HOUSE RESOURCES STANDING COMMITTEE February 17, 1998 1:05 p.m. MEMBERS PRESENT Representative Bill Hudson, Co-Chairman Representative Scott Ogan, Co-Chairman Representative Joe Green Representative William K. (Bill) Williams MEMBERS ABSENT Representative Beverly Masek, Vice Chair Representative Ramona Barnes Representative Fred Dyson Representative Reggie Joule Representative Irene Nicholia 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 02/12/98 2312 (HB) READ THE FIRST TIME - REFERRAL(S) 02/12/98 2312 (HB) RESOURCES, JUDICIARY, FINANCE 02/17/98 (HB) RES AT 1:00 PM CAPITOL 124 WITNESS REGISTER LANCE NELSON, Assistant Attorney General Natural Resources Section Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Answered questions of the committee members. RON SOMERVILLE, Contractor to House and Senate Majority 4506 Robbie Road Juneau, Alaska 99801 Telephone: (907) 463-3830 POSITION STATEMENT: Answered questions of the committee members. GERON BRUCE, Legislative Liaison Office of the Commissioner Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Telephone: (907) 465-6143 POSITION STATEMENT: Answered questions of the committee members. ACTION NARRATIVE TAPE 98-12, SIDE A Number 0001 CO-CHAIRMAN SCOTT OGAN called the House Resources Standing Committee meeting to order at 1:05 p.m. Members present at the call to order were Representatives Ogan. Co-Chairman Hudson arrived at 1:09 p.m. Representatives Green and Williams arrived at 1:08 p.m. and 1:11 p.m., respectively. HB 406 - SUBSISTENCE USES OF FISH AND GAME CO-CHAIRMAN OGAN explained there is not a quorum yet so he will talk about the Alaska Statehood Act under "special orders of the chairman." Number 0031 CO-CHAIRMAN OGAN referred to the Alaska Statehood Act and read the following section: "Section 3. The constitution of the State of Alaska shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence." CO-CHAIRMAN OGAN explained his favorite part of the Declaration of Independence is "we hold these truths to be self evident that all men are created equal, endowed by their creator with certain inalienable rights to life, liberty and the pursuit of happiness." The declaration is followed with a duty to change the government and even overthrow it, if necessary. "Now don't get me wrong on that. I'm not advocating secession or overthrowing the government." It is just interesting to note that part of the Alaska Statehood Act indicates nothing shall be repugnant in the state constitution. He believes in working within the system to change it. CO-CHAIRMAN OGAN further stated when Alaska became a state, it became a state on equal footing with the rights, responsibilities, and privileges as all the rest of the states. The other states have the right to manage their fish and game. He believes it was not the intent of Congress to create a different "species" of states with Alaska. In addition, the Tenth Amendment of the Constitution of the United States says powers not delegated to the federal government are reserved to the states and people. The states empowered the federal government to exist, not the other way around. Number 0233 CO-CHAIRMAN OGAN stated he would also like to talk about the termination of federal functions in Alaska and explained fish and game in Alaska were such a unique situation the United States Secretary of Interior had to certify that Alaska had an appropriate management scenario in place before he would relinquish the right of the state to manage them. When he certified it, he relinquished the full right. Number 0300 CO-CHAIRMAN OGAN announced the arrival of Representative Green and explained that Representative Barnes will not be here today because her plane is late due to inclement weather. CO-CHAIRMAN OGAN cited Executive Order 10857 - termination of federal functions in Alaska - and read the following provision: "it provides that the administration and management of fish and wildlife resources of Alaska shall be transferred to the state of Alaska on the first day of the first calendar year following the expiration of the 90 calendar days after the Secretary of Interior certifies to the Congress that the Alaska State Legislature has made adequate provision for the administration, management and conservation of such resources in a broad national interest." CO-CHAIRMAN OGAN explained the executive order was signed by President Dwight D. Eisenhower. He gave, without a doubt, the right of the state of Alaska to manage its fish and game. CO-CHAIRMAN OGAN announced the arrival of Co-Chairman Hudson. CO-CHAIRMAN OGAN explained while he was back in his district recently a Native elder commented she prays for him because she