HOUSE RESOURCES STANDING COMMITTEE January 27, 1998 1:15 p.m. MEMBERS PRESENT Representative Bill Hudson, Co-Chairman Representative Scott Ogan, Co-Chairman Representative Beverly Masek, Vice Chair Representative Ramona Barnes Representative Fred Dyson Representative Joe Green Representative William K. (Bill) Williams Representative Irene Nicholia Representative Reggie Joule MEMBERS ABSENT All members present COMMITTEE CALENDAR ANILCA BRIEFING: COMPARE CHANGES BETWEEN GOVERNOR'S SUBSISTENCE TASK FORCE PROPOSAL AND GOVERNOR'S INTRODUCED LEGISLATION (* First public hearing) PREVIOUS ACTION No previous action to record WITNESS REGISTER CAROL DANIEL, Legal Consultant Rural Alaska Community Action Program, Inc. 731 East 8th Avenue Anchorage, Alaska 99501 Telephone: (907) 279-4442 POSITION STATEMENT: Presented information on the federal amendments and the subsistence task force proposal, and how they failed to address issues raised by the Native community. THEODORE POPELY, Legislative Assistant to House and Senate Majority Alaska State Legislature Capitol Building, Room 208 Juneau, Alaska 99801 Telephone: (907) 465-3720 POSITION STATEMENT: Presented information on the comparisons between ANILCA today, Senator Stevens' amendments, and the subsistence task force proposal. ACTION NARRATIVE TAPE 98-1, SIDE A Number 0001 CO-CHAIRMAN SCOTT OGAN called the House Resources Standing Committee meeting to order at 1:15 p.m. Members present at the call to order were Representatives Ogan, Hudson, Williams, and Joule. Representatives Nicholia, Green, Dyson, Masek and Barnes joined the meeting at 1:20 p.m., 1:22 p.m., 1:25 p.m., 1:30 p.m. and 2:00 p.m., respectively. ANILCA BRIEFING: COMPARE CHANGES BETWEEN GOVERNOR'S SUBSISTENCE TASK FORCE PROPOSAL AND GOVERNOR'S INTRODUCED LEGISLATION CO-CHAIRMAN OGAN called on Carol Daniel to present an overview on the Alaska National Interest Lands Conservation Act (ANILCA). He noted today's presentation stems from the last meeting where Wayne Anthony Ross presented the ANILCA amendments. Number 0220 CAROL DANIEL, Legal Consultant, Rural Alaska Community Action Program, Inc. (RurAL CAP), explained that RurAL CAP attempts to promote maximum participation by village people in overcoming all types of poverty in rural Alaska. And, because of the importance of subsistence in rural Alaska, RurAL CAP has been involved in efforts to protect that way of life for Alaska's Native villages. In fact, RurAL CAP was a cosponsor, along with the Alaska Federation of Natives (AFN) and the Alaska Inter-Tribal Council (AITC), of the Native subsistence summit held last fall in Anchorage. It is her understanding that RurAL CAP fully supports the resolution and guiding principles that resulted from the summit. She also represents other Native organizations and tribal entities on hunting, fishing and subsistence issues. However, she is here today speaking as an attorney who has been involved in the process for a long time, not on behalf of any of her clients. Number 0359 MS. DANIEL explained she would confine her comments on the federal amendments to the current federal level of protection for subsistence in rural Alaska and how they, along with the subsistence task force proposals contained in HB 320, fail to address some of the critical issues raised by the Native community. MS. DANIEL explained when oil was discovered in Alaska, the Alaska Natives claimed aboriginal title to practically all of the lands and waters in the state. Subsequently, Congress could not continue to put off addressing the issue any longer resulting in the passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971. Even though the act extinguished aboriginal hunting and fishing rights in Alaska, Congress made it plain, in the conference report that accompanied the bill, that it expected both the state of Alaska and the Secretary of Interior to do whatever was needed to protect the Native subsistence way of life. Unfortunately, neither the state nor the Secretary moved to provide any protection. There were a number of crises in the 1970s that presented pressures on subsistence users in rural Alaska such as the crash of the Northwest Arctic caribou herd in 1976. When the state tried to deal with the crisis by giving what was left of the resource to the local residents, the courts threw it out. Elders were arrested for exercising what they had done all of their lives - trying to provide for their families. It were these types of instances that persuaded the Alaskan Natives to go back to Congress in 1978 to seek statutory protection for their subsistence way of life. As a result, Congress included ANILCA and described it as, "the culmination of Congressional action initiated by Congress under the Alaska Native Claims Settlement Act to protect and provide for continued subsistence uses by Alaskan Natives." At the time, ANILCA was not defined by tribal affiliation or race; it was defined by rural residency and customary and traditional use of the resources. Clearly, the prime motivation in 1980 for passing Title VIII was to protect the economies and cultures of Alaska's Native villages. Repeated state and federal litigation after ANILCA was passed, before and after the McDowell decision, showed hostility towards implementing a rural subsistence priority. The state's regulatory bodies were dominated by sport and commercial interests and, frequently, they refused to regulate in a way that was consistent with the customary and traditional practices of people who lived in rural Alaska. MS. DANIEL further explained the federal amendments introduced by U.S. Senator Ted Stevens included discussions between the Governor's