HOUSE RESOURCES STANDING COMMITTEE March 5, 1998 1:08 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 (via teleconference) Representative Reggie Joule MEMBERS ABSENT All members present OTHER HOUSE MEMBERS PRESENT Representative Jeannette James 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 (H) READ THE FIRST TIME - REFERRAL(S) 02/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE 02/17/98 (H) RES AT 1:00 PM CAPITOL 124 02/17/98 (H) MINUTE(RES) 02/21/98 (H) RES AT 1:00 PM CAPITOL 124 02/21/98 (H) MINUTE(RES) 02/24/98 (H) RES AT 1:00 PM CAPITOL 124 02/24/98 (H) MINUTE(RES) 02/27/98 (H) JUD AT 1:00 PM CAPITOL 120 02/27/98 (H) MINUTE(JUD) 02/28/98 (H) RES AT 9:00 AM CAPITOL 124 02/28/98 (H) MINUTE(RES) 03/03/98 (H) RES AT 1:00 PM CAPITOL 124 03/03/98 (H) MINUTE(RES) 03/04/98 (H) JUD AT 1:00 PM CAPITOL 120 03/04/98 (H) MINUTE(JUD) 03/05/98 (H) RES AT 1:00 PM CAPITOL 124 WITNESS REGISTER STEPHEN WHITE, Assistant Attorney General Natural Resources Section Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Answered questions of the committee members on HB 406. GEORGE UTERMOHLE, Attorney Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Answered questions of the committee members on HB 406. PETE SCHAEFFER P.O. Box 296 Kotzebue, Alaska 99752 Telephone: (907) 442-3467 POSITION STATEMENT: Provided testimony on HB 406. WAYNE HEIMER 1098 Chena Pump Road Fairbanks, Alaska 99709 Telephone: (907) 451-6847 POSITION STATEMENT: Provided testimony on HB 406. JOHN SHRADER P.O. Box 873429 Wasilla, Alaska 99687 Telephone: (907) 357-3972 POSITION STATEMENT: Provided testimony on HB 406. DAN SENTZ 901 McAdoo Way Wasilla, Alaska 99654 Telephone: (907) 376-4574 POSITION STATEMENT: Provided testimony on HB 406. MICHAEL PATKOTAK P.O. Box 610 Barrow, Alaska 99723 Telephone: (907) 852-2182 POSITION STATEMENT: Provided testimony on HB 406. DON WESTLUND P.O. Box 7883 Ketchikan, Alaska 99901 Telephone: (907) 225-9319 POSITION STATEMENT: Provided testimony on HB 406. NICK SZABO P.O. Box 1633 Kodiak, Alaska 99615 Telephone: (907) 486-3853 POSITION STATEMENT: Provided testimony on HB 406. LEE TITUS P.O. Box 516 Northway, Alaska 99764 Telephone: (907) 778-2311 POSITION STATEMENT: Provided testimony on HB 406. HUGH DOOGAN 1359 Slater Street Fairbanks, Alaska 99701 Telephone: (907) 456-1869 POSITION STATEMENT: Provided testimony on HB 406. DEAN PADDOCK P.O. Box 21951 Juneau, Alaska 99802 Telephone: (907) 463-4976 POSITION STATEMENT: Provided testimony on HB 406. MICHAEL COONS P.O. Box 4229 Palmer, Alaska 99645 Telephone: (907) 745-6779 POSITION STATEMENT: Provided testimony on HB 406. MYRON NANENG P.O. Box 219 Bethel, Alaska 99559 Telephone: (907) 543-3521 POSITION STATEMENT: Provided testimony on HB 406. DICK BISHOP P.O. Box 73902 Fairbanks, Alaska 99707 Telephone: (907) 455-4262 POSITION STATEMENT: Read testimony on behalf of his wife, Mary Bishop. ROBERT HALL, Representative Houston Chamber of Commerce P.O. Box 871506 Wasilla, Alaska 99687 Telephone: (Not provided) POSITION STATEMENT: Provided testimony on HB 406. DICK STOFFEL H.C. 33 Box 3174-S Wasilla, Alaska 99654 Telephone: (907) 376-1691 POSITION STATEMENT: Provided testimony on HB 406. GLORIA STICKWAN Drawer H Copper Center, Alaska 99573 Telephone: (907) 822-5241 POSITION STATEMENT: Provided testimony on HB 406. TOM SCARBOROUGH 1676 Taroka Drive Fairbanks, Alaska 99709 Telephone: (907) 479-3412 POSITION STATEMENT: Provided testimony on HB 406. ROD ARNO, President 211 4th Street, Number 302A Juneau, Alaska 99801 Telephone: (907) 463-3830 POSITION STATEMENT: Provided testimony on HB 406. EMIL PORTSCHELLER P.O. Box 2544 Palmer, Alaska 99645 Telephone: (907) 746-4165 POSITION STATEMENT: Provided testimony on HB 406. ROB BEACH (Address not provided) Telephone: (Not provided) POSITION STATEMENT: Provided testimony on HB 406. LINDA ANDERSON P.O. Box 872092 Wasilla, Alaska 99687 Telephone: (907) 376-6721 POSITION STATEMENT: Provided testimony on HB 406. TOM LAKOSH P.O. Box 100648 Anchorage, Alaska 99510 Telephone: (907) 263-7380 POSITION STATEMENT: Provided testimony on HB 406. DANNY GRANGAARD P.O. Box 11 Tok, Alaska 99780 Telephone: (907) 883-5380 POSITION STATEMENT: Provided testimony on HB 406. PATRICK SAMSON P.O. Box 219 Bethel, Alaska 99559 Telephone: (907) 543-7361 POSITION STATEMENT: Provided testimony on HB 406. MARTINA RAPOZA P.O. Box 219 Bethel, Alaska 99559 Telephone: (907) 543-7361 POSITION STATEMENT: Provided testimony on HB 406. VIRGINIA CHARLIE P.O. Box 219 Bethel, Alaska 99559 Telephone: (907) 543-7361 POSITION STATEMENT: Provided testimony on HB 406. FRED SMITH P.O. Box 219 Bethel, Alaska 99559 Telephone: (907) 543-7375 POSITION STATEMENT: Provided testimony on HB 406. 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: Provided testimony on HB 406. 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 on HB 406. 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 questions of the committee members on HB 406. WARREN FOX (PH) (Address not provided) Telephone: (Not provided) POSITION STATEMENT: Provided testimony on the board process. ACTION NARRATIVE TAPE 98-26, 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 Hudson, Ogan, Masek, Barnes, Dyson, Green, Williams and Joule. Representative Nicholia joined the meeting via teleconference sometime after the call to order. HB 406 - SUBSISTENCE USES OF FISH AND GAME CO-CHAIRMAN OGAN announced the only order of business was House Bill No. 406, "An Act relating to subsistence uses of fish and game." REPRESENTATIVE RAMONA BARNES stated the last time the committee met she made a statement about welfare and its five-year effect on the rural areas that was incorrect. She read the following statement written by Chris Ashenbrenner to correct the record: "Here is a brief synopsis of the information you requested about welfare reform in regard to the Native village exemption to the 60- month time limit. "The federal welfare reform legislation included a provision that exempts from the time limit any month a family lives in an Alaskan Native village or reservation in which 50 percent of the adults are not employed - Section 4.08.