believes he is against subsistence. He said, "I don't know one person in this legislature that's against subsistence. There's a perception that we are. And, I would like just to state, here and for the record, and every chance I get, that we are trying to work out an equitable system of management that....I'm merely against discriminating or creating different groups of people - the haves and have nots. And, I don't think that solves the problem." In addition, the division between rural-urban and whites-Natives will not go away with a rural priority. There needs to be healing in the state and the House Resources Standing Committee is the place to start. Number 0566 REPRESENTATIVE JOE GREEN agreed with Co-Chairman Ogan that a lot of people in Alaska are not aware. There, probably, is not anyone in the legislature opposed to a subsistence preference. In addition, reasonable people should be able to work it out. Number 0629 CO-CHAIRMAN OGAN stated the legislature has the constitutional authority to go in the direction of the sustained yield principle - Article VIII, Section 4 - that reads as follows: "Fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses." CO-CHAIRMAN OGAN explained preferences can not be given to "users" or people because of their protected constitutional rights, but animals do not have constitutional rights. Therefore, he would like the committee members to look at "uses" to come up with a system of preference that would accommodate the needs of rural Alaskans and that would not discriminate against any particular group of people. Number 0763 CO-CHAIRMAN OGAN announced that Representative Masek is excused from today's meeting. CO-CHAIRMAN OGAN announced he would discuss House Bill No. 406 now, "An Act relating to subsistence uses of fish and game." Number 0791 CO-CHAIRMAN OGAN explained HB 406 only contains, at this point, findings and intent language. He read the following from the bill: "Section 1. FINDINGS AND INTENT. (a) The Alaska State Legislature finds that (1) the ability to harvest fish and game for personal and family use for sustenance is a fundamental right under the Constitution of the State of Alaska;" CO-CHAIRMAN OGAN noted that the Alaska Federation of Natives (AFN) in its guiding principles talks about subsistence as a "basic human right." Therefore, subsection (1) is a good place to start because recognizing the ability to obtain food for existence is a right declared in the Declaration of Independence - "life," liberty, and the pursuit of happiness. CO-CHAIRMAN OGAN continued reading the findings and intent of HB 406 as follows: "(2) the common use clause of the Constitution of the State of Alaska imposes on the state a trust duty to manage the fish, game, and water resources of the state for the benefit of all the people;" CO-CHAIRMAN OGAN explained there will be a briefing by Gregory Frank Cook, a noted public trust attorney, on Tuesday, February 24, 1998. He will explain the trust-responsibilities of the state to manage its fish and game to benefit all of the people. The people in the state are unique because everyone owns the resources in common. The people own the oil, timber, and minerals, for example. The people receive dividends from the oil revenues - the permanent fund dividend. The dividend represents the earnings of the shares held in trust. The United States Supreme Court has ruled that the state can not discriminate against a person's right to a dividend based on his or her length of residency. He said, "I believe, just as we cannot discriminate based on how long someone has lived in the state with the permanent fund, I believe the U.S. Supreme Court would probably rule that we cannot discriminate with another public trust, resource of fish and game, based on where a person lives." CO-CHAIRMAN OGAN continued reading the findings and intent of HB 406 as follows: "(3) the harvest of fish and game for personal and family use for sustenance is the highest and best use of fish and game; "(4) the fish and game resources of Alaska have adequate biological and reproductive capacity to provide an abundance of fish and game for all users." CO-CHAIRMAN OGAN stated, if directives were given to the Department of Fish and Game and boards to manage for consumption and abundance, it would go a long way towards reducing the "allocative" conflict. CO-CHAIRMAN OGAN continued reading the findings and intent of HB 406 as follows: "(b) It is the intent of the Alaska State Legislature to provide "(1) for a preference for personal and family use of fish and game for sustenance that parallels the Congressional intent underlying the subsistence preference under Title