office, Senator Stevens' office and Secretary Babbitt, not the Native community. The Native community had no direct input in the discussions, despite the fact they made it clear at the statewide subsistence summit they were willing to help craft a resolution. MS. DANIEL further explained Section 1 continues the moratorium to implement the final federal regulations to extend federal jurisdiction over certain navigable waters, as well as, retain and reserve certain water rights - the Katie John decision. The moratorium does not prevent the "department" from publishing and putting out for public comment the proposed final regulations. The final date for comments is April 20, 1998. Number 0909 MS. DANIEL further explained Section 2 contains the actual amendments to ANILCA. MS. DANIEL further explained Section 3 is a savings clause. It says ANILCA, as amended, would not impact the Indian country question of tribal authority over lands or people. And, it would not affect any assertion that ANILCA is or is not Indian law. MS. DANIEL further explained Section 4 provides an effective date only if the state adopts laws that comply with ANILCA and the Secretary certifies that the laws are in compliance. If the Secretary does not certify the amendments by December 1, 1998, they will be repealed. MS. DANIEL further stated the federal amendments maintain a rural preference, but add a definition of the term "rural" to mean a community or area that is substantially dependent on fish and wildlife for nutritional and other subsistence uses. She noted ANILCA at present does not contain a definition of rural. The definition is arguably more restrictive than what was adopted after the Kenaitze case decided by the Ninth Circuit Court of Appeals. In addition, the new definition does not require a look at a more objective population criteria; it looks strictly at a community's dependence. Furthermore, it is unknown how the boards would implement the definition. They would probably be given deference in terms of defining substantial dependence on fish and wildlife to areas and communities to which the standard is applied. "It is clear, however, that the new definition will have the effect of throwing some of the communities that are now considered rural under the federal definition out of the rural classification under this new definition." The new definition does not prevent the boards from putting them back in, but it seems unlikely. She noted the current communities affected by the new definition would be Saxman, and a few places on the Kenai Peninsula. However, as the population of Alaska grows and the demands for its resources increase, more and more communities would fall out of a rural definition, no matter how it would be defined. Therefore, there is a need to provide protection for Native people who still want to practice a subsistence way of life. And, the federal amendments do not provide that kind of protection. MS. DANIEL further explained the term "customary and traditional uses" remain the same as in state law except, the federal amendments include the protection of customary and traditional patterns and practices: the taking or use of fish and game. This is consistent with historical interpretation of the State Department of Fish and Game and federal law. MS. DANIEL further explained the federal amendments add the state's reasonable opportunity standard to Section 804 - the section that provides the priority for subsistence uses. Under the federal amendments, subsistence priority is expressed in terms of providing a reasonable opportunity consistent with customary and traditional uses. Under federal law, at present, any regulations that are adopted to provide for subsistence uses are required to have the least adverse impact as possible on customary and traditional uses. There is some fear that the federal amendments might weaken the least-adverse impact provision. MS. DANIEL further explained the federal amendments add a definition of the term "customary trade." The definition limits customary trade to the limited, non-commercial exchange for money of fish and wildlife of their parts in minimal quantities. The definition does not apply to fur trapping, for example. The state boards would have the regulatory power to define what is meant by the terms "limited," "non-commercial" and "minimal quantities." And, given the changes to the federal courts oversight in Section 807, a boards decisions would be given more deference than in the past to interpret statutory language. It is clear the federal amendment is to further restrict the sale of subsistence products for cash, a practice that has existed in Native communities for centuries. Number 1296 CO-CHAIRMAN OGAN noted for the record that Representatives Green, Dyson and Masek were present. Number 1310 MS. DANIEL further explained the federal amendments amend the definition of the term "federal land." The current definition of "federal land" in ANILCA means lands the title to which is in the United States after ANILCA was passed. The federal amendments say the definition of "federal land" would not included the title to which is in the state or private ownership or Native corporations. In other words, the definition of "public lands" in ANILCA is federal lands; and "federal lands" are lands the title to which is in the United States. Thus, any land the United States has title to is federal land. The federal amendments do not include lands the title to which is in the state, private parties or Native corporations. It is unclear why the amendment is needed. If a title is with the state or somebody else, it would not be defined as federal land. There