HOUSE FINANCE COMMITTEE September 27, 1999 1:30 P.M. TAPE 2SS HFC 99 - 1, Side 1 TAPE 2SS HFC 99 - 1, Side 2 TAPE 2SS HFC 99 - 2, Side 1 TAPE 2SS HFC 99 - 2, Side 2 TAPE 2SS HFC 99 - 3, Side 1 CALL TO ORDER Co-Chair Therriault called the House Finance Committee meeting to order at 1:30 p.m. PRESENT Co-Chair Therriault Representative Foster Co-Chair Mulder Representative Grussendorf Vice Chair Bunde Representative Kohring Representative Austerman Representative Moses Representative J. Davies Representative Williams Representative G. Davis ALSO PRESENT Senator Gary Wilken; Senator John Torgerson; Representative Jim Whitaker; Representative Harold Smalley; Representative Beth Kerttula; Representative John Cowdery; Representative Lisa Murkowski; Representative Ethan Berkowitz; Representative Bill Hudson; Representative Scot Ogan; Representative Reggie Joule; Senator Jerry Ward; Representative Jerry Sanders; Representative Kim Elton; Representative Beverly Masek; Representative Jeannette James; Representative Carl Morgan; Representative Gail Phillips; Representative Sharon Cissna; Richard (Dick) Bishop, Vice-President, Alaska Outdoor Council, Anchorage; Bruce Botelho, Attorney General, Department of Law; Patrick Pourchot, Governor's Legislative Office, Office of the Governor; George Utemohle, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency; Ted Popely, Staff, Speaker Porter; Julie Kitka, Alaska Federation of Natives; Carol Daniel, Legal Counsel, Alaska Federation of Natives; Sky Starkey, Attorney, Alaska Federation of Natives; SUMMARY HJR 202 Proposing an amendment to the Constitution of the State of Alaska relating to use of indigenous subsistence resources by residents. CSHJR 202 (FIN) was REPORTED out of Committee with a "do pass" recommendation and with two fiscal impact notes, one by the Department of Fish and Game and one by the Office of the Governor, both published on 9/27/99. HOUSE JOINT RESOLUTION NO. 202 Proposing an amendment to the Constitution of the State of Alaska relating to use of indigenous subsistence resources by residents. Co-Chair Therriault provided members with a proposed committee substitute, #1-LS1137/K dated 9/27/99(copy on file). Co-Chair Mulder MOVED to ADOPT proposed committee substitute, #1-LS1137/K dated 9/27/99. Representative Grussendorf and Representative J. Davies OBJECTED. Representative Grussendorf spoke against the proposed committee substitute. He noted that the items in subsection (b) would be of an equal standing. He pointed out that it would be difficult for the legislative body to rank the criteria. He noted that "customary" was removed. He pointed out that the Alaska National Interest Lands Conservation Act (ANILCA) has only three criteria, the first of which is "customary". He estimated that the proposed committee substitute would be rejected in regards to federal compliance. Representative J. Davies agreed with remarks by Representative Grussendorf. He noted that the preference is only in place during a time of shortage. He pointed out that this is not acceptable to the federal government and recommended that the proposed committee substitute not be adopted. Representative Austerman stated that the proposed committee substitute would not fulfill federal requirements. He spoke against the adoption of the committee substitute. Vice Chair Bunde stated that there would be federal control regardless of the any action in adopting legislation. He emphasized that allocation issues would be settled in federal court. Co-Chair Therriault explained that he did not focus on federal requirements in drafting the proposed committee substitute. Representative J. Davies pointed out that the clock is ticking on federal takeover. He emphasized that the state stands to lose $10 million dollars in federal assistance to implement a state program. He stressed the need to address federal takeover. He maintained the importance of retaining state management of the resource. Representative Grussendorf noted that the proposed committee substitute would not meet the federal standards. He recommended that the House Judiciary Committee version be used as a vehicle for further amending. Representative Williams stated that the state of Alaska is long past a lasting solution. A roll call vote was taken on the motion to adopt the proposed committee substitute. IN FAVOR: Williams, Austerman, Bunde, Davis, Mulder, Therriault OPPOSED: Foster, Grussendorf, Kohring, Moses, J. Davies The MOTION PASSED (6-5). GEORGE UTEMOHLE, ATTORNEY, LEGISLATIVE LEGAL AND RESEARCH SERVICES, LEGISLATIVE AFFAIRS AGENCY provided information on the committee substitute HJR 202 (FIN). The resolution would amend the Constitution of the state of Alaska by adding a new subsection to section 4. The new language would allow the legislature to provide a preference to and among residents of the state for a reasonable opportunity to take fish and wildlife for subsistence uses during times when an unusual low stock or population level occurs in an area in which residences are characteristically dependent