(a)(7)(d) of the Personal Responsibility and Work Opportunities Act of 1996, as amended by the Balanced Budget Act of 1997. The exemption is outside of the general 20 percent except allowances to the time limit. The 20 percent allowance is applied to families that have parents or caretakers who are unable to work for a good reason. Such incapacity is a parent or a child or a domestic violence and it is determined and applied once the family has used their 60 months. The DHSS (Department of Health and Social Services) with the help of the Department of Labor is in the process of determining a reasonable way to calculate how many adults in each village are not employed. This has been quite a challenge because population and employment data at the village level is only gathered with a census. And the 1990-census information is a bit stale by now. We believe we are close to the development of a methodology where this determination hopes to publish the policy within the next few months. "I hope this helps." REPRESENTATIVE BARNES stated Senator Stevens put into the budget a section that says, any Native village in Alaska where there is 50 percent unemployment, the five-year limitation does not apply. Thus, by-en-large all rural villages in the state will continue under the Welfare Act. The Welfare Reform Act will not touch them. Number 0400 CO-CHAIRMAN OGAN announced Representative James has joined the meeting. Number 0412 REPRESENTATIVE JEANNETTE JAMES stated there is another part of the Welfare Reform Act that will affect Native villages. Native people who are currently living in urban areas and can not find work might move back to the villages. REPRESENTATIVE IRENE NICHOLIA announced she is present via teleconference in Fairbanks. CO-CHAIRMAN OGAN announced he would explain the proposed committee substitute for HB 406, version 0-LS1573\P, Utermohle, 3/5/98. Number 0481 CO-CHAIRMAN OGAN explained that three new paragraphs have been added to the Findings and Intent section. They were taken out of former Governor Hickel's task force findings. The most significant paragraph added is the following: "(4) there are Alaskans, both Native and non-Native, who have a traditional, social, or cultural relationship to and dependence upon the wild renewable resources produced by Alaska's land and water; the harvest and use of fish and game for personal and family consumption is an integral part of those relationships;" CO-CHAIRMAN OGAN stated he wanted to acknowledge the importance of culture, customs and traditions. CO-CHAIRMAN OGAN further explained that Section 16.16.020(b) has been added. It reads as follows: "(b) If the Board of Fisheries or the Board of Game determines that the projected level of harvest of a fish stock or game population in an area would exceed the sustainable level of harvest under the sustained yield principle, the appropriate board shall allocate, notwithstanding AS 16.05.251(e), the harvestable portion of the stock or population in that area among user groups in accordance with a ranking of beneficial uses of the stock or population that assigns the highest preference to consumptive use for personal and family use for sustenance." CO-CHAIRMAN OGAN stated the authority for the subsection comes under Article VIII, Section 4, "Sustained Yield," of the state constitution. There can be a preference amongst beneficial uses - sustenance, personal, commercial or any other use. "We can and we do have the authority in times of shortage under sustained yield to give a preference." CO-CHAIRMAN OGAN further explained that Section 16.16.020(b) has been rewritten to require concurrence of the Department of Fish and Game with a finding of shortage by the Board of Fisheries or the Board of Game. CO-CHAIRMAN OGAN further explained that Section 16.16.020(C) has been rewritten to substitute regional fish and game board for local fish and game advisory committee and to delete requirements for the use of a certain number of species and for sharing of resources in order to qualify for personal and family use for sustenance as a preference. It was rewritten in response to public testimony. In a time of shortage, if there are a lot of hoops to jump through and it is expensive, the rural communities might not do it. CO-CHAIRMAN OGAN further explained that Section 16.16.020(d) has been rewritten to substitute regional fish and game board for local fish and game advisory committee. CO-CHAIRMAN OGAN further explained that Section 16.16.020(e) and (f) have been combined into a new subsection (e) to reflect the elimination of the role of the local advisory committees in the process for determining eligibility. According to testimony, to have the actual local advisory committees making the determination of who will and who will not have a preference in a time of shortage is a sticky situation. CO-CHAIRMAN OGAN further explained that a definition of the term "preference" has been added to Section 16.16.095. CO-CHAIRMAN OGAN further explained that a definition of the term "shortage" has been rewritten in Section 16.16.095. CO-CHAIRMAN OGAN further explained that a reference to the sustained yield principle has been added to Section 16.05.245(b)(2). CO-CHAIRMAN OGAN further explained that Section 16.05.260(e) has been rewritten to eliminate the requirement that the governor appoint members of the regional fish and game boards from lists of persons submitted by the local fish and game advisory committees. CO-CHAIRMAN OGAN further explained that Section 16.05.260(h) and (i) have been rewritten and subsection (j) has been deleted to reflect the elimination of deference to the local fish and game advisory committees, and to eliminate delegation of authority from the commissioner to the regional boards. It gives more authority to the regional boards and makes the advisory boards true "advisory" boards. He does not want to delegate too much of the legislature's