are some, however, who fear the Katie John decision would be overturned so language was included to explain an interpretation. MS. DANIEL further explained, if the Secretary certifies that the state is in compliance with ANILCA, the regional councils will be set in place. The new councils will include at least six around the state composed of ten members each. The members will be appointed by the Governor. Four of the members will come from names submitted by tribal councils in the regions. The remaining six will come from recommendations made by local governments and advisory committees. And, of the remaining six members, three will have to be sport or commercial representatives from anywhere in the state, not necessarily the local region. Number 1517 CO-CHAIRMAN OGAN stated three of the six representatives would have to be subsistence users. MS. DANIEL replied, "Right." And, they would have to be from the region. CO-CHAIRMAN OGAN explained, in essence, there would be four tribal, three subsistence, and three sport/commercial members. MS. DANIEL replied, "Right." Number 1533 MS. DANIEL further explained the federal amendments do not expand the reasons the boards can use to reject a regional council's recommendation. Currently, under federal law, a recommendation can only be rejected if it is not supported by substantial evidence, it violates recognized principles of fish and wildlife conservation, or it is detrimental to the satisfaction of subsistence needs. In contrast, HB 320, would add two additional reasons for rejecting a recommendation - an unresolved statewide or interregional subsistence management issue or a contradiction to a statewide fish or wildlife management issue. The additional reasons are so broad that they negate the state deference requirement to the regional council recommendations. They also subject the state to rejection by the Secretary for inconsistency. Number 1608 MS. DANIEL further stated the federal amendments limit the authority of the federal courts to oversee ANILCA by allowing federal judges to reverse state board decisions, if they are arbitrary, capricious, in-abuse-of discretion, or otherwise not in accordance with law. The district courts have pretty much adopted that type of standard, but the federal amendments foreclose using the argument in future cases. The second change is the requirement that the federal courts give the same deference or weight to state fish and game board decisions - the same deference it would give to federal agencies. The Ninth Circuit Court of Appeals holds the state is due no deference in terms of interpreting federal law because no such authority is delegated under ANILCA. Therefore, it is not subject to the oversight of Congress. Section 814 combined with the new intent of Congress could take away a due-deference argument. The federal amendment would require deference involving issues of the state's specialized knowledge such as, biological data on fish and game. In addition, the Secretary would maintain oversight and monitoring responsibilities. The federal amendments, however, would make it more difficult for the Secretary to assume responsibility for regulating hunting and fishing on federal lands as in 1990, unless directed by the courts, causing a delay of management. Number 1820 MS. DANIEL further explained the federal amendments contain a provision of co-management of the resources with local, Native, regional or other entities. There is nothing that prohibits co- mange now. In fact, the federal and state governments have entered into cooperative projects dealing with harvest assessments, for example, with local tribes and organizations. The federal amendments fall short of addressing the co-management issue in a way that would make subsistence work in rural Alaska. Number 1838 MS. DANIEL further explained the federal amendments attempt to rewrite Congressional intent of Title VIII by adding new findings to the 1980 original version. The original findings stress the goal of protecting Native and non-Native subsistence uses in rural Alaska. The new findings add the additional goal of ensuring that subsistence on federal and public lands would be managed by the state of Alaska. The original purpose of ANILCA was to ensure that Native subsistence uses would be protected as promised when ANCSA was passed. Number 1886 MS. DANIEL further stated, in conclusion, the federal amendments to ANILCA were adopted without any hearing or input from the Native community. The preference is extended only to rural residences. There is no real protection for Natives who do not live in a rural area. The federal amendments do not mandate co-management. The state boards are given more deference on subsistence issues. And, there is no recognition of the cultural and religious significance of subsistence uses. The Alaskan Natives would like to see an end to the endless debates, battles and court fights over subsistence. However, any solution has to have the endorsement of the people who live in the areas effected. Although the Native community has been supportive of a constitutional amendment that allows the state to regain full management authority, it has never supported a trade- off of their rights under Title VIII of ANILCA as it stands today. Number 1991 REPRESENTATIVE BILL WILLIAMS asked Ms. Daniel whether the negotiated settlement, ANCSA, gives the state the right to discriminate. In other words, does ANCSA have any bearing with the subsistence issue. Number 2044 MS. DANIEL replied, in her opinion, the federal government's trust- responsibility to Native tribes and people survived ANCSA. The continuing trust-responsibility