on that stock or population for subsistence. The preference would be based on the resident's traditional use, direct dependence, availability of alternative resources, place of residence and proximity to the resource. The legislation also adds two new sections. Section 30 would make the effective date dependent on action by the federal government to amend ANILCA. The amendment to ANILCA would repeal any authority of the Secretary of the Interior to preempt state management. Section 31 would amend the Constitution to provide that the legislature has the authority to bring an action on behalf of the state of Alaska before federal court. Representative J. Davies asked Mr. Utemohle's estimation on the chance that section (b) would be certified by the Secretary of Interior to be in accordance with ANILCA. Mr. Utemohle did not think that subsection (b) would allow the state to come into compliance with ANILCA. Representative J. Davies noted that the legislation would not become effective until ANILCA is amended. Mr. Utemohle stated that if there are no amendments to ANILCA that the legislation would not be effective in bringing the state of Alaska into compliance with ANILCA. Co-Chair Therriault pointed out that the federal government could met the state halfway. Mr. Utemohle observed that Secretary of the Interior has indicated that the state would not be certified as able to come into compliance with ANILCA by the October 1, 1999 deadline. Representative Grussendorf referred to line 16, page 1, which lists criteria for a preference. He questioned if the criteria would be ranked equally. Mr. Utemohle stated that the language does not require the legislature to give the criteria equal weight. It would require that all the criteria be weighed. Representative Grussendorf asked if there was discussion regarding the deletion of the word "customary". Mr. Utemohle could not provide information on the decision to remove "customary" from the legislation. Co-Chair Therriault felt that it was unnecessary to link "customary" to "traditional". Representative Grussendorf pointed out that the Department of Interior uses the language "customary". RICHARD BISHOP, VICE-PRESIDENT, ALASKA OUTDOOR COUNCIL, ANCHORAGE spoke in support of the House Finance committee substitute. He observed that the term "customary and traditional use" is an important element of the state and federal definition of subsistence use. He noted that there is no federal definition of the term "customary and traditional use". Judge Holland stated said that "customary and traditional use" is essentially the practices that have occurred in a particular resource use situation by local people in the collective past. Other uses of the resources must be eliminated before customary and traditional uses are restricted beyond what has been customary and traditional. He felt that there was a high probability of situations where under the federal law that other uses would be eliminated. He cautioned that there is a lack of conservation when conforming to the federal subsistence priority compelled by a meeting of customary and traditional use. He noted that the use of "customary and traditional" has lead to problems in state law. BRUCE BOTELHO, ATTORNEY GENERAL, DEPARTMENT OF LAW urged the committee to be careful in its choice of words. He stressed that it is essential that every word placed in the Constitution represent what the legislature means to convey. He pointed out that "customary and traditional" means something through the body of law that has occurred through long-term usage. There should be consistent long-term state practice. He read the definition of "customary and traditional" in AS 16.05.940(7): "customary and traditional" means the noncommercial, long-term, and consistent taking of, use of, and reliance upon fish or game in a specific area and the use patterns of that fish or game that have been established over a reasonable period of time taking into consideration the availability of the fish or game". CAROL DANIEL, LEGAL COUNSEL, ALASKA FEDERATION OF NATIVES (AFN) provided information on the legislation. She stated that AFN is concerned with the change from "customary and traditional use". Title VIII of ANILCA defines subsistence in terms of "customary and traditional" uses of rural Alaskan residents. She emphasized that there is a definition of "customary and traditional uses" in state law. The removal of "customary" would indicate that something else is meant in the constitutional amendment than what is referred to in federal and state law. Attorney General Botelho reiterated that there needs to be clear understanding in terms of the intent. He questioned if the intention is to divert from former practices. JULIE KITKA, ALASKA FEDERATION OF NATIVES pointed out that new and undefined standards would guarantee that each one would be litigation. She maintained that litigation would be divisive. A new and undefined constitutional amendment that does not exist in state law or ANILCA would not comply with ANILCA unless the new