authority down to the advisory committees. He is also concerned about the appropriateness of allowing the commissioner the authority to delegate to regional boards. It would be appropriate if the main boards want to delegate authority to the regional boards, but he does not want the commissioner to be able to sidestep and undermine the board process. If the main boards want to take some of their workload off and give it to the regional boards, it would be appropriate because the members are appointed by the governor and confirmed by the legislature. Number 1188 REPRESENTATIVE BARNES stated the only authority that the Board of Fisheries and Board of Game have are those that have been delegated to them by the legislature. Therefore, any authority that they would delegate is authority of the legislature. Number 1224 CO-CHAIRMAN OGAN further explained that Section 32 of the bill has been amended to add 16.05.940(7) and (27) to repeal the definitions of the terms "customary and traditional" and "rural areas." CO-CHAIRMAN OGAN further explained that Sections 37-40 have been added to provide an advisory vote on a preference for the use of fish and game for personal and family use for sustenance. The question reads as follows: "Shall a law (HB 406) passed by the legislature which grants a preference in times of shortage for use of fish and game for personal and family use for sustenance take effect and shall the federal law (Alaska National Interest Lands Conservation Act) be amended to conform to state law regarding use of fish and game? Yes[ ] No[ ]" CO-CHAIRMAN OGAN stated he worked long and hard on the verbiage to make it clear so that the ordinary person could understand it. The reason for an advisory vote in the primary election is because it would take place in August and would give the state time to take action in the event the people reject it before the December 1, 1998-deadline. "If we wait till November, then we have less than one month." Number 1349 REPRESENTATIVE BILL WILLIAMS stated the question sounds clear. He wondered how it would work logistically in relation to the adjournment time for Congress this year. Number 1372 CO-CHAIRMAN OGAN replied Congress adjourns sometime in October this year. REPRESENTATIVE WILLIAMS stated Congress would not go back to session until the first of the next year. He wondered how that would affect the December 1, 1998 deadline. Number 1385 CO-CHAIRMAN OGAN replied he envisions, if the bill passes, both houses of the legislature taking action then the congressional delegation making changes to the Alaska National Interest Lands Conservation Act (ANILCA), assuming that the people ratify the question. If the people do not ratify the question then the legislature would probably have to deal with the issue in a special session. If the people do ratify the question then the congressional delegation would have to get it out in a fairly short order. They could get it out in a fairly short order, especially if there is a consensus. "Our congressional delegation has repeatedly said 'bring us a consensus.' And I think if the Alaskan people bring them a consensus they should represent us and make the appropriate changes to the federal law." Number 1457 REPRESENTATIVE BARNES asked Co-Chairman Ogan to discuss the language on page 24, lines 21-23. "(E) the portion of sec. 316(b)(3)(B) of P.L. 105-83 relating to the management of fish and wildlife for subsistence uses on public lands in Alaska by the Secretary of the Interior is repealed." Number 1473 CO-CHAIRMAN OGAN replied section 316(b) of Public Law (P.L.) 105-83 are the changes made to ANILCA by the appropriation writer last year. The changes read as follows: "In accordance with Title VIII of this Act, the Secretary of Interior is required to manage fish and wildlife for subsistence uses on all public lands in Alaska because of the failure of state law to provide a rural preference." CO-CHAIRMAN OGAN explained he wants that portion repealed from ANILCA. "Now, the effective date of this ANILCA change is if we don't act this goes away. When we don't act on amending our constitution for a rural priority this goes away. But, I want to make sure it doesn't come back." It is inappropriate and the language in the provision "all public lands" could be interpreted to include state lands and navigable waters. It is ambiguous and ripe for litigation. Section 40(C) of the bill reads, "(C) the definition of 'public lands' in the Alaska National Interest Lands Conservation Act is amended to exclude state and private land and water, including navigable water;" These are some of the provisions that he would like to see amended in ANILCA. He is also open to others being amended at the will of the committee members. Number 1575 REPRESENTATIVE BARNES stated, according to her understanding, it becoming law is contingent upon passing a constitutional amendment as well as legislation that completely tracks ANILCA. She asked Co-Chairman Ogan whether that is his understanding also. Number 1597 CO-CHAIRMAN OGAN replied, "That's my understanding." REPRESENTATIVE BARNES stated, if we do not do a constitutional amendment and we do a bill that is not what was put into Title VIII, it should go away automatically. CO-CHAIRMAN OGAN replied, "It should go away automatically, that's correct." But, he wants to make sure that it does not show its ugly head again. That much specific authority to the Secretary of Interior, with all due respect to our senior Senator, reduces the state to territorial status. Number 1633 REPRESENTATIVE WILLIAMS asked Co-Chairman Ogan whether the changes made by Senator Stevens last year would go away, if we don't live up to ANILCA. CO-CHAIRMAN OGAN replied if we don't pass a rural priority the changes go away. If we pass a rural priority then the Secretary of Interior's authority is specifically expanded. REPRESENTATIVE WILLIAMS asked Co-Chairman Ogan where that is stated in the bill again. CO-CHAIRMAN OGAN replied it is on page 24, lines 