VIII of the Alaska National Interest Lands Conservation Act but does not violate the fundamental constitutional rights of Alaskans to subsistence, equal protection, and common use of fish and game under the Constitution of the State of Alaska;" CO-CHAIRMAN OGAN stated the provision is a tall order because it would not conform with the rural priority in federal law. But, there is more than one way to look at it. There is agreement with some members of the Alaskan congressional delegation to do it, if the needs can be met. CO-CHAIRMAN OGAN continued reading the findings and intent of HB 406 as follows: "(2) a greater role for local fish and game advisory committees and regional fish and game councils in the review and approval of regulations governing the use of fish and game resources;" CO-CHAIRMAN OGAN explained one of the biggest roots of the problem is that rural people feel disenfranchised of the process. It was heard at the hearings during the interim that rural people want federal management because the federal government listens to them and does a better job of meeting their needs. The Natives have a legal trust-relationship with the United States Department of Interior. Therefore, the state needs to start building a trust- relationship in spirit first with rural Alaskans then legally. Rural Alaskans need to trust their state government. And, the way is to set up a regional management to give them more of a say and authority. CO-CHAIRMAN OGAN continued reading the findings and intent of HB 406 as follows: "(3) for a greater abundance of fish and game resources to serve as a source of food for persons who depend on those resources for personal and family use for sustenance." CO-CHAIRMAN OGAN explained he intended to introduce a committee substitute that would add a new section today - Section 2. But, there is not a quorum to adopt it. The new section needs to be expanded. It is fairly extensive and the bill drafter could not get it done in time. Hopefully, it will be done by Saturday. Number 1194 REPRESENTATIVE GREEN asked Co-Chairman Ogan whether the bill will be heard again on Thursday as well as Saturday with the changes. CO-CHAIRMAN OGAN replied, "No." Other bills are scheduled for Thursday. REPRESENTATIVE GREEN asked Co-Chairman Ogan whether Section 2 of the committee substitute will be discussed on Saturday even if there is not a quorum. CO-CHAIRMAN replied, "Right." Number 1246 CO-CHAIRMAN OGAN called for a brief at ease at 1:20 p.m. Co- Chairman Ogan called the meeting back to order at 1:29 p.m. Number 1267 CO-CHAIRMAN OGAN explained there still is not a quorum so action can not be taken on the bill. CO-CHAIRMAN OGAN announced he intends to have Saturday meetings starting at 9:00 a.m. Saturdays will be a good time to take public testimony. Number 1304 REPRESENTATIVE GREEN asked Co-Chairman Ogan whether he will have an expanded version of the committee substitute by Saturday and take public testimony. CO-CHAIRMAN OGAN replied he is not sure if the bill drafter will be able to get it done by Saturday. REPRESENTATIVE GREEN explained he is concerned about the Legislative Information Offices getting the committee substitute in time to the people who want to testify. CO-CHAIRMAN OGAN replied it will depend on the bill drafter. It might mean limiting public testimony on Saturday. The findings and intent language are enough to discuss, nonetheless. CO-CHAIRMAN OGAN explained he would like to move the bill out of the committee by the end of the month, if possible. He would like to see most of the work done in the Resources before sending it to the next committees of referral - Judiciary and Finance. Number 1384 CO-CHAIRMAN OGAN stated there has been a lot of discussion about "uses" and "users." An amendment to the state constitution to allow for a "user" preference, as proposed by the Governor's subsistence task force, would require amending Article I, Section 1; Article VIII, Section 14; Article VIII, Section 16; and, possibly, Article VIII, Section 17. Number 1469 CO-CHAIRMAN BILL HUDSON wondered whether Co-Chairman Ogan is also looking at the constitutionality of whatever is being developed. Number 1491 CO-CHAIRMAN OGAN stated he has been discussing the constitution. He announced Lance Nelson from the Department of Law is listening in Anchorage as well. Number 1524 CO-CHAIRMAN HUDSON stated, according to state and federal courts, a rural preference is unconstitutional. The Governor's subsistence task force, the congressional delegation, and the Administration are moving towards an application of rural by modifying the state constitution. It seems to be unworkable primarily because Juneau