terms are over-inclusive. There would not be a problem with terms that were over-inclusive and broad ranging. She felt that "traditional" without "customary" would be under-inclusive. Representative Austerman questioned if the proposed committee substitute would bring the state into compliance with the requirements of federal law. Attorney General Botelho stated that the House Finance committee substitute would not satisfy the ANILCA requirements. He stated that CSHJR 202 (JUD) comes closer to satisfying federal requirements. He read from a memorandum by the regional solicitor, dated September 23, 1999: "Without specific enabling language in a constitutional amendment which would permit a subsistence priority to be based on rural residence, the Speaker's proposed amendment to 'establish criteria for determining eligibility' most likely does not state the amendment's purpose clearly and specifically enough to overcome the previous interpretation of the state constitution by the Alaska Supreme Court." Attorney General Botelho noted that neither the House Judiciary Committee of House Finance Committee versions include the term "rural". Both versions make reference to "reasonable opportunity". He observed that the solicitor also stated that: "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." (Tape Change, 2SS HFC 99 - 1, Side 2) Attorney General Botelho concluded that the House Finance Committee version would not address federal requirements. The House Judiciary Committee version would come closer In response to a question by Co-Chair Therriault, Attorney General Botelho noted that the legislation focuses on criteria that are not in federal law. The priority in terms of reasonable opportunity only occurs in times when an unusually low fish stock or wildlife population level occurs in an area in which the residents of the area are characteristically dependent on the fish stock or wildlife population for subsistence. He presumed that the language is an attempt to define "in times of shortage". He pointed out that the language does not address usually low fish or wildlife populations. The priority under ANILCA would exist in usually low situations. The priority always exists under ANILCA. "Its practical affect is to actually be operative at the time that such scarcity to the resource, that not all beneficial uses can be satisfied." Mr. Bishop disagreed. He maintained that the priority exists at all times under federal law. He asserted that there have been 427 instances relating to specific species where all rural residents were authorized for a priority to trap or hunt on federal land. There is a determination made that all rural residents can exercise the priority regardless of where in the state they live. He stressed that there is no relationship to abundance or need. He maintained that the first issue that the Federal Subsistence Board must address is the "customary and traditional" use of the resource in the area. Their regulations must reflect the customary and traditional use. Neither shortage or need is a criterion. He added that "traditional" has been interpreted as those uses that were in place or practice prior to the enactment of ANILCA. He argued that the public, officials and others have misinterpreted the definition to refer to only one set of users. Ms. Kitka responded to a question by Representative Austerman. She stated that the House Judiciary Committee (JUD) version made progress toward certification by the Secretary of the Interior. She noted that the use of "reasonable opportunity" remains a problem in the (JUD) version and recommended that it be deleted. She suggested that the addition of "subsistence use as the highest beneficial use of wild and renewable resources" would strengthen the (JUD) version. The absence of "rural" remains a problem. She recommended that "rural" be added. In response to a question by Co-Chair Therriault, Ms. Kitka noted that AFN does not support any amendments to ANILCA. In response to a question by Co-Chair Mulder, Attorney General Botelho noted that suspended federal regulations will go into full force on all navigable waters of the state on October 1, 1999 unless the state of Alaska Legislature "has enacted a constitutional amendment to be placed before the voters, which if it becomes law would enable the enactment of laws of general applicability to provide for the definition, preference and participation found within sections 803, 804 and 805 of ANILCA." He did not anticipate certification of the proposed (HFC) version. Representative Foster referred to subsection (b) He questioned if the all the criteria would have to be met. Attorney General Botelho responded that each item offers an alternative basis with which to base the preference. The legislature could use one or more of the criteria for a preference. He noted that the criteria in state statute were based on direct dependence, proximity and alternative resources. Representative Foster asked the Attorney General's interpretation of "availability of alternative resources". Attorney