21-23. Number 1671 REPRESENTATIVE BARNES stated there is a lot of concern over what will really happen. A lot of people don't really understand that for the first time ever, under the language that was put into the appropriation bill by Senator Stevens, the Secretary's authority over fish, wildlife, land and water will be expanded if we pass a constitutional amendment to comply with Title VIII of ANILCA. If we don't, then the language goes away and we won't have that federal oversight expanded beyond what it is today in Title VIII. Number 1714 CO-CHAIRMAN OGAN stated that is absolutely correct. The effective date reads as follows: "Subsection (b) shall be repealed on such date if such laws have not been adopted." CO-CHAIRMAN OGAN stated, if we don't adopt a rural priority, the expansion of the Secretary's authority would go away. He addressed it specifically in the bill because he does not want it to come back. Number 1776 REPRESENTATIVE BARNES stated not only would the Secretary of Interior's authority be expanded, but for the first time ever the federal courts would have oversight as well. She asked Co-Chairman Ogan whether that is correct. CO-CHAIRMAN OGAN replied, "Correct." REPRESENTATIVE WILLIAMS asked Co-Chairman Ogan whether George Utermohle, drafter of the bill, will be here to help explain his legal opinion. CO-CHAIRMAN OGAN replied he will be here later. Number 1810 REPRESENTATIVE BEVERLY MASEK asked Co-Chairman Ogan whether the Department of Law is here. CO-CHAIRMAN OGAN replied the Department of Law is here. Number 1821 REPRESENTATIVE WILLIAMS stated, in regards to the timing of the advisory vote, he has been informed that in order to get a constitutional amendment on the ballot it has to be presented by late July. The advisory vote would take place in August. He asked Co-Chairman Ogan how he would get around that. CO-CHAIRMAN OGAN replied if the measure failed then we would have to go into a special session to determine what to do. He believes that there could be a special election before the December 1, 1998- deadline. Number 1875 REPRESENTATIVE WILLIAMS stated in order to get something on the ballot in November we have to have something to present to the lieutenant governor by late July, but according to the bill, the question would be placed before the voters at the next primary election in August. He asked Co-Chairman Ogan whether he is saying that there would have to be a special session before August 1, 1998. Number 1913 CO-CHAIRMAN OGAN replied if the measure failed we could be called into special session the next day to look at the options. REPRESENTATIVE WILLIAMS stated there must be some logistical problems in calling a special session. REPRESENTATIVE BARNES explained a special session requires a 15-day notice. REPRESENTATIVE WILLIAMS stated, according to Co-Chairman Ogan, if the vote does not work, the legislature would still have time to come up with a constitutional amendment. Number 1949 CO-CHAIRMAN BILL HUDSON stated November 5, 1998 is the general election. It would have to be presented to the lieutenant governor for affirmation in order to be place on the ballot. Number 1970 CO-CHAIRMAN OGAN announced the intention of the meeting today is to have the Administration come forward first. Public testimony will be from 3:00 to 5:00 p.m. Each testifier will be given three minutes. Committee deliberations will begin at 5:00 p.m. Hopefully, the bill will be passed out of the committee today. Number 2046 CO-CHAIRMAN HUDSON referred to page 5, line 2, and wondered whether the language still reads "and." He wondered whether it should read "or." CO-CHAIRMAN OGAN replied it still says "and". CO-CHAIRMAN HUDSON replied then it still is for a low-income person who submits a written statement and so on. CO-CHAIRMAN OGAN replied, correct, as it is written now. CO-CHAIRMAN OGAN called on Stephen White from the Department of Law. Number 2122 STEPHEN WHITE, Assistant Attorney General, Natural Resources Section, Department of Law, stated he has been involved with the subsistence issue for the past eight years in the capacity of advising both the Board of Fisheries and Board of Game, and defending the state when the subsistence law was challenged. He has argued two subsistence cases before the Alaska Supreme Court. He does not have a prepared statement today. He has drafted a statement in response to Representative Nicholia's question of the bill's compliance and constitutionality. He is here to answer any legal questions. Number 2170 REPRESENTATIVE MASEK referred to page 4, lines 26-29, and stated the language is an attempt to have a rural preference without calling it rural. She asked Mr. White whether it would violate the state constitution, and the right to travel under the Constitution of the United States. Number 2200 MR. WHITE replied the "eat-it-where-you-shoot-it" provision raises a constitutional problem under the common use and other equal access clauses of the state constitution. In Kenaitze the state supreme court said there is a problem with attempting to distinguish a subsistence user by residency. In McDowell the court struck down the preference in tier II based on a proximity to the resource. A "use-it-where-you-shoot-it" provision would give an advantage to those in the area because practically they would be the only people who could use it. Number 2254 REPRESENTATIVE MASEK asked Mr. White to comment on whether the language is attempting a rural preference without saying rural. Number 2262 MR. WHITE replied it does the same thing as a rural preference in the sense that it establishes a preference based on where people live. A rural preference gives people absolute priority to become a subsistence user because of where they live. The language is not as direct, but it gives people a practical advantage to the resources in a region. It is different in the sense that it is not absolute. It is a regional preference, but the effect on the constitution would be the same. Number 2294 REPRESENTATIVE MASEK