HOUSE JUDICIARY STANDING COMMITTEE March 30, 1998 2:10 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Brian Porter Representative Norman Rokeberg Representative Jeannette James Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT Representative Con Bunde, Vice Chairman OTHER HOUSE MEMBERS PRESENT Representative William K. (Bill) Williams COMMITTEE CALENDAR HOUSE BILL NO. 406 "An Act relating to subsistence uses of fish and game." - HEARD AND HELD (* First public hearing) PREVIOUS ACTION BILL: HB 406 SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME SPONSOR(S): RESOURCES Jrn-Date Jrn-Page Action 2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S) 2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE 2/17/98 (H) RES AT 1:00 PM CAPITOL 124 2/17/98 (H) MINUTE(RES) 2/21/98 (H) RES AT 1:00 PM CAPITOL 124 2/21/98 (H) MINUTE(RES) 2/24/98 (H) RES AT 1:00 PM CAPITOL 124 2/24/98 (H) MINUTE(RES) 2/27/98 (H) JUD AT 1:00 PM CAPITOL 120 2/27/98 (H) MINUTE(JUD) 2/28/98 (H) RES AT 9:00 AM CAPITOL 124 2/28/98 (H) MINUTE(RES) 3/03/98 (H) RES AT 1:00 PM CAPITOL 124 3/03/98 (H) MINUTE(RES) 3/04/98 (H) JUD AT 1:00 PM CAPITOL 120 3/04/98 (H) MINUTE(JUD) 3/05/98 (H) RES AT 1:00 PM CAPITOL 124 3/05/98 (H) MINUTE(RES) 3/06/98 (H) JUD AT 1:00 PM CAPITOL 120 3/06/98 (H) MINUTE(JUD) 3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM 3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE; 3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS, HUDSON 3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW) 3/06/98 2539 (H) REFERRED TO JUDICIARY 3/09/98 (H) JUD AT 1:00 PM CAPITOL 120 3/09/98 (H) MINUTE(JUD) 3/11/98 (H) JUD AT 1:00 PM CAPITOL 120 3/11/98 (H) MINUTE(JUD) 3/18/98 (H) JUD AT 1:00 PM CAPITOL 120 3/18/98 (H) MINUTE(JUD) 3/20/98 (H) JUD AT 1:00 PM CAPITOL 120 3/20/98 (H) MINUTE(JUD) 3/23/98 (H) JUD AT 1:00 PM CAPITOL 120 3/23/98 (H) MINUTE(JUD) (MTG CANCELLED) 3/25/98 (H) JUD AT 1:00 PM CAPITOL 120 3/25/98 (H) MINUTE(JUD) 3/27/98 (H) JUD AT 1:00 PM CAPITOL 120 3/27/98 (H) MINUTE(JUD) 3/28/98 (H) JUD AT 1:00 PM CAPITOL 120 3/28/98 (H) MINUTE(JUD) 3/30/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER MARY C. PETE, Director Division of Subsistence Alaska Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Telephone: (907) 465-4147 POSITION STATEMENT: Testified on HB 406, Version X; addressed criteria and answered questions. KEVIN DELANEY, Director Division of Sport Fish Alaska Department of Fish and Game 333 Raspberry Road Anchorage, Alaska 99518-1579 Telephone: (907) 267-2224 POSITION STATEMENT: Testified on HB 406, Version X; addressed implementation and answered questions. CLEM TILLION P.O. Box 6409 Halibut Cove, Alaska 99603-6409 Telephone: (Not provided) POSITION STATEMENT: Testified in HB 406, discussed the consequences of federal takeover and management of fish and game. JIM SAMPSON, Member Alaskans Together 1000 Bennett Road Fairbanks, Alaska 99712 Telephone: (Not provided) POSITION STATEMENT: Testified on HB 406; urged the state retain management of Alaska resources. CARL MARRS, President/Chief Executive Officer Cook Inlet Region, Incorporated; Member, Alaskans Together 2525 "C" Street Anchorage, Alaska 99503 Telephone: (907) 274-8638 POSITION STATEMENT: Testified on HB 406; urged the state retain management of Alaska resources. DEAN PADDOCK P.O. Box 20312 Juneau, Alaska 99801 Telephone: (907) 463-4970 POSITION STATEMENT: Testified on HB 406; urged the state retain management of Alaska resources. MARLENE ZUBOFF, Executive Director Angoon Community Association Box 84 Angoon, Alaska 99820 Telephone: (907) 788-3411 POSITION STATEMENT: Objected to HB 406, Version X. KEVIN SWEENEY Alaska Federation of Natives 1577 C Street Suite 300 Anchorage, Alaska 99501 Telephone: (Not provided) POSITION STATEMENT: Requested adequate notice and time for comments to be heard. LYDIA GEORGE P.O. BOX 132 Angoon, Alaska 99820 Telephone: (907) 788-3232 POSITION STATEMENT: Indicated that she did not want Angoon to be taken off the subsistence list. MAXINE THOMPSON, Mayor-elect City of Angoon P.O. Box 189 Angoon, Alaska 99820 Telephone: (907) 788-3653 POSITION STATEMENT: Discussed the situation in Angoon and requested more time on this matter. GREGORY BROWN 5010 N. Douglas Highway Number 19 Juneau, Alaska 99801 Telephone: (907) 586-2836 POSITION STATEMENT: Testified on HB 406. DARIO NOTTI P.O. Box 2175 Bethel, Alaska 99550-2175 Telephone: (907) 543-3072 POSITION STATEMENT: Testified on HB 406. LOREN CROXTON P.O. Box 1410 Petersburg, Alaska 99833-1410 Telephone: (907) 772-3622 POSITION STATEMENT: Testified on HB 406 and offered suggestions. ROBERT HALL, Member Houston Chamber of Commerce (Not provided.) Houston, Alaska Telephone: (907) 892-6555 POSITION STATEMENT: Suggested that the provision providing a preference for Alaskans over other users be placed back in Version X. TED HAMILTON (Not provided.) Emmonak, Alaska 99581 Telephone: (Not provided.) POSITION STATEMENT: Testified on HB 406. KNOWLAND SILAS (Not provided.) Minto, Alaska 99758 Telephone: (907) 748-7112 POSITION STATEMENT: Discussed subsistence. MIKE JACKSON P.O. Box 163 Kake, Alaska Telephone: (907) 785-4177 POSITION STATEMENT: Discussed the criteria in HB 406. DALE BONDURANT HC 1 Box 1197 Soldotna, Alaska 99669 Telephone: (907) 262-0818 POSITION STATEMENT: Discussed equal protection and other constitutional concerns. THEO MATTHEWS, President United Fisherman of Alaska(UFA) Chair, Subsistence Committee of UFA P.O. Box 389 Kenai, Alaska 99611 Telephone: (907) 283-3600 POSITION STATEMENT: Discussed concerns with HB 406, Version X. TOM LAKOSH P.O. Box 100648 Anchorage, Alaska 99510 Telephone: (907) 563-7380 POSITION STATEMENT: Discussed equal protection and access. MARY BISHOP 1555 Glens Grind Fairbanks, Alaska 99709 Telephone: (907) 455-6151 POSITION STATEMENT: Recommended clarity with the language. DICK BISHOP 1555 Glens Grind Fairbanks, Alaska 99709 Telephone: (907) 455-6151 POSITION STATEMENT: Discussed equal protection and common use. DONALD WESTLUND P.O. Box 871 Ketchikan, Alaska 99901 Telephone: (907) 255-9319 POSITION STATEMENT: Testified on HB 406. BEN HASTINGS P.O. Box 8423 Ketchikan, Alaska 99901 Telephone: (907) 225-5014 POSITION STATEMENT: Testified on HB 406. STAN BLOOM 303 Bentley Drive Fairbanks, Alaska 99701 Telephone: (907) 452-5068 POSITION STATEMENT: Stated that the Alaska State Constitution should not be changed, ANILCA is unfair. ACTION NARRATIVE TAPE 98-49, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 2:10 p.m. Members present at the call to order were Representatives Green, Porter, Rokeberg and Berkowitz. Representatives Croft and James arrived at 2:12 p.m. and 2:20 p.m., respectively. HB 406 - SUBSISTENCE USES OF FISH AND GAME CHAIRMAN GREEN again brought before the committee HB 406, "An Act relating to subsistence uses of fish and game." [Due to technical difficulties, approximately 30 seconds elapsed before the taping began.] REPRESENTATIVE BRIAN PORTER expressed the intention that subsistence taking will be as close as possible to the way it was "before it got broke," and that kind of a process will be available at all times. Subsistence only starts to get selective when a shortage exists, and then the bill appropriately ratchets the taking down. CHAIRMAN GREEN concurred, referring to testimony at the previous meeting about ratcheting down by regulation and the protection of subsistence. Number 0160 MARY C. PETE, Director, Division of Subsistence, Alaska Department of Fish and Game (ADF&G), came forward to testify on Version X [0- LS1573\X, Utermohle, 3/27/98], saying she would primarily address criteria and Mr. Delaney would address implementation. MS. PETE told members Section .020(b) contains new criteria to identify nonsubsistence areas, such as the presence of a road or the Alaska Marine Highway. There are two income criteria and one unemployment criterion, plus the presence of jet air service. However, there is no strict definition of a nonsubsistence area, except that it is a cash-based economy plus a list of 14 characteristics that are in current law. These are not reliable indicators in determining that subsistence is the foundation of a community's economy. Whether these are present or absent is generally beside the point in that subsistence carries on in rural communities. MS. PETE provided examples. Using these criteria, communities such as Angoon or Hoonah, where subsistence production is high, would be disqualified because of being on the Alaska Marine Highway system. Similarly disqualified for having jet service would be communities such as Kotzebue, Iliamna, Saint Marys, Minto, Dot Lake or Northway. Establishing who qualifies, and under what regulations, becomes difficult for areas or communities in nonsubsistence areas that are near subsistence use areas or communities with high production. For example, within five to fifteen miles of Bethel are many communities heavily dependent on subsistence uses. The question is whether the use area of Bethel residents would be rendered nonsubsistence, or whether Bethel residents would be disqualified from being subsistence users. Under this bill, it is unclear. Ms. Pete noted that there are overlapping use areas even within the municipality of Bethel. Would Napaskiak residents, for example, be allowed to hunt and fish under subsistence regulations, but not Bethel residents? MS. PETE told members the use of annual median household income is an unreliable measure of dependence on subsistence. "I think I mentioned to this committee before that there is no income level at which subsistence activities stop for a household," she stated. "And in fact, high-producing households tend to be those that have some level of income to underwrite their activities, and they generally are higher producers because they share their outputs with households that can't be as active. Using the federal census arbitrarily freezes the picture as well. A community is in or out depending on what the community has experienced ... that year of the census. Short-term increases in income from sporadic rural employment opportunities such as construction projects or firefighting may increase incomes temporarily, but subsistence hunting and fishing continues throughout the ups and downs of these income levels." MS. PETE said the use of unemployment rate data from federal statistics is a real problem, especially in small rural communities, because they are basically measuring people who are actively looking for jobs. "And if there are no jobs to be had, the people not looking for jobs aren't even counted in the unemployment statistics," she noted. "So, even if they're high, they probably should be doubled, easily, because there are people who don't look for jobs; they consider their subsistence activities to be their job. And since it isn't regular employment, they wouldn't be counted anyway." MS. PETE next addressed the use of jet aircraft, saying it is not a reliable indicator of a community's economy. There are other transportation services, such as helicopter or turboprops, that seem arbitrary. In addition, some communities may receive jet service for only parts of the year. In that case, are they in or out? MS. PETE referred to the first 13 criteria, then suggested the 14th is whatever the legislature finds relevant. She told members that if the legislature wishes, as a public policy matter, to exclude particular areas or communities from subsistence eligibility, it should either use those now in statute, simply identify communities by name, or provide guidance to the boards to identify areas. She cited as an example in the task force package, which uses "rural" and gives guidance to the boards to determine what is rural and nonrural. Number 0568 MS. PETE next addressed Section .030. Representative Porter had noted at the beginning that regardless of how this is drafted, there will be subsistence regulations at the same time that an area is determined to be providing a reasonable opportunity under nonsubsistence regulations. Ms. Pete stated, "I guess that generates a lot of questions in my mind still, in part because there doesn't seem to be a requirement that subsistence regulations - or nonsubsistence regulations, for that matter, be consistent with customary and traditional uses." Due to that requirement, there can be more liberal bag limits or different methods and means for the same population. It is unclear how that would work. MS. PETE noted that the bill allows the board to find a substitute for providing a reasonable subsistence opportunity, and it seems to cross fish and game. For example, if there isn't reasonable opportunity for moose, perhaps they can cross a board's jurisdiction and say that the Board of Fisheries can then provide more opportunity for pink salmon. It is unclear how that would work. Ms. Pete suggested the simplest "fix" would be for HB 406 to say the board must provide a reasonable opportunity for subsistence under subsistence regulations, even at a level of abundance where other uses are not restricted. MS. PETE next advised members that the bill provides no systematic way for the boards to ensure that in times of diminishing abundance, other uses are restricted while protecting the reasonable opportunity for subsistence. Number 0730 MS. PETE referred to Section .260, regarding the local and regional advisory councils. The regional committees seem to be an attempt to accommodate ANILCA requirements for regional subsistence advisory councils. However, the federal regional subsistence councils currently address subsistence issues only. This bill provides that regional committees would address all fish and game uses and have broad membership. Ms. Pete said it seems to be another tier of advisory committees, without allowing a forum or focus on subsistence issues that could impact other uses, and vice versa. She said ANILCA requires that state or federal boards adopt recommendations by the regional councils, unless there are compelling reasons not to do so. This doesn't provide a similar requirement that the boards defer to regional councils that have a consensus or a recommendation to the boards. "This would be a problem with ANILCA compliance," she concluded. Number 0829 CHAIRMAN GREEN noted the intent that the ratcheting down would actually reference ADF&G regulations; therefore, the language must be modified to do so. He explained, "But to try and get the methods that you use throughout the state through your regulations would be an onerous task to put in here. So, what we're saying is that to accomplish