General Botelho responded that the language was derived from ANILCA and state law as one of three criteria. The questioned is who gets to take the resource when there is insufficient quantity for all users. The criteria looks at the availability of an alternative area that the person or community can turn to for satisfaction of the basic need. Co-Chair Therriault interjected that ANILCA speaks to "most cases no practical alternative means is available to replace the food." Ms. Kitka reminded the Committee that the Secretary of Interior has a fiduciary trust responsibility to protect the interests the indigenous peoples of Alaska. Vice Chair Bunde questioned if subsistence is an Alaskan version of affirmative action. He questioned if Alaskan Native peoples have a trust relationship with the federal government. Attorney General Botelho disagreed with the statement that subsistence is an Alaskan version of affirmative action. The state of Alaska objected to a resolution that would have provided for a Native preference under law. The state pushed for a rural preference, which was the outcome. He added that it is unfortunate that some people have defined the issue as a conflict between Native and western people. Vice Chair Bunde asked if it is not an attempt to address past wrongs. Attorney General Botelho maintained that the issue is to fix a contract that had definite terms that were not fulfilled, not to address a grievance. Ms. Kitka pointed out that the federal government acknowledges and fulfills its trust responsibility to Alaska Natives in its support for housing and health. Mr. Bishop disagreed that there is a trust relationship. He acknowledged that there was language under the conference report on the Alaska Native Claims Settlement Act (ANCSA) saying that both the United States and the state of Alaska were expected to see to the continued opportunity for subsistence uses by Alaskan Natives. There was no requirement for a Native or rural priority in ANCSA. A 1971 letter by the Secretary of Interior indicated that corporation land selection would provide for economic opportunity and subsistence opportunities for corporation members. He stressed that Title VIII of ANILCA is not Indian law, which carries a trust relationship. Mr. Bishop stressed that the Alaska Outdoor Council supports subsistence uses and subsistence lifestyles. The Council has tried to raise points on sound conservation. He pointed out that "reasonable opportunity" is part of the state definition of "customary and traditional" use. Mr. Bishop compared the House Finance committee substitute to section 801 of ANILCA. Section 801 of ANILCA states that: "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; The House Finance committee substitute states: "during a time when an unusually low fish stock or wildlife population level occurs in an area in which the residents of the area are characteristically dependent upon the fish stock or wildlife population for subsistence." Mr. Bishop read from ANILCA: "It is hereby declared to be the policy of Congress that (1) consistent with sound management principles...residents who depend upon subsistence uses of the resources" will be provided the resources. He continued to quote from ANILCA: "nonwasteful subsistence uses of fish and wildlife and other renewable resources shall be the priority consumptive uses of all such resources on the public lands of Alaska..." He pointed out that consumptive uses were given priority over nonconsumptive uses. He added that ANILCA refers to "the taking on public lands of fish and wildlife for nonwasteful subsistence uses..." He maintained that that subsection (b) attempts to address the spirit of subsistence use in Alaska. He stressed that sound conservation and the protection of fish and wildlife sources are needed to continue providing for those that are dependent on subsistence. Representative J. Davies acknowledged that the court has ruled that ANILCA is not Indian law, but stressed that there could still be some basis for a trust responsibility. He stressed that the history that led to ANILCA must be considered to understand why a rural preference was adopted over a Native preference. Mr. Bishop responded that ANILCA was not a directive of federal law to address subsistence rights by Alaskan Natives. There was no state subsistence priority law prior to 1978. In 1978, the state passed a law that gave subsistence a priority, but did not establish a population that would be given the priority. The law was intended to serve the purpose of ANSCA, to address an accommodation of subsistence by Alaskan Natives. The federal law that followed inserted the word "rural" on the request of the Alaska Federation of Natives. The state did not seek a rural preference. He maintained that it has not worked well. (Tape Change, 2SS HFC 99 -2, Side 1) Mr. Bishop stated that the issue is whether the state of Alaska is willing to except a federal solution in ANILCA or federal allocation of the uses and management of fish and wildlife in Alaska. In