asked Mr. White if the bill passed could it be challenged as unconstitutional. Number 2300 MR. WHITE replied this particular provision would be very difficult to defend because of state supreme court decisions. In Kenaitze the courts were looking back at McDowell and the tier II proximity requirement. He read the following provision from the decision: "We both quoted and stressed language holding that people who reside in their fish or game population do not have a higher claim to that population than state residents who's domiciled or more distant. Just as eligibility to participate in all subsistence hunting and fishing cannot be dependent on whether one lives in an urban or rural area. Eligibility to participate in tier II subsistence hunting or fishing cannot be based on how close one lives to a given fish or game population." MR. WHITE stated the language tells him that the state supreme court unequivocally would strike down anything that gives people an advantage to the resources based on their proximity to them. Number 2358 REPRESENTATIVE MASEK stated as soon as she shoots a moose it becomes her property. It does not belong to the state. She wondered whether the provision would violate her right to travel with it since it is her personal property. Number 2378 MR. WHITE replied the right to travel falls under the Constitution of the United States. It is not a very well developed area of law. It is something that the courts often resort to when they can't find something else. It is often used in the area of commerce. A court would say that, practically, the only people who are going to be able to use the resource for sustenance are those that live in the area. No one would choose to set up a temporary domicile in order to consume game for sustenance. Number 2433 MR. WHITE further stated that the common use clause says, "Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use." The state supreme court pointed to the language "wherever occurring" as another reason for it to look skeptically at anything that allocates or gives advantages to resources based upon where people live. Number 2451 CO-CHAIRMAN OGAN stated the property clause does not allow people to take alcohol into certain villages.... TAPE 98-26, SIDE B Number 0000 CO-CHAIRMAN OGAN continued. There are any number of discriminations that we put into place. He asked Mr. White whether the legislature has the authority under Article VIII, Section 4, "Sustained Yield," to give a preference of beneficial uses. According to Lance Nelson, it gets right to the crux of things. Mr. Nelson said, "There is some idea how the courts would interpret the language because of the McDowell and Kenaitze cases. In McDowell some of the permissible criteria are demonstrated - dependence, reliance, participation in a hunt or fishery. The location of residence is not acceptable criteria to determine whether someone is similarly situated with respect to resource." Mr. Nelson further said, "In McDowell the court indicated that an individual qualification system would be acceptable for preference. And, 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." The bill talks about need, dependence and reliance as a criteria for preferential use. In addition, the legislature's attorney will take a different position that it is constitutional. "I guess the only attorney's opinion that really counts is the guy that wears the black bathrobe." Co-Chairman Ogan stated he thought about putting Mr. White under oath because he works for the attorney general and the attorney general represents the governor's position, not necessarily the people's position. The current Governor's position is that anything outside of his task force proposal is unacceptable. He asked Mr. White, if he felt and believed differently than the Governor, would he have the liberty to express it. Number 0119 MR. WHITE replied, "Absolutely." He puts objectivity above his job and above the fact that he works for the executive branch. "I have often advised against things to my clients and they've gone ahead and adopted them and then it's my obligation to defend them." His opinion that there are constitutional problems with the bill is not based upon the fact that he is part of the executive branch and that it has another bill. Anybody in his department would say the same thing. "We do not get involved with policy. I limit my comments to what I interpret the law to be, and what I perceive the courts would do and that's where I draw the line. I don't let my personal opinion or my personal beliefs--I try not to mix that with my legal opinions." Number 0168 CO-CHAIRMAN OGAN stated to Mr. White, "Please do not interpret this as a personal attack on your integrity." He simply wanted it stated for the record. Number 0177 CO-CHAIRMAN HUDSON asked Mr. White how could we comport with the definition of the term "rural" in federal law (a community or area substantially dependent on fish and wildlife for nutritional and other subsistence uses) without saying "rural," but define areas and give those that live in the areas a preference. Number 0348 MR. WHITE replied we could argue that it does not say "rural," but in practicality it is rural. If the state does not adopt a rural preference, the definitions are repealed and we would go back to the definition of the term "rural" according to the Ninth Circuit Court of Appeals which is based on population. Any court would look at the federal and state definitions to determine whether substantially the same people qualify under each definition. If that can be argued, then it is the same using a different term. There would be a stronger argument if there were more differences between the two. It is a matter of how many people would qualify and how many would not qualify before a court finds out that substantially it is rural without calling it rural. Number 0438 CO-CHAIRMAN HUDSON asked Mr. White whether it would comport with the state constitution. Number 0442 MR. WHITE replied, whenever some people