in the conference report said the state and the Secretary would take care of the subsistence needs of the Natives. She noted ANILCA is really the culmination of what was started in ANCSA. There is no question that Congress can provide a rural or Native priority. A rural priority would be measured on a rational-basis test. A relaxed test in her opinion. In fact, ANILCA has been looked at in those terms in the McDowell 2 case and it was upheld. Number 2145 REPRESENTATIVE WILLIAMS stated we are all created equal. He wondered, therefore, in what sense does ANCSA take away from the state of Alaska. "I look at this Alaska Native Claims Settlement Act as a negotiated settlement and in that negotiation agreed to by the state of Alaska, the federal government, and the Alaskan Natives, that the subsistence lifestyle would be there all the time." He wondered whether the state constitution could hold up against what was negotiated in ANCSA. Number 2191 MS. DANIEL replied, in my opinion, ANCSA is a Congressional act that does not directly address subsistence, except through the conference report. The conference report was based on a continuing trust-responsibility towards the Natives to protect their subsistence way of life. It has survived ANILCA and the state constitution. Number 2229 CO-CHAIRMAN OGAN referred to ANCSA and read the following language from Section 2: "with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship". CO-CHAIRMAN OGAN referred to ANCSA and read the following language from Section 4(b): "(b) All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished." CO-CHAIRMAN OGAN explained in 1953 titles to submerged lands were granted to the states from the federal government. Therefore, the conference report appears to directly contradict the law passed. Clearly, the law extinguishes aboriginal hunting and fishing rights, as well as, claims to land based on occupancy and use. Number 2311 MS. DANIEL replied the statute plainly extinguishes aboriginal hunting and fishing rights. It did not extinguish, however, the continuing trust-responsibility of Congress towards Alaskan Natives as expressed in the conference report. She explained the bill went to a conference committee because the Senate's version included the language "subsistence" while the House's version did not. It was resolved in conference when Congress said it expected the state of Alaska and the Secretary to protect the subsistence needs of Alaskan Natives. Congress fully expected both parties to live up to their responsibilities which they have not. Consequently, Congress revisited the issue and invoked its responsibility as a result of plenary powers when it passed ANILCA. Clearly, Congress has the authority to pass statutory protection for subsistence hunting and fishing rights. Congress could have enacted a Native preference but it chose a rural preference instead. Number 2376 CO-CHAIRMAN OGAN stated Ms. Daniel asserted that ANILCA is Indian legislation, when it is very nonracial in its context. It does not talk about a Native priority; it talks about a rural priority. Number 2400 CO-CHAIRMAN BILL HUDSON commented that ANILCA defines the term "federal lands" and the Secretary manages all fish and wildlife on "public lands." The term "public lands" is not defined. He asked Ms. Daniel what she thought were public lands. Number 2429 MS. DANIEL replied the definition of "public lands" varies from statute to statute. In ANILCA the term "lands" is defined as lands, waters and interests therein. The term "federal lands" is defined as lands to which the United States has a title to after the effective date of ANCSA. The term "public lands" is defined as all federal lands and interests. Number 2460 CO-CHAIRMAN HUDSON said the term "public lands" is commonly referred to, but there really is not a thorough definition of public lands. The courts decided in the Babbitt case that public lands included navigable waters which is a fear.... TAPE 98-1, SIDE B Number 0000 MS. DANIEL stated the term "lands" is defined as lands, waters and interests therein. The Ninth Circuit Court of Appeals has held that the language "lands, water, and interests therein" encompasses the United States' interest in reserved waters. The federal government is now defining which waters are public lands. Proposed regulations indicate that public waters are those that run through parks and refuges. Number 0030 CO-CHAIRMAN HUDSON stated it is understandable to define public waters within the confines of federal reserves. But, clearly the definition of "federal lands" excludes private and state lands. It sets up an opposition because public lands encompasses all lands including navigable waters. Number 0051 CO-CHAIRMAN OGAN stated he does not understand who owns submerged lands. Congress gave the title to submerged lands to all of the states. Congress did not intend to create a different species of states when it created Alaska. Number 0081 REPRESENTATIVE RAMONA BARNES asked Ms. Daniel to explain where the United States has reserved water rights in law or regulation, and what are the rights. Number 0090 MS. DANIEL replied she is not that familiar with reserved water rights law. The Ninth Circuit Court of Appeals has held that the United States has reserved water rights in water that is needed to fulfill the purposes of the refuges and national parks - the Katie John case. The court has also interpreted, in looking at both ANILCA and the reserved water rights doctrine, that the United States has a sufficient interest to bring the waters within the definition of public lands under ANILCA. The federal government is currently in the process of designating