response to a question by Co-Chair Mulder, Mr. Bishop maintained that the only remedy would be to go to federal court. He quoted from ANILCA: "Sec. 807. (a) Local residents and other persons and organizations 16 USC 3117 aggrieved by a failure of the State or the Federal Government to provide for the priority for subsistence uses set forth in section 804 (or with respect to the State as set forth in a State law of general applicability if the State has fulfilled the requirements of section 805(d)) may, upon exhaustion of any State or Federal (as appropriate) administrative remedies which may be available, file a civil action in the United States District Court for the District of Alaska to require such actions to be taken as are necessary to provide for the priority." Co-Chair Mulder maintained that the option to go to state court would remain. He stressed that a key issue is the control of navigable water. He pointed out that it is in AFN's interest for the state of Alaska to retain management of state waters. Ms. Kitka acknowledged that there may be long-term conflicts with national interest (groups). She stressed that AFN has no choice but to accept federal implementation of the law if the state of Alaska is unwilling to come into compliance. She agreed with Mr. Bishop, that Title VIII was not necessarily the logical consequence of ANCSA. She maintained that Title VIII arouse through the lack of good faith by the state of Alaska. Ms. Kitka acknowledged that Title VIII of ANILCA is not perfect. She reiterated that AFN would still not support any amendment to ANILCA. She emphasized that there are no state protections and concluded that ANILCA is the only protection available. Representative Williams MOVED to ADOPT Amendment 1: On page 2, delete lines 3 through line 22. Insert: Article XV, Constitution of the State of Alaska, is amended by adding a new section to read: Section 30. Effective Date. If section 4 of the Article VIII, as amended, regarding wild renewable subsistence resources, is adopted at the 2000 general election, the amendment takes effect immediately on certification of the election returns by the lieutenant governor. Sec. 3. PURPOSE. The purpose of the amendments proposed by this resolution is to provide for a preference for subsistence uses of fish, wildlife, and other renewable natural resources; to ensure state management of fish and wildlife throughout the state; and to bring the state into compliance with Title VIII, Alaska National Interest Lands Conservation Act (P.L. 96-487). Sec. 4. The amendment proposed by this resolution shall be placed before the voters of the state at the next general election in conformity with art. XIII, sec. 1, Constitution of the State of Alaska, and the election laws of the state. Co-Chair Therriault OBJECTED. Representative Williams spoke in support of Amendment 1. He spoke against tying the legislation to amending ANILCA. He stressed that an attempt was made to amend ANILCA. He did not believe that ANILCA would be amended. Representative Grussendorf spoke in support of Amendment 1. Vice Chair Bunde questioned if renewable resources included timber. Representative Williams estimated that fish and wildlife would be included. Vice Chair Bunde questioned if air and water would be included. Co-Chair Therriault did not see a compelling reason to contain a purpose section in the legislation. He observed that the federal government would make a determination regarding compliance. Co-Chair Therriault MOVED to AMEND Amendment 1 by deleting the Purpose section: Sec. 3. PURPOSE. The purpose of the amendments proposed by this resolution is to provide for a preference for subsistence uses of fish, wildlife, and other renewable natural resources; to ensure state management of fish and wildlife throughout the state; and to bring the state into compliance with Title VIII, Alaska National Interest Lands Conservation Act (P.L. 96-487). Representative Grussendorf spoke in support of retaining section 3. Co-Chair Therriault argued that the information would be contained in the voting pamphlet. Representative J. Davies spoke against the amendment to the amendment. He argued that the language clarifies the intent. He stressed that the intent must be clear to the Secretary of the Interior. Co-Chair Therriault stressed that there is an alternative mechanism to speak to the state's population (though the voter pamphlet). He felt that a letter of intent would be a more appropriate way to communicate to the Secretary of Interior. Representative Grussendorf argued in favor of retaining the purpose section. He emphasized that letters of intent are normally associated with legislation, not resolutions. Co- Chair Therriault continued to argue in support of a letter of intent. Ms. Daniel clarified that section 810 of ANILCA covers more than just fish and wildlife resources. She observed that ANILCA refers to "wild renewable resources for direct personal or family consumption, for making and selling handicrafts, and for barter and customary trade." She concluded