are disqualified admission into a user group based on criteria, it questions the common use and equal access clauses. The courts have said that residency is a problem. Limiting a harvest can be done because it is a use, not a qualification. In fact, that is what the state has done with non-subsistence areas. Number 0570 REPRESENTATIVE JAMES stated the real problem of defining rural is the drawing of lines. Someone on one side of the line is included who is not similarly situated, while someone on the other side of the line is excluded who is similarly situated. This is where the common use issue breaks. Of course, there can be delineations of similarly situated. She asked Mr. White to explain the term "similarly situated" and what it really entails. Number 0517 MR. WHITE replied similarly situated is from Article VIII, Section 17, "Uniform Application." A law and regulation has to be uniformly applied to people who are similarly situated. The only time in which the provision has come up before the state supreme court was in a case of fish harvesting between two different user groups based on different opportunities - gillnetters and seiners. The court said that the two groups were different. They were not similarly situated because of their harvest history, gear, and membership. Number 0570 REPRESENTATIVE JAMES asked Mr. White whether a need or lifestyle, no matter where a person lives, qualifies as similarly situated. MR. WHITE replied, "Correct." Number 0589 CO-CHAIRMAN OGAN stated, as long as we treat each region equally in a time of shortage and give the use to people who qualify under a set of criteria, we can give a preference based on beneficial use. He asked Mr. White how long did the different attorneys general maintain that McDowell was wrong. Number 0649 MR. WHITE replied the state had a rural priority for nine years. In order to have state management, the state adopted a rural priority first by regulation and then by statute. The state supreme court surprised everybody by saying a rural priority is not possible under the common use clause. The state supreme court had not really dealt with the common use and other equal access clauses until 1988 - Owsichek. The next four to five years the court elaborated on what the common use and other equal access clauses meant, and each time it was a revelation to the attorneys who were working in the area. They are clauses unique to Alaska, therefore, an attorney can't look to any other state constitutions or interpretations to determine why they were included by the drafters. Number 0718 CO-CHAIRMAN OGAN stated politics sometimes obstructs accurate readings on things. For nine years the attorneys general argued that a rural priority was constitutional until it was struck down by the state supreme court. From Payton he read, "Evidence before the board indicated that people in this area probably do take fish and game that are reasonably accessible from their homes and do not regularly travel to other parts of Alaska to salmon hunt." It seems that if there is a rational criteria and a shortage, the legislature has the authority to give a preference. He asked Mr. White whether the legislature has the authority to give a preference under Article VIII, Section 4. Number 0777 MR. WHITE replied a preference can be given under beneficial uses - sport, commercial, subsistence, and personal. Number 0799 CO-CHAIRMAN OGAN said, "So, subsistence or sustenance, which is basically the same thing, could be a preferential use. And the preference is certainly being given in times of shortage which is where the sustained yield portion kicks in. And, you can't just take it out of the area where you shot it. And it has the effect of--I'm not gonna want to go hunting in an area that's declared a shortage because I can't remove the meat so it does give a defacto preference that way, unless competition. I think that it has the effect of that. But, if I want to go hunt there, I can still go hunt there. I can kill the animal. I can bring the trophy home and I leave the meat in the village." Number 0832 MR. WHITE replied the amendment says it now has to be "used" within the region, not just eaten - an even broader disadvantage to people outside of the area. The courts not only look at what is said, but the practical effect and intent as well. The intent is to discourage people outside the area from coming in and taking the resource. Number 0876 CO-CHAIRMAN OGAN asked Mr. White what if the law says "processed" in an area before it is removed such as preserved, cooked or eaten. Practically, it is almost impossible for a fish and game officer to look at a freezer full of meat and make a correlation of where it was taken. In that effect, it is not very enforceable. According to bag limits for fish, once it is processed it does not count towards possession. He asked Mr. White whether that would give him more comfort. Number 0962 MR. WHITE replied the courts would want to know the purpose of a process requirement in an area. Is it necessary so that the meat does not spoil? he asked. If it serves that type of purpose, we would have a better chance of defending it. But, if the purpose is to discourage people from coming into an area, we would be back to having the same problem when defending the tier II proximity requirement. Number 1042 REPRESENTATIVE BARNES stated, to correct the record, not everybody was surprised about the McDowell decision. She had submitted bills that would have repealed what was found unconstitutional in McDowell. She asked Mr. White whether he came on board just before former Governor Hickel. MR. WHITE replied he was hired at the end of former Governor Cowper's Administration. REPRESENTATIVE BARNES asked Mr. White whether the bills introduced under Hickel contained an "eat-it-where-you-kill-it" provision. MR. WHITE replied he does not recall. REPRESENTATIVE BARNES asked Mr. White to make available to the committee members information on all of the "kill-it-you-eat-it" provisions