have meaning. These are words in the constitution that are ultimately carried out by statute. However, if the words are not necessary, he regarded them as superfluous. Good drafting would suggest that the committee look to economy in the use of words. He further indicated the need to be careful about what is intended and what the meanings are. He pointed out that Alaska's constitution now is 43 years old and other generations are going to try to imbue it with meaning, but first of all, they are going to be trying to figure out what it is that this legislature meant. Therefore, the legislature needs to have a firm understanding, otherwise the language shouldn't be there. He believed that there needs to be some overriding approach to drafting a constitutional amendment because it is a valued document and is the basis of the government here. He indicated that the committee knows what it wishes to convey by the words used; what is the meaning that the legislature intends when the constitutional amendment is placed before the people. Number 1291 REPRESENTATIVE JAMES expressed her frustration in trying to do something that is fair and equitable statewide to accomplish the goals of the intent of ANILCA. She agreed with Attorney General Botelho's testimony regarding Section 31. Aside from that, Representative James asked where the Katie John lawsuit stands at this time. ATTORNEY GENERAL BOTELHO informed the committee that Katie John was appealed by the State of Alaska to the Ninth Circuit, the Ninth Circuit ruled in favor of Ms. John. "At that point, the federal government -- to the effect that there were certain reserved water rights, interests that allowed federal management into the waters of the state, though not specifically where, the State of Alaska sought certiorari with the U.S. Supreme Court and that petition was denied." Therefore, the state has a final decision with the Katie John case in terms of the principle of the law. However, the state doesn't have any definition about which waterways or portions of waterways are covered. The court also said that it viewed the idea that this would have to be litigated on a case by case basis, waterway by waterway, with some trepidation. He interpreted the plea of the court to be that this issue begs for a legislative solution, not a judicial solution. REPRESENTATIVE JAMES recognized that the language "reasonable opportunity" is not written in ANILCA. If reasonable opportunity is not enough, then there isn't a way to guarantee the take. Representative James indicated that "reasonable opportunity" seems to be all that can be given. She inquired as to what would be a higher standard than "reasonable opportunity." ATTORNEY GENERAL BOTELHO answered that the subsistence determinations today are made on "reasonable opportunity." It is not embodied in the constitution. He pointed out that one of the problems with "reasonable opportunity" is its application with regard to uses other than subsistence, because that is not the basis upon which allocations are made. It introduces a concept that is inconsistent with sound management practices. He also expressed concern, as highlighted by the Solicitor, that by embodying the "reasonable opportunity" language into the constitution, it creates the appearance of a conflict with ANILCA. He said, "Given the fact that 'reasonable opportunity' -- where we tried to reconcile the state approach and the federal approach achieved through amendments to ANILCA, that have since been removed, means that we have an inconsistency." Placing the language in the constitution at this stage may, coupled with other things in the constitution, not pass muster with the Secretary of Interior. The issue could well be resolved at the statutory level, which Attorney General Botelho indicated would be the appropriate place to do so. To the extent there is a determination that the statutory level is defective, it can then be corrected by the legislature without the threat of losing management, which would be the case if the "reasonable opportunity" language was embodied in the constitution. REPRESENTATIVE JAMES commented that she was trying to develop a constitutional amendment which is open enough to allow for the implementation of the intent of ANILCA, but isn't so specific that the state is left with something that it can't live with. She identified the constitutional amendment as the first obstacle which, if passed, would provide the state with 14 months to draft statute. Perhaps, then some changes to ANILCA could occur. She posed a scenario in which a constitutional amendment is placed before the voters and then the federal government says it doesn't work. In such a case, Alaska would have already put into place a constitutional amendment to provide this on all lands in Alaska, not just federal lands. Representative James asked if Attorney General Botelho could suggest how the legislature can meet the needs of the federal government in a reasonable way without using the exact words of ANILCA. ATTORNEY GENERAL BOTELHO agreed that there are several hurdles; the first being, the constitutional amendment. If the constitutional amendment is enacted by the people and the legislature, the state has forestalled further federal management or expansion into the waters of Alaska. However, such would not remove the federal oversight that already exists with regard to game in Alaska. He explained that the objective is not only to have enabling constitutional language, but to also have statutes which would actually provide for the definition, preference and participation of Title VIII. Therefore, the state government is going to be faced with promulgating statutes that will be subject to the test of the Secretary of Interior. He suspected that the Department of the Interior will provide feedback, as it has done thus far with proposed constitutional amendments, regarding whether statutes being contemplated pass muster or not. ATTORNEY GENERAL BOTELHO pointed out that most versions to date have incorporated a discretionary preference with the legislature. In that respect, the proposed constitutional amendments would do no harm to Alaska even if rejected. He urged the committee to look at simplicity and focus on the minimum required to bring Alaska into compliance with ANILCA. REPRESENTATIVE JAMES commented that she believed the current subsistence law seems to be working, except that it doesn't qualify with the word "rural." Why would the legislature go through this process if the state isn't going to get management back? ATTORNEY GENERAL BOTELHO replied that there has been a lot of testimony from Alaskans who are concerned about federal management extending into the waters of Alaska and having potential impacts on commercial and sport fishing around the state. That is a major reason why the legislature is going through this. He indicated that this process is a statement about who Alaska is as a state and how Alaska values the role of subsistence in Alaska overall as well as the role of subsistence in rural Alaska among Alaska Natives. He understood that there is a lot of mistrust and miscommunication since the legislature doesn't know what the Secretary of Interior is going to do. Attorney General Botelho said he is confident that if the legislature does the reasonable and rational thing that the Secretary of Interior will reciprocate. Number 1934 REPRESENTATIVE MURKOWSKI asked for clarification on the language "place of residence" and "proximity to the resource" in subsection (b). ATTORNEY GENERAL BOTELHO answered that if the committee substitutes "place of residence" for "proximity," it is important that the court understands that the term is being used to satisfy both Tier I and Tier II. He indicated that such could be achieved by including reflections in the purpose section which relate that the language is intended to deal specifically with the McDowell and the Kenaitze decisions. Including such reflective language might strengthen the court's and the Secretary of Interior's willingness to accept language such as that found in the first sentence. REPRESENTATIVE PHILLIPS acknowledged Attorney General Botelho's concern with regard to having too many words that too many lawyers can fight over. However, she expressed the need to have enough words to protect Alaska. There are certain things between the federal government and Alaska that have not been the same because at the time the law was passed these things may not have been an issue. She referred to language on lines 15-16 and mentioned the debate between the legal interpretation of "times of shortage." She recalled Attorney General Botelho's comments that there are attorneys who could misconstrue "times of shortage." Therefore, the committee tried to include clarifying language. She said that she preferred "times of shortage." ATTORNEY GENERAL BOTELHO asked if that ["not sufficient to allow"] was intended to be a substitute for "times of shortage." REPRESENTATIVE PHILLIPS answered, in her opinion, that is the intention. Others indicated agreed. ATTORNEY GENERAL BOTELHO specified that he wasn't endorsing "in times of shortage," but it is easier to understand than the current language. He commented that he did endorse language that people can read. REPRESENTATIVE PHILLIPS pointed out that the committee, in her understanding, included both "sustained yield" and "sound management practices" because the federal government does not and will not manage for sustained yield. Although that is not one of the federal government's concerns, sustained yield of the species is a major concern for Alaska and a critical aspect of maintaining the species. In order to have sustained yield, there have to be sound management practices which include seasons and bag limits. The federal government doesn't care about those areas. Therefore, she believed that those words are necessary in order to clarify that Alaska is referring to seasons and bag limits that will protect sustained yield. REPRESENTATIVE PHILLIPS turned to the "reasonable opportunity" language. She informed the committee that several years ago the state was negotiating the language of a proposal and approached the Secretary of Interior about "reasonable opportunity." The state asked if that could be changed in ANILCA. At that time, the Secretary of Interior agreed to pursue an ANILCA amendment regarding "reasonable opportunity." ATTORNEY GENERAL BOTELHO agreed that the Secretary of the Interior was willing to deal with "reasonable opportunity" then, but he pointed out that issue was dealt with concurrently at a statutory level. The matter was never contemplated to be incorporated into the state constitution. "Although most versions of constitutional amendments that have not placed the subsistence preference in Section 4 have made reference to the sustained yield principle, ... it seems somewhat redundant here since that's exactly where you put it in the constitution." While the federal government does not make use of the terms "sustained yield," it certainly does repeatedly express views that, he believed are synonymous with those terms. He agreed with Representative Phillips that sustained yield is the highest use for the state's renewable natural resources. However, he didn't want to "gainsay" its placement here other than to suggest that since it is already in the sustained yield section that it does not need to be reflected here. Number 2203 REPRESENTATIVE HALCRO asked Attorney General Botelho if he agreed that the best course of action would be to accept a permissive amendment that would allow the legislature, through the committee process and dialogue with Alaskans, to construct statutes to carry this out. ATTORNEY GENERAL BOTELHO agreed emphatically. He indicated that the Governor's constitutional amendment was one that was most to the point, the most simple, and the most concise. The