would not be considered rural while Sitka would be considered rural, for example. The proposal by Co-Chairman Ogan is to predicate subsistence on "use" versus "users." He wondered where "use" is expressed in the state constitution as a right. He also wondered, if it is not expressed in the state constitution, how could it be expressed in the least damageable way in terms of the common use, equal rights, and no exclusive rights of harvest provisions. Number 1652 CO-CHAIRMAN OGAN explained he is basing it on Article VIII, Section 4, the sustained yield principle. In order to get to the sustained yield principle, the state needs to manage for abundance, not just to sustain it. The state is allowed to give preference amongst beneficial uses. It does it now with seasons and bag limits. For example, in regulation, there are areas where a hunter can shoot a certain amount of caribou, but only take a few out of the area. Number 1716 REPRESENTATIVE BILL WILLIAMS explained Representative Nicholia has some communities that are not tied in with the Legislative Information Offices. The committee substitute needs to be faxed to them. Number 1756 REPRESENTATIVE WILLIAMS stated, in regards to a constitutional amendment, he hopes that a piece of legislation will be drafted considering where subsistence comes from. Subsistence was a negotiated issue in the Alaska Native Claims Settlement Act (ANCSA). It was part of a negotiated agreement. He said, "What I'm afraid of, Mr. Chairman, is that we're going to get up here and hold the Alaska constitution up and say we protected the Alaska constitution but we're not in control of our resources. We don't want that to happen." So, let's continue to remember that the state of Alaska paid $500 million to the Alaskan Natives so that they could have their lands, money, and subsistence way of life, even if it would mean a constitutional amendment. Past testimony has indicated that a rural priority will hurt Alaska because its rural communities are growing in population. He said, "We have to make this Alaska Native Claims Settlement Act a better piece of legislation so that we can have a subsistence lifestyle of the Alaskan Natives. I think that's a question that we should all answer ourselves also. Do we want to have Alaska Natives to have those subsistence lifestyles? Do we want them to continue on with a culture? If we don't, then let's say that; let's not try to get around it. And, if we do, let's say it, so that we can craft this piece of legislation to that." He suggested looking at former Governor Hickel's regional proposal. He reiterated he does not want to get bogged down in trying to protect the state constitution. Number 1975 CO-CHAIRMAN OGAN replied he is glad to hear representative Williams mention a rural preference will not take care of the issue. A rural preference will not protect many Natives in several of the voting districts of the committee members. In addition, a rural priority would give up some equal protections that might never be returned. Number 2011 REPRESENTATIVE WILLIAMS reiterated it is important to remember what was negotiated in 1971 - a subsistence lifestyle for Alaskan Natives. Number 2021 CO-CHAIRMAN OGAN replied the conference report, similar to intent language of a bill, assumed that the state and federal governments would take care of the subsistence needs of Native Alaskans. However, the conference report does not have the force of law, and the law (ANCSA) said aboriginal hunting, fishing, and property rights were extinguished in exchange for forty-four million acres of land and a billion dollars. Therefore, the only way to take care of the intent language of the conference report would be to give a Native preference, and to remove the extinguishing language from ANCSA, which is not going to happen. Number 2094 REPRESENTATIVE WILLIAMS stated that is not what he is asking. The Alaska Native Claims Settlement Act should be remembered as a promise. He said, "And you and I know what happens at the end of a session, when there are things to be done. We have made promises. We just did this year on the concealed gun bill. We promised the Governor and the people of the state of Alaska that we were going to fix it and we aren't today." In 1971, it was promised that subsistence would be taken care of for the Alaskan Natives. He is not asking to go back to it. He is asking the promise be kept in mind all of the time. It was part of a deal. REPRESENTATIVE WILLIAMS further explained that the oil companies and the lobbyists pushed for the settlement in order to get to the oil in Prudhoe Bay and for the pipeline. It was not a push to take care of