many of the things that you discussed ... in your testimony would in fact be handled by regulation." CHAIRMAN GREEN next referred to Ms. Pete's discussion of delegation of authority to the regional board and stated, "You were right in the fact that we're trying to take as much as we felt was reasonable from ANILCA, so that there wouldn't be just complete change; we did decide to try this concept of a regional board." Chairman Green cited following as a major complaint: there are so many things in front of the fish and game boards. This regional board would act as a filter, helping the fish and game boards act in a more expedient manner. "So, we're going to attempt to streamline, rather than to encumber," he concluded. Number 0970 MS. PETE replied that certainly the concept of regional boards is still in state statute, adding that the Governor's task force version refines the regional board concept and process. Some of the questions about implementation would be cleared up by Mr. Delaney's testimony. Ms. Pete noted that in trying to understand the leap from abundance, for all Alaskans qualifying, to a shortage, Deputy Commissioner Bosworth had gone through the process that the ADF&G uses under current law. She stated, "This bill repeals all of those provisions, in repealing .258. So, I think we're having a hard time doing away with .258 and trying to figure out what's there." CHAIRMAN GREEN indicated this may have to be modified to re- incorporate what Deputy Commissioner Bosworth had talked about, because that still is the intent. Number 1055 REPRESENTATIVE ETHAN BERKOWITZ asked Ms. Pete what percentage of the state population would be disqualified under subsection (b) on page 2. MS. PETE answered that it is difficult to determine the percentage, but that she had a list of the communities that would be disqualified. She first said it would be 60 communities, then indicated the big-population boroughs of Anchorage, Fairbanks, Juneau, Ketchikan, Valdez and Kenai are also out. They would be adding communities such as Angoon, Central, Dot Lake and Eagle. "In terms of population, it probably doesn't add that many more people," she concluded. "It's just the character of the communities that are added are pretty arbitrary." Number 1119 REPRESENTATIVE BERKOWITZ said he sees communities like Cordova and Unalaska being swept into this. He asked whether a transient or migratory stock that goes from a nonsubsistence area to a subsistence area presents special management problems or challenges. Number 1161 KEVIN DELANEY, Director, Division of Sport Fish, Alaska Department of Fish and Game, answered, "Challenges and considerations? Certainly; it is one extra level of complexity there. Insurmountable hurdle? Probably not, but certainly a consideration that needs to be taken into account." He said he would address that in his testimony. CHAIRMAN GREEN acknowledged the presence of Representative Williams. Number 1192 REPRESENTATIVE JEANNETTE JAMES followed up on Representative Berkowitz' question, mentioning the communities that would be excluded because they couldn't meet the criteria. She asked Ms. Pete what she believes ANILCA was to address, including what kinds of people and what kinds of needs ANILCA was intended to cover. Number 1255 MS. PETE indicated John Borbridge was in attendance and he intends to address that piece of history. She then indicated that in pre- McDowell, the state seemed to have been implementing the law and has been in compliance fairly well, providing opportunities for people that needed them. REPRESENTATIVE JAMES noted that was when they were acting solely under "rural." She suggested the need to define it another way, to determine what they must define that fits these people that were supposedly given this benefit. Number 1349 CHAIRMAN GREEN said that was a dilemma, because with the "rural" definition in another bill that had been presented, there seemed to be absolutely no criteria used. He stated, "Prior to that, though, we did have nonsubsistence area, essentially the Railbelt. Now, there were several communities within that nonsubsistence area, if I'm not mistaken, and that's in effect what we're trying to do here." Chairman Green said if Anchorage, Fairbanks, Juneau and Ketchikan were nonsubsistence areas according to ANILCA, they are trying to find what characterized those communities and use that as a guide to other communities, to differentiate between a cash economy and a subsistence economy. "And we don't get [nearly as] many villages as you do; we came up with about a dozen," he said. "But those would fit that same criteria, just like Fairbanks does. And that's the intent. If that's not the right way, then we would appreciate your giving us some guidance as to what is the proper way. But ... we're trying to get across: If 'rural and urban' doesn't get it, then what other criteria can we use to get what does really depend on subsistence, as opposed to what depends on a cash economy?" Number 1431 REPRESENTATIVE BERKOWITZ asked why subsection (b) has been incorporated into Version X, when it wasn't in Version R. Was it in response to anything in particular? CHAIRMAN GREEN replied, "We did away with the personal criteria and went to an area criteria, saying, 'Okay, what would be the best way to determine whether a village or a community was in or was out?'" He noted that there had been a lot of dissention when they tried to do it individually, because it raised the specter of dependence or welfare. Therefore, they had asked what commonality that they could use. Number 1473 REPRESENTATIVE ERIC CROFT followed up on Representative James' question, trying to get to what characterizes a community that is appropriate for a subsistence area. He mentioned Hoonah's disqualification under this bill because of being on the Alaska Marine Highway system, and Saint Marys' disqualification because of regular air service. He asked whether Ms. Pete is familiar with either community. MS. PETE answered that she went to high school in Saint Marys. Number 1490 REPRESENTATIVE CROFT asked what characteristics of Saint Marys makes it an appropriate subsistence area. MS. PETE referred to Chairman Green's explanation of why they came up with these characteristics. She then explained that when the joint boards, when they did so, would determine an area to be rural or nonrural, in going through either proposals or questions about those determinations since the mid-'80s. There were data-based discussions about what these communities were engaged in, including per-capita income, the number of jobs and types of jobs. And at the core was per-capita subsistence production, the per-capita reliance on fish and game. MS. PETE explained there was a low range of per-capita production of wild foods in places determined to be nonrural, and a statistically significant break between what were determined to be "nonrural" and "rural" areas. Some areas flip-flopped from nonrural back to rural in the space of a year, because of more information or the public comment process; Glennallen is a case in point. Ms. Pete emphasized that all of those determinations were data-based, although some were policy calls of the joint boards, such as, "Do we go along with what Fairbanks does in the Wood River or Nenana?" Number 1627 CHAIRMAN GREEN asked, "When those were established before, though, weren't they fixed? I mean, they didn't fluctuate in and out; there was an area considered nonsubsistence?" He noted that jet air service is only one of four criteria, (A) through (D), that Saint Marys would need in order to be considered a nonsubsistence area. MS. PETE concurred. CHAIRMAN GREEN indicated Saint Marys has jet service, but doesn't have the other three criteria. Number 1665 REPRESENTATIVE CROFT told members he is still trying to understand what those criteria do. He asked whether Hoonah was in before, as a rural area, and if so, what is it about Hoonah that made it a subsistence area. MS. PETE replied that Hoonah was in a subsistence area based on its reliance on fish and game, primarily the per-capita production. She asked: In looking at the communities, what is the foundation of their economies and why do people live there? "And in many of these communities, the most constant, stable part of their economy is subsistence production," she said. "Money comes and goes. Jobs come and go. But what keeps the foundation of many of these communities is the fact that they live along a stream or on the coastline that has high marine mammal or high salmon or high herring production, or ... they're along a large caribou migratory route, so that the basis of these economies is the wild foods that they have access to." REPRESENTATIVE CROFT asked whether that is true for Hoonah. MS. PETE responded in the affirmative. Number 1715 REPRESENTATIVE CROFT referred to Ms. Pete's suggested "ratcheting language" to make it work in Section .030. He asked her to repeat the suggested sentence that needs to be added there. MS. PETE replied that the law that allows that type of ratcheting and allowance for reasonable opportunity of customary and traditional uses is in .258, the current law, which is repealed on page 7. Number 1750 REPRESENTATIVE CROFT said, "Before the .258 discussion, you talked about you need a sentence there that says...." MS. PETE replied that there should be separate subsistence regulations that provide reasonable opportunity consistent with customary and traditional uses. REPRESENTATIVE PORTER said, "As opposed to personal use." MS. PETE concurred. She added that whether it is abundance-driven or not, those regulations should stand. She returned to the question of why these communities qualify for subsistence and noted that many communities are placed in traditional harvesting areas. Number 1805 REPRESENTATIVE BILL WILLIAMS referred to page 2, subsection (b)(1), which says, "(b) A nonsubsistence area is an area or community that (1) is connected to the contiguous state highway system by road or by the Alaska Marine Highway System". He asked how that would affect Southeast Alaska. MS. PETE replied that most communities considered subsistence would be considered nonsubsistence, including Hoonah, Angoon, Klukwan and many others. REPRESENTATIVE WILLIAMS also mentioned Cordova and Valdez. Number 1867 REPRESENTATIVE NORMAN ROKEBERG referred to Ms. Pete's comments about income determinations and asked whether it would be a fair characterization of her testimony that using any type of income criteria would be inappropriate. MS. PETE said that's correct. REPRESENTATIVE ROKEBERG noted that many urban residents take exception to the high-income people in rural areas who would be allowed to participate in very limited subsistence situations. He suggested that is probably the most controversial area of allowing a subsistence preference. He asked whether the ADF&G or the boards have ever discussed any provision that would put a cap on the level of family income. MS. PETE recalled discussions about where income fits into the picture. She explained that in looking at production levels, where income helps is with equipment. Realistically, people need some level of income to do subsistence activities, including purchase of snow machines, gasoline, ammunition and so forth. What they have found in the classic rural communities engaged in subsistence economies is what they call the 70/30 principle, that 30 percent of the most active households produce 70 percent of the subsistence output in any given year. That 30 percent of the households tend to have the higher incomes, although that is not always true. They have the most able-bodied producers and processors. They have people who work and can underwrite the purchase of equipment, and they often take under their wing people who don't work, to help them in production. And because they in essence overproduce, they share with family members or elders or other households that cannot produce, such as the disabled or single mothers with children. MS. PETE said they had found that for the very high-end income levels, such as school teachers or transient professionals who come into the region, they often cannot be high producers or hunters. Therefore, even though there may be high-income people living there who theoretically qualify, those people generally don't engage in subsistence. If they teach or do administrative work for ten months of the year, for example, they are gone for the most highly active parts of the year. "So, I remember the joint boards deciding that that wasn't a very useful thing to pin on who qualifies or didn't qualify," Ms. Pete concluded. Number 2045 REPRESENTATIVE ROKEBERG said if, in fact, those high-income producers weren't going to do it anyway, then they shouldn't object to an exception from the right to subsist. MS. PETE agreed for the most part, but restated that there is no point of income level at which people stop engaging in subsistence. REPRESENTATIVE ROKEBERG emphasized that this issue bothers urban dwellers, when talking about equity and fairness in the sharing of the wealth of Alaska's resources. He said this is an issue they must face. Number 2092 REPRESENTATIVE WILLIAMS suggested that is exactly why Alaska is in this position, and that people were living well prior to McDowell. REPRESENTATIVE ROKEBERG said it is the $100,000-a-year person living in Glennallen or Ninilchik doing this that drives people crazy. Number 2144 REPRESENTATIVE ETHAN BERKOWITZ expressed that his two areas of concern are whether the bill prevents federal takeover and whether it protects the subsistence way of life. Focusing on the second part, he referred to page 2, subsection (b), and said he is not certain how these elements have a connection to the subsistence way of life. For example, how does being served by the Alaska Marine Highway System or being able to drive into Anchorage affect an individual's subsistence lifestyle? Number 2179 CHAIRMAN GREEN replied that they have been talking with several members of the ADF&G. He suggested it would be best to limit, as well as they can, the number of people who would be in a subsistence setting when the harvestable game is very low. One discussion had been that instead of listing criteria, perhaps the legislature should actually list the communities. However, there should be criteria for that, and they are trying to determine what those criteria would be. CHAIRMAN GREEN said there were flaws in the task force approach. For example, Saxman was included but Ketchikan wasn't. He said he couldn't see