Governor's amendment would allow the dialogue referred to by Representative Halcro as well as allowing the state to move forward in a discretionary manner. REPRESENTATIVE HALCRO referred to page 2, Section 2, subsection (c) and asked what is to determine when and if the governor determines the state has been preempted by the federal government. ATTORNEY GENERAL BOTELHO answered it appears that the discretion is unfettered. However, the Governor is expected to act reasonably and responsibly. Attorney General Botelho said, "It's just not clear to him that this language provides for the kind of judicial review -- that this would be identified as a political question that is assigned to the executive branch, and therefore not reviewable by the courts." He pointed out that not all decisions of the legislature or the executive branches are subject to court oversight. He suspected that in this clause it would be read, because it is in the constitution, as a decision not reviewable by the courts. TAPE 99-73, SIDE A Number 0001 REPRESENTATIVE ROKEBERG asked whether he had heard correctly that even if the legislature passed the amendment and the statutory language were certified by Secretary of Interior Babbitt, the state would not regain management of game. ATTORNEY GENERAL BOTELHO replied that if one examines the language of the so-called Stevens amendment, it would, right now, prohibit implementation or enforcement of any final rule, regulation or policy pursuant to Title VIII of ANILCA, to manage and to assert jurisdiction, authority or control over land, water and wildlife in Alaska for subsistence uses, except for the listed exceptions. The rules referred to here deal with expanded management on navigable waters and extra-territorial lands within the state. His understanding of the Secretary's view is that [the federal government] would continue to enforce that which they enforce today. This Act would preclude them from expanding that jurisdiction if, by midnight Thursday, the Secretary certifies that the legislature has previously acted, and that the state next will enact laws consistent with such an amendment; those are the steps necessary to have the Secretary effectively give up his current authority regarding federal lands - public lands - of the state. Number 0183 REPRESENTATIVE ROKEBERG asked: If we followed through with the statutory changes, would we look forward to getting the return of game management? ATTORNEY GENERAL BOTELHO said that is correct. REPRESENTATIVE ROKEBERG directed attention to the phrase "all beneficial uses" on page 1, line 16, of Version G. He asked if it wouldn't be more appropriate to say "the customary and traditional level of subsistence use," for example, as he believes the "trip wire" in the state's current subsistence law is whether the customary and traditional level can be satisfied. ATTORNEY GENERAL BOTELHO said that is true, although it isn't a trip wire for commercial, sport or personal use, if he understands the question correctly. [Representative Rokeberg handed him some written language; no copy was provided to other members at the time. Although the Attorney General offered to look at it during a break later, it was not specifically addressed by him again.] Number 0412 REPRESENTATIVE WILLIAMS referred to Representative Halcro's previous question, saying subsection (c) on page 2 of Version G is very clear. He asked what the state did when it dropped the Babbitt case, and what it could do to try to take care of all the court cases relating to this issue. ATTORNEY GENERAL BOTELHO explained that State v. Babbitt was consolidated with Katie John. There were really two issues. First, Katie John had to do with the geographic reach of ANILCA; contrary to the state's position, the court concluded it extended into the navigable waters of the state. Second, the Babbitt portion had to do with whether the Secretary of Interior and the Secretary of Agriculture could adopt regulations implementing Title VIII of ANILCA; the state brought that action, lost at the district court level - very understandably so, added Attorney General Botelho - and that was what, at the beginning of the Knowles Administration, was dropped on appeal. Attorney General Botelho pointed out that that judgment was both legal and political, legal from the standpoint that there was little if any likelihood that the state would prevail on the theory that somehow the Secretary couldn't adopt regulations to manage federal lands, and political from the standpoint that it was seen as an affront to a portion of the state's citizenry. That, in essence, was the Babbitt decision, again, part of a bigger package. Number 0639 REPRESENTATIVE WILLIAMS, to clarify his question about what the state could do, suggested that many lawsuits will be filed if a constitutional amendment passes. He asked whether there is a way to address those issues ahead of time, by having the state intervene in any way. ATTORNEY GENERAL BOTELHO discussed possible scenarios. First, there might be a challenge directly to Title VIII of ANILCA itself, which could happen today. There is surely an aggrieved hunter in Anchorage, Palmer or Fairbanks, he said, who has traditionally hunted in some part of rural Alaska and who would feel aggrieved that he or she cannot hunt today in those areas for subsistence purposes; that person satisfies the "standing" requirement in a federal case, in a federal court, to challenge ANILCA, although why that hasn't happened he himself doesn't know. ATTORNEY GENERAL BOTELHO mentioned that two cases have dealt with "standing" issues involving the legislature. It is clear that the legislature itself will not get to federal court on its own, in terms of standing, under current Alaska law; whether a constitutional amendment conferring standing would help cure that infirmity is uncertain to him, Attorney General Botelho noted, although his sense is that it probably would. Another point of challenge is the constitutional amendment itself; if someone claims it is a revision, not an amendment, the state will defend the legislature's action in placing it on the ballot. Furthermore, if someone later files a lawsuit claiming that the statutes enacted under it were unconstitutional for federal reasons - for example, that the state's granting of a rural-over-urban preference violated federal equal protection law - the state would be a party and would defend that in court. He sees those as three likely scenarios in court, he concluded. Number 0864 REPRESENTATIVE JAMES referred to Representative Williams' questions, the Submerged Land Act and the state's right to manage its submerged lands and navigable waters. She suggested this is a states rights issue, in which the Governor has a right to go directly to the U.S. Supreme Court for a decision; she believes that is appropriate. She asked whether that is precluded because of dismissal of the Babbitt case with prejudice. ATTORNEY GENERAL BOTELHO clarified that the Babbitt case was not a challenge to the constitutionality of ANILCA but a simple challenge to the power of the Secretary to enact regulations. First, it has a very limited effect. Second, regarding whether the Governor can go directly to the U.S. Supreme Court, that is not a particularly likely avenue. ATTORNEY GENERAL BOTELHO explained that the U.S. Supreme Court does have original jurisdiction on cases and controversies. Since 1961, there have been approximately 100 to 115 applications for the court to take original jurisdiction. There is a much higher "batting average" - as high as 40 percent of the cases - for the court to take those cases, as opposed to the normal petition for certiorari. However, of those granted since 1961, almost all involved boundary disputes, either between states or between a state and the federal government; Alaska has had two such cases. He himself is aware of only one case that didn't fall in that kind of category, which was a challenge to the Civil Rights Act of 1964 by North or South Carolina. He then advised members to stay tuned on another, unspecified, matter relating to movement in that direction. ATTORNEY GENERAL BOTELHO agreed that it is a matter of states rights. The Katie John case has been matched by a decision of the Alaska Supreme Court in the Totemoff case, which concluded that the state had the power to regulate and that this was not a matter for federal jurisdiction. There was a Ninth Circuit decision where the petition for certiorari was denied, and an Alaska Supreme Court reached a contrary conclusion; both are entitled to equal weight. Number 1090 REPRESENTATIVE JAMES asked: If it were the thing to do, to take a case to the U.S. Supreme Court on the dispute with the federal government regarding submerged lands and navigable waters, would that case not be ripe until such time as the federal government began managing in Alaskan waters? ATTORNEY GENERAL BOTELHO agreed it would create issues of ripeness. He believes the most likely outcome, were such a challenge mounted, would be for the court to refer it back to a district court for findings; the state would be looking at protracted litigation. He expressed his judgment that the state doesn't have to engage in that at all, then explained, "If we pass a simple constitutional amendment, we're not faced with that issue, and we're not faced with the possibility that we'll lose, because we have lost up to now in the federal courts on that very issue." He acknowledged that the issue is difficult, but restated that the solution is simple. Number 1190 REPRESENTATIVE WILLIAMS referred to the Alaska Outdoor Council and the push to go to court. He asked what the state can do to satisfy that, suggesting the state would be fighting this issue all the time. ATTORNEY GENERAL BOTELHO replied: The one thing I cannot predict - as much as I know lots of people would like to get finality to the question of whether ANILCA is constitutional or not - it's quite possible that one would never get that answer; it would never get to that question. We have some indications, and we've had the problems with standing, and certainly the legislature has encountered that twice now in litigation over some aspect of subsistence. We've had the problem that until the feds have taken over with its regs, that it's not ripe. But we also have a district court decision from the D.C. District Court - later, a portion, in essence, vacated by the D.C. Circuit - that says, ... "The standing is fine here; I'm going to reach the merits here, or I'm going to reach the statute of limitations argument, if not the merits." It's too late. Someone who is going to challenge, on its face, Title VIII and its constitutionality, on the basis that it has a rural preference, had six years under the federal statute of limitations to do so - 1986. It's too late. Now, what happened at the court of appeals was to say, "Judge Robinson (ph), you shouldn't have reached that question because the people you had in front of your court had no right to be there." And in federal court, standing is a jurisdictional issue. If you don't have standing, you, court, don't have the discretion to go to the next issue. The party is out; it's over. I don't know that that judge is right on this statute of limitations issue. But there have been two other McDowell cases that have been tried and haven't gotten anywhere in the Ninth Circuit. I assume that was part of the reason of the recommendation that we go to the only other circuit available to you, which was the D.C. Circuit. And that hasn't been all that much more helpful. ... I can't suggest that litigation is going to give the kind of finality - in the sense of the answer: Is it constitutional or not? It may be that that window has been closed for a long time. That's what the judge has said, and he's gotten his wrist slapped for having gone that far, and for answering a question