Alaskan Natives, otherwise it would not be an issue today. He said, "The oil lobbyists back in 1971 were pushing to get the Alaska Native Claims Settlement Act so we could unfreeze the land so that the state could select lands so that the pipeline could go through. That was it. We wanted the oil up in Prudhoe Bay. The push was there and what happened then is, okay, Alaskan Natives, don't worry, we'll take care of you. We'll take care of you. We'll mention it in the conference report. We won't put it in a piece of legislation, but we expect the Secretary of Interior and the state to take care of the subsistence needs of Alaskan Natives." Number 2195 CO-CHAIRMAN OGAN replied he will commit to keep it in mind, as long as he understands that it is impossible to meet the needs for every Alaskan Native. REPRESENTATIVE WILLIAMS stated he is not asking for that. He is asking to craft a piece of legislation that will come close to the promise that was made in 1971. CO-CHAIRMAN OGAN replied, he thinks, it can be done. When there is an abundance of resource there is not a conflict. And, when there is a shortage of resources, it is a matter of how to manage it in an equitable way. He believes that every person in the capitol building, the legislature, and the room believes that the people who live the lifestyle should have the priority. CO-CHAIRMAN OGAN further said, if a model of who would get the priority in a time of shortage in a village could be determined, it could be applied to the whole state. A regional board system could make the determination. The people in the local areas know who needs the resources. It would not require an amendment to the state constitution. He wondered how powerful the state of Alaska could be if it could start concentrating on managing its fish and game instead of fighting over allocation. Number 2343 REPRESENTATIVE GREEN called the issue divisive and suggested crafting legislation that is agreeable to Natives, non-Natives, rural inhabitants, and urban inhabitants. The House Resources Standing Committee should be the committee that determines and concentrates on what it really wants for Alaskans, it should not be bound by any legal issues. The legal issues will be handled in the Judiciary committee. And, the financial issues will be handled in the Finance committee. Number 2427 CO-CHAIRMAN OGAN stated he concurs wholeheartedly with Representative Green. Number 2432 CO-CHAIRMAN HUDSON stated the House Resources Standing Committee is the committee to develop public policy. A bill will have to be constitutional, otherwise it will be written off immediately by the attorney general once it is signed into law. Thus, the first thing that has to be done.... TAPE 98-12, SIDE B Number 0000 CO-CHAIRMAN HUDSON continued. Thus, the first thing that has to be done is determine whether it will work. Anytime something is isolated to a village or region, the common use clause of the state constitution is treaded on. The beneficial users concept was written originally into the state constitution to make certain that there was a separation between survival of the species, personal use, sport, and commercial fishing. He referred to the concept of "uses" rather than "users" and stated in some respect it are the users that end up with the opportunity to use the resources making it hard to separate. While, Representative Williams is suggesting that the true subsistence guarantee is met as suggested by the testimony during the interim. He is deeply concerned about the practicality of managing whatever system is determined. He said, "I personally favor true subsistence uses. I'd like to see a constitutionally provided for a preference when harvests are low to true users." It does not have to substitute for other beneficial users, such as, commercial and guided sports. It would require going to the constitution to identify where the state could limit access by users when the harvest is low. He said, "I don't want to see subsistence available all over the state of Alaska because we're afraid of the constitution." In some areas, subsistence is not a way of life, there are other uses such as, personal and sport fishing. It would have to be as equitable as possible in order that it would not violate the common use and equal rights clauses. At this point, he would like to see a complete bill and to hear from witnesses. He likes some of the concepts in the findings and intent language in HB 406 and the sentiment of a consensus because of the trust issue. Number 0229 CO-CHAIRMAN OGAN stated there needs to be a commitment on the part of the committee members as well. Today, there are only four members