public waters. Number 0138 REPRESENTATIVE BARNES stated, just because the Ninth Circuit Court of Appeals says something, it does not make it right. There has not been an act of reserving water in the state of Alaska. It takes a specific act and one does not exist. Number 0153 MS. DANIEL replied she is not prepared to debate the issue today. She reiterated the courts have held that the United States has reserved water rights in Alaska which bring the waters within the ambit of public lands under ANILCA. Number 0178 REPRESENTATIVE BARNES stated she respectfully disagrees with Ms. Daniel. Number 0188 REPRESENTATIVE JOE GREEN stated in one case the federal government said it would protect Native rights. Then it changed its mind and said it would protect rural rights. He wondered whether they were mutually exclusive, and how could an aboriginal right be protected, given that he could argue his ancestors were hunters and fishers. He also wondered how a rural preference could be protected when villages were expanding in size. It seemed the state was being "whipsawed" by a constantly moving target. Number 0261 MS. DANIEL stated she is not speaking for what the policy choices should be for the Native community. It is clear that ANCSA extinguished aboriginal hunting and fishing rights. Therefore, the discussion today is about the federal government's responsibility to protect a subsistence way of life promised in the conference report. Congress attempted to do that through ANILCA, but the state insisted that the priority change from Native to rural. The Native community fought vigorously against it, but lost. She agreed that over time it would not protect the subsistence way of life as the population of Alaska grows. Nonetheless, there needs to be protection for the Natives so that they can continue to be Natives and live their way of life, and a rural preference does not do it. Number 0317 CO-CHAIRMAN OGAN said a rural priority does not address Alaskan Natives who live in areas that are classified as urban and are dependent on a subsistence lifestyle. Urban Natives could argue in court that the federal government is not looking out for their trust-responsibility interests. Number 0347 REPRESENTATIVE REGGIE JOULE asked Ms. Daniel to discuss how the trust-responsibility issue came about. Number 0358 MS. DANIEL replied it was based on a long-standing relationship between the federal government and the aboriginal tribes and peoples. It dated back to the beginning of the United States when the tribes were considered dependent communities within a larger community. Number 0396 REPRESENTATIVE JOULE asked Ms. Daniel whether it would be safe to say that it is based on a political relationship. MS. DANIEL replied, "Right." It is based on a political relationship. Number 0411 REPRESENTATIVE JOULE asked Ms. Daniel whether there was anything to prohibit pursuing an expanded rural or Alaskan Native preference in regards to the trust-responsibility issue. Number 0425 MS. DANIEL replied it could be protections that ensured the Native subsistence way of life, as well as, other legitimate subsistence users. In fact, similar language was used in the Migratory Bird Treaty Act and other subsistence related legislation. Number 0445 CO-CHAIRMAN OGAN wondered whether it would take a change to ANCSA to amend extinguished aboriginal titles and hunting and fishing rights. A settlement is a settlement, and it can not be changed unless both parties agree to change it. In the case of ANCSA, there was an exchange of 44 million acres of land, including subsurface rights. Therefore, an agreement between the state, the federal government, and the Natives would be needed to change it. He asked Ms. Daniel whether his assessment was fair. Number 0485 MS. DANIEL replied it would be an act of Congress and it has plenary authority over Native affairs. It has acted to abrogate and restore aboriginal rights in the past. Number 0515 REPRESENTATIVE GREEN wondered whether the state could strike a deal, like statehood, with the federal government until it said it was over because of its plenary authority. Number 0533 MS. DANIEL replied Congress has plenary authority over Indian affairs. REPRESENTATIVE GREEN wondered whether contracts were any good. "We either do it their way or they do it their way." MS. DANIEL stated, politically, it would be very difficult to change what Representative Green is talking about. REPRESENTATIVE GREEN noted to Ms. Daniel that she was now seeing the difficulty "we" were having with entering into another agreement with somebody that "we" can not trust. Number 0551 REPRESENTATIVE BARNES wondered whether the state of Alaska would get back its $500 million that it paid, if Congress exercised its plenary powers to amend ANILCA. MS. DANIEL replied, "I doubt it." Number 0575 CO-CHAIRMAN HUDSON asked Ms. Daniel to explain what would be needed in law in order to satisfy the religious and culture complaints she mentioned earlier. He noted that a law dealing with the allocation of resources should not refer to culture or religion. In the interest of time, she could respond later. Number 0624 CO-CHAIRMAN OGAN stated the Constitution of the State of Alaska specifically prohibits making religious-based laws. Number 0640 CO-CHAIRMAN OGAN called on Theodore Popely to compare the changes between ANILCA today, Senator Stevens' amendments, and the proposal by the subsistence task force. Number 0686 THEODORE POPELY, Legislative Assistant to House and Senate Majority, Alaska State Legislature, referred the committee members to three handouts titled "A Cross Comparison of the Elements in ANILCA Changed by Public Law 105-83 