HOUSE RESOURCES STANDING COMMITTEE February 3, 1998 1:08 p.m. MEMBERS PRESENT Representative Bill Hudson, Co-Chairman Representative Scott Ogan, Co-Chairman Representative Beverly Masek, Vice Chair Representative Fred Dyson Representative Joe Green Representative Irene Nicholia Representative Reggie Joule MEMBERS ABSENT Representative Ramona Barnes Representative William K.(Bill) Williams COMMITTEE CALENDAR SUBSISTENCE WORK SESSION: OVERVIEW OF SUBSISTENCE PROPOSALS PAST AND PRESENT (* First public hearing) PREVIOUS ACTION No previous action to record WITNESS REGISTER 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: Answered technical questions. RON SOMERVILLE, Contractor to House and Senate Majority 4506 Robbie Road Juneau, Alaska 99801 Telephone: (907) 463-3830 POSITION STATEMENT: Presented a cross comparison of existing statutory provisions, the subsistence task force proposal, and HB 320. ACTION NARRATIVE TAPE 98-4, SIDE A Number 0001 CO-CHAIRMAN SCOTT OGAN called the House Resources Standing Committee meeting to order at 1:08 p.m. Members present at the call to order were Representatives Ogan, Dyson and Green. Co- chairman Hudson arrived at 1:09 p.m. Representatives Nicholia, Masek and Joule arrived at 1:10 p.m., 1:11 p.m., and 1:12 p.m., respectively. SUBSISTENCE WORK SESSION: OVERVIEW OF SUBSISTENCE PROPOSALS PAST AND PRESENT Number 0107 CO-CHAIRMAN OGAN stated achieving a subsistence solution requires navigating through very treacherous waters which takes a good vessel, crew and compass. The House Resources Standing Committee is the vessel and crew. And, the compass is the Constitution of the State of Alaska to the north; the Alaska Statehood Act to the south; the public trust doctrine to the west; and the Constitution of the United States of America to the east. But, most importantly, an accurate chart is needed which is what the House Resources Standing Committee will attempt to create. There have been quite a few soundings taken already including the current Governor's task force and past governors' task forces. Today is an overview of previous work on building the chart. In addition, any time one looks at a chart there is always deviation from true magnetic north; therefore, it is important to identify and look at the deviations to prevent getting hung up on rocks somewhere. Number 0301 CO-CHAIRMAN BILL HUDSON added a good lifeboat is also needed. Number 0331 REPRESENTATIVE FRED DYSON added it always makes sense to pay attention to the tide, weather and wind. CO-CHAIRMAN OGAN called Mr. Popely and Somerville to the table to continue their presentation from last week. Number 0536 THEODORE POPELY, Legislative Assistant to House and Senate Majority, Alaska State Legislature, stated he made a presentation last week and called on Mr. Somerville to continue the presentation with a statutory comparison of the provisions. Number 0563 RON SOMERVILLE, Contractor to House and Senate Majority, explained there are a lot of similarities between the existing state statute and the proposals. And, there are some distinct philosophical policy decisions made in the changes. The major issue is the assumption and the necessity to pass a constitutional amendment. The assumption is intrinsically tied to the implementation of the proposal. This is primarily to give the legislature permission to discriminate based on residency. There is a presumption that this can not be implemented because of the McDowell and Kenaitze cases. MR. SOMERVILLE further stated, in addition, the definition of subsistence is the same as in state law, except for the elimination of the clause, "by resident domicile in a rural area of the state." It is not an attempt to shift the emphasis away from rural but to reconstruct the statutes elsewhere. The subsistence task force proposal defines subsistence as, "areas and communities classified as rural." It also defines rural community or area as, "a community or area substantially dependent on fish and wildlife for nutritionally and other subsistence uses." There is a link even though there is a slight change. In terms of policy, it is basically the same. MR. SOMERVILLE further stated, in addition, the subsistence task force proposal retains a lot of what already exists in state statute in terms of a tiered system. In other words, if there are adequate resources to meet all of the needs, then all uses are provided for including subsistence. If there is not enough resources to accommodate all the nonsubsistence uses, the boards are instructed to "ratchet down" the regulations in such a fashion to give a preference to subsistence uses and to provide for other uses. In the last tier under the subsistence task force proposal, if there is not enough to meet the human consumptive subsistence uses, then the boards are instructed to further restrict it amongst the subsistence users themselves. This is the first time the verbiage "human consumptive users" appears. MR. SOMERVILLE further stated, in reference to the definition of rural community or area, the language "substantially dependent" is not defined in statute. In terms of implementing a rural preference or priority, the subsistence task force proposal takes the approach of institutionalizing the nonsubsistence areas currently in law. However, boards would be given the opportunity to review the areas in terms of their dependency to determine their correct classification. Number 1066 MR. SOMERVILLE further stated the subsistence task force proposal strengthens the role of the