that berries would be included in this definition. Section 804 peaks in terms of fish and wildlife for non- wasteful subsistence uses. Co-Chair Therriault concluded that the inclusion of the purpose section would imply that the state of Alaska supports the broadest interpretation of what would be covered. Mr. Bishop agreed that the definition includes wild renewable resources. He noted that a blueberry patch used for subsistence purposes could prevent development. Co-Chair Mulder argued in support of the amendment to the amendment. He did not see the functional utility for inclusion of a purpose section in regards to federal certification. He did not think that the language would add to the equation and cautioned that it could lead to problems. Representative Grussendorf argued in support of retaining the purpose section. Representative G. Davis spoke in support of retaining the purpose section. Co-Chair Mulder questioned if the Governor's proposal included a purpose section. He viewed the section as an obstacle. Vice Chair Bunde noted that the legislature has been advised to keep the constitutional language simple. Co-Chair Therriault acknowledged that the purpose section would not present a legal problem but emphasized that it is unnecessary. Representative J. Davies pointed out that the purpose section would not be incorporated into the Constitution. He reiterated that it is appropriate to include a purpose section in the legislation. He emphasized that a purpose section has carries more weight than a letter of intent. He noted that both the House Resource and Judiciary committees included purpose sections. A roll call vote was taken on the motion to delete section 3 from Amendment 1. IN FAVOR: Kohring, Williams, Austerman, Bunde, Therriault, Mulder OPPOSED: Grussendorf, Moses, Davies, Davis, Foster The MOTION PASSED (6-5). A roll call vote was taken on the motion to adopt Amendment 1 as amended. IN FAVOR: Moses, Williams, Austerman, Bunde, Davies, Davis, Foster, Grussendorf, Mulder OPPOSED: Kohring, Therriault The MOTION PASSED (9-2). Representative Austerman MOVED to ADOPT Amendment 2 (copy on file). Delete language beginning on line 10 on page 1, through line 2 on page 2. Insert: (b) When the amount of a species of fish or wildlife resource available to be taken for beneficial uses, consistent with the sustained yield principle is not sufficient to provide an opportunity for residents to take the resource for all beneficial uses, the highest beneficial use of the resource is subsistence uses. The legislature may, consistent with the sustained yield principle, provide a preference to and among residents for the taking of a wild renewable resource for subsistence uses on the basis of customary and traditional use, direct dependence, the availability of alternative resources, the place of residence, or proximity to the resource. Representative Austerman spoke in support of Amendment 2. He emphasized that something needs to be done to retain some sense of state management. Co-Chair Therriault MOVED to AMEND Amendment 2 by deleting "renewable resource" and adding "wild fish stock or wildlife population." Representative J. Davies OBJECTED. He observed that the term "wild renewable resource" is used in ANILCA and modified by "customary and traditional use." He felt that the amendment to the amendment would narrow the language too far. Representative G. Davis questioned if "game" could replace "wildlife". Representative Grussendorf spoke against the amendment to the amendment and in support of the broader interpretation. Mr. Bishop stated that the terms "game" and "wildlife" have been used interchangeably. Vice Chair Bunde noted that wildlife is more encompassing than "game". Representative J. Davies pointed out that the reference encompasses the entire legislation and follows the word "may". Mr. Bishop stressed that the state needs to be in compliance with sections 804 - 806 of ANILCA. He noted that 804 speaks to the taking on public lands of "fish and wildlife" for non-wasteful subsistence uses. He maintained that the language would comply with ANILCA. Ms. Daniel observed that section 803 refers to "wild, renewable resources." SEC. 803. As used in this Act, the term "subsistence uses" means 16 USC 3113 the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade. Ms. Daniel continued by noting that section 804, which sets up a priority in times of shortage speaks in terms of fish and wildlife. SEC. 804. Except as otherwise provided in this Act and other 11 USC 3114 Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes. Ms. Daniel stressed that the broader term would be applicable in the definition. She maintained that the use of "wild renewable resources" in subsection (b) would track the definition of subsistence uses in section 803. (Tape Change, 2SS HFC 99 - 2, Side 2) In response to a question by Vice Chair Bunde, Ms. Daniel explained that regulations have to accommodate customary and traditional subsistence uses at all time. Section 804 refers to fish and wildlife when