that he shouldn't have gotten to. But I think that's some indication. I don't think there's anything that the state does that's going to improve that. If the statute of limitations issue is rightly decided - was rightly decided - there's nothing this state - whether it's the legislature, through a constitutional amendment, or the Governor, with the existing power - could do to change that. But this Governor's made clear he's not going to challenge, in any case, the constitutionality of Title VIII. Number 1402 REPRESENTATIVE WILLIAMS indicated opponents of a constitutional amendment, who believe Title VIII of ANILCA is unconstitutional, only want to listen to the U.S. Supreme Court on the issue. He said he certainly doesn't want to turn over management to the federal government if there is a way to negotiate. He wondered whether there is a chance to go to court to have this finalized, as he suggested the sovereignty issue was finalized. ATTORNEY GENERAL BOTELHO added, "Venetie." He pointed out that one power residing with the Governor is the ability to bring suits in the state's name. However, Governor Knowles has profound views on this subject: He will not be associated with any challenge that would disturb the rural priority, which he believes to be morally right. Although others feel strongly that it should be litigated, this issue came up during the last election, and Alaskans had a chance to choose between gubernatorial candidates who expressed their views. Governor Knowles will not use his office to, in any way, reduce the impact of Title VIII, and he certainly will not subject it, in his name, to challenge. It isn't a negotiable item. Number 1550 CHAIRMAN KOTT asked if there is any way the legislature could acquire standing to challenge Title VIII of ANILCA. ATTORNEY GENERAL BOTELHO pointed out that Section 2 on page 2, lines 22 to 26 [Version G] attempts to do so. It would certainly confer authority for state law purposes. However, as to whether it would get the legislature further in the federal court, he urged legislators to confer with federal practitioners. Number 1639 REPRESENTATIVE GREEN asked about the time frame before the state would be out of compliance, if something were passed similar to the permissive language in the Governor's version [of HJR 201]. ATTORNEY GENERAL BOTELHO responded that his best judgment would be through the next regular legislative session. If a constitutional amendment were voted down by the people, however, federal management would not only continue at its current level but would expand into "the waters." Number 1667 REPRESENTATIVE THERRIAULT asked if he had heard correctly that the Attorney General believes there would be an opportunity for the Secretary to respond with reasonableness in kind, should the legislature take reasonable steps. ATTORNEY GENERAL BOTELHO said yes; in particular, he would expect the Secretary of Interior to exercise his certification authority with reason, within the time permitted. REPRESENTATIVE THERRIAULT asked whether that also means possible amendments to ANILCA that the Secretary would deem reasonable. ATTORNEY GENERAL BOTELHO answered that from what he has heard on the radio, he understands that the Secretary has declared that, in his view, there will be no further amendments to ANILCA while he is Secretary. Number 1916 REPRESENTATIVE THERRIAULT expressed his belief that the constitution basically grants protections to minority groups, and in Alaska, rural hunters and fishermen are a minority group. In addition, however, urban hunters, when looking at the entire state population, are a minority group. He suggested that to pass the permissive language [of the Governor's version of HJR 201] and let the legislature vote would significantly erode that constitutional protection granted to that minority group. He requested confirmation. ATTORNEY GENERAL BOTELHO replied that he isn't sure the constitution specifically talks about protections for specific minority groups, and he doesn't see any language that makes reference to minority rights. More generally, at least as a lawyer would look at differentiating classes of groups of people, there is a balancing that involves the nature of the right, looking at the purpose and at whether, as a "rough cut," it is rationally supported; that is both with respect to state law and federal law. Certainly, he added, in an equal protection analysis it is a bit more refined than he had described it. The question is whether what Congress has done, in making the distinction between urban and rural, has a rational basis in terms of public law; he himself would submit that it does. ATTORNEY GENERAL BOTELHO encouraged members to look at the purposes, particularly in section 801 of ANILCA, which tries to roughly cut and satisfy an objective that represents concerns about culture, reliance on the resource, and the availability or lack of it of other resources, again, making clear that it is not to the exclusion of all others. He pointed out that the state has set up classes of people in a wide range of governmental activities or services; it has done so, within the state constitution, regarding natural resources. For example, a legislature, along with the support of the people, created a limited entry; clearly, some classes of people were given access and others weren't, which today is largely dictated by financial resources to be able to purchase a permit. Attorney General Botelho added: We do make rational decisions that distinguish between Alaskans, and we do not see that as fundamentally offensive. I would say that, with respect to specific ones, and perhaps in this context, there are many who feel that it is repugnant. But for the most part, most of the services that we provide have criteria for their provision. We are willing to distinguish between old and young, in terms of rights, between people who have levels of education and those who don't. We have made distinctions on the basis of geography, with respect to how much we fund activities, or the status of a local government. ... [There's] just a whole series of things that we have justified to distinguish between people. ATTORNEY GENERAL BOTELHO indicated the most required by the law is at least a rational basis and, depending on how important that right is, a compelling interest for differentiating. He concluded by saying he isn't offended at all, and he doesn't think the constitution would be "offended" by provisions that would allow for a rural preference. Number 1913 REPRESENTATIVE THERRIAULT asked if adding "local residency" would just allow the legislature, through statute, to determine that rural residency is a type of local residency. ATTORNEY GENERAL BOTELHO answered that "local residence" has a specific meaning in Title VIII of ANILCA, which is Tier II and is really achieved by the word "proximity" in this. "Local residency" is much narrower in meaning than "place of residence." REPRESENTATIVE THERRIAULT apologized, saying the earlier discussion regarded "place of residence," which, for one who lived in rural Alaska, could be that specific place of residence. ATTORNEY GENERAL BOTELHO agreed that "place of residence" could allow one to define what is or isn't rural. Number 1964 CHAIRMAN KOTT referred to testimony in other hearings that subsistence is a fundamental right. He requested Attorney General Botelho's reaction to that statement. ATTORNEY GENERAL BOTELHO specified that he doesn't believe, in a legal sense, that it is a fundamental right. CHAIRMAN KOTT called an at-ease at 10:07 p.m. He called the meeting back to order at 10:45 p.m. Number 2033 JULIE KITKA, President, Alaska Federation of Natives (AFN), came forward, accompanied by AFN's legal counsel, Norman Cohen and Rick Agnew (ph). Saying Attorney General Botelho's analysis of Version G had been helpful, Ms. Kitka expressed great disappointment with the proposed CS. The Department of the Interior would not make the certifications required by federal law for an amendment that doesn't make a subsistence priority for rural residents, for all renewable resources, she said. This proposed language is limited to indigenous resources and doesn't clearly state that rural residents qualify. Furthermore, the Secretary of Interior has indicated a priority based on proximity to the resource doesn't meet the requirements of ANILCA. MS. KITKA emphasized the need for a straightforward amendment to the constitution that allows the legislature to give a subsistence priority to rural residents, without putting conditions on the priority. The AFN believes the proposed language won't do the job because it has too many conditions relating to surplus, reasonable opportunity, indigenous subsistence resources, and so forth. She urged the committee to put aside this approach. Additionally, other segments of Version G, relating to litigation and the shifting of power away from the Governor to the legislature, are, in the AFN's view, going backwards as far as finding a resolution to put before the voters. Ms. Kitka expressed shock and surprise that Section 2 would be included in a constitutional amendment, even if the legislature believes it to be a good policy choice. She concluded by saying Version G won't accomplish what the special session set out to do: retain state management and obtain certification from the Secretary of Interior. TAPE 99-73, SIDE B Number 0011 REPRESENTATIVE JAMES referred to Version G, page 1, lines 10 to 13, which read: (b) The legislature may provide a preference to and among residents for a reasonable opportunity to take an indigenous subsistence resource on the basis of customary and traditional use, direct dependence, proximity to the resource, or the availability of alternative resources. She read a possible alternative to Ms. Kitka, as follows, asking whether Ms. Kitka would object to anything in this language: The legislature may provide a preference to and among residents for a reasonable opportunity to take a subsistence resource on the basis of customary and traditional use, direct dependence, place of residence, proximity to the resource, or the availability of alternative resources. MS. KITKA deferred to Norm Cohen. Number 0071 NORMAN COHEN, Legal Counsel for the Alaska Federation of Natives (AFN), said the only point he would raise is the question of reasonable opportunity. He paraphrased from his recollection of the memorandum from the Regional Solicitor, U.S. Department of the Interior [dated September 23, 1999, written in response to proposed CS for HJR 201, Version D]. On page 2, halfway through item 4, that memorandum read as follows: The amendment also adopts the "reasonable opportunity" approach to providing the subsistence priority which was previously contained in amendments to ANILCA enacted by Congress in 1997, but which expired in 1998 without ever taking effect because the state legislature did not approve a constitutional amendment as the Act containing the amendments required. By focusing on criteria like these which are not in the federal law, the proposal risks creating new conflicts with ANILCA. [Note: Mr. Cohen erroneously told members the Regional Solicitor had stated in the memorandum that "including 'reasonable opportunity' in this constitutional amendment they found to be inconsistent with what their charge is and what the Congress had requested that they certify, and they could not certify it with those two words there." Representative Murkowski later pointed out, at Number 0324, that the memorandum does not say that. It says "the proposal risks creating new conflicts with ANILCA."] MR. COHEN suggested that with "reasonable opportunity" removed, Representative James's wording is close to what the AFN has been proposing. Number 0124 REPRESENTATIVE JAMES expressed her understanding that "reasonable opportunity" is in state regulations currently, and is in this