present. Three are excused, but it can not be done without the minority. They are here today, but, unfortunately, not at the meeting. He does not want to be accused of not listening to the Natives when their representatives are not at the meetings. CO-CHAIRMAN OGAN further stated that AFN held a subsistence summit in the fall and he had to track down a copy of their wants. He said, "We're used to kind of whipping ourselves up into a froth amongst our groups, our own individual groups, and drawing lines in the sand. It's time to set some of that aside and show up to the table. They're welcome here. AFN is welcome here for their views. The minority members are welcome here. We've got to hold it together as a committee." Number 0310 CO-CHAIRMAN OGAN asked Mr. Nelson whether he could give a briefing on Article VIII, Section 4, "subject to preferences among beneficial uses.", of the state constitution in regards to the difference between "uses" and "users." Number 0331 LANCE NELSON, Assistant Attorney General, Natural Resources Section, Department of Law, explained the phrase "subject to preferences among beneficial uses" has been quoted in quite a few court cases, including McDowell, as the authority to make allocation decisions between sport, commercial, personal and subsistence users. The state supreme court has stated that the legislature indeed has the ability to make allocation decisions that prefer one use over another use. In McDowell, the state supreme court qualifies it by stating that the authority does not imply a power to limit admission to a user group. The legislature does have the authority to prefer a particular use over other uses, but not users over other users. In addition, the legislature does not have the authority to discriminate amongst users that are similarly situated in respect to a resource - McDowell and Kenaitze. Number 0441 CO-CHAIRMAN OGAN asked Mr. Nelson whether subsistence as a use could be the highest priority. Number 0451 MR. NELSON replied, "Yes." It could be the preferred use. CO-CHAIRMAN OGAN asked Mr. Nelson whether there has been any other past attempts by the legislature to do that. Number 0474 MR. NELSON replied, "Yes." In 1986, an attempt was formalized after the Madison decision. In 1992, legislation was amended to keep a preference for subsistence uses. For the last 15 years or so, there has been a legislative preference for subsistence uses. Number 0529 CO-CHAIRMAN OGAN read from the committee substitute, "The harvest of fish and game for personal or family use for sustenance by residents is the highest and best use of fish and game," and asked Mr. Nelson whether the provision is appropriate. Number 0570 MR. NELSON replied, "Yes." It is within the legislature's power and discretion. It is not required by the constitution, however. Number 0587 CO-CHAIRMAN OGAN asked Mr. Nelson whether it would be appropriate for the legislature to give direction to the Board of Fisheries, Board of Game, and the Department of Fish and Game to adopt regulations, policies, and management plans to implement a preference for consumptive use of fish and game for personal or family use for sustenance over other uses. Number 0601 MR. NELSON replied the "appropriateness" would be up to legislature. It would be within the authority of the legislature and consistent with the spirit of past patterns set by the legislature. Number 0623 CO-CHAIRMAN OGAN explained subsistence use of fisheries constitutes about 1 percent of the total take of fish. He said, "I'm personally appalled that the Secretary of Interior is threatening to take over 100 percent of the management of fisheries and navigable waters for 1 percent of the fish." He wondered whether the legislature could allocate subsistence use as the highest priority of fish and asked Mr. Nelson whether it was a fair statement. Number 0665 MR. NELSON replied, "Yes." It is consistent with what he said before. Number 0676 CO-CHAIRMAN HUDSON stated there has never been any question that the legislature, under the beneficial uses provision, can not designate subsistence as the highest use. CO-CHAIRMAN HUDSON further stated the federal law says there can be a preference, but only for rural residents. Yet, testimony has indicated that the definition of rural is too ill-defined. In addition, the attorney general and others say a defined area or defined group of people would be in violation of the state constitution as currently written. He wondered, what is true. Number 0733 MR. NELSON replied there would be a constitutional problem as it stands right now, if it excluded somebody who is similarly situated with somebody who gets to participate. Number 