advisory committees by requiring deference to their proposals as they go through the process. It requires the creation of regional subsistence councils similar in structure to federal law today. Thus, all subsistence proposals from advisory committees would have to go through the proposed regional subsistence councils, and the boards would have to give them deference, especially unanimous recommendations. MR. SOMERVILLE further stated the subsistence task force proposal expands the proxy system to accommodate some urban subsistence users with family ties in rural areas. The subsistence task force proposal also retains the concept of maintaining a reasonable opportunity, not a guarantee of taking. The subsistence task force proposal also establishes a provision for educational hunting and fishing permits that clarifies what has been attempted by the Department of Fish and Game. Number 1196 CO-CHAIRMAN OGAN stated the root of the problem with subsistence is the fact that both rural and Native people feel disenfranchised with the process. He asked Mr. Popely whether there was a lot of discussion about that in the meetings. Number 1225 MR. POPELY replied there was a substantial amount of discussion and input on local control and trying to regain local management authority. The subsistence task force proposal tries to encompass those feelings. It is an accurate depiction of the motivation; he is not speaking for anyone on the subsistence task force, however. Number 1265 CO-CHAIRMAN OGAN stated it is a point that the House Resources Standing Committee members should keep in mind as an alternative solution is drafted. Similarly, there has also been a lot of discussion in regards to the trust-relationship that the United States government has with the Natives. According to testimony during the interim, there is a lack of trust on the part of the rural people in the state of Alaska. It is a point that should also be kept in mind as an Alaskan-first solution develops. The advisory council now in place in statute is probably one of the most democratic systems in the country in terms of input to the boards. The advisory councils, however, feel that the main board does not listen to them too well. It is something that will need to be addressed during the deliberations. Number 1325 REPRESENTATIVE REGGIE JOULE stated, in regards to the feelings of a lack of involvement by rural Alaskans, it is also safe to say that other user groups probably felt left out of the process. However, there is a proposal now and the legislative session has begun allowing the continuation of the public process. Number 1386 CO-CHAIRMAN OGAN stated there are two processes being discussed - people who felt left out of the subsistence task force process and people who feel left out of the day-to-day management of the fish and game in the state. He meant there was a genuine attempt on the part of the subsistence task force to include the people who feel they are left out of the day-to-day management of the fish and game in the state. Number 1440 REPRESENTATIVE JOE GREEN stated it is his understanding, and according to comments made by Senator Frank Murkowski, that the House Resources Standing Committee is operating from the premise of a wide latitude to resolve the problem that might also involve certain tweaks to the Alaska National Interest Lands Conservation Act (ANILCA). Number 1474 CO-CHAIRMAN OGAN read the following comments made by Senator Frank Murkowski in the Anchorage Daily News dated Thursday, January 29, 1998: "This Legislature has the opportunity to provide me with recommendations on amendments to ANILCA. As chairman of the Energy and Natural Resources Committee, my intention, after Alaska lawmakers complete their work and make their recommendations, is to conduct hearing and to legislate any additional changes to ANILCA." CO-CHAIRMAN OGAN stated the comments made by Senator Murkowski afford an opportunity that he has not seen since following the subsistence issue which is longer than he has been in the legislature. He reiterated he intends to come up with an Alaskan solution including support of the congressional delegation to make the appropriate changes to ANILCA. He repeated, as Senator Murkowski stated in his address to the legislature, that a repeal of Title VIII is just not possible. Number 1549 CO-CHAIRMAN OGAN explained the reason for his actions last week was to remove the subsistence task force proposal as the only solution. The Governor's bill is flawed in the fact that it is based on a constitutional amendment and a rural priority. Number 1579 REPRESENTATIVE IRENE NICHOLIA stated it will have to go through the process whether there is a rural priority or not. She asked Mr. Somerville whether the process to select a regional subsistence council would restrict a nomination from the Tanana Chiefs Council, Incorporated in the Interior, for example. Number 1635 MR. SOMERVILLE replied Section 16.05.262(b) under the subsistence task force proposal would read as follows: "(b) Each regional subsistence council must have ten members, four of whom shall be selected from nominees who reside in that region of the state submitted by tribal councils in the region and six of whom shall be selected from nominees submitted by local governments and local advisory committees. Three of these six must be subsistence users who reside in the region and three must be sport or commercial users. Sport or commercial representatives may be residents of any subsistence resource