any rationale behind how the communities were chosen, if it was supposedly based on rural or nonrural. "So, we went through another iteration here, trying to come up with something that was common," he said. "And I hear what you're saying, that the way you did it before was kind of a loosey-goosey thing, saying, 'Well, we think these people are more dependent on it,' or, 'This is more customary and traditional here than it is over here,' which was an arbitrary decision by Fish and Game?" Number 2255 MS. PETE replied, "No, the opposite. It was data-based." CHAIRMAN GREEN asked data-based on what. MS. PETE said it was data-based on things like subsistence output per year, the numbers and kinds of jobs, and how much unemployment or underemployment there was. CHAIRMAN GREEN responded that some of those things are right in here. He cited unemployment as an example. MS. PETE said they are listed under the characteristics in subsection (c). "Certainly, they were there," she added. "But they weren't as proscriptive ..., with arbitrary cut-off points, as under (b)." Number 2279 CHAIRMAN GREEN asked whether Ms. Pete has a form or policy they had used. He said, "If you could share that information with us, maybe we could work toward a common goal. I hear it, but I've never seen it. Could you tell us, or show us, or send me a memo or something?" Number 2290 MR. DELANEY said he and Ms. Pete were both there in 1992 when the joint boards deliberated after passage of the 1992 law, in an effort to draw the boundaries of what are now the nonsubsistence zones in the state. He believes a majority of the calls they needed to make were not close calls; they had ample information, and it was fairly easy to draw a conclusion, one way or the other. In addition, there were a few areas that were more difficult to draw; most of those lie not so much on the road system but in the Railbelt. Mr. Delaney stated, "That's where I would say, having observed those discussions, that they did what Director Pete talked about earlier. They took a look at the data bases, and then they made some legitimate public policy calls; they used their discretion to say 'in' and 'out.'" Number 2332 CHAIRMAN GREEN asked whether those varied or stayed in or out. MR. DELANEY answered that for the most part, since 1992, the boundaries of those areas have remained unchanged, with minor adjustments. CHAIRMAN GREEN said, "Well, that sounds like exactly what we're looking for. If you have that already, would you please share it with us?" Number 2359 REPRESENTATIVE BERKOWITZ stated, "I just want to be clear on this. Representative Green is concerned that there's some limits placed in the contingency of a shortage. And if someone currently is subsistence hunting or fishing, are they subject to seasons, bag limits, anything like that? If they are, could you describe the kind of limitations they have?" Number 2373 MS. PETE replied, "All hunting and fishing, just about, is subject to regulation. There are seasons, bag limits, methods and means criteria. Where there aren't enough for all subsistence users, in the current situation, since all Alaskans qualify, we have (indisc.) for Tier II hunts, for example. You go through a process of either adjusting seasons or bag limits, or methods and means, to the point where the appropriate board determines that there isn't enough ... to satisfy all subsistence users, and then you start to distinguish among the subsistence users, through the Tier II process. And in the Tier II application process, you use two criteria: one is dependence; another is historical dependence on that species or that population, and whether you have alternative sources, alternative means, to satisfy your subsistence needs. There are those two criteria left (indisc.). There is proximity to the fish or game; that has been struck down." Number 2431 REPRESENTATIVE BERKOWITZ expressed his understanding that the department could close off something in the contingency of a dire emergency. MS. PETE affirmed that. CHAIRMAN GREEN said, "Following up on Representative Berkowitz, I think that's exactly what we're looking at. You call it Tier II; we're calling it whatever this kind of dependent subsistence is. And the other part of subsistence would be, if you want to keep it that way or a general subsistence, or ... however we designate it, if you have criteria that you use, that have worked fairly, that's what we're after." Number 2456 REPRESENTATIVE PORTER concurred that the committee needs some assistance in crafting language that accommodates what both the department and the committee would like to see happen. He requested they provide any suggestions for the specific criteria they had been talking about, to edify the 14 characteristics. TAPE 98-49, SIDE B Number 0006 REPRESENTATIVE PORTER continued, talking about having a subsistence customary and traditional taking of fish and wildlife; next to it could be a vegetarian commune that doesn't need a subsistence preference, except on the berries. He said this doesn't fit that, suggesting they are looking for something that would make that fit. MS. PETE responded, "Pre-McDowell, just because you were rural doesn't mean you had subsistence. You could be rural but not have customary and traditional uses of fish and game, and not qualify." CHAIRMAN GREEN said, "And that's where we want to go." Number 0030 REPRESENTATIVE PORTER said, "I think that 'rural' is the problem all over the place. I mean it's something that there's no doubt that we're going to have to deal with in ANILCA, but it isn't the appropriate term that we're looking for. Nobody knows what 'rural' is or isn't. I think we could very reasonably come up with what is a subsistence area and what isn't. Whether that's rural or not, especially looking at 9th Circuit Court of Appeals definitions of rural, ... it just doesn't work." Number 0053 REPRESENTATIVE JAMES said it seems they ought to be defining a subsistence lifestyle, for individuals as well as for communities. She said she understands the Native interests, but those issues cannot be addressed at this level of government. She commended Ms. Pete's testimony at a previous hearing, then suggested people may also live this subsistence lifestyle outside of a community. She asked Ms. Pete if she considers people who depend greatly on marine mammals, which harvests are controlled by the federal government, to be part of this issue, or if they are only talking about harvests controlled by the state. She specified, "When you're calculating whether they principally depend on a subsistence lifestyle, do you count that principal dependence upon marine mammals or other issues that we don't, as a state, have any control over?" MS. PETE replied, "In our data base, we look at all wild fish and game, including marine mammals. We don't separate them out." Number 0176 REPRESENTATIVE JAMES continued, "So then, if you include marine mammals in your calculation, you're automatically giving an edge to the Native population, because they're the only ones that can harvest marine mammals. So, if they're out there in Western Alaska somewhere depending on marine mammals, that's going to automatically - regardless of anything else - probably make them qualify." MS. PETE answered, "For coastal communities, probably. But even without marine mammals, there are pretty hefty per-capita productions of fish and game, non-marine mammal game." Number 0200 REPRESENTATIVE JAMES inquired, for the food supplied by subsistence, what percentage is game and what percentage is fish. MS. PETE replied that in their latest update, the percentages varied slightly, but fish predominates in whatever output they look at. About a quarter of that is game, depending on location. Also, depending on location, the highest percentage is about 14 percent marine mammals, to her belief. REPRESENTATIVE JAMES asked whether that is 14 percent marine mammals, with the other 86 percent being mostly fish. MS. PETE said generally, depending on the location, it is 60 percent to 80 percent fish. Number 0223 REPRESENTATIVE ROKEBERG noted that he had to leave soon to chair the House Labor and Commerce Standing Committee. He referred to the suggested alternative of naming actual communities or villages; he counseled against that, saying it would be politically unpalatable for some people. More importantly, the boards need flexibility and a certain level of discretion, because there is always a change in dynamics. As Representative James had pointed out, a change in economic circumstances could cause a community to qualify or not qualify, for example. He said there are communities in the state that have to recognize that and may have to change their attitudes about whether they are subsistence-qualified or not. He added that he doesn't think there is a constitutional right to subsistence in this state. REPRESENTATIVE ROKEBERG complimented Chairman Green on trying to set some standards in this legislation. He referred to the question of whether some Southeast Alaska communities might not qualify because of the ferry system and noted that there are secondary criteria, which might need some adjustment. Nevertheless there may be communities on the road system or the ferry system that have high income levels and may have to give something up. He said there is a growing belief that game, in particular, is under increased pressure in Alaska. The way the definitions are set forth now, only a very limited geographical area of the state is excepted from subsistence activity, although it isn't small in population. REPRESENTATIVE ROKEBERG concluded, "We should be able to talk to the people of the state and make sure they understand that one of our goals is to restrict the number of people that can qualify for this to the people that, number one, need it, deserve it, and have the historic context with it, ... whatever criterion you come up with that is workable. ... Should we minimize the number of people or should we maximize the number of people that qualify? And I think that's something we need to decide on, and I think that's what you're trying to do here, to a degree. And I think that's good." Number 0399 CHAIRMAN GREEN shared a portion of an e-mail message received from a very remote village, which stated: "In addition, you should know that the people of the rural areas of Alaska have significant buying power in the urban areas of Alaska like Fairbanks, Anchorage and Kenai. I order my groceries from Anchorage every month, as do other teachers and residents of [the village, which Chairman Green did not name] and numerous other villages. ... I could just as easily order them from Bethel or from a company in Woodinville, Washington." Chairman Green stated, "Now, the problem we're having in trying to resolve this subsistence issue is you get a statement like this, that doesn't sound like a subsistence person." Number 0432 REPRESENTATIVE BERKOWITZ responded that it bears absolutely no relationship to subsistence. He explained, "What you are looking at is sort of an idea that subsistence is merely a way of putting food on the table, and I think that's one paradigm for subsistence. There's another paradigm, and that's the paradigm I think that most the people in the Bush see subsistence as, and that's as a way of life, as a way of going out and gathering the ... food, as a way of generating some kind of community spirit and ... sense of community. Now, just because someone purchases groceries through a mail order, or augments their diet by going to a store, doesn't mean that they necessarily are doing less hunting or less fishing. It just means that they're augmenting it in a different fashion. And those are two, in my mind, very separate questions." REPRESENTATIVE BERKOWITZ said it goes back to the question asked by Representative Rokeberg about whether they should try to draw the net as tightly as possible or to open it widely. He noted that one problem of drawing it too tightly is running afoul of ANILCA, which the state cannot afford to do. The advantage of doing it widely is it would accommodate ANILCA, as well as the interests of Alaskans who want to be part of a subsistence lifestyle. He concluded, "When we fall short of that, when we draw this too tightly, we cut off that option for a lot of Alaskans, which is more problematic not just in terms of ANILCA, but in terms of the choices that the people in Alaska want to make." Number 0502 CHAIRMAN GREEN indicated perhaps the best idea is getting into the ADF&G data base and determining a way to establish what criteria to use, because in order to get changes to ANILCA, there must be a procedure. He suggested the need to stop some of the things imposed on the state by ANILCA, change them around, and then stop federal takeover. REPRESENTATIVE JAMES said she understands what subsistence means to these people because she grew up on a small acreage and knows what it is to live off the land. She told members one of the biggest fears she hears from the public, which she would like to protect, is not to expand the use of subsistence use in the future, or let more people come in and be part of the system; rather, they want to allow those people who want to live that lifestyle to do so for the rest of the lives. However, the issue that needs to be addressed is ensuring that people don't live both lifestyles. She suggested cooperation is needed here, and she expressed great interest in getting language that everyone can agree on, to define what they are trying to protect. Number 0639 REPRESENTATIVE CROFT asked whether under this bill Barrow would be included or excluded. MS. PETE said it is excluded because of jet service, the rate of poverty, and the median income. REPRESENTATIVE CROFT stated his understanding is that because of development there, Barrow has a fairly wealthy non-Native population but a relatively poor Native population that he believes would probably fit these median income, poverty level and unemployment criteria. He inquired about situations where a Native community with a customary and traditional use of the resource, and with few significant alternatives, is amalgamated to a fairly wealthy white community because of development. He asked if his understanding of Barrow is true, and if so, why it makes sense to have those Natives lose their subsistence preference because of that situation. Number 0717 MS. PETE replied that Barrow is not the only community in that position. She cited Bethel, Nome and Saint Marys as examples. She noted that Saint Marys has a regional