0769 CO-CHAIRMAN OGAN called Mr. Somerville to the table. Number 0814 CO-CHAIRMAN OGAN asked Mr. Somerville whether a person could still take six caribou, but only take two out of the area, for example. Number 0827 RON SOMERVILLE, Contractor to House and Senate Majority, replied a regulation has been in effect for quite a while for the western Arctic caribou herd. He suggested asking Geron Bruce from the Department of Fish and Game for further information. Number 0840 CO-CHAIRMAN OGAN asked Mr. Bruce whether the regulations is still in effect. Number 0851 GERON BRUCE, Legislative Liaison, Office of the Commissioner, Department of Fish and Game, replied he could not answer the question off the top-of-his-head. He would get back to him with an answer. Number 0875 CO-CHAIRMAN HUDSON asked Mr. Nelson, if the legislature were to pass a bill that established the harvest of fish and game for personal and family use for sustenance as the highest and best use and gave the boards a protocol, would they be able to restrict it by regions, areas, or proximity of domicile, without changing Article VIII of the state constitution. Number 0931 MR. NELSON replied a large part would depend on the particular limitations that the boards would come up with. Generally, a limitation of a fish or hunt to local residents is a problem under the current constitution. There are practical things boards could do so that local residents would have a more "convenient access" to the resources. The state constitution does not require equality in terms of convenience of access, but the boards can not limit any participation or admission into a user group. Number 1070 CO-CHAIRMAN HUDSON referred to Article VIII, Section 3 and 17, and asked Mr. Nelson whether they were the two provisions that principally applied to the courts striking down a preference or restriction to people in one area over people in another area. Number 1128 MR. NELSON replied, generally, Section 3 and 17, state people can not be treated unfairly and they have to be given access, if they are similarly situated to others who are given access - the basis for the McDowell and Kenaitze decisions. Number 1161 CO-CHAIRMAN HUDSON referred to Article VIII, Section 15, and asked Mr. Nelson whether it was added later to allow for limited entry. Number 1180 MR. NELSON replied Section 15 was a concern because of the economic situation at the time the state constitution was framed - fish traps and other grants of monopoly to fishing interests. Section 15 was amended later to allow for limitations in the commercial fishing user groups under certain conditions authorizing limited entry. Number 1223 CO-CHAIRMAN HUDSON asked Mr. Nelson whether there is anything outstanding in the courts in regards to Section 15. Number 1241 MR. NELSON replied not to his knowledge. It has held up in the courts. It was held up in Ostrosky and has withstood a constitutional challenge since. There have been provisions of the Limited Entry Act that have been changed after court rulings, but the concept of limited entry into a commercial fishery when certain conditions are present has withstood the challenge. Number 1275 CO-CHAIRMAN HUDSON asked Mr. Nelson whether the justification for limited entry was for resource conservation to prevent economic distress among fishermen and those dependent upon them. Number 1324 MR. NELSON replied, "Correct." Number 1330 CO-CHAIRMAN HUDSON asked Mr. Nelson why the provision, "to promote the efficient development of aquaculture in the State.", is in Section 15. Number 1344 MR. NELSON replied, according to his understanding, it is to allow the establishment of hatcheries to take fish when others might not be able to in order to fund their development. CO-CHAIRMAN HUDSON stated people who live in rural Alaska view subsistence as an absolute essential need, yet they do not want the legislature to designate it on a needs-basis. People who live in urban Alaska feel they might be giving up equity for the use of the resources. He asked Mr. Nelson whether he has taken a look at the findings and intent language of HB 406. Number 1440 MR. NELSON replied, "Yes." CO-CHAIRMAN HUDSON further asked Mr. Nelson whether there is anything in the findings and intent language that strikes him as problematic with the constitution. Number 1450 MR. NELSON replied the only obvious issue to a lawyer is in Section 1 (a)(1) - "fundamental right." There are grave implications in defining a fundamental right because it can be restricted under a compelling state interest. It might create a lot of management issues for the Department of Fish and Game down the road as well. Number 1539 