region." MR. SOMERVILLE stated it is possible, depending on how the area is defined, that some members of the Tanana Chiefs Council, Incorporated that might not reside in the area, could be excluded from that specific regional council. There are provisions, however, to help solve interregional conflicts. Number 1692 REPRESENTATIVE JOULE announced to the committee members that Senator Murkowski favors a constitutional amendment. CO-CHAIRMAN OGAN replied the point is well taken. A constitutional amendment would be an easier solution for Senator Murkowski. But, changing ANILCA would not be easy. Senator Murkowski also said he would be willing to follow the recommendation of the legislature which is a heartening departure from the past. Number 1738 CO-CHAIRMAN HUDSON stated it is important that the committee members understand that the subsistence task force proposal, embodied in HB 320, has provided a blueprint for discussions. The proposal was used as an item of discussion in the hearings in Bethel, Ketchikan, and Kenai resulting in comments by constituents. Therefore, it is important to recognize it as a valuable tool to help formulate any changes that constituents do not support. It is also important to identify any constitutional changes and/or changes to ANILCA in order that a final solution reflects good public policy. In his opinion, a constitutional change will probably be the solution in order to satisfy everybody in the state, not on a basis of rural residency, but on some other element yet to be fabricated. Number 1900 CO-CHAIRMAN OGAN stated he did not have a problem taking a look at the current proposal and other proposals. The hearing today is not on HB 320. It is important to understand constitutional responsibilities and public-trust responsibilities before any decisions are made. Number 1947 MR. SOMERVILLE referred to a handout titled "A Cross Comparison of Existing Statutory Provisions in AS 16 with the Subsistence Task Force Proposal and HB 320 Submitted by the Governor" and explained there are a relatively few minor differences between the subsistence task force proposal and HB 320. But, there are some reconstruction differences between the two which will be pointed out later. Number 1967 MR. SOMERVILLE referred to Section 16.05.258(a) and explained the subsistence task force proposal would modify the section to read as follows: "In areas and communities classified as rural, the Board of Fisheries and the Board of Game shall identify...." MR. SOMERVILLE explained it is just a relocation of the emphasis of the priority on areas and communities classified as rural. House Bill 320 is the same as the subsistence task force proposal. Number 1989 MR. SOMERVILLE referred to Section 16.05.258(b)(4) and explained the fourth tier would include the language "human consumptive uses." Otherwise, the tier process is the same as the current statute. Number 2002 MR. SOMERVILLE referred to Section 16.05.258(c) and explained the subsistence task force proposal would use the nonsubsistence areas as a tool to implement the consideration of outside areas as rural and inside areas as non-rural. The boards would be empowered to review the areas to determine their correct classification. House Bill 320 would add a new section - Section 28 - to do the same thing, it is just worded slightly different. Number 2045 MR. SOMERVILLE referred to Section 16.05.258(d) and explained it is included because of the addition of the reference to "areas or communities classified as rural" under the subsistence task force proposal. House Bill 320 is essentially the same with some minor changes in the wording. Number 2067 MR. SOMERVILLE referred to Section 16.05.258(f) and explained the subsistence task force proposal and HB 320 retain the reasonable opportunity standard/criteria. He noted the language "that provides a normally diligent participant" should be included after the word "fishery" under the state statutory provision. The subsistence task force proposal would put emphasis on the language "consistent with customary and traditional uses" and would delete the language "that provides a normally diligent participant." Otherwise, it would be the same as in existing statute. House Bill 320 is the same as the subsistence task force proposal. Number 2135 CO-CHAIRMAN OGAN asked Mr. Somerville whether the language "customary and traditional uses" has been a federal determination. Number 2151 MR. SOMERVILLE replied currently the board must identify stocks that are taken customarily and traditionally for subsistence uses - the same in federal law. He thought the reference to "customary and traditional uses" was included in the subsistence task force proposal because of complaints from people in rural areas over the methods and means of uses not being accommodated. Number 2179 CO-CHAIRMAN OGAN stated there have been customary and traditional findings by the Federal Subsistence Board that, according to the Department of Fish and Game, are not consistent with the sustained yield principle proscribed in the Constitution of the State of Alaska. There is nothing in federal law that mandates management on a sustained yield principle. Number 2198 MR. SOMERVILLE replied ANILCA has a provision that refers to conservation of healthy populations. It is not the same in state statute, however. A change in 1992 put more emphasis on sustained yield and there is a reference in ANILCA that subsistence is not intended to drive the stocks to zero. Number 2236 CO-CHAIRMAN OGAN stated, in an