boarding school and a large Catholic missionary outpost. Bethel is a service hub for 56 villages and has a large state and federal presence, with many non- Natives in higher paying professional jobs in the community. She stated, "I guess for management and implementation's sake, what I'm saying, as a division director, is it doesn't make sense to exclude those places from subsistence." REPRESENTATIVE CROFT suggested in many places, the higher paid school teacher, mine operator or management is not from the Native community. MS. PETE concurred. Number 0785 REPRESENTATIVE PORTER asked whether a majority of the people in Bethel, for example, live a subsistence lifestyle such that under pre-McDowell rules and regulations, Bethel would be considered a subsistence area. MS. PETE said yes. Number 0830 MR. DELANEY told members he was present to discuss some fairly specific implementation issues, which had been mentioned briefly. He noted that some testifiers had traveled long distances, and he said he would spend a couple of minutes letting members know what type of information he had planned to bring forward that day. He stated, "What I came to discuss specifically were two things. And one was what we assess, or some of the practical effects on other beneficial uses and on subsistence uses of having all Alaskans eligible for subsistence priority - a statutory priority - outside of the nonsubsistence zones. That was number one." MR. DELANEY continued, "And then the second thing I came to talk about today was maybe just discuss with you some of the management utility of nonsubsistence zones, and how modifying boundaries to carefully adjust for what's within and what's without - at least in a near proximity - affects the way we actually manage, and the effects on the other beneficial users. So, it gets down one level from the 'what should be and what shouldn't.' But it's real important, I think, to have an interactive discussion when you look at characteristics of a nonsubsistence zone, and the practicality of actually managing hunting and fishing with boundaries that exist in kind of, sometimes, awkward places." Mr. Delaney concluded by telling members he would be present the next two days to work with the committee. CHAIRMAN GREEN thanked both Mr. Delaney and Ms. Pete. He called on Steve White from the Department of Law, but Mr. White deferred to the out-of-town testifiers. Chairman Green noted that there would be some redrafting, and suggested Mr. White may want to testify after the redraft occurs. Number 0942 CLEM TILLION came before the committee to testify. He has the same trouble on what is subsistence. He defined subsistence as a man who shoots a moose with a 70 inch spread and leaves the horns and packs the meat out. Mr. Tillion said he would discuss the horrors of federal management and said he was in the old commonwealth party that didn't want statehood, but rather independence. He noted his support of the Native land claims issue because of the giving up of aboriginal rights. He noted that he has a mixed family. He doesn't like the idea that some of his grandchildren can hunt seals and some can't. Mr. Tillion informed the committee members he was a fur seal commissioner. He believes the horror of what Green Peace did to the people of the Pribilof Islands is one the committee ought to remember if they are even thinking of pushing it to the wire and maybe going to federal management. They were wiped out financially. Today those on the Pribilof Islands are allowed to take a certain amount of seals for food, but must place the hides in a pit and pour acid on them so that nothing of economic value id left. That is federal management. Today, we have one-eighth the number of salmon in Alaska compared to when the federallies matched it. The federal government couldn't say no to any pressure group, and they didn't have the financing to do it. When the field people in Alaska wanted to take an action, it had to be cleared with Washington, which took three calendar days. By then, often the run was lost or the disaster had happened. MR. TILLION pointed out that Halibut Cove is nonsubsistence under the last criterion. He said, "We're very rural, I don't object to that until they start closing the clams or something back, because the things we depend on, they've never closed." He discussed problems with using a cash criteria. He referred to a person who has an urban job and makes $100,000 a year, a high-line seiner in Hoonah that might make $100,000 some year and the hippie that has just moved in and has no income. He asked if the hippie would be more eligible than that Tlingit who has lived his life picking gumboots on the minus tides. Mr. Tillion referred to when ANILCA was passed and said that we operated on a fairly good basis until the McDowell case came along. He said what Alaska should be terrified of federal management. He indicated that he thinks that the average person of Alaska feels that those who harvest to eat should have preference. He said, "But we have a problem with the urban members on the Board of Fish. They think well, you've got your personal use. And I said, 'Yeah, you open the season for - in the late fall for crab.' Well what good does that do me? That gives me three months that I can eat crab. 'Well, you put up what you need for the winter.' I said, 'I don't eat frozen crab. I go to flounders and other things that aren't frozen. I don't live in a rural area where I live to eat some frozen thing that I can buy at the store.'" MR. TILLION said while he believes the problem is a solvable problem, you have to leave some flexibility with the board as subsistence at Unalakleet is totally different than subsistence along the Gulf Coast. He referred to Halibut Cove and said, "When somebody says, 'You're not rural,' I say okay, I can understand that because what I realize is we have twice weekly mail boats, people can access a store. We shouldn't be rural. But Port Graham that has to fly it in and the whites that lives at Port Graham, and there is a number of them, should have the right to harvest the resources of that area because it is so costly to fly your groceries in." Mr. Tillion referred to Bethel where there are good payrolls. He said that most of the resource that is used for subsistence is not anything you're going to have a big argument about; everybody is thinking of the caribou, moose and salmon. It is not as big a problem as people say, but there will be people that will fight over it. Mr. Tillion discussed how he got to Juneau from Halibut Cove. He said if the federal government takes over management, there will be special interest groups in Pennsylvania and New York that will do to Alaska what Green Peace did to the people of the Pribilof Islands who were left destitute. The special interest groups will come in and manage from the heart instead of the brain and we will have lost things that we worked for years for. MR. TILLION said in the 1950s before statehood, he was in Alaska tagging crab for the University of California. He informed the committee that Cook Inlet was closed for fishing for 15 years, crab couldn't be taken for sport, subsistence or commercial. He pointed out that the way the living resource of the Bering Sea was saved because it was under harvested by about 40 percent. Alaska currently has 54 percent of all the fisheries of the United States. He stated, "We have done a good job, biologically to risk this - of turning it back to somebody else. Don't do it please. ...Make this amendment." He informed the committee that there are a lot of places in Alaska that don't have a fall-back position; a lot of money is made one year and nothing the next year. The subsistence food is a real basis. He urged the committee not to set a cash criteria. He further urged the committee to make sure the federallies stay in Washington, D.C. Number 1727 CHAIRMAN GREEN said, "If we could work through the dilemma that Mary and Kevin brought up to us, do you think we are - you indicated you think we're in the right direction?" MR. TILLION said he believes it is separate from the constitutional amendment. He said to him, the priority is to keep the feds out. He said, "We'll have our internal family fight among Alaskans. Let's not bring the guys from [Washington], D.C. into that fight." Number 1760 REPRESENTATIVE WILLIAMS pointed out that there are several people in the legislature and outside organizations that are afraid of federal oversight. He asked Mr. Tillion to explain the difference between federal oversight and federal management. MR. TILLION responded that federal oversight is a little different, but it would be very hard to reach federal oversight if you're doing a conscientious job. For example, if you were doing the job and somebody complained that Bethel didn't have an allocation but Akiak did. The federal oversight could take that up, but the chances of them bringing it before a judge and getting anywhere is almost nil. He preferred that we had nothing to do with the federal government. Mr. Tillion stated that he could live with federal oversight, but he couldn't live with direct management. CHAIRMAN GREEN asked if Alaska would have to make some concessions in order to keep the federal government out. MR. TILLION responded, "Yeah, I think we were double crossed, but that has nothing to do with it. They have have the right to double cross us, legally. And therefore, let's face up to what we have now. They've made a couple of good concessions - these last changes that [Senator] Stevens got through are a lot of the problem. I think we can live with the rest. And am I nervous? Yes, but I'm not suicidal and doing nothing is suicidal." Number 1899 REPRESENTATIVE CROFT said HJR 66 is the constitutional amendment. He stated that there is a list of 12 changes to ANILCA and the constitutional amendment does not take effect until the 12 things are changed. He said, "If we do it in that manner, it doesn't take effect until all these things happen on federal law, some of them pretty aggressive, that even though we've written a good amendment and they have a good statutory structure, we just may never get there." MR. TILLION said the thing is we've only got so many congressional days. He said, "There are some of the higher-ups with experience in the federal government that realize they can't do it. And they're in control right now, but there is a lot of them that are just slobbering over the new budget and the new jobs and the chance to come to Alaska. Don't let them do it." Number 2100 JIM SAMPSON, Member, Alaskans Together, was next to come before the committee. He stated he has lived in Alaska for almost 40 years and has fished and hunted all his life. Mr. Sampson explained that Alaskans Together is a group that formed to help resolve the subsistence issue. Alaskans Together very vigorously opposes the federal takeover of fish and game in Alaska, and they believe Alaskans should manage their own fish and game resources. He thanked the committee members for their leadership on this matter. Mr. Sampson said as the former mayor of the Fairbanks North Star Borough, he feels he has about a good a feel as any others as to how people feel on the issue. He feels very strongly that the majority of people in Interior Alaska do not want the federal government to manage Alaska's fish and game. A recent poll by Alaskans Together showed that an overwhelming number of Fairbanks residents agree with him. The poll also showed that people want to vote on the issue. He referred to an editorial that was in the Fairbanks Daily News Miner the previous day and said it was very complimentary of Chairman Green and the committee to resolve the issue. The editorial said there also needs to be more work. As the legislature gets closer to adjournment, he believes the committee will see Alaskans become more concerned about the issue. Mr. Sampson explained he had worked with the federal government for many years. He urged the committee to take appropriate steps to stop the federal government from coming and managing Alaska's resources. Alaskans Together will be stepping up their efforts to convince the legislature to let Alaskans resolve the issue in a way, that will bring finality to the issue once and for all. TAPE 98-50, SIDE A Number 0001 CARL MARRS, President/Chief Executive Officer, Cook Inlet Region, Incorporated (CIRI); Member, Alaskans Together, came before the committee to testify on HB 406, Version X. He commended the committee for addressing the issue. He said there are changes that go in the right direction as far as Alaskans Together are concerned. Mr. Marrs stated, "The big concern is when you look at what federal management is and what subsistence means in federal management, traditional and cultural subsistence purposes, and the federal government has no way or means, and no requirement to manage it for sustained yield purposes." He referred to ADF&G and said they do manage on a sustained yield basis and subsistence is part of that sustained yield. If the stocks are low, they will cut it off. The federal government won't do that as their only criteria is to manage for subsistence purposes. He said that doesn't fit in with the overall plan of the state and it's not in the best interest of everybody in the state. Mr. Marrs said he knows that there are members of the Native community that absolutely disagree with him and believe that federal takeover is the right thing. He stated the federal government has done a great job of pacifying American Indians for over 200 years. When things don't go their way, they take it all away. He said he believes that we're driving towards that again. Mr. Marrs said one of the reasons that he belongs to Alaskans Together is the mix of Natives and non-Natives from across the state all working together for a common cause. A majority of the people of this state really want to see this issue solved. Again, we can't forget what the criteria is for the federal government. Also, we don't know how far the federal government reaches outside of federal boundaries when it comes to fish and game. He questioned how much management of our own fish and game on state lands would be left. He noted that he put Native lands in the category of state lands because they are private lands and fall under state jurisdiction per the supreme court ruling. Still, there is disagreement on that point. He referred to Cook Inlet and said one of the things that has worked for the Kenaitze Tribe is the educational fisheries (indisc.) for fisheries