and the Subsistence Task Force Proposal"; "A Cross Comparison of Existing Statutory Provision in AS 16 with the Subsistence Task Force Proposal and HB 320 Submitted by the Governor"; and "Cross Comparison Between Constitutional Amendments Proposed by Task Force and Proposed in HJR 46." MR. POPELY referred to the handout titled, "A Cross Comparison of the Elements in ANILCA Changed by Public Law 105-83 and the Subsistence Task Force Proposal," and explained the various provisions. MR. POPELY referred to Section 316(a), "Moratorium," and explained the moratorium has been extended to December 1, 1998 under Stevens' amendment. MR. POPELY referred to Section 316(c), "Savings Clause," and explained Stevens' amendment indicates that it does not affect Native governmental authority over lands, assertions of Indian country, assertions that ANILCA is Indian law, or the authority of the Secretary under Sec. 1314(c) of ANILCA. Number 0819 CO-CHAIRMAN OGAN asked Mr. Popely whether the language, "assertion that ANILCA is Indian Law," says that ANILCA is not Indian Law. MR. POPELY replied, "Correct." CO-CHAIRMAN OGAN stated, therefore, under plenary authority over Indian affairs, the federal government would not have authority. MR. POPELY replied that is the intention of the bill, as he understood it. Number 0837 MR. POPELY referred to Section 316(d), "Effective Date," and explained under Stevens' amendment the state must adopt laws providing for the definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA by December 1, 1998, or the amendments to ANILCA will be repealed. The language sets the effective date as the date the laws are passed by the state of Alaska. Number 0880 CO-CHAIRMAN OGAN asked Mr. Popely whether the state has to pass a constitutional amendment for the effective date to take effect. MR. POPELY replied, "Correct." CO-CHAIRMAN OGAN asked Mr. Popely about the savings clause in ANILCA that says nothing shall be construed that Alaska has to amend its constitution. Number 0892 MR. POPELY replied there is a section in Title VIII that indicates nothing in the title is to be construed as requiring an amendment to the state constitution. This arguably conflicts with the fact that the state is facing a proposal that requires a change to the constitution. Number 0916 REPRESENTATIVE JOULE stated, in reference to the issue of constitutional amendments, between last session and this session there have been around 35 proposals to change the state constitution. Number 0951 REPRESENTATIVE BARNES stated the issue is whether or not the state is required under ANILCA to amend its constitution, not that there have been 35 proposals. The language is clear, nothing in the act should be construed as asking or forcing the constitution to be amended. Number 0974 REPRESENTATIVE GREEN stated the difference is the other 35 proposals are voluntary, while this one is forced. Number 0980 MR. POPELY further explained under Stevens' amendment for the effective date, the Secretary of Interior is charged with certifying whether the state is in compliance with Sections 803, 804 and 805 prior to the effective date of the amendment. Under the task force proposal, there is a presumption that the state will immediately reassume management of its fish and game, when the state laws and the constitutional amendment are enacted. There is an added level of scrutiny under Stevens' amendment. Number 1036 CO-CHAIRMAN OGAN asked Mr. Popely whether the authority of the Secretary of Interior has been expanded. Number 1049 MR. POPELY replied it is an additional provision that does not exist in current law. CO-CHAIRMAN OGAN asked Mr. Popely whether the authority of the Secretary of Interior to take over management has ever been defined before. MR. POPELY replied it has been a topic of litigation between the state and federal government that has not been fully resolved. Number 1066 MR. POPELY referred to Section 102(2), "Definition of 'Federal Land'," and explained it does not speak to amending the definition of the term "federal public lands," the topic of litigation in the Katie John case. He would not take either Stevens' amendment or the subsistence task force proposal to affect the Katie John decision made by the Ninth Circuit Court of Appeals. Number 1114 MR. POPELY referred to Section 801(b), "Findings," and explained Stevens' amendment adds a rural preference, the McDowell case, the Babbitt case, and provides that the state of Alaska should have the opportunity to manage its own resources. These provisions are not found in the subsistence task for proposal. Number 1161 MR. POPELY referred to Section 803(3), "Customary and Traditional Uses," and read Stevens' amendment, "The noncommercial, long-term and consistent taking of, use of, or reliance upon fish and wildlife in a specific area and the patterns and practices of taking or use of that fish and wildlife that have been established over a reasonable period of time, taking into consideration the availability of the fish or game." The language is the same under the subsistence task force proposal. Number 1195 MR. POPELY referred to Section 803(4), "Customary Trade," and explained it is essentially the same definition. MR. POPELY refereed to Section 803(5), "Rural Alaska Resident," and read Stevens' amendment, "A 'rural community or area' means a community or area substantially dependent on fish and wildlife for nutritional and other subsistence uses." MR. POPELY referred to Section 804(b), "Reasonable Opportunity," and explained Stevens' amendment adds an additional section so that a subsistence priority involves a reasonable opportunity. It does not guarantee that