attempt to adequately enfranchise locals in rural areas to the process, the Federal Subsistence Board is flawed. The board's customary and traditional findings have given too much deference to local folks harming the wildlife populations. Number 2276 MR. SOMERVILLE stated, as a former member of the Department of Fish and Game, there are cases where the Federal Subsistence Board and the state boards have disagreed on the stocks. The Federal Subsistence Board can allocate a number for subsistence use thereby requiring the state boards to shut down the season in order to maintain a sustained yield and healthy population as mandated in the state constitution. The Federal Subsistence Board and the state boards run under different mandates. Number 2324 MR. SOMERVILLE referred to Section 16.05.258 and explained the subsistence task force proposal would add the following new subsection: "(g) No provision of this section requires the Board of Fisheries to close non-retention fishing if the board has made a finding that the mortality caused by non-retention fishing does not jeopardize subsistence uses or the conservation of healthy stocks." Number 2341 MR. SOMERVILLE referred to Section 16.05.260 and explained the subsistence task force proposal would add the following new subsection: "(c) Recommendations from the advisory committees on subsistence uses shall be sent to regional subsistence councils. If the regional subsistence council does not adopt the recommendation of the advisory committee, the council shall inform the advisory committee, state the reasons, and forward the advisory committee recommendation to the board." MR. SOMERVILLE explained the council could not stop the process, but it would require the recommendations to go through the regional councils before being sent to a board. Number 2369 CO-CHAIRMAN HUDSON asked Mr. Somerville to explain the relationship between the advisory committees and the regional councils. Number 2378 MR. SOMERVILLE replied there are around 80 advisory committees throughout Alaska that were created in state law. The subsistence task force proposal would not do away with the advisory committees, but would attempt to strengthen their roles by forcing them to use the regional councils and by giving them deference in the process. Number 2407 CO-CHAIRMAN HUDSON asked Mr. Somerville whether the advisory committees go beyond subsistence into bag limits and sports fishing, for example. Number 2425 MR. SOMERVILLE replied, "Correct." However, the subsistence task force proposal would require only subsistence proposals to go through the regional councils. Personally, it would be impossible for the regional councils not to look at proposals in terms of a total context. Number 2444 REPRESENTATIVE NICHOLIA stated she is a former member of an advisory committee. The subsistence task force proposal is the same as what is practiced. Every proposal adopted by a local advisory committee is sent to a regional council anyway for more support in front of a board. TAPE 98-4, SIDE B Number 0000 MR. SOMERVILLE explained the subsistence task force proposal would add a new section - Section 16.05.262 - and read the following subsection: "(b) Each regional subsistence council must have ten members, four of whom shall be selected from nominees who reside in that region of the state submitted by tribal councils in the region and six of whom shall be selected from nominees submitted by local governments and local advisory committees. Three of these six must be subsistence users who reside in the region and three must be sport or commercial users. Sport or commercial representatives may be residents of any subsistence resource region." MR. SOMERVILLE stated seven members would be from the region while still allowing for commercial and sport interests in the remaining three members. MR. SOMERVILLE continued reading the following subsections: "(c) Councils shall strive for consensus but may decide by a majority vote. "(d) Each council has the authority to make recommendations to boards on regulations, policies, or any matter related to subsistence uses; comment on nonsubsistence proposals; make recommendations on permits; submit annual reports to state and federal agencies concerning subsistence identification, needs, strategies, policies, standards, guidelines and regulations. "(e) Assist local fish and game advisory committees in achieving local participation. "(f) Requires regulatory proposals relating to subsistence be reviewed by appropriate regional council before the board takes action. "(g) Provides for councils to meet on interregional proposals. Number 0104 REPRESENTATIVE NICHOLIA explained the Yukon River Drainage Fishing Association was formed in response to interregional issues. The Yukon River is the longest river in North America. There are major differences. The association gets together twice a year to tell their differences before going to the Board of Fisheries. Number 0124 MR. SOMERVILLE continued reading the following subsections: "(h) The appropriate board shall consider the reports and recommendations of the regional subsistence councils and shall give deference to their subsistence recommendations. If the council recommendation is unanimous, there is a presumption in favor of adoption. The board may decide not to adopt a recommendation that violates the sustained yield principle, is not supported by substantial evidence, is detrimental to subsistence uses, involves an unresolved statewide or interregional subsistence