HOUSE FINANCE COMMITTEE APRIL 9, 1998 1:50 P.M. TAPE HFC 98 - 100, Side 1. TAPE HFC 98 - 100, Side 2. TAPE HFC 98 - 101, Side 1. CALL TO ORDER Co-Chair Hanley called the House Finance Committee meeting to order at 1:50 P.M. PRESENT Co-Chair Hanley Representative Kelly Co-Chair Therriault Representative Kohring Representative J. Davies Representative Martin Representative G. Davis Representative Moses Representative Foster Representative Mulder Representative Grussendorf ALSO PRESENT Ron Somerville, House & Senate Majority Consultant; Ted Popely, House & Senate Majority Attorney; Mary Pete, Director, Division of Subsistence, Department of Fish and Game; Crystal Smith, Assistant District Attorney, Department of Law. SUMMARY HB 325 An Act making appropriations for the operating and loan program expenses of state government, for certain programs, and to capitalize funds; making appropriations under art. IX, sec. 17(c), Constitution of the State of Alaska, from the constitutional budget reserve fund; and providing for an effective date. HB 325 was HELD in Committee for further consideration. All Subcommittee reports were adopted. HB 406 An Act relating to subsistence uses of fish and game. CS HB 406 (FIN) was reported out of Committee with a "do not pass" recommendation. The fiscal notes will be addressed at another meeting. HOUSE BILL NO. 325 "An Act making appropriations for the operating and loan program expenses of state government, for certain programs, and to capitalize funds; making appropriations under art. IX, sec. 17(c), Constitution of the State of Alaska, from the constitutional budget reserve fund; and providing for an effective date." Representative Mulder MOVED to adopt all subcommittee reports. There being NO OBJECTION, they were adopted. HB 325 was HELD in Committee for further consideration. HOUSE BILL NO. 406 "An Act relating to subsistence uses of fish and game." Co-Chair Therriault stated that the Committee would be working from the House Judiciary version of the proposed legislation. He referenced Section 2(b)(3) and asked if requirements for adopting those regulations would be needed. RON SOMERVILLE, HOUSE AND SENATE MAJORITY CONSULTANT, replied that it would not be necessary to have a further allocation. Co-Chair Therriault spoke to the membership of the advisory board noting concern that the majority of the board represented urban Alaska. Mr. Somerville recommended that further clarification be made regarding who would make those appointments and the number of members on the board. He pointed out that clarification had been included in previous versions, however, it had been removed from the House Judiciary version. Representative J. Davies questioned if the current version of the bill was consistent with Alaska National Interest Lands Conservation Act (ANILCA). Mr. Somerville replied that ANILCA would need to be changed if the version before the Committee was presented to Congress as the ultimate solution. Representative J. Davies asked if those changes were feasible. TED POPELY, HOUSE AND SENATE MAJORITY ATTORNEY, advised that he did not have enough information to date regarding that concern. Representative J. Davies inquired if the House Judiciary version of the legislation would require a constitutional amendment. Mr. Somerville and Mr. Popely noted that a case could be made for no constitutional amendment, but only the courts could answer that question. Representative J. Davies referenced Page 5, Line 3, and asked if there would be objection to modifying that language, deleting "a" and inserting "the". Mr. Somerville replied that such a change would create a substantial difference. Mr. Popely agreed, pointing out that use of "a" afforded more flexibility when making the determination. Representative J. Davies suggested that it provided too much flexibility. Representative Grussendorf advised that the proposed legislation does not meet the ANILCA test. He questioned the changes which the State would need from ANILCA to make this work. Mr. Popely responded, there are a number of concerns to consider in establishing the definition of what constitutes public lands. With respect to the proposed statute, these are the areas of concern: ? The dependency criteria which are related to the preference scheme and do not exist in Title VIII. ? The authority of the State to establish non- subsistence areas. ? Eliminating the reference to the term rural. ? Amending the entire rural preference scheme. ? In Section 804, the local residency requirement needs to be changed. ? Definitions need to match each other. There are several definitions in State law which are not contained in federal law. ? The local and regional advisory committees would have to be amended to mirror State law. Co-Chair Therriault interjected that consideration must also be given to the eliminating "rural" since that would not allow a person living in an urban area to petition for inclusion. "Rural" should be replaced with some mechanism which could allow rural preference while at the same time, would allow someone to make application. Mr. Popely noted that the application of "rural" indicates simply a place of residence. Representative Kelly asked if HB 406 was closer to moving the State to a workable solution. Mr. Somerville responded that the proposed legislation was quite different from what is currently in State statute. The proposed legislation would craft priorities, while allowing the board to be able to establish a "presumption" regarding the areas experiencing the shortage. Mr. Somerville noted that the bill would provide more of a preference than existing State law. Representative Kelly suggested that the provision would protect Native Alaskans authority to fish and hunt more so than contained in ANILCA. Mr. Somerville remarked that the design of the proposed legislation would give Native Alaskans and their extended families justification for their hunting and fishing rights. That would be more advantageous than the current language under ANILCA. Representative Kelly