fish and wildlife will be taken. Number 1296 MR. POPELY referred to Section 805, "Local and Regional Participation," and explained Stevens' amendment includes a provision whereby the Secretary shall not implement the federal management structure unless a court of competent jurisdiction determines the state is out of compliance. The subsistence task force proposal adds a provision that the court should determine that the state has "substantially failed" to implement the provisions before the Secretary reassumes federal management. In addition, Stevens' amendment adds a provision to authorize the Secretary to bring judicial action to enforce the subsection. The subsistence task force proposal adds the particular grounds for which state boards can reject recommendations by the regional councils. They are the following: the involvement of an unresolved statewide or interregional subsistence management issue or a recommendation that is contrary to an overriding statewide fish or wildlife management interest. The specific selection criteria for the regional councils are the same in both the Stevens' amendment and the subsistence task force proposal. They are ten members in total - four selected from nominees who live in the region by the tribal councils, six by local governments of which three are subsistence users and three are sport or commercial users. Number 1390 CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task force proposal added two additional provisions that are not in Stevens' amendment. MR. POPELY replied, "Correct." An argument has been raised that the additional two items are subsumed within the other three reasons causing discussion to remove them from Stevens' proposal. Number 1440 CO-CHAIRMAN OGAN referred to the selection of members for the regional advisory councils and asked Mr. Popely whether tribal councils are recognized in statute. MR. POPELY replied as far as he knows there is no similar management structure in statute. CO-CHAIRMAN OGAN referred to the membership of the regional advisory council and wondered whether it would be fair to state there would be two commercial fishing members and one sport fishing member because commercial fishing has more political power than sport guides, even though there might be more sport hunters. CO-CHAIRMAN OGAN also asked Mr. Popely whether a quorum was six members. MR. POPELY replied, "Correct." The provision is such that the councils will strive for consensus. There is a presumption that majority will rule but a recommendation has to be unanimous. CO-CHAIRMAN OGAN asked Mr. Popely whether the regional councils would have "allocative" authority. He was concerned about regional conflicts. MR. POPELY replied under the subsistence task force proposal, a regional council would not have "allocative" authority because of the two additional provisions for boards to reject a recommendation. Number 1569 REPRESENTATIVE BARNES asked Mr. Popely how the responsibility could be delegated down to a regional or tribal council without amending the constitution. According to the constitution, the legislature has the authority to manage all fish and wildlife in the state. Number 1618 MR. POPELY replied it is a valid point. There is potential for a problem because it raises the specter of an improper delegation of authority. Number 1659 REPRESENTATIVE BARNES stated is seems when power is given beyond constitutional or statutory authority there is trouble. Number 1689 REPRESENTATIVE WILLIAMS asked Mr. Popely how ANCSA and ANILCA affect the delegation of powers. Number 1737 MR. POPELY asked Representative Williams to clarify the question. REPRESENTATIVE WILLIAMS said the state gave up power in the conference report and agreed to ANCSA. And, the state and federal government have not lived up to ANILCA. He asked Mr. Popely how this affected the other side of the delegation of powers issue. "Couldn't we just say we're living up to our word?" MR. POPELY replied there is language from the conference committee that refers to the protection of Native interests. And, Ms. Daniel referred to Native preference language in ANILCA that was rejected. There are other ways to protect the trust-relationship and the conference committee intent language. Title VIII of ANILCA is simply one approach. Number 1916 CO-CHAIRMAN OGAN referred to the appointment of the members of the regional advisory councils by the Governor and asked Mr. Popely whether he was aware of a governor appointing members to a board in any other state. Number 1962 MR. POPELY replied, "No." That is not to say it does not exist. He was not familiar with each management structure nationwide. Number 1976 CO-CHAIRMAN OGAN asked Mr. Popely whether he was familiar with the recent United States Supreme Court decision on the Brady Bill that says the federal government may not force a state to enforce a regulatory program. "I just think it's an amazing revelation that we have the federal government in federal law, if we adopt this, we're going to delegate our authority to the federal government and let them tell us that the Governor shall appoint who to what boards." Number 2035 REPRESENTATIVE FRED DYSON stated it seemed that Representative William and he both grew up in an tradition where a deal was to keep one's word. It seems the concept runs contrary to the idea that one legislature could not preclude a future legislature from changing the deal. In addition, the language in ANILCA does not seem to preclude a future court from ruling that there is a constitutional problem. He asked Mr. Popely to explain the basis of constitutional law in both situations mentioned. Number 2148 MR. POPELY