management issue, or is contrary to an overriding statewide fish or wildlife management interest. A written statement shall be provided for all rejected recommendations. MR. SOMERVILLE noted that the changes to ANILCA are not identical to this provision. MR. SOMERVILLE continued reading the following subsections: "(i) Regional councils shall give deference to proposals from local governments, tribal councils and local advisory committees related to subsistence. "(j) Authorizes use of mediation process. "(k) Requires use of knowledge of subsistence users. Authorizes the department to contract with subsistence users and local groups for utilization of local special knowledge. "(l) Requires adequate funding for councils." Number 0175 CO-CHAIRMAN OGAN asked Mr. Popely whether subsection (l) would bind future legislatures. Number 0192 MR. POPELY replied a subsequent legislature could refuse to fund it and by defacto amend the statute. However, as long as the statute is in effect, the current legislature would be required to fund the councils under the terms of the statute. Number 0211 REPRESENTATIVE JOULE wondered how the regional councils existed in the past. Number 0229 MR. SOMERVILLE replied in 1992 the regional councils were eliminated from state law by the legislature when the federal regional councils came into effect. Number 0247 REPRESENTATIVE JOULE stated he took some exception to the unanimous recommendation. It would also mean less deference or weight would be given to a recommendation if the outside people on the councils disagreed. Number 0309 MR. SOMERVILLE replied the provision does not say a degree of deference. A board would be restricted as to how to reject a proposal whether it was unanimous or not. But, Representative Joule is correct because the three people who do not reside in the area could create a stumbling block. Number 0369 REPRESENTATIVE NICHOLIA suggested inviting the former commissioner of fish and game in the audience to the table to answer Representative Joule's first question. CO-CHAIRMAN OGAN replied he did not want to take testimony at this time from anybody other than Mr. Somerville and Mr. Popely. REPRESENTATIVE NICHOLIA made the suggestion because they could not answer his question. CO-CHAIRMAN OGAN stated he did not want to open up the meeting to other testifiers. Mr. Popely and Mr. Somerville could research questions further and get back to the committee members. Number 0406 REPRESENTATIVE GREEN asked Mr. Somerville how differing interregional opinions would be resolved and has it been an issue in the past. Number 0428 MR. SOMERVILLE replied the board would probably send a recommendation back to the adjacent regional councils to consolidate and come up with a unified recommendation. The provision would also allow the regional councils to use the mediation process in the event there was a real stumbling block. Number 0466 REPRESENTATIVE GREEN wondered whether a board could reject a mediated or agreed upon compromise. Number 0481 MR. SOMERVILLE replied, yes, as long as it meets one of the rejection criteria provided for in the provision. Number 0492 CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task force discussed the balance of the advisory councils. The membership would boil down to three sport and four commercial members. It seemed there would never be a majority. Number 0559 MR. POPELY replied he did not know. He was no there for the discussions. He does not know the rationale behind the numbers chosen. Number 0580 MR. SOMERVILLE stated the primary responsibility of the regional councils is related to subsistence. They could make recommendations on a variety of things, but their only legal authority is with subsistence uses. The potential problem would be in defining which regulations are subsistence regulations. Number 0610 REPRESENTATIVE JOULE announced the subsistence director is in the audience who could answer the question. CO-CHAIRMAN OGAN stated he did not want to bring to the table other testifiers. CO-CHAIRMAN OGAN stated a perception of bias is not in the best interest of anyone. It would just exacerbate the hard feelings between the different user groups. Number 668 REPRESENTATIVE JOULE said, "Within our state we have 200 some communities some of which choose to have municipal government and others which choose to have tribal governments, others choose to have boroughs. Those are local decisions because that is the area they are looked to make decisions on because that's the area that they live in. And, with regards to the makeup of the councils, the resources are out in those areas. And, I think, in part, that was how some of the recommendations were made to say this is why it may be weighted this way because these are the people that live closest to the resources, and understand the resources and the patterns of them." Number 0709 CO-CHAIRMAN OGAN stated no one really owns the resources, according to the public trust doctrine. The common use clause of the state constitution was founded in the public trust doctrine. In addition, there is quite a bit of case law that says no one really owns the resource until he or she takes possession by skillful apprehension. Nonetheless, a solution needs to be balanced and fair. Rural people have a leg up because of the fact that they live in a rural area. He called it a priority by natural selection. Number 0764 REPRESENTATIVE NICHOLIA stated the best "biologists" are the people who live in the area. They know exactly what is going on with the