understood that Bethel, under ANILCA, would possibly no longer be considered a subsistence area. Mr. Somerville replied that there are a number of communities which are starting to reach the upper limits of the 7500 resident established cut off. He agreed that Bethel could be eliminated. The federal government established 7500 as the high plateau in which communities larger than that could essentially be considered urban. Representative Kelly questioned why Native groups would be in support of ANILCA, with the possibility that their area could be labeled "urban" cutting them off. Representative Grussendorf advised that federal guidelines use other criteria to establish what is rural and what is urban outside of the population number. Representative Grussendorf addressed the recommended changes suggested by Mr. Popely. He questioned the amount of time it would take to accomplish those goals. Mr. Popely advised that these changes would have to be to federal statute, requiring congressional action. The current provisions of ANICLA are under moratorium, due to expire December, 1998. He admitted that the time frame was limited to whenever Congress could enact changes to the legislation. Representative Grussendorf referenced Page 9, Line 24-27, which identifies non-subsistence hunting and fishing areas asking how it would be implemented. Mr. Popely replied that the intent would relate back to determinations made by the Board regarding what non-subsistence areas are. In application of that criteria, the intent was to reassess those communities and make a determination that there are more non-subsistence areas than are currently included in law. Co-Chair Therriault asked if there was a compelling reason to include "substantially" instead of "may". Mr. Somerville commented that would be a legislative policy decision. Representative J. Davies asked if the Judiciary version implied that existing areas do not meet the necessary criteria. Mr. Somerville responded that was not the implication and that the Board will review the criteria. CRYSTAL SMITH, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, noted that she was present in the absence of Steven White, the attorney who has responsibility for the subsistence issue. She said he is very sick, and offered to give him the Committee's questions and would then provide a response. Representative Grussendorf asked for further information regarding why the legislation does not meet the standard for the Alaska State Constitution. MARY PETE, DIRECTOR, DIVISION OF SUBSISTENCE, DEPARTMENT OF FISH AND GAME, stated that the bill in its present form was not consistent with ANILCA. She advised that Senator Stevens is not happy with the proposed legislation. Disqualifying large groups of people is significant. The bill in its present form, mandates significant increases in non-subsistence portions of the State, which could mean that 10% of the current qualifying population would be disqualified. She stressed that this would encompass a tremendous amount of people and would create a significant change to ANILCA. Ms. Pete added, in current process, the State must implement the subsistence law. That law is clear. The only portion of the proposed process which parallels the current process is the Tier II step. Representative J. Davies asked if the proposed legislation would require a constitutional amendment. Ms. Pete noted that Mr. White, Assistant Attorney General, had advised that it would. Co-Chair Therriault spoke to the Department of Fish and Game's fiscal note. He inquired if the proposed amount was derived from the bill's current wording and what that increase would identify. Ms. Pete responded that the fiscal impact resulted from the new definition of a subsistence "area". (Tape Change HFC 98- 100, Side 2). Ms. Pete added that the fiscal note indicates the communities which will have to be excluded. The bottom of the note lists the current non-subsistence communities; the top of the note lists the communities which would be presumed excluded if that definition was used. The current version of the bill mandates that a person wanting to hunt or fish has to qualify by stock and population. If that person wants to fish more than one fish stock, they would be required to apply for each fish stock separately. In village households, the majority hunts and fish using either subsistence fishing regulations or current hunting regulations. She added that the fiscal note prepared by the Department covers costs for the minimum amount of estimated applications. Co-Chair Therriault referenced the definition of "shall" on Page 5. He advised that it would be a "leap" to assume that the communities listed would be "absolutely" moved into a non-subsistence category. Ms. Pete agreed. She pointed out that in helping the board go through and make a non-rural determination, the data-based characteristic that was used to determine subsistence areas was listed on Line 22, #9, the harvest levels. She stressed that this was the "heart" of the database used at the Department of Fish and Game, and that most of the other characteristics are difficult to measure and quantify. Co-Chair Therriault WITHDREW Amendment 1. [Copy on File]. He pointed out the similarity between Amendment #1 and Amendment #5 as prepared by Representative Kelly. [Copy on File]. Co-Chair Therriault MOVED to adopt Amendment #2. [Copy on File]. Representative J. Davies OBJECTED for the purpose of discussion. Co-Chair Therriault explained that it was the Legislature's intent that fish and game resources be managed so that Alaska continues to have abundance in order that all uses be satisfied. The language of the amendment would guarantee that. Mr. Somerville explained that Amendment #2 contains three identical parts which would be inserted as an instruction by the Legislature to the Department to get fish and hunting levels back up to provide for presumptive uses. Representative Grussendorf noted that there should be a fiscal note attached to the proposed amendment. Co-Chair Therriault