replied, unfortunately, Alaska continues to struggle with the federal government over the supremacy clause. The supremacy clause, in fact, does enable the federal government to preempt state government on many different grounds. And, Congressional statutes can be amended just like state statutes. Currently, the state is experiencing the proverbial "Mexican standoff" because nobody wants to change their law first for fear of the possibility of the other side changing its bargain. "For instance, if we put the amendment that's on the ballot now, that's proposed to be on the ballot, that's contained in here, and it passes. And we have an effective package deal on the state statutes and the ANILCA changes, there's nothing that would prohibit the next Congress or even this Congress or this legislature from then changing some of those state statutes or federal statutes. And we're still left with the same constitutional amendment that would provide priority based on residence." Therefore, it is difficult to say what is going to be binding on the next set of governmental officials who may have a different agenda. Some of the best minds in the state have struggled with the question. Number 2336 REPRESENTATIVE IRENE NICHOLIA referred to amending the state constitution and wonder whether it would be, in fact, voluntary. There is a bill that could be voted on by the legislature that would give the public the opportunity to vote on the amendments. It is really not entirely up to the legislature to decide what will happen. It is up to the public as a whole. Legislators are just here to put a bill forward to give the process to the public. Number 2403 CO-CHAIRMAN OGAN replied it is clear the legislature can only propose a constitutional amendment. A constitutional amendment can not be done by a public pole or a simple majority vote. It is a legislative authority. The Governor can not propose a constitutional amendment. It can only be done by a two-thirds vote of the legislature. Number 2442 REPRESENTATIVE NICHOLIA stated Co-Chairman Ogan misinterpreted her comments. "I said, earlier it was said that we were forced to adopt an amendment to the state constitution. But, in fact it is voluntary. We can do it or we can't do it. It depends on the legislature." Number 2470 CO-CHAIRMAN OGAN stated, "We are clearly being coerced into it." TAPE 98-2, SIDE A Number 0000 MR. POPELY referred to Section 807, "Judicial Enforcement," and explained under Stevens' amendment state agencies may be declared invalid by the court only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In addition, the court shall give the decision of the state agency the same deference it would give the same decision of a comparable federal agency. The language is in response to federal courts regarding no deference to state agencies. The subsistence task force proposal would add the same language as Stevens' amendment plus an additional phrase of, "or otherwise not in accordance with law." Number 0101 MR. POPELY referred to Section 814, "Regulations," and explained under Stevens' amendment, during any time that the state complies with Section 805(d), the Secretary shall not make or enforce regulations. It is a further attempt to eliminate the Secretary from interfering with state management at times when the state has complied with the mandates of Title VIII. The subsistence task force proposal would add the same language. Number 0133 MR. POPELY referred to Section 815, "Limitations, Savings Clauses," and explained under the Stevens' amendment, nothing would prohibit the Secretary or the state from entering into a co-management agreement with Native organizations or other local or regional entities to manage fish and wildlife on public lands in Alaska for subsistence uses. Number 0221 CO-CHAIRMAN OGAN announced it was his intention to formulate a bill in draft to bring before the committee members in the next few weeks. He did not intend to have any more hearings on the Governor's proposal. He intends to obtain input from each of the committee members in the process of producing a final draft in the approach of a statutory change. He also intends to consider the input from the public obtained around the state in both rural and urban areas. CO-CHAIRMAN OGAN stated, "It's my intention to move forward with a positive Alaska-first solution. I think the state constitution and the state supreme court interpretation of equal protection, common use, and public trust doctrine, will dictate the outer parameters of the solution." CO-CHAIRMAN OGAN further stated, upon completion of the one-on-one deliberations with the committee members, a consideration will be brought forth, if there is consensus. At which point, the public will be involved. For the record, "There has not been any subcommittee meetings of this committee or any other committees to discuss statutory changes." He asked that the committee members refrain from speculating on the final outcome with the press before it is brought forth to the public. The House Resources Standing Committee is the forum that is needed to do this. A task force or public opinion polls are not where public policy is set. The legislature, clearly, has the authority. Number 0446 REPRESENTATIVE NICHOLIA asked Co-Chairman Ogan, since this was going to be the last hearing on the Governor's bill, why the Administration had not been invited to give its view on the proposal. Number 0466 CO-CHAIRMAN OGAN replied the Administration has been able to do that at the public hearings. And, it is the prerogative of the chairman. ADJOURNMENT Number 0474 CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee meeting at 2:58 p.m.