proposed language because some people want it there. Whether or not in ANILCA, it is assumed to be there, she said, because all one can offer is a reasonable opportunity. MR. COHEN replied that the problem with "reasonable opportunity" is how it would be defined by statute, or how it had been defined previously by courts. When the state included it in statute, which he believes was at the 1992 special session, the state was already out of compliance with ANILCA; thus, there has never been a question as to whether the state complies by including "reasonable opportunity." The test or standard is whether the regulations provide for the customary and traditional uses of a specific resource, established by the people in question; that is what the boards are supposed to do, Mr. Cohen said, in terms of crafting regulations. The question is whether they mirror the customary and traditional uses established over time. "Reasonable opportunity" can place a lot of different standards; undefined, its meaning is unclear. He suggested it would be better to have that discussion at the statutory level, after a constitutional amendment is agreed upon. Number 0324 REPRESENTATIVE MURKOWSKI pointed out that her own reading of paragraph 4 of the September 23, 1999, memorandum from the Regional Solicitor differs from Mr. Cohen's. [See earlier discussion at Number 0071.] [Ms. Kitka offered, for copying, a second opinion from the Regional Solicitor, dated September 24, 1999; however, it only referenced the Governor's original version of HJR 201, deeming it to be fully consistent with Title VIII of ANILCA.] Number 0461 CHAIRMAN KOTT concurred with Representative Murkowski's assessment of the September 23, 1999, memorandum. REPRESENTATIVE PHILLIPS pointed out that one agreement reached two years ago with the Secretary was that he would carry forward, at that time, the amendment to ANILCA [mentioned in the memorandum]. Number 0509 REPRESENTATIVE HALCRO brought up concerns he has heard that the AFN has not compromised, which he asked Ms. Kitka to address. MS. KITKA explained that although Congress didn't specifically deal with subsistence in the Alaska Native Claims Settlement Act (ANCSA), a section in the conference committee report stated clearly that Congress expected the Secretary of Interior and the state to deal with the legitimate subsistence needs of the people. In addition, several other issues weren't dealt with in ANCSA. From 1971 until 1980, there were unrealistic expectations by members of Congress that the Secretary of Interior and the state would protect the interests. However, it became crystal clear by the time ANILCA was being worked on in Congress that there were a lot of problems in the state, and there weren't protections in place. Therefore, Title VIII of ANILCA became part of that process, as far as the continuation of the commitment in ANCSA. MS. KITKA stated that obviously the Native people would have liked to have seen all Alaska Natives protected under a Native priority. Regarding the legislative history of ANILCA, she indicated the AFN has looked at legislative histories, including every conference report, committee hearing and issue. Many compromises were made during that whole ANILCA debate, on many issues besides just whether it would be a Native priority or a rural priority. Clearly, at the time there wasn't enough support in Congress to put in a Native priority. Ms. Kitka indicated there had been a request by then-Governor Hammond which noted that the state constitution precludes having a Native priority. It can be demonstrated, therefore, that compromises were made by the Native community even before ANCSA, Ms. Kitka said. Furthermore, the AFN and the Native community have worked with every governor in the nearly ten years since the Alaska Supreme Court decision in McDowell, in every legislative session, with the express purpose of trying to help the state resolve this issue and regain management. To her, it indicates the great willingness of the Native community - and AFN, in particular - to try to help the state. However, they are exasperated and disappointed that the issue hasn't been resolved, despite these many years. MS. KITKA stated, "Our people are ready for the federal government to come in and fully implement the federal law." She indicated the patience of AFN members has evaporated, especially looking at the 102 villages in economic distress because of a salmon shortage, and the fact that they do not have the federal priority for subsistence fish at this point in time. People are losing optimism that the state is capable of resolving this, and are looking more hopefully to the federal government. "At least they'll implement the law," she added. "At least the priority will be implemented. At least there'll be agencies that you can work with to try to make this be smooth and workable." She expressed hope that this legislature can rise to the challenge. However, she believes Version G will cause divisiveness, and the many undefined terms will encourage litigation and fighting between Alaskans. She said it is a lawyer's field day to have this kind of thing at a constitutional level. Although numerous issues need to be resolved, they don't have to be loaded up in a constitutional amendment. Number 0909 CHAIRMAN KOTT asked why, during the negotiations in the late 1970s and 1980s, no provision addressed subsistence for all users. He indicated he had heard a news clip from President Clinton that suggested he would protect subsistence for all the users. MR. COHEN explained that the Marine Mammal Protection Act (1972) and the Endangered Species Act (1973) provided exceptions to "no hunting" for Alaska Natives living along the coast of the Bering Sea, the North Pacific, and so forth. As time went on, there was a movement away from that. Legislative discussions in the mid-1970s were over creation of subsistence areas in rural Alaska. Increased pressure being felt by villagers, because of fly-in hunters, for example, triggered a lot of the activity. Bills in the Alaska State Legislature by Senator Sackett and Representative Huntington were based on hunting pressure near the Koyukuk and Holitna Rivers, as well as the driving out of local people from getting a chance to harvest. Mr. Cohen indicated the Alaska Department of Fish and Game (ADF&G) had tried to allocate the small number of caribou that remained to just the people living in the region, but there was no statutory authority to do so. Furthermore, lawsuits tried to stop that kind of allocation. When Congress asked where the problem was, the problem was pressure felt in rural Alaska because of people coming in to hunt from outside of the area, whether from urban areas or other states. People were looking for some way to address that. Number 1095 REPRESENTATIVE THERRIAULT suggested that the language "proximity to the resource" addresses that. He doesn't support wording that allows somebody from Tok, for example, a preference to fly into the Yukon Flats to take the resource in a time of shortage, he added. MR. COHEN explained that there are two parts to the eligibility test for subsistence: whether the person is a rural resident, and whether the person lives within a customary and traditional use area, which is, for the most part, determined by the Board of Game or the Board of Fisheries. If someone from Tok goes to the Yukon Flats regularly and has created a customary and traditional use there, for example, that person would qualify. If not, even though that person is a rural resident, he or she couldn't participate in subsistence uses in the Yukon Flats. However, a person could hunt or fish there under general regulations, such as those for sport hunting or fishing, or for personal use fishing. Therefore, a local "proximity" aspect exists in the current system, which relates to initial eligibility, not just Tier II. Number 1268 CHAIRMAN KOTT asked: If a particular resource in Yukon Flats were depleted, residents of that village couldn't go to another area under subsistence? MR. COHEN said that is correct; they could go only under general hunting rules. REPRESENTATIVE WILLIAMS asked if that is how it is written in ANILCA today. MR. COHEN specified that it is the statutory system put in place beginning in the late 1970s, and it is how the law has been interpreted and implemented since 1978. The ANILCA scheme is done exactly the same way now, with the federal program for game. Number 1362 DICK BISHOP, Vice President, Alaska Outdoor Council (AOC), came forward, noting that the AOC has about 10,000 members, including 45 member clubs. He advised the committee that despite appreciation for the work done, particularly on this draft, the AOC doesn't believe Version G meets minimum needs to protect all Alaskans' interests. Those needs include civil rights and opportunities to use fish and wildlife resources, as well as other natural, wild renewable resources. He indicated that he and David Kelleyhouse would suggest improvements to Version G, despite the belief that it doesn't meet the needs of all Alaskans. MR. BISHOP emphasized the inappropriateness of a discriminatory priority, such as zip code, for use of fish and game in Alaska. In Version G, "proximity," if used by itself, quickly would lead to a succession of regulatory proposals that would be nothing more than "local rural resident proposals," he said. It is important that any treatment be subject to regulation, and the "sustained yield" language in Version G is important in that regard. Furthermore, the AOC has recommended repeatedly that this priority be limited to fish and wildlife. Mr. Bishop asked if the state really wants a subsistence priority on all state timber, berries, waters, or other areas that might be roped in under the very broad and loose language of ANILCA. He noted that there he finds something to agree with Attorney General Botelho on: Loose language is very dangerous. MR. BISHOP told members the AOC believes it is essential that "reasonable opportunity" be included, and that the priority only operate when there is an actual biological shortage, "not a paper shortage, interpreted as being whenever there are regulations, as ANILCA now demands." Also important is that there be no commercial sale of resources taken under subsistence uses, and that it be required to be a nonwasteful taking, which is not mentioned in this case. Furthermore, the AOC doesn't believe it should be tied to an open-ended term such as "customary and traditional," which invites innovation and the beginnings of new traditions, as well as the expansion of old traditions; as the Bobby case indicated, that term is whatever has been done in the collective past, if one adheres to the federal law. MR. BISHOP continued, saying the AOC also feels strongly that a constitutional amendment relating to the uses of fish and game must be linked to passage of ANILCA amendments that retain or restore state authority on state and private lands, state navigable waters and federal public lands. He read from Title VIII of ANILCA, section 801(2): "the situation in Alaska is unique in that, in most cases, no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife which supply rural residents dependent on subsistence uses". He said the way the law is interpreted, and the way it has been handled, doesn't do that. Number 1620 MR. BISHOP returned to Version G, commenting that Section 3 on page 2 amounts to the tail wagging the dog. He suggested that if the legislature wishes to include that - in the effort to comport with ANILCA, which he believes is not the correct undertaking - then the terms of adhering to the federal law should be made clear to Alaskans. He proposed that it ought to read as follows: "The [purpose] of the amendments proposed by this resolution is to provide for a preference for subsistence use of fish, wildlife, berries, timber, waters