asked if the amendment would be a directive requiring the Department to do something more than they currently perform. Mr. Somerville suggested that it would be a directive from the Legislature, although, there would be no penalty from the board if the requirements were not satisfied. Representative Grussendorf reiterated that there will be money attached to the directive. Mr. Somerville replied that was not the intent. Representative J. Davies WITHDREW the OBJECTION to adopt Amendment #2. There being NO OBJECTION, it was adopted. Co-Chair Therriault MOVED to adopt Amendment #3. [Copy on File]. He explained that the amendment attempts to add further definition by referencing a constitutional provision. It would change the language to be consistent with Article VIII, Section #4. There being NO OBJECTION, it was adopted. Co-Chair Therriault MOVED to adopt conceptual Amendment #4. [Copy on File]. He explained that the amendment would clarify the number of representatives on the Board specifying that no fewer than four members come from the impacted area. Ms. Pete noted that the language was closer close to that proposed by the task force. Representative J. Davies suggested that language be drafted into two sentences; the first would indicate that it be composed of two well-informed people and the second that it would consist of nine members appointed by the Governor. Co-Chair Therriault agreed to accept that as a "friendly" amendment to Amendment #4. Representative Foster asked why the amendment recommended only "4" of the members reside in the affected area. He MOVED that "4" be changed to "5". There being NO OBJECTION it was changed. There being NO OBJECTION to the amended Amendment #4, it was adopted. Representative Kelly MOVED to adopt Amendment #5. Representative J. Davies OBJECTED. Representative J. Davies MOVED to delete the first third of the amendment, Page 1, Line 5. Representative Mulder OBJECTED. He thought that without that portion, the meaning would be changed because the first finding addresses the management of the land, a primary consideration of ANILCA's land management and is consistent with subsistence use. Co- Chair Therriault believed that could occur with multiple use statutes. Representative Kelly replied that there are land use plans and a number of permits which address multi-use. Mr. Somerville addressed the issue of multiple use versus single use. Representative Kelly recommended that the language remain in the amendment. Representative Grussendorf stressed that the State can not manage federal lands. Representative J. Davies believed that the amendment would move the bill further from being consistent with ANILCA. Representative Kelly advised that without that language the authority would be expanded. Representative Grussendorf worried that the title was so broad that a lot more could be inserted into it. Mr. Popely explained that it would be in compliance with ANILCA. He referenced the section which requires that the State enact laws which comply with ANILCA in order to resume management. Technically, that section does not require that there be a word for word match between ANILCA and State law but rather that Sections 802, 803 and 805 be in compliance. Representative Grussendorf reminded members that "subsistence" also includes harvesting of berries, willow roots and anything else that people use off the land. Representative Kelly reiterated that if that language is removed, the legislative language will not match ANILCA, and at the same time would not be out of compliance with ANILCA. If it is left in, legislative language will enact into State law a new provision which would define the use of the land, tying subsistence and the land together in a new way. He urged that the Committee adopt the amendment. Mr. Popely agreed that this was a proper characterization of that language. Representative Grussendorf questioned why the State should put itself at risk when addressing federal and state lands. A roll call vote was taken on the motion to delete the first section of the amendment. IN FAVOR: Moses, J. Davies, G. Davis, Grussendorf, Foster OPPOSED: Martin, Mulder, Kelly, Hanley, Therriault Representative Moses was not present for the vote. The MOTION FAILED (5-5). (Tape Change HFC 98- 101, Side 1). A roll call vote was taken on the motion to adopt Amendment IN FAVOR: Moses, Mulder, G. Davis, Kelly, Martin, Therriault, Hanley OPPOSED: J. Davies, Grussendorf, Foster Representative Kohring was not present for the vote. The MOTION PASSED (7-3). Co-Chair Therriault MOVED to adopt Amendment #6. [Copy on File]. He explained that it would restrict the legislation to the issue of subsistence. There being NO OBJECTION, it was adopted. Representative Mulder MOVED to report CS HB 406 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Co-Chair Therriault asked to leave off the fiscal notes until the Committee has received the new ones. Representative Mulder revised his motion to only move the bill. Representative Grussendorf OBJECTED to moving the bill from Committee. He stated that the legislation counters constitutional principles which could cause problems for the State. He indicated that he would remove his OBJECTION, although, stressed that the legislation falls short of meeting the constitutional test. Representative Foster OBJECTED to moving the bill from Committee, pointing out that all the village people are very sincere in their objection to this piece of legislation, whereas, rural preference continues to be guaranteed under the federal protection. A roll call vote was taken on the motion to move the bill. IN FAVOR: Mulder, G. Davis, Kelly, Martin, Hanley, Therriault OPPOSED: J. Davies, Grussendorf, Foster, Kohring, Moses The MOTION PASSED (6-5). CS HB 406 (FIN) was reported out of Committee with "do not pass" recommendation. Co-Chair Therriault stated that the bill would be noticed at the next scheduled meeting in order that the fiscal notes could be addressed. ADJOURNMENT The meeting adjourned at 3:40 P.M. H.F.C. 10 4/09/98