there is not enough resources for all rural subsistence uses. Vice Chair Bunde questioned who would be the final arbitrator in regards to the state of Alaska's compliance. Ms. Daniel stated that the Secretary of the Interior would make the decision on the amendment. Representative Grussendorf emphasized that the amendment would allow the legislature to distinguish between commercial and other uses. Mr. Bishop noted that subsistence resources have been marketed commercially and condoned by the federal court. The language does not preclude the use of subsistence resources for commercial uses. A roll call vote was taken on the motion to amend Amendment 2. IN FAVOR: Moses, Williams, Austerman, Davies, Davis, Foster, Grussendorf OPPOSED: Bunde, Therriault, Mulder The MOTION FAILED (3-7). Co-Chair Therriault MOVED to AMEND Amendment 2 by changing "or" to "and" in the last sentence. He noted that it would be his intent that all of the criteria would have to be satisfied. Representative J. Davies OBJECTED. He emphasized that all the criteria would have to be evoked. He stressed that the legislature could require all the criteria to be met. He maintained that "or" allows the maximum flexibility. Co-Chair Therriault stressed that the pressure from the federal government would remain. Vice Chair Bunde questioned if "and" would prevent persons from one subsistence area from hunting in another subsistence community. Ms. Daniel responded that "and" would require consideration of all the factors. All factors would have to apply. She noted that case law relating to Tier II has demonstrated that equal weight would have to be given to all factors. SKY STARKEY, ATTORNEY, ALASKA FEDERATION OF NATIVES provided information on the legislation. He clarified that "customary and traditional" use is determined by stock or population. This is generally done through game management units. A village may have customary and traditional use of a particular caribou population that extends a significant distance from their home. They would not have the same use of a salmon population that is equally distant from their home. They would use the salmon stock that is nearest their village. He emphasized that the amendment to "and" would reduce flexibility. Vice Chair Bunde questioned if "or" would allow greater flexibility. Mr. Starkey stated that with "or" the legislature could chose one or all, but cautioned that if the statute does not have the criteria required by Tier II of ANILCA the state would not be in compliance. Vice Chair Bunde questioned if compliance required "and". Mr. Starkey stated that the requirement is that all persons in a rural community have access to stocks and populations used in a customary and traditional use. Neighboring villages could both have customary and traditional use of the same moose population under Tier I. In a Tier II situation where there is not enough resource to meet the subsistence needs of both villages the determination would be made on the three criteria in Tier II, direct dependency, availability of alternative resource and the proximity to the resource. "And" is used with the criteria at the Tier II level but not at the Tier I level. The state must be in compliance with both Tier I and II. Representative Grussendorf questioned if the intent is to make subsistence a welfare program based on need. He spoke against connecting subsistence to need. Co-Chair Therriault stated that it is not his intent to make subsistence a welfare program. He stated that he is willing to make the distinction between Alaskans who have traditionally relied on a resource, direct dependence on the resource and who do not have availability of alternative resources and are from the area. A roll call vote was taken on the motion to amend Amendment2 by changing "or" to "and". IN FAVOR: Bunde, Mulder, Therriault OPPOSED: Williams, Austerman, Davies, Davis, Foster, Grussendorf, Kohring, Moses The MOTION FAILED (3-8). Representative J. Davies MOVED to AMEND Amendment 2 by deleting "species of" in the first sentence. (b) When the amount of a (species of) fish or wildlife resource available to be taken for beneficial uses, consistent with the sustained yield principle is not sufficient to provide an opportunity for residents to take the resource for all beneficial uses, the highest beneficial use of the resource is subsistence uses. The legislature may, consistent with the sustained yield principle, provide a preference to and among residents for the taking of a wild renewable resource for subsistence uses on the basis of customary and traditional use, direct dependence, the availability of alternative resources, the place of residence, or proximity to the resource. Mr. Bishop stated that the amendment to the amendment would not detract from the intent. Ms. Daniel agreed. Representative J. Davies spoke in support of the amendment to the amendment. Representative Grussendorf spoke in support. There being NO OBJECTION, "species of" was deleted from Amendment 2. Co-Chair Mulder MOVED to AMEND Amendment 2, delete "the highest beneficial use of the resource is subsistence uses" and insert "other beneficial uses shall be reduced or eliminated to protect subsistence uses." There being NO OBJECTION, it was so ordered. Amendment 2 was amended to read: (b) When the amount of a fish or wildlife resource available to be taken for beneficial uses, consistent with the sustained yield principle is not sufficient to provide an opportunity for residents to take the resource for all beneficial uses, other beneficial uses shall be reduced or eliminated to protect subsistence uses. The legislature may, consistent with the sustained yield principle, provide a preference to and among residents for the taking of a wild renewable resource for subsistence uses on the basis of customary and traditional use, direct dependence, the availability of alternative resources, the place of residence, or proximity to the resource. Co-Chair Therriault MOVED to AMEND Amendment 2, delete "When the amount of a species of fish or wildlife resource" and insert "When the harvestable surplus of a fish stock or wildlife population". Representative Williams spoke against the amendment to the amendment. Representative J. Davies spoke against placing "harvestable surplus" in the Constitution. Ms. Daniel agreed that it would be preferable to leave the language out of the Constitution. Mr. Bishop spoke in support of the amendment to the amendment. He felt that it would be beneficial to clarify that the interpretation is more specific. Vice-Chair Bunde spoke in support of the amendment to the amendment. Representative J. Davies emphasized that the issue is to consider sufficiency for all beneficial uses. Co-Chair Mulder pointed out that sustained yield is not going to necessarily allow for the growth of the herd. "Harvestable surplus" can provide for the growth of the herd. Representative J. Davies argued that the Constitution already provides that directive in another place. Representatives Austerman and Williams spoke against the amendment to the amendment. A roll call vote was taken on the motion. IN FAVOR: Bunde, Mulder, Therriault OPPOSED: Davies, Davis, Foster, Grussendorf, Kohring, Moses, Williams, Austerman The MOTION FAILED (3-8). Representative J. Davies MOVED to AMEND Amendment 2 by adding "stock" and population" and deleting "resource". The amendment would read: (b) When the amount of a fish stock or wildlife population available to be taken for beneficial uses, consistent with the sustained yield principle, is not sufficient to provide an opportunity for residents to take the resource for all beneficial uses, other beneficial uses shall be reduced or eliminated to protect subsistence uses. The legislature may, consistent with the sustained yield principle, provide a preference to and among residents for the taking of a wild renewable resource for subsistence uses on the basis of customary and traditional use, direct dependence, the availability of alternative resources, the place of residence, or proximity to the resource. (Tape Change, 2SS HFC 99 -3, Side 1) A roll call vote was taken on the motion. IN FAVOR: Williams, Austerman, Bunde, Davies, Davis, Foster, Grussendorf, Moses OPPOSED: Kohring, Therriault, Mulder The MOTION PASSED (8-3). Co-Chair Therriault reviewed the fiscal notes. Vice Chair Bunde questioned the affect on all funds. Representative J. Davies pointed out that no funds would need to be cut since the additional $10 million dollars would be federal funds. Vice-Chair Bunde stated that the $10 million in federal dollars would go to the Department of Fish and Game. Representative Foster MOVED to report CSHJR 202 (FIN) out of Committee with the accompanying fiscal notes. Co-Chair Therriault OBJECTED. Representative Kohring spoke against the inclusion of a place of residence. Co-Chair Therriault stated that he did not believe that the state was without options. Representative J. Davies spoke in support of moving the legislation. He stressed that the issue is beyond simple negotiations with the federal government. Representative Austerman agreed that the state must act. Vice-Chair Bunde stated that he would support moving the legislation from committee in order to allow the public to vote on the issue. Representative G. Davis felt that the federal government would welcome state action. Representative Williams questioned how the federal government could manage Alaska lands. He maintained that the federal government is directing the state of Alaska. Co-Chair Therriault stressed that there are still major concerns with the legislation. A roll call vote was taken on the motion to move CSHJR 202 (FIN) from Committee. IN FAVOR: Davis, Foster, Grussendorf, Moses, Williams, Austerman, Bunde, J. Davies, Mulder OPPOSED: Kohring, Therriault The MOTION PASSED (9-2). CSHJR 202 (FIN) was REPORTED out of Committee with a "do pass" recommendation and with two fiscal impact notes, one by the Department of Fish and Game and one by the Office of the Governor, both published on 9/27/99. ADJOURNMENT The meeting adjourned at 5:44 p.m.