and other renewable natural resources; to ensure state management of fish and wildlife under federal law and federal court oversight throughout the state." MR. BISHOP next commented on Section 30(c), beginning on page 2, line 3. He suggested that if the legislature wished to make clear some standard by which the Governor could determine that the federal government has impinged on state authority, the section could be modified to say something like "when the federal government enacts regulations for the taking of fish and game on state lands and waters." MR. BISHOP commented on the issue of compromise. First remarking on his own 25 years' experience with this issue, he told members he would paraphrase the AFN's statement to the legislature. In 1990, he believes, there was a special session to deal with the issue of conforming to ANILCA. And after much discussion, a constitutional amendment was proposed, and testimony was being taken in the House Resources Committee under Representative Davidson from Kodiak. Mr. Bishop recalled: Ms. Kitka said at that time that the Alaska Federation of Natives would accept no law that did not guarantee the survival of their communities and their cultures. And I thought that was a far-reaching demand, and I suggested, in my testimony, that the legislature should not accept that challenge because they were bound to fail; there was no law that they could pass that would fulfill that guarantee. MR. BISHOP indicated he had been associated with Governor Hickel's advisory committee. They had gone through long discussions and seemed to have reached agreement in 1992, he recounted. Governor Hickel had submitted legislation that dealt only with state law; it was a genuine attempt involving a number of different people, from all elements of the public, to improve the accommodation of subsistence uses in the state. However, the legislation was effectively dismembered through the efforts of the proponents of the rural priority in the federal law. Mr. Bishop concluded, "I guess to be generous, it's been a mixed bag with regard to the issue of compromise." He then asked Mr. Kelleyhouse to review language that they had worked on for the principal part of the amendment. Number 1816 DAVID KELLEYHOUSE, Member, Board of Directors, Alaska Outdoor Council, came forward, distributing copies of a proposed amendment to Section 1. As originally typewritten, it read: (b) The legislature may, consistent with the sustained yield principle and sound resource management practices, provide a preference to and among residents for a reasonable opportunity to take an indigenous subsistence fish or wildlife resource on the basis of [CUSTOMARY AND TRADITIONAL USE,] direct dependence, proximity to the resource [OR] and the availability of alternative food resources in areas where the residents are characteristically dependent upon that resource for personal and family nutrition. The preference may be granted only when the harvestable surplus of the resource [, CONSISTENT WITH THE SUSTAINED YIELD PRINCIPLE AND SOUND RESOURCE MANAGEMENT PRACTICES,] is not sufficient to provide a reasonable opportunity for other beneficial uses. On the distributed copies were handwritten changes to the last sentence: inserted after "preference" was the phrase "for nonwasteful, noncommercial subsistence taking"; "allow" was changed to "provide"; "a reasonable opportunity" was placed in brackets; and "all beneficial uses" was changed to "other beneficial uses". MR. KELLEYHOUSE explained the proposed changes. First, moving the phrase "consistent with the sustained yield principle and sound resource management practices" to the first sentence would make it extremely clear that subsistence uses have to be consistent with sustained yield and sound management practices. Second, if it is the legislature's wish to restrict it to fish or wildlife resources, he believes that should be specified. Third, the AOC recommends deleting "customary and traditional"; in view of the Bobby case, those words are open-ended and can be construed to be racial in nature. Furthermore, the AOC believes that the basis of direct dependence, proximity to a resource and the availability of food resources would accomplish the goal; they specifically recommended using "and" rather than "or". MR. KELLEYHOUSE mentioned the addition of "food", to read "alternative food resources". He next discussed the proposed phrase, "in areas where the residents are characteristically dependent upon that resource for personal and family nutrition". He said currently there are nonsubsistence areas, including the Kenai Peninsula, the area south of Fairbanks, and most of the Matanuska-Susitna Borough, where subsistence uses are not characteristic of those areas, but where there are is a tremendous amount of hunting opportunity. Without language that protects those nonsubsistence areas, there may be a risk of a subsistence priority in Anchorage's and Fairbanks' backyards. MR. KELLEYHOUSE next mentioned inserting, in the last sentence, "for nonwasteful, noncommercial subsistence taking" following "preference". Finally, in grappling with "shortage," he said George Utermohle had drafted language in the other body, which was added, handwritten, at the bottom of the AOC's proposed amendments, as follows: a historically unusual shortage of a fish stock or wildlife population occurs, until the stock or population of the resource has increased to a level that is consistent with the normal range of historic stock or population levels of the resource in the area and with the habitat limitations for the resource in the area. MR. KELLEYHOUSE pointed out that in the last sentence of subsection (b), after the phrase "may be granted only when", the above language would replace the entire remainder of the sentence. He concluded by suggesting that if the legislature wants to retain the current language, then as pointed out by Attorney General Botelho, they may want to delete the second reference to "reasonable opportunity," because it would require the Board of Game and the Board of Fisheries to make determinations never before required of them. It would then say, "is not sufficient to provide for other beneficial uses." Number 2042 CHAIRMAN KOTT asked whether Mr. Kelleyhouse believes that the AOC's proposed language meets the intent of Title VIII of ANILCA. MR. KELLEYHOUSE replied that he believes the intent of Title VIII is to meet the needs of people who are dependent on wild food resources. He then answered: I believe that it would meet the intent. ... I'm not an attorney, but knowing the politics of this game for the last 20-25 years, I'd bet the Secretary won't accept it. And we've said all along that if we're going to try to forge an Alaskan solution that's consistent with our constitution, and with its sustained yield mandates and such, it's going to require some give on the federal side. If your intent is to comply with ANILCA, well, you'd have to take the Governor's version [of HJR 201], probably, and just take all that that would entail. And if you want to try to forge an Alaskan solution, well, we're willing to help you, to the extent that we can. Number 2093 REPRESENTATIVE AUSTERMAN inquired about Mr. Kelleyhouse's assertion that "customary and tradition" may have a racial tone. MR. KELLEYHOUSE replied that the way the words have been used for the last ten years, there is no doubt that they have been applied primarily for Alaska Native customs and traditions. He believes that is the public perception as well, and that it is the practical way in which they have been used. He believes Alaska's constitution should remain colorblind, to the extent possible. Number 2133 REPRESENTATIVE HALCRO referred to Mr. Bishop's opening remarks about the legislature's responsibility to protect civil rights and opportunities. He also referred to Attorney General Botelho's discussion of how society is replete with levels of discrimination, such as income levels or minimum age requirements. TAPE 99-74, SIDE A Number 0001 [Tape began midspeech.] REPRESENTATIVE HALCRO said "...to a year to get federal welfare would you say that's a violation of your civil rights if you want that benefit and make more than $30,000 a year?" He stated that he was trying to clarify Mr. Bishop's frame of mind and understand his arguments. Number 0038 MR. BISHOP answered that most of those rules are not discrimination, they are qualifications. He explained that no one is arbitrarily excluded from the possibility of arriving at the condition where he/she is qualified. When he was ten years old, he knew he couldn't have a driver's license, but he had a reasonable expectation of being able to qualify for one when he turned 16. Most of those kinds of things provide opportunities rather than restrict the opportunities of people, which is distinctly different from the kind of restriction here. He reminded the committee of the Alaska Supreme Court's comment that the rural priority exceeded the general standards used in reviewing territorial discrimination. The court also said that most territorial discrimination issues should be reviewed in the light of equal protection, and furthermore the argument that "if someone wants to qualify, he should just move" goes to far. People should not be asked to move in order to qualify for this use which they [Alaska Supreme Court] had previously stated is an extremely important use that runs to each and every Alaskan. REPRESENTATIVE HALCRO asked Mr. Bishop if he agreed with the statement that federal management would be bad for Alaska's fisheries. MR. BISHOP replied with an enthusiastic yes. If the state conforms to the federal law, then the same conditions will apply to management of Alaska's fisheries when the state manages Alaska's fisheries that would apply when the federal government manages Alaska's fisheries. Therefore, if the committee wishes to retain Section 3, it should be very clear that if it returns "supposedly" state management that it is state management under the federal law and under federal court oversight because the very same rules will apply in each case. REPRESENTATIVE HALCRO noted that changes to ANILCA are practically impossible before October 1, 1999. He asked Mr. Bishop if it is in Alaska's best interest to maintain control of the fisheries going forward so that the state will have various options in the future. MR. BISHOP agreed, but unfortunately that would not be the case if the state conformed to the federal law. He referred to a map of Alaska which illustrated the federal waters in red and the state waters in blue. If the state conforms to the federal law, the entire map would be colored red because all of those waters, not just those on the federal conservation system units, will come under the mandate of the federal law. He pointed out that the driving force of the federal law, Title VIII of ANILCA with regard to fish and game management, is a subsistence priority. Number 0413 MR. KELLEYHOUSE recalled the time before he was Director of the Division of Wildlife Conservation under the former administration. During that time, when the state was in compliance with ANILCA, the courts had authority over all lands: state, private and federal. As soon as the state was not in compliance with ANILCA, the federal courts no longer had authority over state lands or over the state's regulatory program. If the state goes into compliance over the fisheries issue, the effect will be extending the force of that federal law onto another 147 million acres of state and private lands. REPRESENTATIVE ROKEBERG commented that he didn't understand exactly why that was the case. He asked Mr. Kelleyhouse who would enforce those laws, if the state fish and game is there continuing to enforce the state's statutory regime which has been certified by the Secretary of Interior. Number 0505 MR. KELLEYHOUSE answered that the