only. MR. MARRS said he would give the committee a written summary of the current version of the bill that he had done by counsel. Counsel did a comparison between what the task force did, what the committee has done and what Title VIII has done. He noted he hasn't had a chance to review the constitutional amendment, but he believes there are some problems that could be worked through. Mr. Marrs thanked the committee for listening. Number 0469 REPRESENTATIVE JAMES referred to the statement that some of the Native population are not afraid of federal takeover. She asked Mr. Marrs if he has an idea of what the percentage would be if there was a vote of the Native population in the state regarding letting the feds take over. MR. MARRS said he doesn't know what the percentage would be and doesn't have that kind of data. He suggested asking the Alaska Federation of Natives. He referred to the poll that Alaskans Together took and said it included Fairbanks, Anchorage and the Railbelt. CHAIRMAN GREEN indicated it is his understanding that there are certain people within the urban area that are mixed on that. MR. MARRS responded that it was pretty heavily in favor of moving a constitutional amendment. It is very clear that the people in Anchorage, Fairbanks and Railbelt area do want to vote on a constitutional amendment. He noted the poll would be shared with the committee before it is made public. Number 0577 REPRESENTATIVE BERKOWITZ asked Mr. Marrs if he had an idea as to who might benefit with federal takeover. MR. MARRS responded that all Alaskans would not benefit from federal takeover. He said the Sierra Club, the Audubon Society, and other organizations that can control us from Washington, D. C., would benefit. Mr. Marrs said we can fight the battles, even though there are mistrusts from the rural areas that the Board of Fisheries and the Board of Game don't listen which is one of the reasons we have this problem. The rural areas don't feel they were treated fairly in the hunting and fish subsistence rights that they had. He noted it is not just Native, but it's Natives and non- Natives. Mr. Marrs said he remembers the federal government and its role in Alaska during territorial days. He stated that people in the Lower 48 do not care about Alaska, they care about the populas in their areas. He said, "And the Department of Interior, from the fish and wildlife side or the national parks side, you try to find somebody that's responsible in there, you'll never get an answer out of anybody. At least here we can deal with it among Alaskans and you lose total control of it back there and it goes into a vacuum. And those congressmen, whether they're from New York or California or Florida, they don't care about us up here. We've got one congressman there and two senators. We're lucky to have who we have there today because they're powerful enough. But that's not always going to be that way." Mr. Marrs referred to the harp seal hunt at Barrow and said this has been taking place for probably thousands of years. All it takes is a film of that shown in the Lower 48 by the animal rights groups and all hell breaks lose. He concluded that managing fish and game on a sustained yield basis will last longer than if the federal government takes over. Number 0772 REPRESENTATIVE BERKOWITZ asked if it would be a fair statement to say that anyone who gets in the way of a constitutional amendment is playing into the hands of the "lock Alaska up" crowd. MR. MARRS believed that to be very true. He recognized that there are people who disagree with him. In his personal opinion, Mr. Marrs believes a majority of the CIRI board feels that way or they wouldn't allow him to serve on Alaskans Together. Again, it's a matter of everybody working together and not trying to split the state apart - Native or non-Native, rural or nonrural. He said, "ANILCA, in itself, the rural areas was intended for Native and non-Native. ... There is non-Native families that have lived out in the rural areas for hundreds of years along with Native families." Number 0846 DEAN PADDOCK, representing himself, informed the committee that he followed the subsistence debate long before it became a household word. He said we are in a state of denial. He emphasized the need to focus on the most important imparity, keeping the feds out of Alaska's business as much as possible. Mr. Paddock suggested reviewing the path that brought Alaska to this situation. He submitted that Alaska has a long history of inadequacy in striving towards the goal of a seamless society when it comes to fish and game management. This is in spite of long and valuable participation on the Board of Fisheries and the Board of Game by assorted Demmerts, Huntingtons, Browers and others from the Native community who have served all Alaskans with distinction. Mr. Paddock said he enjoyed hearing the testimony from members of Alaskans Together. To say that we find ourselves in a highly polarized climate is an understatement. He pointed out that much input has come from the extremes on both sides. He fears that if we listen to the extremists, we as Alaskans can forget about the concept of one state, one people, yet he thinks that should be our goal, socially if not culturally. Mr. Paddock said he would commend to the committee a bottom-lined approach that will ensure that the state of Alaska retains management of its commercial fisheries. Some believe that the present courts will result in the retention of state management, but he disagrees. Mr. Paddock indicated he would like to incorporate everything Mr. Tillion said into his testimony. MR. PADDOCK explained he had been a fisheries management biologist in the biggest commercial salmon fishery in the state for a number of years. As such, he observed the federal fiasco during territorial days. He guaranteed that federal management, in the future, would be worse than it was during territorial days as it won't be for maximum or optimum sustainable yield for multiple beneficial uses. Federal management will be to benefit perceived subsistence use, first and last, in the blind fashion in which Washington, D. C. has excelled. Mr. Paddock stated, "It is my opinion that if you fall short in recovering state management, you will have presided over the dismantling of the on-shore Alaska commercial fishery, and we won't get it back. We will all then have a ringside seat to observe just how important the contribution of the fisheries have been the economy and life style of this state while we watch the multimillion dollars of investment and income from these sources trickle away to inconsequence. All the processing plants, all the boats, the gear, the transportation, the service industries that largely depend on the commercial fishery will, to all intents and purposes, be decimated. At that time, I predict that many of those who come before you demanding freedom to conduct their subsistence hunting and fishing activities in a manner totally unfettered by regulation will be looking around and asking, 'What went wrong?'" Mr. Paddock said that we are in a state of denial and need to admit that the federal government has us all over a barrel. He indicated he support for Alaskans Together and the Governor's task force, which includes a constitutional amendment. To amend the constitution may be fighting a rear-guard action, but it keeps the ball in Alaska's court. He thanked the committee members for listening. Number 1311 MARLENE ZUBOFF, Executive Director, Angoon Community Association, was next to come before the committee to testify. She explained her family lives in Angoon. Ms. Zuboff indicated concern for the existence of her subsistence and her traditional and customary use of the land. She informed the committee the Angoon Community Association provides general assistance for needy people. Angoon's economy is low, but not for the lack of trying to create an economy within their community. Ms. Zuboff has always been actively involved in her customary and traditional use of food gathering in all aspects, such as getting the fish, cleaning it, cutting it up and preserving it for the winter. Ms. Zuboff referred to HB 406, Version X and indicated concern because there is a lack of economic development for the rural communities. She said Angoon is rural, the people have to leave the island in order to get medical assistance. They have to fly, which is costly, and they also use the Alaska Marine Highway System. Ms. Zuboff said she is speaking against Version X. She discussed the low employment rates in Angoon. Ms. Zuboff informed the committee that their Native corporation utilizes a quarterly dividend program because there is a need to have that money throughout the year and not receive it all at once. Ms. Zuboff said, "I put up fish, I jar it, I vacuum seal them, I put up jam, I use shellfish, I show my children how to do this. It is very important for us, such as myself, that I pass this on to my children because this is renewable resource that we have been taught from time in memorial. That if we don't take care of what we have here on our land now, it's not going to be there for us to depend on tomorrow, the next year or a hundred years from now. And we can't just worry about protecting what's around us, we have to be very educated and aware of what's happening to us in respect to other activities that are taking place a hundred miles away to the north or to the south of us. Our people have stories that go back, we have the migration story - it runs parallel with the Bible." Ms. Zuboff explained that their stories and songs are precious to her just as food and water is. MS. ZUBOFF agreed with the previous statements regarding unemployment; unemployment statistics do not provide accurate statistical data with which to draw because the data is only taken from those actively seeking employment. Ms. Zuboff expressed concern for her people who do not have jobs. She said, "The majority of them are over 90 percent unemployment." Ms. Zuboff informed the committee that food, lights, and fuel must be freighted into Angoon. Utilities are expensive in Angoon. Ms. Zuboff pointed out that Juneau's economy was benefitting from Angoon's population due to the Gold Medal Games taking place in Juneau. Ms. Zuboff reiterated her objection to Version X. She stated, "Nowhere do we see the majority of my people making $35,000 and I don't believe that just because the Alaska Marine Highway comes into Angoon that we should be considered nonrural. I know there is a way, there has to be a way for everybody to have common ground. And it's going to take work, but I don't think it should be on the backs of my people who need and rely on a subsistence way of life." Ms. Zuboff suggested that if this path is to be taken, economic development for such communities should also be done. She emphasized the need to take care in this situation. Number 1860 CHAIRMAN GREEN asked if Ms. Zuboff's main objection to Version X was due to the inclusion of the ferry system as a criteria. MS. ZUBOFF stated that she objected to Version X in its entirety. In response to Chairman Green, Ms. Zuboff pointed out that the committee has statistical data that points out that Angoon relies heavily on the traditional and customary use of the land. She suggested that the committee utilize that data. If jobs cannot be brought into the community, then Angoon faces being nonrural. Ms. Zuboff saw this as her food being taken away from her. CHAIRMAN GREEN said that Angoon would be a subsistence area, except for the presence of the ferry system. He asked Ms. Zuboff if that criterion were removed from Version X and Angoon remained a subsistence area; are there other portions of the bill that are of concern? He noted that the database would be used if another route was chosen. Chairman Green stated that the goal was to determine the best manner in which to allow maintaining a subsistence lifestyle while excluding others during times of shortage in order to avoid over harvesting of an area. MS. ZUBOFF said, "I would say, the State of Alaska Constitution already answered that question - leave us to our quiet enjoyment. We use less than 1 percent of the resources." She pointed out that more sports fish are leaving Alaska than Native people are taking and using. Native people are not over using subsistence. She noted that the Angoon Community Association would be forwarding a position response on this matter. Ms. Zuboff objected to her customary and traditional use being the topic of discussion because she is considered to be living in a rural area, Angoon. Ms. Zuboff reiterated the need to follow the state constitution. Number 1995 REPRESENTATIVE JAMES affirmed that places vary across the state, but noted that prior testimony from Mary Pete discussed the practice of community sharing. Representative James asked Ms. Zuboff if subsistence use in her area practiced such community sharing as in Western Alaska. MS. ZUBOFF agreed that community sharing was practiced in her area. In Angoon, the community also helps those in need financially with medical expenses and other emergencies. REPRESENTATIVE JAMES asked if there are people in Angoon who do not participate in the subsistence lifestyle. MS. ZUBOFF stated that not all of the population participates in the subsistence lifestyle. There are teachers in the community from the Lower 48 who do not totally live the subsistence lifestyle because their employment affords them purchasing power. Ms. Zuboff informed the committee that over 90 percent of the Angoon community rely on the customary and traditional use of the land. REPRESENTATIVE PORTER commented that the committee is attempting to re-work the draft legislation in order to accommodate Ms. Zuboff's concern. MS. ZUBOFF noted that it has become necessary to be politically involved in the process in order to protect subsistence for herself. She informed the committee that she had been taught to make decisions with not only her best interest in mind, but also that of her grandchildren. Ms. Zuboff suggested that the committee should utilize such a process as well. CHAIRMAN GREEN affirmed that the committee was trying to work through subsistence to address concerns such as Ms. Zuboff's. Chairman Green noted that many fear federal takeover not so much with regard to who is in control, but rather the decimation of the stocks. In conclusion, MS. ZUBOFF remarked that her tribal government councilmen are in favor of a federal takeover due to the protection of the fisheries up to the 200 mile