CO-CHAIRMAN HUDSON asked Mr. Nelson whether the provision could shut down commercial fishing to sustenance, unless it was clearly identified. Number 1582 MR. NELSON replied he is not sure of the potential issues that might arise at this time. But, it is the kind of thing that would need to be thought about before adopting that type of language. The state supreme court has called subsistence an "important right," deemed lower in priority to a fundamental right. The language, therefore, would elevate it higher than what the state supreme court has found so far. It is conceivable that there could be unforseen consequences, unless it is clearly defined in the following sections of the bill. Number 1642 CO-CHAIRMAN OGAN asked Mr. Nelson if the language was changed to "important right" from "fundamental right" would it coincide with the state supreme court findings to date. Number 1660 MR. NELSON replied, "Yes." It would be more consistent with the findings of the state supreme court so far. Number 1685 CO-CHAIRMAN OGAN said, "Here we are finally agreeing with AFN on something and our own attorneys are shooting us down here." CO-CHAIRMAN OGAN asked Mr. Nelson to explain the purpose of findings and intent language in a bill. Number 1704 MR. NELSON replied findings and intent language is to formally declare the intent of how the rest of the bill is to be interpreted and treated. Number 1745 CO-CHAIRMAN OGAN asked Mr. Nelson whether the courts would rule on the side of a statute or the findings and intent language in the event of ambiguity. Number 1763 MR. NELSON replied the courts would, generally, go by the language of the statute, unless there was ambiguity that could be further clarified by the intent language. CO-CHAIRMAN OGAN asked Mr. Nelson to brief the committee members on Article VIII, Section 17, in reference to the language "similarly situated." Number 1822 MR. NELSON replied it is a very good question. It gets right to the crux of things. There is some idea how the courts would interpret the language because of McDowell and Kenaitze. In McDowell, some of the permissible criteria are a demonstrated dependence, reliance, or participation in a hunt or fishery. The location of residence is not an acceptable criterion to determine whether someone is similarly situated with respect to a resource. Number 1884 CO-CHAIRMAN OGAN wondered whether a customary and tradition determination or a history of use based on number of years would be acceptable under the state constitution in the event of a shortage. Number 1952 MR. NELSON replied in McDowell the court indicated that an individual qualification system would be acceptable for a preference. In Kenaitze, the court indicated that an individual qualification based on need, dependence, and reliance in relation to alternative resources available would be acceptable for a preference. Number 2035 CO-CHAIRMAN OGAN stated, in the event of a shortage, people in a particular region would have more of an advantage as long as others were not excluded from other areas. He asked Mr. Nelson whether that is tier two of the state system. MR. NELSON replied, "Correct." CO-CHAIRMAN OGAN expressed his appreciation to Mr. Nelson for his willingness to answer questions when he was unprepared. Number 2100 CO-CHAIRMAN OGAN explained the caribou regulation limiting the number taken south of the Yukon River was declared unconstitutional by the attorney's general office. He asked Mr. Nelson whether he was aware of that decision. Number 2113 MR. NELSON replied he was not involved in that decision. He understood that the regulation was repealed by the Board of Game on the advise of the attorney's general office. CO-CHAIRMAN OGAN asked Mr. Nelson whether it has ever been litigated. MR. NELSON replied, to his knowledge, it has never been litigated. Number 2193 CO-CHAIRMAN HUDSON asked Co-Chairman Ogan when the committee members should expect to see the rest of the bill. CO-CHAIRMAN OGAN replied he will get on the phone with the bell drafter after the meeting. CO-CHAIRMAN HUDSON wondered whether it will be available by Saturday. CO-CHAIRMAN OGAN replied, hopefully, it will be available by Saturday. He would, at least, like to have the issue of delegating authority to the advisory committee systems and a regional approach on the table for discussion. Number 2280 REPRESENTATIVE GREEN stated he is concerned about the public having the additions to the bill before testifying. CO-CHAIRMAN OGAN agreed with Representative Green and announced it will be a hearing-only meeting on Saturday. ADJOURNMENT Number 2349 CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee meeting at 2:43 p.m.