federal courts will be enforcing that. As in the Bobby case in Lime Village, anyone who does not feel that the customary and traditional use opportunities are being met can go to federal court and challenge the state regulations. In the Bobby case, Judge Holland ruled that state regulations should be changed to provide a longer moose and caribou season as well as a larger harvest quota. When the state is not in compliance with ANILCA, it doesn't have to have laws of general applicability; ANILCA requires that the state have laws of general applicability. "That's the kicker right there." Therefore, it is not merely federal lands and waters, it is all state lands and waters because of the language that requires the laws of general applicability. He stated, "That then substitutes the federal standard of managing for customary and traditional uses and healthy populations of fish and game, undefined; that takes over in place of 'sustained yield' and 'reasonable opportunity.'" Basically, the state would be operating under a federal standard if the state is in compliance. When in compliance, the regulatory program is subject to federal court oversight of everything. "That's why it is a misnomer saying that we're going to save state management; we're not." Number 0630 REPRESENTATIVE WILLIAMS commented that last session the legislature had amendments to ANILCA that addressed many of the concerns mentioned earlier. This is the first time he has heard mention of an "Alaskan solution." During the last special session, the legislature was very close to an "Alaskan solution." However, Mr. Bishop didn't support that solution then. Therefore, the amendments to ANILCA, which he thought would take care of a lot of the concerns, went away. MR. BISHOP responded that it was a mixed bag with regard to the amendments that had been promulgated between Senator Stevens and the Secretary of Interior. Some of the amendments made matters worse because they conceded federal authority in places where they should not have, for example, with respect to navigable waters. That remains a bone of contention in legal terms. REPRESENTATIVE KERTTULA asked if one could file in state court, if the state had its statutes in place. MR. KELLEYHOUSE answered that is correct. Number 0726 REPRESENTATIVE KERTTULA asked if the harvestable surplus in an area isn't sufficient to provide [for subsistence uses or other uses], could a person from Anchorage or Juneau still travel to that area and still hunt and fish. MR. KELLEYHOUSE understood the language to mean that a person could travel to hunt or fish in an area as long as there was a harvestable surplus sufficient to provide for subsistence uses and other uses. When there isn't a surplus, except that needed to meet subsistence needs, the preference would kick in and throw the safety net under subsistence users. REPRESENTATIVE KERTTULA asked if Mr. Kelleyhouse's interpretation meant that a person would have to be from that area to be able to subsistence hunt or fish at that point. MR. KELLEYHOUSE replied that is correct. REPRESENTATIVE KERTTULA asked where that would normally happen; would it happen in an urban area? MR. KELLEYHOUSE specified that such a situation would happen in areas that are characteristically dependent upon subsistence resources. It is getting into the labeling of "urban" and "rural." He recalled former Attorney General Charlie Cole's characterization of such a situation as a "rough cut" of "urban" and "rural" that violates people's civil rights. He indicated that it is acceptable to base the preference on need and circumstance. For example, Mr. Bishop cannot qualify for a subsistence preference because he lives in Fairbanks, but Mr. Kelleyhouse can because he lives in Tok. REPRESENTATIVE MURKOWSKI inquired as to why there hasn't been a suit brought by hunters to challenge ANILCA. MR. BISHOP indicated that the main reason is money. There has been a lawsuit filed by the Safari Club International over the administration of the federal law by the federal subsistence board. There is some possibility that some people who have been seriously harmed might consider adding on to that suit. He has no idea if that is a viable option at this stage, but it is a possibility. It may be better to wait until the federal government has actually enacted its regulations, because it will certainly increase the probability that people will be harmed. Some may be harmed sufficiently to take on that challenge. Mr. Bishop stated that there is no question that people have already been harmed. He pointed to the classic case of the virtual exclusion of sheep hunters in Northwestern Alaska and Northeastern Alaska that Mr. Holt had mentioned. About half of the roughly 450 regulations passed by the federal subsistence board have established the customary and traditional restrictions on the uses by people other than rural priority people. MR. BISHOP said incidently, the federal system doesn't work quite as cleanly as Mr. Cohen mentioned. For example, the village of Chickaloon had a subsistence use priority for Ruffed Grouse on the Kenai Peninsula before Ruffed Grouse lived there. The Ruffed Grouse was introduced two to three years after the regulations provided for the preference. It is not exactly a smooth operation. Number 1110 CHAIRMAN KOTT closed all further public testimony. REPRESENTATIVE MURKOWSKI said having listened to the presentations tonight, at least three of the four seemed to agree that if the committee inserts "place of residence" in Section 4(b) it gets the amendment closer to being in compliance with ANILCA. Unfortunately, the whole certification process is anybody's guess. Precertification would be nice. Although there seems to be precertification on the Governor's version of the resolution, many people feel strongly that there are other ways to word it and still get it right. She suggested that the committee is closer to getting it right if some changes can be worked into Section 4. Number 1220 REPRESENTATIVE MURKOWSKI offered Amendment 1, which reads: Page 1, line 12 after "proximity to the resource,", Insert "place of residence," CHAIRMAN KOTT objected in order for the members to receive copies. He then withdrew his objection. There being no other objection, Amendment 1 was adopted. The committee stood at ease from 12:00 a.m. - 1:28 a.m. Number 1379 REPRESENTATIVE ROKEBERG made a motion to adopt a conceptual labeled Amendment 2, which read: Delete page 2, lines 7-21 Insert: Subsection (b) of Section 4 of Article VIII, regarding a subsistence priority, is repealed when the governor certifies that; 1. any federal agency has implemented regulations on the management of fish and or wildlife on State land, including navigable waters to which the State holds title, under Title VIII, Alaska National Interest Lands Conservation Act (P.L. 96-487); or 2. a state or federal court has issued a final nonappealable judgment or order deciding that any provision of Title VIII, Alaska National Interest Lands Conservation Act (P.L. 96-487), as amended, violates the constitution of the United States. Any person may bring an action in superior court to enforce this subsection. REPRESENTATIVE CROFT objected. He said: I think we still have the governor certifying problem with all of the separation of powers difficulties that it entails, all of the practical difficulties. In addition, we remain with the difficulty of the statutory blip, a noncompliance, dropping out a constitutional amendment when any federal agency has implemented regulations on, we could all be trying to change the statutes. Without this, we could all work on the statutes, and if we reached an impasse and decided that we no longer wanted to comply, it would be as easy as changing the statutes. This makes it that much more difficult to get out of one of those situations, should we choose to get out of those situations, because the constitutional amendment itself would be repealed. So, we're tying our own hands, and we're doing it in a way that's unpredictable, that violates separation of powers and that may be forced upon us by a superior court action. So we may have the governor dropping out a constitutional amendment, we may have the court forcing us to drop it, when if we don't do this, it's all in our hands. We can, with the constitutional amendment standing, decide to keep statutes that comply with ANILCA and therefore comply, or choose not to and don't. And why we would want to either tie our own hands or have the governor tie our hands or have a superior court tie our hands, I fail to see. If we, at a later time, decided that because a final, nonappealable judgment had been made, we didn't want to comply anymore, or because a federal agency had implemented regulations, or hadn't, we can make those determinations; we can change the statute that kept us in compliance and write a cursory letter to the Secretary of Interior saying you may well notice that after this statute we just passed is over we're out of compliance go ahead, but this [amendment] forces our hands, and it forces our hands in unpredictable ways that are not in the state's best interests. Let's leave it with the legislature rather than the governor's certification or a superior court judgment. Number 1605 REPRESENTATIVE GREEN asked Representative Croft if he wanted to change "governor" to "legislature," or drop the whole thing. REPRESENTATIVE CROFT answered that this amendment makes the current situation worse. He rejected Amendment 2 and moved to delete the entire Section 2. Representative Croft maintains that without Section 2 the legislature has the maximum flexibility. Representative Croft stated: Nothing is going to be dropped out on us. The amendment may still be there, but we've changed our statutory structure and are no longer in compliance. And we don't have to do it just for these list of things that we now know might be offensive to us. There might be others, related or unrelated to subsistence, that cause the legislature to decide that it doesn't want to be in compliance anymore. It's not just the list we at 2 in the morning can figure out, it can be anything and we have the authority to do that. REPRESENTATIVE GREEN commented that there are many other statutes which utilize "the lieutenant governor certifies" and "the governor certifies"; why is that now a separation of powers? REPRESENTATIVE CROFT indicated that almost every time the language used is "the lieutenant governor certifies an election." He said that is the language he is accustomed to seeing. He explained that a constitutional amendment becomes effective by being placed on the ballot and after the election the lieutenant governor certifies the election results. These are repealers, which he indicated would change the state's constitution, five, ten or twenty years down the line, based on the governor certifying certain actions or the superior court suing them. The principle is that the legislature is completely free to come out of compliance whenever it wants to do it. Number 1710 REPRESENTATIVE KERTTULA commented that the legislature will be completely circumvented; it won't even be involved. REPRESENTATIVE GREEN clarified that he was thinking of separation of powers as a violation which wouldn't be the case here because it would establish it in law. Although it may not be a good idea, he didn't view it as a separation of powers. Some powers are merely being abrogated. REPRESENTATIVE KERTTULA said that is still a separation of powers problem. It still creates a constitutional crisis problem. She asked why the legislature would want to give up the right to the governor. She noted that, most likely, the problems with this amendment will hit a future legislature. REPRESENTATIVE ROKEBERG said he could appreciate the issue regarding the regulations possibly being interpreted broadly However, if there is a final, nonappealable