at his earliest convenience. MR. WHITE replied we are in the process of responding to a public request on everything that has been written on subsistence that will take a lot of time. REPRESENTATIVE BARNES stated she does not care what the public has asked for. Right now, we are trying to write a piece of legislation. She wants Mr. White to get a copy of every opinion written on that subject before the end of the day. There can't be that many. Number 1181 REPRESENTATIVE BARNES asked Mr. White whether he agrees that the legislature has the general authority over fish, wildlife and other replenishable resources under the general authority clause of the state constitution. MR. WHITE replied, "I think that's correct." REPRESENTATIVE BARNES stated the bill by Co-Chairman Ogan has followed the general authority, common use and sustained yield clauses of the constitution. She asked Mr. White whether he agrees that the legislature has, as part of its authority, delegated a portion of its authority to the Board of Fisheries and Board of Game to establish seasons and bag limits, according to the language "subject to preferences among beneficial uses." Number 1266 MR. WHITE replied, "Yes." Seasons and bag limits are one way of regulating the management of fish and game. REPRESENTATIVE BARNES asked Mr. White whether that is the general way the legislature operates. MR. WHITE replied, "Yes." REPRESENTATIVE BARNES stated, if there is a shortage in an established region, the boards can limit the uses to sustain a yield according to the sustained yield principle. Yet, Mr. White says that the boards cannot constitutionally say the people living in a region can't harvest through seasons and bag limits when it is done now through units. Number 1389 MR. WHITE replied seasons and bag limits are applied evenly to all Alaskans. Anybody can subsistence hunt in Kotzebue, for example, under the "all-Alaskan" interpretation of the present subsistence law. Under the proposed committee substitute and the "use-it- where-you-shoot-it" provision, a person would have to stay in an area until all of the game was used. It would discourage a person from going there and, therefore, discriminate. Number 1441 REPRESENTATIVE BARNES replied, if we say a person can't eat it there, and apply another criteria such as a $5 license fee to protect the resource, would it be constitutional. Number 1463 MR. WHITE replied, certainly, if there was a license fee that applied equally to everybody regardless of where they lived. REPRESENTATIVE BARNES asked Mr. White if the "use-it-where-you- take-it" provision is gone would it be constitutional. MR. WHITE replied, "Correct." Number 1568 MR. WHITE stated he will get all of the opinions dealing with an "eat-it-and-shoot-it" provision. REPRESENTATIVE BARNES stated she knows as chair of the Legislative Council committee that he has files on the subject of subsistence of what is and what is not constitutional. She would like by 5:00 p.m. all of the opinions on "eat-it-and-shoot-it" and tomorrow she would like the rest. MR. WHITE replied he will do what he can before 5:00 p.m. Number 1611 CO-CHAIRMAN OGAN stated he would like information on former Governor Hammond's proposal similar to the provision. Hammond talked about it a lot, but he does not know whether it was ever put in law. MR. WHITE stated he will find whatever he can on that. CO-CHAIRMAN OGAN called on George Utermohle from the Legislative Affairs Agency. Number 1660 GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, stated he is here to answer any questions of the committee members. Number 1688 REPRESENTATIVE JOE GREEN asked Mr. Utermohle whether the bill will or will not pass constitutional muster. Number 1699 MR. UTERMOHLE replied, focusing on a regional preference, the bill gives the Board of Fisheries and Board of Game in a time of shortage the authority to provide for a use of a fish or game population on the condition that the resource is used where it is taken. "I don't see that provision as violating the constitution. I think it is within the power of the legislature to provide for preferences among beneficial uses. This is just an establishment of a particular preference and authorizing the boards of fish and game to take action under that and to implement that provision. That is where the constitutional problems may well arise--is how the board would go about implementing that provision." Under the constitution, the state supreme court has said that any criteria to determine access to a user groups based on a geographical residency requirement is virtually per se unconstitutional (McDowell and Kenaitze). If the Department of Law has suggested that the provision of "use-it-where-you-take-it" is construed to be a regional preference, then he suspects the courts would strike it down. However, he thinks that the provision does not create such a preference. The preference would be available to any person in the state who satisfies the criteria for dependence, and that person would be able to go into an area and take fish or game. The provision does not pose a bar to people living outside of an area from coming in to take fish and game. It poses an inconvenience of the same nature of other provisions in law of limiting access to areas such as the prohibition of mechanized vehicles to an area. This provision is analogous to those types of restrictions. The court looked at an issue similar to this in Kenaitze and determined that nonsubsistence areas were not unconstitutional merely because they require a person to go from his home into an area to take fish and game for subsistence uses. The court considered that to be merely an inconvenience and an inconvenience does not rise to the level of limiting access to user groups and is not protected by the equal access clauses of the state constitution. The ultimate decision of the courts will depend on whether they determine it is a residency-based preference, which he suspects it is not, or merely a burden on the use