resources. The fish and game biologists depend on the local advisory committees and people to tell them what is going on which creates a good working relationship. Number 0839 MR. SOMERVILLE referred to Section 16.05.330(c) and explained the subsistence task force proposal would add the following language: "To be eligible to take fish or wildlife in a rural community or area using the subsistence priority in AS 16.05.258, a person must be a resident domiciled in that community or area." MR. SOMERVILLE further explained the subsistence task force proposal would add the following new subsection: "(e) Provides authority for the Commissioner to issue permits for taking fish and wildlife in order to teach and preserve historic or traditional uses and harvest practices. Does not have a priority." MR. SOMERVILLE referred to Section 16.05.405, "Taking fish and game by proxy" and explained the subsistence task force proposal would add the following new subsection: "(g) Authorizes a permit for a resident who is member of the family of a resident of a rural community or area or any person who is a resident of a rural community or area to participate in subsistence harvest activities as a proxy, regardless of the eligible resident's age or physical ability to hunt or fish. Fish or wildlife taken by proxy under this section shall belong to the person on whose behalf it was taken and the majority of the fish and wildlife taken by proxy shall remain in the community or area. No person may give or receive cash remuneration in connection with any proxy harvest." MR. SOMERVILLE explained the provision is an expansion of the existing proxy system. House Bill 320 is the same as the subsistence task force proposal. Number 0946 CO-CHAIRMAN OGAN stated the proxy system is tough to enforce. The provision appears to be a nightmare. Number 0970 MR. SOMERVILLE referred to Section 16.05.940, "Definitions" and explained the subsistence task force proposal and HB 320 would use the term "wildlife" rather than "game." A difference between HB 320 and the subsistence task force proposal is in (7), the definition of "customary and traditional." Existing law calls for the consistent taking of "and" reliance upon fish or game, while the subsistence task force proposal would call for the consistent taking of "or" reliance upon fish or wildlife. House Bill 320 would call for the consistent taking of "and" reliance upon fish or wildlife. There is a difference between "and" and "or." CO-CHAIRMAN OGAN stated "or" would mean one or the other, while "and" would be all inclusive. Number 1046 MR. POPELY explained, according to the attorney's general office, there should not be a difference between the subsistence task force proposal and HB 320. House Bill 320 should read "or" instead of "and." It was a typo. Number 1062 CO-CHAIRMAN OGAN asked Mr. Popely whether the subsistence task force proposal would broaden the criteria of who would qualify for subsistence with the addition of the language "or." Number 1092 MR. POPELY replied, "Correct." He could have the intention backwards. It could be "and" instead of "or." Number 1113 CO-CHAIRMAN OGAN stated, according to the hearings earlier in the year, there was discussion in regards to the expansion of who would qualify under customary and traditional by using the language "or" instead of "and." He asked Mr. Popely what was amended in ANILCA. Number 1131 MR. POPELY replied it would include the "or" language. Number 1153 CO-CHAIRMAN OGAN stated the amendment to ANILCA would expand the group defined under the customary and traditional provision. MR. POPELY replied he believed so but he would double check. MR. SOMERVILLE referred to Section 16.05.940 "Definitions" and explained under the subsistence task force proposal "minimal quantities" would be set rather than "minimal amounts of cash" as in state law because of the varying types of species and their financial worth. A limited amount of cash in one species could severally restrict another species. Similarly, a little bit of herring roe is very valuable while a lot of something else might not be very valuable. It is a policy decision. MR. SOMERVILLE referred to Section 16.05.940(11) and explained the subsistence task force proposal would delete the following language in existing law: "domicile may be proved by presenting evidence acceptable to the Boards of Fisheries and Game;" MR. SOMERVILLE referred to Section 16.05.940(27) and explained the subsistence task force proposal language would read as follows: "(27) 'rural community or area' is a community or area substantially dependent on fish and wildlife for nutritional and other subsistence uses;" MR. SOMERVILLE explained HB 320 is the same as the subsistence task force proposal. MR. SOMERVILLE referred to Section 16.05.940(30), (31), and (32) and explained the subsistence task force proposal would delete the following language from the provisions: "by a resident domiciled in a rural area of the state" MR. SOMERVILLE further explained HB 320 would add the following new section: "Section 31. Provides that the Act takes effect on the effective date of an amendment to the Constitution of the State of Alaska, approved by the voters in 1998, authorizing a priority for subsistence uses of renewable natural resources that is based on place of residence." MR. SOMERVILLE lastly explained the present subsistence law would revert to 1986 law on January 1, 1999, if the 1992 law is not extended. The legislature has been extending the law every year by