judgment order regarding the courts violating the Constitution of the United States, that would seem to be straightforward. It seems rather appropriate to invest in the governor the administrative duty to see that this is taken off the books. Perhaps, it is a dream that it would ever reach the supreme court, but it may provide some solace to those who think that it is going to make a difference whether there is an adjudication of this issue or not. He indicated that the real answer is the change of ANILCA statutorily by the Congress. Number 1837 REPRESENTATIVE CROFT reiterated that the general principle is that the legislature has the complete authority to come out of compliance whenever it wants. He believed that Amendment 2 ties the legislature's hands. He could foresee a time when the legislature could have discussions about compliance while the state was still in control of both fish and game. He clarified that in this scenario the state could have implemented, but not yet enforced regulations, and a governor could certify. Perhaps, there could be a situation where the legislature still wanted to continue. According to Amendment 2, the legislature would lose its constitutional amendment. He then referred to the language in number 2 of Amendment 2 which reads "deciding that any provision of Title VIII." The provision could be a very innocuous provision; it does not specify the rural preference. Therefore, the legislature could be in a situation where there was a more minor provision declared by a final, nonappealable judgment to violate the constitution. The equal protection clause isn't specified. A minor provision that violates a technical part of the constitution could occur, and the constitutional amendment would just drop out of the constitution. "The committee has given to the court and the governor every word in here. ... We are giving, if we don't do this and if we do remove Section 2, the complete authority to comply or not and the most options available for those provisions." Representative Croft maintained his objection to Amendment 2. A roll call vote was taken, but subsequently voided due to confusion on the motion before the committee. Another roll call vote was taken. Representatives Rokeberg, James and Kott voted in favor of the adoption of Amendment 2. Representatives Croft, Kerttula, Green and Murkowski voted against the adoption of Amendment 2. Therefore, Amendment 2 failed to pass with a vote of 3-4. Number 2012 REPRESENTATIVE CROFT made a motion to adopt conceptual Amendment 3, which read: Page 2 Delete lines 1-26. CHAIRMAN KOTT objected. REPRESENTATIVE CROFT commented that Section 2 has many of the difficulties described in relation to Amendment 2. He said, "Where we are free to come in or out of compliance on a vote of 21 without these repealers, we tie our own hands and make it impossible should we or a future legislature decide we wanted to stay in compliance even if some of these provisions take place." He explained that subsection (a) is the effective date and subsection (b) is the repealer which is similar to Amendment 2. Subsection (c) includes all the dangers that have been discussed such as the governor's determination that may or may not comport with the facts. Even if the governor's determination does comport with the facts, it may be something that this or a future legislature wants to deal with. The flexibility to do so would be lost when the section drops out. He noted, "It would also delete Section 31 on lines 22-26 that talks about litigation on behalf of the state." REPRESENTATIVE CROFT returned to subsection (c) which raises serious separation of powers arguments. He noted that the legislature has tried before to do things, particularly in regulations, that have violated the separation of powers. The court has said, according to the constitutional structure division of three branches of government, that [regulations] are the responsibility of the executive branch. It may be unwise to have the governor dropping out of constitutional amendment, but it may also violate that [the separation of powers]. The language in Section 31 and subsection (c) raise much greater Bess v. Ulmer problems as testimony from both Attorney General Botelho and George Utermohle highlighted. For a time, "we had ... an amendment that was focused upon the natural resource provisions of the constitution, and therefore arguably was limited both in scope and on qualitative." Now the amendment is speaking about things including the governor's authority, the basic structure of the government, who proposes constitutional amendments and how constitutional amendments are repealed. He noted that some could argue that how the constitution is amended and how those amendments are repealed is the most fundamental aspect of a constitution. "That argument could carry a lot of weight and if so, we are repealing a fundamental portion of our constitution.... That could look much more like a revision to a court than a simple amendment directed to natural resource provisions." He identified litigation on behalf of the state as another separation of powers argument. The committee is saying one branch of government usually does this, but under this language now another branch would, which in itself speaks to fundamental aspects of the state constitution. This provision is poor policy and limits the flexibility of future legislatures. Furthermore, this language greatly increases the chance that this constitutional amendment will be called a revision, and therefore require a constitutional convention rather than a simple amendment. Number 2195 CHAIRMAN KOTT explained that his objection was to the removal of lines 1-6. He informed the committee that discussions with the attorney general have indicated that it is common practice to include those lines in a constitutional amendment. Chairman Kott asked Representative Croft to amend his motion. REPRESENTATIVE CROFT amended his motion to delete only lines 7-26 on page 2. REPRESENTATIVE GREEN suggested a friendly amendment to delete the "(a)" on line three. REPRESENTATIVE CROFT agreed and suggested the deletion of "and Repeal" on line 3. Therefore, Amendment 3 would read as follows: Page 2, line 3, Delete "and Repeal" and "(a)" Page 2 Delete lines 7-26 REPRESENTATIVE ROKEBERG objected. A roll call vote was taken. Representatives Kerttula, Green, Murkowski, Croft and Kott voted in favor of the adoption of Amendment 3. Representatives Rokeberg and James voted against the adoption of Amendment 3. Therefore, Amendment 3 was adopted with a vote of 5-2. TAPE 99-74, SIDE B Number 0035 REPRESENTATIVE GREEN moved that the committee adopt Amendment 4 which read: Page 1, Delete lines 10-16 Insert 1 "(b) The Legislature may, consistent with the sustained yield principle and sound 2 resource management practices, provide a preference to and among residents for a 3 reasonable opportunity to take an indigenous subsistence fish or wildlife resource on the 4 basis of customary and traditional use, direct dependence, the availability of alternative 5 resources, the place of residence and proximity to the resource. The preference may be 6 granted only when the harvestable surplus of the resource is not sufficient to provide for 7 the customary and traditional level of subsistence use." CHAIRMAN KOTT objected for purposes of an amendment to Amendment 4. REPRESENTATIVE GREEN moved to amend Amendment 4 as follows: Delete text, after "granted only" Insert: "in times of shortage as defined by statute." REPRESENTATIVE ROKEBERG objected to the amendment to Amendment 4. He suggested the insertion of the language "as defined by the Legislature" in order to ensure that the legislature defines what time of shortage is. REPRESENTATIVE PHILLIPS interjected that the legislature can define anything, unless it exists in Alaska statute. REPRESENTATIVE ROKEBERG noted that Representative Green's amendment to Amendment 4 only refers to "statute" which could include federal statute. REPRESENTATIVE PHILLIPS suggested referring to "Alaska statute." REPRESENTATIVE ROKEBERG was agreeable to that. REPRESENTATIVE DAVIES pointed out that all others in the constitution use the language, "by law." REPRESENTATIVE KERTTULA objected. She believed the problem is that the language is restrictive such that a subsistence preference only exists in a time of shortage, which is Tier II. Under ANILCA, the preference can't be only during times of shortage. Number 0319 STEPHEN WHITE, Assistant Attorney General, Natural Resources Section, Civil Division (Juneau), Department of Law, understood that the committee wanted times of shortage to establish the priority of subsistence over other uses. The proposed language says that there can be no other preference for rural or any other way to distinguish among users, until there is a time of shortage. He explained that ANILCA establishes rural users as the subsistence users regardless of the resource abundance. For that reason, the proposed language wouldn't comply with ANILCA. REPRESENTATIVE CROFT said that time of shortage is important in ANILCA because it marks the time when there may be any practical consequences on the other users. In a time of shortage, the other beneficial uses shall be reduced to protect subsistence. He suggested adopting the amendment and working with the preference and the shortage language. Number 0589 REPRESENTATIVE GREEN withdrew his amendment to Amendment 4. He moved the committee adopt the following amendment to Amendment 4: In the last sentence of Amendment 4, Delete text after "granted" Insert: "when no practical alternative means are available to replace the food supplies and other items gathered from the fish and wildlife which supply residents dependent on subsistence uses." REPRESENTATIVE KERTTULA objected. Number 0650 REPRESENTATIVE GREEN moved that Amendment 4 be amended as follows: In the last sentence of Amendment 4, Delete "The preference may be granted only" The last sentence of Amendment 4 would read as follows: "When the harvestable surplus of the resource is not sufficient to provide for all beneficial uses, other beneficial uses shall be limited to protect subsistence uses." MR. WHITE explained that the above language would put the time of shortage in terms of uses not users. The language would accomplish what the state statute does. REPRESENTATIVE PHILLIPS asked if it would be problematic to limit it to subsistence uses versus subsistence users. REPRESENTATIVE CROFT said that legally, the use of "subsistence uses" is appropriate. CHAIRMAN KOTT asked if there was objection to Representative Green's amendment to Amendment 4. There being none, the amendment to Amendment 4 was adopted. Number 0858 REPRESENTATIVE MURKOWSKI proposed the removal of the word "indigenous" and replacing it with language compatible with that in ANILCA. She offered the following alternative language: "wild renewable," "replenishable resources," or "renewable resources." She felt that more questions are raised with the language "indigenous." Therefore, Representative Murkowski moved an amendment to Amendment 4: Line 3 of Amendment 4; page 1, line 2(conforming title) Delete "indigenous subsistence fish or wildlife" Insert "wild renewable" Page 2, line 4 Delete "indigenous subsistence" Insert " wild renewable" REPRESENTATIVE KERTTULA requested that Mr. White comment because Representative Murkowski's amendment to Amendment 4 may require inclusion of the language "for subsistence uses" in order to comply with ANILCA. Number 1168 MR. WHITE agreed that the language "for subsistence uses" should be inserted in order to be clear what resource or use is being addressed. He suggested that "for subsistence uses" be inserted after "resource" on line 4 of Amendment 4. MR. WHITE interjected a suggestion that the language "and proximity to the resource" be changed to "or proximity to the resource." Therefore, it