limit. After 18 years of statehood, commercial fishing in Alaska almost decimated the herring which has not recovered to its status prior to statehood. Ms. Zuboff said, "We say look at our island as a dish, take from it but don't break it." Number 2274 KEVIN SWEENEY, representing the Alaska Federation of Natives (AFN), stressed that if the committee wants to hear from the Native community, which many have indicated, then more time in the testimony as well as advanced hearing notice should be given, especially when new legislation and changes are made. To relay information to AFN delegates and members takes time. In order for AFN delegates and members to have an educated opinion on this legislation more time is necessary. Mr. Sweeney informed the committee that the constitutional amendment and ANILCA changes were not received until 11:00 a.m. this morning which is a holiday. That is not enough time to relay to the AFN delegation. Mr. Sweeney suggested that the remainder of the week be utilized to schedule hearings in order to hear from the Native community if that is the desire of the committee. He noted that AFN acts with direction from the board and that time is necessary for the board to discuss and give direction. CHAIRMAN GREEN stated that the committee would work tomorrow and hopefully, have a version move out of committee tomorrow or Wednesday. Chairman Green pointed out that the committee is under time restraints. MR. SWEENEY recommended that a days notice be given, if a version is decided upon tomorrow. Furthermore, notice with regard to when and where the hearings will be held as well as allowing enough telecommunications space in rural areas and Native villages for testimony. Number 2362 LYDIA GEORGE, a subsistence user from Angoon, informed the committee that in the Tlingit tradition the grandmother is the teacher of the girls. Ms. George is taking care of her two granddaughters and teaching them how to serve the traditional food, take care of the land, and respect nature. The number one rule of Native communities is not to pollute the area where food is obtained, which for Angoon is Admiralty Island. She noted that at age 74 she still works four hours a day at the school as the Cultural Instructor. Ms. George mentioned President Carter and his proclamation that Admiralty Island would be a national monument. She discussed her respect and faith for authority, especially federal and state government agencies. Welfare was brought into Angoon and her two granddaughters received welfare. When Ms. George returned to work her granddaughters were taken off welfare and she could not receive a Health and Social Services pension or Medicaid. TAPE 98-50, SIDE B Number 2461 MS. GEORGE discussed the hard work necessary to take care of the food and noted that high-tech machines are utilized. She reiterated that the state had stopped the welfare program and that Angoon has 90 percent unemployment which leaves only the subsistence lifestyle for those in Angoon. Ms. George said, "We are very, very protective and we don't want to be taken off that list. Because [President] Carter, in his proclamation says, the people that lives on Admiralty Island will go back in time and live like the way the ancestors lived. That is the law." She emphasized that she was happy with Alaska's statehood. Ms. George thanked the committee. Number 2357 MAXINE THOMPSON, Mayor-elect, City of Angoon, echoed Mr. Sweeney's comments regarding the need for more time to prepare a response to this Version X. Ms. Thompson reiterated that Angoon has high unemployment. The island has been preserved for Alaska and others to appreciate, but that has left no economic base. Ms. Thompson mentioned that developmental plans are being worked on with which she hoped the state would help. Ms. Thompson stressed that the committee understand that as Native people, it is difficult to separate Native foods from your culture and your being. Ms. Thompson disagreed with the use of income as a criterion for eliminating a person from the subsistence lifestyle. Furthermore the criteria regarding the access to an airport, the ferry system, or a road causes Ms. Thompson much concern. She discussed the value of keeping Admiralty Island pristine. Neighboring communities which have had logging in their community come to Admiralty Island to get their subsistence food. Those people cannot be turned away. Ms. Thompson noted that cumulative impact is a concern for the fish and has been brought before the state. In conclusion, Ms. Thompson emphasized the need to address and work through the problems in order that the result be what Alaskans want. Number 2131 GREGORY BROWN discussed his family lineage and the respect they have for the land. Due to the imbalance under regulation and management, there are more extinct animals than ever before. He said that he could not live without traditional foods which are a mainstay of his diet. Mr. Brown, who was born and raised in Hoonah, is a father of five and grandfather of three. He and his family depend heavily on traditional foods and without which they would all starve. Currently, he attends college in Juneau, but does not receive enough funding to feed himself and his family. Mr. Brown informed the committee that he had fought the federal government on the subsistence issue when seal hunting and the taking of seal meat was not considered to be subsistence. Mr. Brown indicated that if the state took over subsistence it could take 20 years or more to deal with the issue. Mr. Brown pointed out that subsistence only pertains to 4 percent of the state's population and asked, "So why is it such a big problem?" He questioned Mr. Paddock's comment regarding subsistence being commercial. CHAIRMAN GREEN believed that Mr. Paddock meant that a federal take over should be avoided because it would adversely affect commercial fishing. REPRESENTATIVE BERKOWITZ said that Mr. Brown must have misunderstood Mr. Paddock's comment. MR. BROWN pointed out that his brother and brother-in-law send him traditional foods from Hoonah without which he would starve. Due to a back injury, Mr. Brown has not had a job for the past five years. Mr. Brown said, "I would object to HB 406 and ask that it be handed over to the Native organizations. Because we, as Native people, are the only ones that can regulate our subsistence to ourself." Mr. Brown referred to the Venetie school system, a traditional school system, which has a 98 percent success rate. He attributed the success in Venetie to the fact that the people attacked the problem. In comparison, Mr. Brown said, "Whereas you have a 65 percent drop-out rate in Alaska here for Native kids. So, that that system is not working and it kind of worries me because you guys -- it seems to me that the Legislature keeps feeding money into a system that doesn't work. Why feed a system if it doesn't work?" Mr. Brown suggested that the committee review the success of the Venetie school system. Number 1917 CHAIRMAN GREEN noted that there is another piece of legislation which addresses the school system, but it is not before the committee at this time. Chairman Green agreed that the comparison illustrated that the Venetie school system is working. MS. THOMPSON reiterated that the City of Angoon would be forwarding a response paper to the committee. CHAIRMAN GREEN stated that there will be revisions to this version and every effort would be made to forward such revisions in a timely fashion. MS. GEORGE interjected that the Senior Citizen Services of Angoon is without funding. The senior citizens in Angoon are starving. CHAIRMAN GREEN began with those wishing to testify via teleconference. Number 1808 DARRIO NOTTI, testifying via teleconference from Bethel, referred to Section 1, line 7 and interpreted the language to mean that even during shortages, only a portion of the stocks and populations that are customarily and traditionally taken will be allowed. Is that a correct interpretation? CHAIRMAN GREEN explained that Section 1 refers to the Board of Fisheries and the Board of Game determination of whether there is a surplus of stock or should subsistence use be in place. If the stock or population is more than the sustained yield, the process would be handled as it is currently. MR. NOTTI referred to Section 19 of HJR 66 and suggested that the word "may" on line 7 be changed to "will". Furthermore, Mr. Nottie did not foresee the federal government accepting many of the subsections in Section 29 of HJR 66. CHAIRMAN GREEN asked if Mr. Notti felt those items in Section 29 were worth negotiating. MR. NOTTI did not know and returned to discussion regarding HB 406. He referred to page 2, line 7 and inquired as to what would happen to the specified income during an era of inflation. CHAIRMAN GREEN recognized his concern and stated that if the specified income were maintained then it would float with inflation. Chairman Green noted that much of today's testimony has indicated that using income is not an appropriate criterion. He indicated that the committee would be working with ADF&G to develop some new criterions. MR. NOTTI addressed subparagraph (D), the jet aircraft criterion, and inquired as to what would happen during periods when there is no jet aircraft service. For example, in McGrath in the early 1970s there would be occasion when Wings would schedule jets and then other times not. Aniak is another example of a community that has experienced jet aircraft service on and off. CHAIRMAN GREEN acknowledged that the jet aircraft criterion may not be a good criterion. MR. NOTTI commented, in reference to previous testimony regarding shopping in urban areas, that he must shop somewhere for items that cannot be grown. He believed that comment was in reference to SB 36 and school funding which should have nothing to do with HB 406. With regard to Representative Rokeberg's comments indicating his dismay with those making $100,000 subsistence fishing, Mr. Notti expressed dismay with those already making $100,000 coming into his area and competing with him. Mr. Notti said that he had never made close to $100,000 in a year, although he would fall well above the $35,000 criterion. He pointed out that much of his subsistence use is shared with others who may have no income. Number 1397 LOREN CROXTON, testifying via teleconference from Petersburg, informed the committee that he had been involved with the subsistence issue in one manner or another since its conception. He related his work history under ADF&G and the US Fish & Wildlife Service for operation in Alaska. Mr. Croxton also served as the chair of the Petersburg Fish & Game Advisory Committee and also sat as chair on the regional council. Mr. Croxton appreciated Representative Porter's remarks regarding ANILCA, Title VIII, and ANCSA. There is no question that ANCSA abolished all aboriginal rights which the US Supreme Court recently reaffirmed. The committee hearing minutes during the drafting of ANCSA includes language regarding the continuing use of the resources by Alaska Natives. Unfortunately, that language was never incorporated into Title VIII. Mr. Croxton emphasized the need to be guided by Title VIII. MR. CROXTON stated that Version X is too long and complicated. With regard to Representative James' earlier inquiry into what the committee was trying to accomplish, Mr. Croxton said, "You can't go any place if you don't know where you are going." He believed that ANILCA spells out what should be done - providing for those dependent upon natural resources and continued use of those resources . During a shortage, priority use is established. Mr. Croxton did not favor two different subsistences regarding whether there was a shortage or not. He pointed out that there are four use categories currently in statute: commercial use, sport use, subsistence use, and personal use. Mr. Croxton suggested review of the personal use category to provide for the resource for those who cannot obtain what is necessary under sport regulations. Personal use could be utilized in almost all cases except in times of emergency. With regard to the proposal for regional councils, MR. CROXTON believed it to be unworkable and just another layer. The advisory committee program is in place and working well, therefore he suggested leaving the advisory committee program intact. Speaking from experience, he noted that the boards, in particular the Board of Fisheries, is overloaded. Mr. Croxton doubted that the boards could handle the responsibilities as set forth in this act. Furthermore, he did not believe that ADF&G or the boards have the time or expertise to determine the criteria for use. In conclusion, Mr. Croxton requested the opportunity to address this legislation and upcoming versions again. CHAIRMAN GREEN affirmed that Mr. Croxton would have the opportunity to address this legislation again. Number 1015 ROBERT HALL, Member, Houston Chamber of Commerce, thanked the committee for its efforts in tackling subsistence. Mr. Hall noted that most of the intense opposition of federal management comes from the commercial fishing lobby while most subsistence users are dissatisfied with state management. In the Matanuska-Susitna Valley, state management has been disastrous and inequitable. Mr. Hall said the power of the commercial fishing lobby is illustrated in the changes made in the current version of HB 406. The CS HB 406(RES) contained provisions allowing Alaska residents a preference over other users and during shortage there would be a regional priority. Version X eliminates the preference for Alaska residents. Mr. Hall asked, "Who'd object to Alaskans having a preference to feed their families over other users of fish? Commercial fish lobby. Why should I, as a resident of the Mat-Su, support any efforts to limit my opportunities in other areas of the state when the state short changes nonpreferred commercial fishers in the Upper Cook Inlet." CHAIRMAN GREEN interjected that there is a residency requirement for subsistence. MR. HALL clarified that he was referring to the original version of HB 406 which contained a provision stating that those eating fish in Alaska have a priority over commercial uses. CHAIRMAN GREEN asked if Mr. Hall was referring to the version that was moved out of the House Resources Standing Committee. MR. HALL replied yes, and emphasized that his comments were directed toward the elimination of CS HB 406(RES) which was opposed by the commercial fish lobby. He explained that CS HB 406(RES) allowed all Alaskans to feed their families