one year. Number 1365 CO-CHAIRMAN OGAN referred to Section 16.05.940(8) and asked Mr. Popely what were the changes to ANILCA in this section. According to the Peratrovich case, herring, roe and kelp can be sold for up to a total of $15,000 per person creating a legal precedence. A lot of people feel this is commercial use, not subsistence use. Number 1440 MR. POPELY replied Section 803(4) "Customary Trade" in ANILCA was changed to read, "except for money sales of furs and furbearers, the limited, non-commercial exchange for money of fish and wildlife or their parts in minimal quantities." Number 1460 CO-CHAIRMAN OGAN asked Mr. Popely whether the language was tight enough to prevent litigation. Number 1508 MR. POPELY replied the idea of the subsistence task force proposal and Stevens' amendment was to affect the Peratrovich decision. The decision could judicially increase over time to the point of blurring the line between true subsistence fishing and a commercial venture. Most of the policy makers involved with the task force and Stevens' amendments wanted to preclude that from happening thru restricting the customary trade of subsistence caught resources. In a lot of cases it is appropriate to recognize the use and benefit of allowing subsistence resources to be sold to acquire other subsistence resources. He believed the language was reasonably tight. The terms "minimal" and "noncommercial" could have been defined so that reasonable people could understand what they mean. In addition, the terms "amounts" and "quantities" could also have been defined in statute to directly pinpoint what is customary and commercial trade. The danger, however, is that times, markets and the value of the dollar change so that an arbitrary figure picked in 1998 might not be applicable in ten years or so. It is up to the committee members to decide. The standard put to the language in a time of litigation would be a reasonable understanding of the terms "noncommercial" and "minimal quantities." Number 1673 CO-CHAIRMAN OGAN stated a lot of time federal law looks to the state law. He asked Mr. Popely whether it would be helpful to expand the definitions to include a more articulated wording of each term in statute. He also asked Mr. Popely whether that was considered in the subsistence task force. Number 1703 MR. POPELY replied he believed a conscious decision was made by the subsistence task force to leave the determination of the precise figures of noncommercial exchange to the boards. But, yes, the surest way to prevent problems in the future is to identify figures in statute leaving no room for judicial interpretation. Number 1765 REPRESENTATIVE NICHOLIA stated for the record she agreed with Mr. Popely's answer. It is hard to predict the future in terms of the price of the dollar. She cited an example where elders give money for gas to get their favorite meat that is not available in the village - beaver. The barter is money for gas; they are not going to the store to buy food. Number 1825 CO-CHAIRMAN OGAN stated this is an area that needs to be explored given that there is a lot of local knowledge of the committee members. Identifying the types of customary and traditional things as part of a definition could remove any ambiguity. Most people believe subsistence is a noncommercial activity. Number 1859 REPRESENTATIVE JOULE stated there were people from the Department of Law in the audience and suggested hearing from them on this issue. Number 1884 CO-CHAIRMAN OGAN replied he would call on people from the audience to testify if there was enough time. Number 1945 CO-CHAIRMAN OGAN asked Mr. Popely whether the term "rural community or area" was amended in ANILCA, and was it the same under the subsistence task force proposal. Number 1962 MR. POPELY replied, "Yes." Number 1980 CO-CHAIRMAN OGAN stated, according to his understanding, the term "rural community or area" could be interpreted broader than in current state statute. He wondered what was meant by "rural area." He lives in a farming area where bears and moose go through his yard yet, it is classified as urban. In addition, the area of Fairbanks has relied substantially for a number of years on fish from the Copper River. People from Anchorage travel to the Copper River to dip net for salmon as well. The problem with a definition of "rural priority" is that it does not meet the needs of those living in "urban" Alaska that have a substantial dependency on fish and wildlife resources as a sustenance. He asked Mr. Popely how much wiggle-room is there in the description since it has been amended in the proposed changes to ANILCA. Number 2084 MR. POPELY replied a rural definition is not contained in ANILCA today which causes the biggest problem when implementing Title VIII. The definition under the subsistence task force proposal has a certain level of intentional breadth. For procedural purposes, an existing list of rural areas would go into effect. Beyond the list, the boards would be directed to apply the definitions and other principles to determine what communities would be considered rural. Thus, there is a substantial amount of latitude given to the boards to determine the meaning of the term "substantially dependent." There was talk in the subsistence task force to specifically layout the rural areas in the state. A specific list would nail down the issue with certainty. It is a policy decision, however, and it would be a difficult decision to make. Number 2349 CO-CHAIRMAN OGAN stated the two egregious