would allow a combination of the list not all of the list. CHAIRMAN KOTT inquired as to whether there is any importance to the word "indigenous" as it is included in the original draft. Number 1309 MR. BISHOP said that he believed the importance of "indigenous" was to relate a priority for subsistence use to those species native to Alaska as opposed to species that were introduced. REPRESENTATIVE CROFT asked if the distinction is "indigenous" to the state or the particular area. MR. BISHOP understood the intent to refer to those species indigenous to the state. REPRESENTATIVE CROFT asked then if would matter if a species was indigenous in one area, but the species is now in another area. MR. BISHOP responded that he believed that to be the intent. For example, moose are now residents of the Yakutat Forelands. Although moose have not always been there, moose would fall under an indigenous Alaskan species. He noted that another term could be "wildlife native to Alaska" or "native Alaska wildlife." REPRESENTATIVE CROFT inquired as to whether it meant the species had ever been here. Would extinction end the categorization of indigenous for that species? MR. BISHOP noted that question is being argued, at the moment, over bison. The U.S. Fish and Wildlife Service says bison would be considered an exotic rather than an indigenous species, because of the period of time during which they have been absent; although contemporary bison supposedly were at one time indigenous residents of the Yukon Flats area and adjacent parts of Canada, they died out. He indicated his belief that non-indigenous species would be those introduced through recent efforts of man. Number 1497 REPRESENTATIVE CROFT asked: What if a species pushes out, or largely pushes out, another, replacing it as a food source? MR. BISHOP said to his understanding, the intent is that it would not apply to restrict the use in that case. For example, caribou and moose are both native to Alaska; if caribou became scarce but moose became abundant, and people's patterns of use shifted, both would be considered indigenous species under this construction. In his own mind, it clearly refers to the general case: what has been, in reasonably recent times, native to Alaska and not introduced, or reintroduced, by man. Number 1566 REPRESENTATIVE PHILLIPS remarked that because the word is new and undefined, it brings up more problems than it helps. She agreed with Mr. Bishop; although there are lots of moose around Nome now, there were none when she was growing up there, and therefore nobody could establish a pattern of dependency for subsistence on moose. In addition, a big issue on the Seward Peninsula is reindeer, which were brought into Alaska. In talking about indigenous species, she believes it would be necessary to add qualifiers, talking about deer on Afognak Island and elk in Southeast Alaska, for example. She suggested it might be better to put it in statute later, after it can be defined, rather than in the constitutional amendment. Number 1615 REPRESENTATIVE BERKOWITZ advised members that he had prosecuted the Totemoff case, which related to hunting deer, not a long-standing species there, in the Prince William Sound area. There was protracted litigation over that same subject, in that case. Indicating he also had enforced an "indigenous" statute in Antarctica, he cautioned that enforcing "indigenous" is highly problematic because the result is extended arguments about what it means. He suggested it is clearer to say "wild" or "fish and game" resources. MR. BISHOP proposed that the same meaning could be conveyed by "native Alaskan species" or "naturally occurring species." He noted that deer are native to Alaska, although not native to [the Prince William Sound area]. The same is true of some moose populations, although elk have been introduced. He agreed with the intent, with naturally occurring species, to narrow them to those that have a logical basis and long-term use, to support the idea of customary and traditional use. Number 1711 REPRESENTATIVE CROFT suggested the concept of whether a species is indigenous may be appropriate within the definition of "customary and traditional use," as one factor used for determination. However, he worries about putting it, or similar terms, in the constitution. CHAIRMAN KOTT asked whether there were further comments about the amendment to Amendment 4 [called "4B" on the tape]. There being none, the amendment to Amendment 4 was adopted. REPRESENTATIVE CROFT pointed out that the title still says "and relating to litigation on behalf of the state." CHAIRMAN KOTT stated that the title will be a conforming amendment throughout the legislation. Number 1777 REPRESENTATIVE KERTTULA moved that the committee adopt Amendment 5: Line 2 of Amendment 4, Delete "for a reasonable opportunity" REPRESENTATIVE ROKEBERG objected. REPRESENTATIVE KERTTULA pointed out that the Solicitor's letter regarding the risk in the use of such language seems to be a direct warning. She believed that in reality the language, "for a reasonable opportunity," is what happens, and furthermore it is currently in the state's statutes. REPRESENTATIVE CROFT commented that the language should be eliminated. When such language is placed in the state constitution, then a court will tell the state what a reasonable opportunity is. When the language is taken out and the state defines it as part of the state's law, in compliance, it is under the state's control. Without the language, the state is free to define it in statute. REPRESENTATIVE ROKEBERG maintained his objection and recalled that this language was part of U.S. Senator Steven's amendments to ANILCA, although it was removed. Upon a roll call vote, Representatives Croft and Kerttula voted in favor of the adoption of Amendment 5 and Representatives Green, Rokeberg, James, Murkowski, and Kott voted against the adoption of Amendment 5. Therefore, Amendment 5 failed to be adopted with a vote of 2-5. Number 1984 REPRESENTATIVE CROFT moved that the committee adopt the following amendment, Amendment 6: Line 5 of Amendment 4, Delete "and" Insert "or" REPRESENTATIVE CROFT believed that "or" was intended in that one would want to use different qualifiers at different times. He said, "It would be safer to say that they did not have to be in every portion, Tier I or II, all the time, every time." REPRESENTATIVE GREEN objected. He said that "and" is used because with "or" it could be any one of the factors listed. He foresaw times when such would create problems versus requiring all the factors. Representative Green was concerned that one may have proximity to a resource and be granted a preference to that resource. That person could actually affect the distribution of the wild resource as well as other uses of that land. If the intent is to create a priority for subsistence uses, then the standard should be high and all of the factors considered. [Manual tape change, approximately two minutes of blank tape.] TAPE 99-75, SIDE A REPRESENTATIVE JAMES read the following from Title VIII, Section 804: ...such priority shall be implemented through appropriate limitations based on the application of the following criteria: (1)customary and direct dependence upon the populations as the mainstay of livelihood; (2)local residency; and (3)the availability of alternative resources. REPRESENTATIVE CROFT agreed that the construction of the language read by Representative James from Title VIII could allow a mix of the factors. Representative Croft said if that is the case, he would withdraw Amendment 6. [Amendment 6 was not withdrawn.] CHAIRMAN KOTT commented that he wasn't sure that is the understanding. REPRESENTATIVE GREEN concurred that is the understanding. REPRESENTATIVE ROKEBERG asked if the intent is to fulfill all the criteria. REPRESENTATIVE GREEN replied yes. Number 0103 REPRESENTATIVE ROKEBERG said that he believed the intent was to make the place of residency and the proximity to the resource a disjunctive phenomenon using "or." On the other hand, the other three criteria were intended to be conjunctive, and therefore required as required under ANILCA. "The question becomes: As a matter of policy, does the legislature want to make those three criteria -- or four of the five mandated or allow for selection by the legislature ... and don't forget the regulation writing bureaucracy who's going to utilize that to whatever they want." REPRESENTATIVE GREEN responded that if the intent is to not require both place of residence and proximity, then he suggested the following: Line 5 of Amendment 4, after "resources," Insert "and either" Delete "and" Insert "or" REPRESENTATIVE KERTTULA reminded Representative Green that "place of residence" must be included, but "proximity" is not necessary. Therefore, the last change made by Representative Green can't work. Insertion of "or" is appropriate. REPRESENTATIVE ROKEBERG interjected that with "or" the criteria could be mixed and matched. REPRESENTATIVE KERTTULA pointed out that "or" also allows for all of the criteria to be fulfilled. REPRESENTATIVE PHILLIPS clarified that would be the case with the statute. REPRESENTATIVE KERTTULA specified that with "and" all the criteria must be fulfilled which becomes problematic with ANILCA. REPRESENTATIVE ROKEBERG inquired as to what is currently done with regard to the customary and traditional use, direct dependence, and availability of alternative resources criteria. Are all three mandated under Alaska Statute? Are all three qualifiers for subsistence Tier I? MR. WHITE stated that all three appear in Alaska Statute. Although there is no Tier I now, if there were it would be place of residence that would allow a rural priority. In Tier II, proximity to the resource, direct dependence, and availability of alternative resources would be the criteria. The customary and traditional use is utilized to define the stocks and populations that are subject to subsistence harvest. The words are used for different purposes in the statute; therefore, "or" would be better and allow flexibility to use as one sees fit in the statute. REPRESENTATIVE JAMES commented that there should be more changes in the language in order to clearly say what is desired. She believed what she read previously from Title VIII provides more flexibility. REPRESENTATIVE PHILLIPS highlighted that the use of "or" would provide flexibility and allow separate statutes to be written for Tier I and Tier II. REPRESENTATIVE GREEN maintained his objection. Upon a roll call vote, Representatives Rokeberg, James, Murkowski, Croft, and Kerttula voted in favor of the adoption of Amendment 6 and Representative Green voted against the adoption of Amendment 6. Representative Kott did not vote. Therefore, Amendment 6 was adopted with a vote of 5-1. CHAIRMAN KOTT clarified that now Amendment 4 as amended is before the committee. Number 0687 REPRESENTATIVE CROFT clarified that Amendment 4 as amended would read as follows: Page 1, Delete lines 10-16 Insert 1 (b) The Legislature may, consistent with the sustained yield principle and sound 2 resource management practices, provide a preference to and among residents for a 3 reasonable opportunity to take a wild renewable resource for subsistence uses on the 4 basis of customary and traditional use, direct dependence, the availability of alternative 5 resources, the place of residence or proximity to the resource. 6 When the harvestable surplus of the resource is not sufficient to provide for all 7 beneficial uses, other beneficial uses shall be limited to protect subsistence uses uses. There being no objection, Amendment 4 as amended was adopted. Number 0787 REPRESENTATIVE ROKEBERG moved to report CSHJR 202, Version LS1137\G, Utermohle, 9/26/99, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, it was so ordered and CSHJR 202(JUD) was reported out of committee.