and during a shortage a super priority would be granted in rural areas. That provision has been eliminated in Version X. Mr. Hall opposed the elimination of that provision. Mr. Hall indicated that it seemed as if there had been some favoring of the commercial fish lobby. Number 0876 CHAIRMAN GREEN negated that the commercial fish lobby had been favored in any way. MR. HALL continued by emphasizing that fish and game are part of the lifestyle for many Alaskans in the Matanuska-Susitna Valley and encompasses who they are and why they live in the Matanuska-Susitna Valley. There is nothing in Version X that addresses the needs of the Natives of Chikaloon or Eklutna or the Alaskans in the Matanuska-Susitna Valley. Mr. Hall urged the committee to reinstate the provision allowing all Alaskans who wish to feed their families a preference not a priority. With regard to the constitutional amendment, Mr. Hall suggested that there should be a preference based on the proximity of where the fish is killed and consumed not where the person lives. Mr. Hall reiterated the need to reinstate the provision allowing all Alaskans to feed their families. Number 0720 TED HAMILTON, testifying via teleconference from Emmonak, informed the committee that he worked for the National Resource Field for the Emmonak Tribal Council. He mentioned the Bush conferences that used to occur when Native issues were on the agenda. Mr. Hamilton indicated that Alaska Natives are frustrated and feel as if they are not being heard or represented effectively. He suggested that Native leaders present should relay information to their people. Alaskan Natives prefer to handle their own problems, the state is too slow. He noted that Native Alaskans have established hunting tables, codes, values, bag limits, and methods of harvesting game as well as harvesting equipment which the state did not review. The state made the laws and imposed them on Native Alaskans. Mr. Hamilton emphasized that until the state recognizes that the state hunting codes and ordinances do not coincide with Native codes, the state rules will be meaningless to Native Alaskans. Subsistence does not have a real dollar value, but rather subsistence has a tremendous cultural value. Subsistence means so much more than merely harvesting and eating from the land. Mr. Hamilton said, "We do not only hunt because we have to preserve our culture, feed ourselves, teach our youth, eat the most nutritious and delicious food around, but because we want to. I would rather eat a ptarmigan than a chicken any day." Mr. Hamilton maintained that comparing subsistence to welfare was an uneducated comparison. CHAIRMAN GREEN interjected that no one present had referred to subsistence as welfare and stated that was not the intent. Number 400 MR. HAMILTON continued by saying that the tie Alaskan Natives have to the land is deeply rooted in the culture. For example, subsistence is so important that there are dances to show respect for the various animals. Alaskan Natives work with nature and do not attempt to dominate over nature. Long ago, the first immigrants to the area were taught them the right way by the Natives. The immigrants did not listen, lost patience, became greedy and began killing Natives. Alaskan Natives continue to teach the right way to live with nature. He mentioned that the killing of the buffalo by the federal government in order to weaken the hold of the Natives in America worked. Mr. Hamilton said, "Is the state going to do this with our subsistence (indisc.)? I know the state wants to weaken the tribes of Alaska. Is HB 406 your way of doing it?" CHAIRMAN GREEN requested that Mr. Hamilton keep his comments to the specifics of HB 406. MR. HAMILTON suggested that Native preference be top priority over all other preferences. The annual income level of $35,000 seems low; it would be used quickly in rural Alaska for bills and immediate needs. A person would starve without the ability to harvest subsistence. He suggested that the annual income level criterion be higher, perhaps twice as much. Number 288 REPRESENTATIVE CROFT said, "It does seem to me that some of the new criteria, when we talk about 20 percent or less in that poverty level, starts to get it back into a characterization of this as a something that is done in times of poverty, a welfare type system rather than a lifestyle to be protected. So it -- not completely, but I did not think you were completely off base. On Version R you might've been, but I think Version X tries to bring some of those back in.... So we shouldn't consider this a welfare type system." CHAIRMAN GREEN reiterated that the committee had tried to utilize the same criteria as ANILCA for defining nonsubsistence areas which does not seem to be the appropriate path. Chairman Green stated that another avenue through ADF&G is being attempted. MR. HAMILTON informed the committee that he did not have a copy of Version X. CHAIRMAN GREEN reiterated that another version would be provided in a couple of days. Chairman Green continued the teleconference testimony by going to Ekwok, but it had dropped off the line. Number 0126 KNOWLAND SILAS, via teleconference from Minto, informed the committee that he sat on the Minto Village Council and "has been on Fish & Game (indisc.) between Minto and Nenana for 18 years or more." He indicated that he understood the subsistence issue very well. Mr. Silas referred to Section 16.16.030 when noting that Minto sits on a road. If subsistence was taken away from those in Minto, there would be a mass migration to Fairbanks. Mr. Silas mentioned the timber industry on the Tanana River. TAPE 98-51, SIDE A Number 0022 MR. SILAS discussed the Native Alaskans historical dependence on fish and the state permit system. In Minto, the Tier II permit is in place. If a permit is lost and not turned in, then points are lost. Once you start losing points, soon you could lose all your permits. Mr. Silas said, "That's not the way to manage fish and game. If they take all our permits and give them to the people from Fairbanks, then we as Natives, we have to have our customary and traditional use of these fish and game to survive. Our culture has to survive." Mr. Silas related a story from the time when federal management was in control. During federal management, a man from Beaver who got too close to a beaver den he was checking was sent to jail in Fairbanks by US Fish & Wildlife. Mr. Silas described the choice between state and federal management as choosing between "the lesser of two evils." However, he did say that Native Alaskans had not been treated fairly by the state. Mr. Silas said that outsiders should be happy with the road to Minto because the people of Minto share the ducks with the outsiders. Number 250 MIKE JACKSON, testifying via teleconference from Kake, informed the committee that he was a Trust Officer on the Kake IRA Council. He noted that Kake is primarily a subsistence community that is connected by a ferry that may be by once a week. Kake relies heavily on commuter air services out of Juneau. With regard to using a connection to the Alaska Marine Highway as a criterion for subsistence, Mr. Jackson did not believe that determined what the people in an area relied upon. Mr. Jackson indicated his objection to that criterion. CHAIRMAN GREEN acknowledged that many had objected to the transportation criterion and believed that criterion would be eliminated. MR. JACKSON referred to the federal poverty income level criterion when pointing out that traditional and customary gathering is the primary reason many choose to live in small communities such as Kake. He emphasized that Kake residents rely on gathered food by over 50 percent which is well documented by ADF&G for 1987 to 1997. He mentioned the rituals associated with gathered foods. Mr. Jackson stated, "I'd rather have the ferry system taken out of here rather than the community losing its ability to collect subsistence foods from around us." Mr. Jackson requested more time to comment on Version X. CHAIRMAN GREEN pointed out that a new version is forthcoming and that there would be time then for further comment. Chairman Green recognized that there would be some conflicts with ANILCA. MR. JACKSON requested that this legislation would be distributed to the Organized Village of Kake. CHAIRMAN GREEN agreed. Number 0650 DALE BONDURANT, via teleconference in Kenai, said that he would be addressing the constitutional amendment. Mr. Bondurant supported a preference among beneficial users not a prescribed exclusionary class of priority/preference users. He indicated that personal, consumptive use should be the highest use. Mr. Bondurant said, "An amendment to the constitution that impinges upon these rights, I oppose. And charge that it is, in itself, unconstitutional and cannot be resolved of the outcome of a vote. I charge that the Judicial Committee has a special responsibility to examine each proposed bill as the legality of its relationship to the constitution and statutory results. When it becomes necessary to amend the constitution, it would require an extraordinary examination to what is the legality and purpose and results. I charge that the Judicial Committee must be especially cognizant to how this amendment affects all related protections of the present state constitution and even most important, the US Constitution. This is the way a constitutional democracy is supposed to work." Mr. Bondurant emphasized the need for the committee to seek legal advice in order that any amendments are clear and the public is fully informed of the entire ramifications of the proposed legislation or amendment. MR. BONDURANT asked if the committee was requiring legal opinions regarding the total effects on the related clauses and protections of the Alaska Constitution and the US Constitution. Mr. Bondurant listed the following areas of the Alaska Constitution that would be effected: Article 1 Section 1, Article 8 Sections 1-4 and 13-17. Those areas effected in the US Constitution would be Articles and Amendments 4, 5, 10, 11, 14, 15. He stated, "The Alaska Supreme Court stated that the state control merely for the sake of control is a poor goal when it impinges on the anti-exclusionary clauses of the constitution." Number 0823 MR. BONDURANT discussed the White Act of 1924 which was to protect and conserve fisheries of the United States and all waters of Alaska. The Secretary of Commerce was to regulate the fisheries and no exclusive right of fisheries would be granted. Furthermore, no US citizen could be "denied the right to take, prepare, cure, preserve fish and shell fish in any area in Alaska where fishing is permitted by the Secretary of Commerce." Mr. Bondurant mentioned that some believe these rights were taken away under the statehood compact. Mr. Bondurant said, "In this decision, it says we are forced to conclude that no compact as to fishing rights was formed between the State of Alaska and the United States by the second Section, except in 12 Article 12 of the Alaska Constitution and the responsive portion of Section 4 of the Alaska Statehood." MR. BONDURANT emphasized that a citizen's constitutional right cannot be infringed upon merely because a majority of the people choose it to be. A state cannot be viewed as an unconnected sovereign power. Further, no restrictions can be imposed not found in that state's constitution. Mr. Bondurant mentioned Justice Marshal's opinion regarding this matter. He read the following to from Judge Robert Fork(ph), "The United States was found as Madisonian system which means that it is contains two opposing principles that must be continually reconciled. The first principle is self government which means that in the light areas of life, majorities are entitled to rule, if they wish, simply because they are majorities. The second is there are nonetheless some things majorities must not do to minorities. Some areas of life in which the individual must be free of majority rule. The dilemma is that neither majorities or minorities can be trusted to define the proper spirit of democratic authority and individual liberty. To place the power in one or the other would risk either tyranny by the majority or tyranny by the minority. Such differences can only be resolved by resort to a neutral written principle, the constitution. We should first look at the text and understand and manifest in the words used by the framers." CHAIRMAN GREEN asked Mr. Bondurant if he was reading his testimony and if so, could he fax the testimony to the committee. MR. BONDURANT said that he would stop, although he did not believe the committee would read his testimony. Mr. Bondurant emphasized that the Judiciary Committee had one important responsibility: to address these constitutional provisions. He asked when the committee would report on the effects this legislation would have on all provisions of Alaska's Constitution as well as the US Constitution. Number 1149 REPRESENTATIVE PORTER asked Mr. Bondurant to refer to page 3, line 14 of HJR 66 which indicates that most of Mr. Bondurant's points are covered in a lawsuit filed by the Legislature. If the state prevails in this lawsuit, the statutes and constitutional amendments will be null and void. To state that there has been no response to those points is not true. Since there is no assurance that the lawsuit will be won, Representative Porter did not want to place all his eggs in that basket. REPRESENTATIVE CROFT informed Mr. Bondurant that he had asked many if any lawsuit had overruled this on the grounds of equal protection. He asked Mr. Bondurant if he had heard of any such suit. Representative Croft pointed out that the McDowell case did not rely on equal protection, but rather the specific clauses of the Alaska Constitution. He did not believe a suit based on equal protection would win. MR. BONDURANT explained that in the McDowell case, there is language that says that a number of authorities have over turned territorial residency as a provision of allowing discrimination. Further, within McDowell Judge Moore(ph) says that this is an equal protection case. Mr. Bondurant stressed that legislators have a responsibility to ensure that everyone in the state as well as the state itself is treated equally. Number 1323 THEO MATTHEWS, President, United Fisherman of Alaska(UFA), and Chair of the Subsistence Committee of UFA, testified via teleconference from Kasilof. Mr. Matthews noted that he had testified on HB 406 twice. His first testimony emphasized the legal ramifications. His