cases that stand out in his mind as an irrational description of rural are Saxman and Ninilchik. Saxman is a one-square-mile area inside a classified urban area. Ninilchik is on an intrastate highway within a few miles of jobs, stores, trails and boat ramp launch. The same type of accesses as Anchor Point, for example. It causes hard feelings between neighbors, families, and communities. TAPE 98-5, SIDE A Number 0000 REPRESENTATIVE JOULE stated the impetus is to manage the resources well enough so that there is not a problem. Under a good management system, both personal and sport users have access to the resources. A rural priority would only be invoked in times of a shortage of the resources. The incentive is to manage the resources well. Number 0128 CO-CHAIRMAN OGAN stated there is not anything in ANILCA that talks about a rural priority in a time of shortage. Number 0155 MR. POPELY replied it is a popular misconception. In fact, there is nothing in Title VIII that specifies in times of shortage, it specifies restrictions. It is open to interpretation, however, because there are restrictions on virtually every game and fish stock in the state. But the language referring to restrictions does not mean the same as a shortage. He understood the argument under the tiers of use as a resource shortens, but at all times there is a subsistence priority. Number 0240 REPRESENTATIVE NICHOLIA stated, according to her understanding, a restriction really means a shortage. For example, there was a restriction placed on fall chum because of a low run. The only activity allowed was a subsistence take. There was no commercial or personal take allowed. The fishermen gathered for a summit and decided to take only what was needed for the winter. "Right now, you don't see those restrictions very often in the state of Alaska. What you see is the general hunt, it's none of the general hunt, and that's where it applied to everybody. Everybody and anybody can come into any area in Alaska and hunt and they do that. It's done in Tanana. We get hunters not only from in the state, but we also get hunters from anywhere from Texas to New York. You know, they're all there. That's what....I just wanted to give you what's these interpretations mean to us there and what's in place." Number 0355 CO-CHAIRMAN OGAN stated, if there was an abundance and no shortage anywhere in the state, there would not be seasons or bag limits. There is a shortage because there is virtually a season and bag limit on almost everything in the state, except some of the caribou herds in the north. Number 0439 CO-CHAIRMAN HUDSON stated the entire proposal leans on a rural application. The major policy question is found in Section 16.05.258(c). The legislature should make the decisions to determine what is in or out rather than a citizen board. Number 0583 REPRESENTATIVE DYSON stated, according to the governmental system, when ANILCA was passed some folks assumed it was designed to fix things that were not right in the Alaska Native Claims Settlement Act (ANCSA). Some say because ANILCA came later Congress did it differently to fix ANCSA. He asked Mr. Popely whether that was a logical assumption. Number 0669 MR. POPELY replied there is a faction that believes ANILCA is remedial Indian legislation and was designed to fix the ills of the past in regards to Native subsistence rights. There are an equal number of people who believe it was designed to establish the opposite - a non-Native subsistence preference. There was at one time an amendment to ANILCA that included a Native rather than a rural preference that did not pass. Therefore, there are people who believe the rural preference was designed to be a defacto Native preference. And, there are an equal number of people who argue that the non-Native population exceeds the Native population in the rural areas causing tension between the groups. At the time ANILCA was passed, there was language from the conference committee report that discussed the notion of a Native preference. Number 0789 REPRESENTATIVE DYSON stated it seems illogical to assume that a later law supersedes an earlier law in areas of conflict. He asked Mr. Popely whether it would take a court challenge and interpretation to determine if a later law superseded an earlier law. Number 0835 MR. POPELY replied it is not a legally sound argument to say "last in time is first in right." But, at the same time, there is no clear answer until a judge determines the true congressional intent in order that one supersedes the other. Number 0880 REPRESENTATIVE DYSON stated he is trying to find all the old laws and make the necessary corrections when crafting new legislation. He assumed that the national legislators also made the necessary corrections, if the intent of a new law is to supersede the old laws. Number 0907 MR. POPELY replied the intent should be explicitly stated in the new law. Otherwise, the last law in time is the current law. Number 0945 CO-CHAIRMAN OGAN stated the more ambiguous a law is the more litigation. Therefore, the more specific the contentious definitions are in statute the less time will be spent in court. CO-CHAIRMAN OGAN announced in the coming weeks there will be at least one hearing a week on subsistence. He would also like to meet individually with the committee members during the week. Next week there will be a presentation on former Governor Hickel's proposal. ADJOURNMENT Number 1165 CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee meeting at 2:58 p.m.