second testimony was with Alaskans Together and stressed the need to obtain an ANILCA amendment clarifying the meaning and intent of the law. With regard to the latest version of HB 406, Mr. Matthews suggested that the current Alaska Statutes be used and amended. Therefore, people would be clear on the changes and process. With respect to Version X, MR. MATTHEWS stated that Section 16.16.030 (b) is controversial and seems to be a policy call for the legislature. He did not believe that Section 16.16.030 was consistent with the intent of ANILCA, furthermore, the intent is unclear. Mr. Matthews did not believe it practical. The "all Alaskans" policy is not a good policy. Mr. Matthews said that rural preference will be better for more Alaskans in the long run. The concept under subsection (b) is a new concept and he is unsure as to how it would work. Mr. Matthews expressed concern with the possibility of the board abusing their responsibility to the point of eliminating any specific stock from ever being a subsistence use. The last sentence of subsection (b) is much improved and close to the intent of ANILCA. Subsection (c) is a new criteria while different than the ANILCA criteria, the intent is the same. Number 1570 MR. MATTHEWS noted that regional advisory committees was included in Version X. He pointed out that Section 6 mentions traditional barter, but not customary trade while its definition is found under Section 9 of subsistence. He inquired as to why the language "by a resident domicile in a rural area" was removed under the definitions of subsistence fishing and hunting. Although Mr. Matthews did not believe it to be the intent, he voiced concern that at some point nonresidents could be allowed to subsistence fish and hunt. In response to Chairman Green, Mr. Matthews said that he had read HJR 66 that morning. CHAIRMAN GREEN pointed out that HJR 66 contains several requirements that ANILCA be changed. He asked if Mr. Matthews had an opinion on that. MR. MATTHEWS believed that if the rural preference was not amended too aggressively, the federal government would be open to change. The federal government is sensitive to the state's rights issue on state lands and waters. Mr. Matthews noted that sections 7-11 are new and he has not had the time to analyze those sections. The first six sections seem to be from SJR 21 which Mr. Matthews did not find unreasonable. Number 1720 TOM LAKOSH, via teleconference in Anchorage, said that he wanted to address Representative Croft's question regarding equal protection. Mr. Lakosh referred to the Kenaitze case in which equal access was addressed. Equal access is tantamount to equal protection regarding personal use in nonsubsistence areas as opposed to subsistence. During that time the supreme court would not take up the issue because the personal use regulations were the same as the prior subsistence regulations. Mr. Lakosh emphasized that is no longer the case and he believed an equal protection question is posed by HB 406. He explained that subsistence rights of Alaskans are diminished which would require the state provide due process, Article 8 Section 16, for the removal of the rights of land and fish and game there on. MR. LAKOSH discussed Katie John's suit. He explained that she filed for suit because her common use rights under state law were not violated. However, Ms. John felt that federal protection was the same issue. If Ms. John had been granted common use rights, there would have been a question of whether she should seek federal protection. Has ADF&G properly regulated the common use fisheries and game, is the question the committee should address. Mr. Lakosh did not believe such regulation had occurred. To whom will the fish and game be allocated, once people are excluded from subsistence rights. Mr. Lakosh said that no part of HB 406 could be deemed constitutional due to the constitutional provisions for equal protection, due process and equal access. He indicated that the provisions were arbitrary. Mr. Lakosh emphasized the need for the committee to review constitutional history in order to understand why the provisions were included. He charged that the provisions were included because the commercial fisheries had obliterated the stocks. Mr. Lakosh reiterated the arbitrariness of the legislation and stated, "It's absolutely insulting that a judiciary committee would ever consider this." Mr. Lakosh echoed Mr. Bondurant's comments that the committee has the responsibility to find the consistencies with applicable constitution and statutory provisions. There seems to be no effort to distribute the resources equitable among those, Alaskan residents, who have the constitutional preference for use. Mr. Lakosh stated that there is no equal protection or access and felt that HB 406 is overly restrictive and punitive against residents. There is a need to ensure that people are provided common use under all circumstances, not just during shortage. Further, the shortage circumstance does not appear in Version X. MR. LAKOSH expressed the need to provide a correlation between the need of the right to use the resource and legislation setting guidelines for apportionment of fish and game use. There is no equitable apportionment. He appreciated the problem with ANILCA. Mr. Lakosh suggested that the committee establish the superior, beneficial use of subsistence as in the first version of HB 406 and equitably establish allocation guidelines for fish and game in order to protect the rights of all Alaskan citizens. Number 2120 MARY BISHOP, via teleconference from Fairbanks, began with the following quote from Senator Stevens regarding the Venetie decision, "We are a small family and there should be no distinctions between us." She was happy that the committee was using dependency, but was disappointed in the previous comments which indicate that path may be changed. Ms. Bishop commented that subparagraph (A) on page 2, line 7 seemed to mean the per capita annual income of $35,000 which is fairly high. Perhaps, what is meant is per household. Ms. Bishop agreed with Mr. Matthews regarding the confusion of Section 16.16.030. Furthermore, subsection (c) on page 2, is not clear either. She believed that the criteria in subsection (c) is what the subsistence division currently uses. Ms. Bishop urged the committee to clarify the language in the allocation section. One of the difficulties with ANILCA is its vagueness. MS. BISHOP did not disagree with Ms. Pete's comment that subsistence may exist outside of the areas that would qualify under the dependency criterion. Subsistence use exists throughout the state. As Representative James pointed out, the question is, "Who should have a harvest priority?" Ms. Bishop indicated agreement with Representative Berkowitz' comment that subsistence is a way of life. However, Ms. Bishop asked, "Where else in law do we give certain groups of people special legal access to resources because of their way of life?" She explained that the legislature is considering whether or not to take away someone's harvest priority not their subsistence or food. She said that she did not want federal management, but it will happen through federal courts. Ms. Bishop believes that Senator Stevens has Alaska over a barrel, not the federal government. Senator Stevens as well as the rest of Alaska's congressional delegation need guidance from the legislature. In conclusion, Ms. Bishop restated Senator Stevens' statement, "We are a small family and there should be no distinction between us." Number 2455 DICK BISHOP, via teleconference from Fairbanks, believed that the committee was headed in the right direction by reducing the pool of qualified subsistence users. Mr. Bishop noted that all sides of the issue have voiced dissatisfaction with the criteria. TAPE 98-51, SIDE B Number 0028 MR. BISHOP pointed out that the supreme court, based upon the studies by the Division of Subsistence, found that subsistence existed among both rural and urban users. Furthermore, a priority based on individual characteristics would be less invasive of the common use and equal opportunity provisions of the constitution. Mr. Bishop agreed with Representative Berkowitz' concern with eliminating someone's subsistence lifestyle merely because of the presence of a road. He believed that the commercial fisherman of long ago are being exchanged with the subsistence users of today which could result in catering to one particular interest group rather than to the general interest of Alaskans. Mr. Bishop disputed Mr. Tillion's contention that it would be a rarity to have a court case due to federal court oversight. During the state's compliance with federal law, 1986-1989, there were dozens of cases in the court. Further, he believed that capitulating to the federal law and changing the constitution would place the issue in the 9th Circuit Court. MR. BISHOP said that it would behoove the legislature to establish criteria extending the same basic rights to pursue the resources to all Alaskans. In conclusion Mr. Bishop stated, "If the state conforms to the federal law, we will forfeit any legal basis for future arguments about state versus federal laws regarding equal protection, common use of the state's right to manage fish and game." Number 0210 DONALD WESTLUND, via teleconference from Ketchikan, agreed with Representative James as well as Ms. Bishop's comments regarding the need to establish a harvest priority. With regard to Ms. George's comment that she needed this priority due to her lack of money, Mr. Westlund concluded that the situation is a welfare issue. The situation comes down to the fact that people need the harvest resource priority for economic reasons. Rural should be defined. Mr. Westlund said that each work draft has included good provisions and good ideas have been presented from all sides. Mr. Westlund turned to HJR 66. Paragraphs 1-12 under Section 29 are possible items for negotiation. Number 0350 BEN HASTINGS, via teleconference from Ketchikan, agreed with Ms. Bishop's comments. He informed the committee that he had been involved with the problem of ANILCA convergence with the state constitution for about a year and a half. Mr. Hastings said, "I am totally convinced of one thing and that is: a deal is a deal." There is a deal, the state constitution and the statehood compact. Alaskans were promised the right to manage the state's fish and game as well as equal access to the resources. Mr. Hastings was pleased that the Legislative Council filed a lawsuit to test whether the federal government has the right to implement Title VIII of ANILCA as well as to take over Alaska's fish and game management on December 1, 1998. Mr. Hastings expressed concern with the discussion of changing the Alaska State Constitution before the outcome of that lawsuit is determined. He understood that the court could hand down a decision as early as July 4, 1998. MR. HASTINGS pointed out that the legislators took an oath to protect the Constitution of the State of Alaska. The federal government should be told to stay out of Alaska's business. Mr. Hastings supported the Alaska State Constitution. What is the problem with eliminating the word "subsistence" and replacing it with "personal use." The use of the language "personal use" does not violate Alaska's constitution. Number 0440 MR. HASTINGS informed the committee that he had a resolution from the Ketchikan Gateway Borough, the Ketchikan Sports and Wildlife Club, District 1 Republican Party, and the Ketchikan Rod & Gun Club Trap Division. All of these groups agree that the committee should develop a plan treating all Alaskans equally. Mr. Hastings stated that during a poll on the weekend of July 4, 1997, just under 5,000 Ketchikan voters did not want federal management of Alaska's fish and game. In closing, Mr. Hastings reiterated the charge of the committee to protect and defend the state constitution. Number 0500 STAN BLOOM, via teleconference from Ketchikan, stated, "This is the first place I've ever been that we wanted to change the constitution cause it treats us all too darned equal." If it is necessary to change the constitution, then the change should result in treating all Alaskans equally in a personal use situation. Mr. Bloom informed the committee that in 1978 a subsistence law was passed. During floor discussion, there was assurance that those dip netting in Chitna would be protected. However, in 1984, those people were reclassified to personal use and the allocation cut from 120,000 to 60,000 fish. There was such rigorous rule that 3,000 people stopped fishing the first year. Further, it took 14 years to receive an allocation of 100,000 fish. Mr. Bloom stressed that the preceding is an example of how former subsistence users were treated under state law. He also pointed out that the state is currently using the customary and traditional determination to deny the Chitna Natives from fishing in their traditional area. The state utilizes the customary and traditional determination to deny rights rather than protect those rights. The state does not have a record of treating people fairly. Mr. Bloom emphasized that a fair constitution should not be changed in order to allow an unfair ANILCA. He asked, "Why would we want to adopt an Arizona law into the Alaska Constitution?" Mr. Bloom suggested changing the federal law. In response to Chairman Green, MR. BLOOM said that he had read HJR 66. Mr. Bloom stressed that once the amendment to the constitution is passed, the legislators can pass any law. Once the constitution is changed that is it. Mr. Bloom indicated that the constitution should not be changed to allow rural priority. He suggested that Section 19 be changed to address the taking of fish and wildlife for subsistence based on proximity not rural versus urban. Mr. Bloom did not believe the state could fairly administer ANILCA which is unfair and violates the Alaska State Constitution. He proposed that ANILCA probably violates the Constitution with regards to the commerce clause. The commerce clause has never allowed other states or the federal government the authority to discriminate using rural versus urban as a basis for that discrimination. Mr. Bloom believed that rural versus urban was unconstitutional under the Constitution. Mr. Bloom agreed with Mr. Bondurant in that the Judiciary Committee should not force a discriminatory law. Number 0780 CHAIRMAN GREEN announced that the teleconference had been concluded. Chairman Green adjourned the meeting at 6:25 p.m.