of the resources in the area. Number 1984 REPRESENTATIVE GREEN asked Mr. Utermohle, in terms of economical conditions, if user "X" qualifies in area "Y" where there is a lower standard of living, what would happen if user "X" comes into area "Y" that has been declared a dependent use area, while others are barred who have a lower income level. He wondered whether that would pose a constitutional problem. Number 2118 MR. UTERMOHLE replied that would certainly raise constitutional questions under the equal protection and uniform application clauses of the state constitution. There would be people similarly situated subject to different entry criteria into the user group. The bill provides for a uniform statewide income ceiling. Number 2154 REPRESENTATIVE GREEN stated it is his understanding that it would be determined by regions. Number 2166 CO-CHAIRMAN OGAN stated the criteria would be the same for everyone and each region would be treated the same. Number 2176 REPRESENTATIVE GREEN stated the criteria would be the same, but the regions determine the cutoff limit. He wondered whether they would be applied statewide. REPRESENTATIVE BARNES replied they would be applied region wide. REPRESENTATIVE GREEN replied that is his point. There might be different cutoffs. Number 2211 MR. UTERMOHLE stated the provisions in the bill call for a statewide criteria to determine who is eligible for a preference. Once a person meets the criteria and qualifies, he can go any where in the state where there is a preference. REPRESENTATIVE GREEN asked Mr. Utermohle whether everybody throughout the state would be treated economically the same in terms of a cutoff, or would each region have its own ability to make those decisions. If each region has its own ability to determine cutoff limits, there could be different qualifications. Number 2262 MR. UTERMOHLE replied if there were different income levels for each region, there could be constitutional problems. However, the bill provides for one statewide income level. Number 2324 REPRESENTATIVE NICHOLIA asked Mr. Utermohle whether the state would regain management under the proposed committee substitute. If not, she wondered what amendments would be needed to comply with federal law. Number 2346 MR. UTERMOHLE replied he does not see that it is possible for the state to satisfy the requirements of ANILCA to regain management in this bill. The necessary changes are very substantial. The bill would have to establish a criteria for sustenance uses equivalent to the definition of the term "rural" in the federal Act. It would also have to provide a system of advisory boards and regional councils as required in the federal Act. Number 2440 CO-CHAIRMAN OGAN asked Mr. Utermohle to address the provision that requires ANILCA to be amended to conform to state law. Number 2457 MR. UTERMOHLE replied the fact that the bill does not comply with the current requirements in ANILCA is emphasized in the last portion of the bill. TAPE 98-27, SIDE A Number 0025 REPRESENTATIVE BARNES stated, in reference to Representative Green's question, regions would be established and each one would be treated equally. Each person who qualifies would be treated exactly the same. Therefore, it would not be possible for each region to establish different criteria. MR. UTERMOHLE stated that is true. Number 0131 REPRESENTATIVE GREEN referred to page 3, line 18, "dependence on fish and game in the context of the totality of the following socioeconomic characteristics of the area:". He asked Mr. Utermohle how can the criteria be applied statewide when the language says "area." Number 0179 MR. UTERMOHLE replied the criteria would be used to identify fish and game dependent use areas by the boards, not the people who would be permitted to participate in those areas. Number 0255 CO-CHAIRMAN OGAN asked Mr. Utermohle whether that language is in state law currently. MR. UTERMOHLE replied, "Yes." It is the criteria used to identify subsistence areas. Number 0287 REPRESENTATIVE JAMES asked Mr. Utermohle whether a person from a region who is poor and has to eat the meat taken in another region is being discriminated against because of where that person lives. Number 0379 MR. UTERMOHLE replied there is an impediment to his use by virtue of the fact that it is inconvenient for him to use that resource in the area in which it was taken. The preference provided for in the bill would apply only to species or populations on a stock basis in which case the person would still be eligible to participate in fish and game dependent uses when the stocks or populations are not experiencing a shortage. Number 0432 REPRESENTATIVE JAMES asked Mr. Utermohle whether a person could get all the rabbits he needs and take them back home, but not a moose, for example. Number 0443 MR. UTERMOHLE replied assuming there was a shortage of moose and that the Board of Game had established a preference in order to satisfy the needs for sustenance use, yes. REPRESENTATIVE JAMES stated if there are two people who want to eat one would still not be able to because he lives on the other side of the line. MR. UTERMOHLE replied it is not because he lives on the other side of the line. It is because he can not consume the resource in the area in which it was taken. REPRESENTATIVE JAMES stated the practical sense in a court of law would be that he is denied. MR. UTERMOHLE stated that is certainly something the courts would look at - a balancing test under the equal protection analysis looking at the purpose of the regulation, equal access to the resource, interest of the state versus the individual, and intrusiveness of the process. Number 0551 CO-CHAIRMAN OGAN stated the person could cross the line and participate, if he is eligible. Number 0572 REPRESENTATIVE WILLIAMS asked Mr. Utermohle whether the bill complies with ANILCA as amended by Senator Stevens. He also asked Mr. Utermohle whether Senator Stevens' amendments expand ANILCA. Number 0632 MR. UTERMOHLE replied no the bill does not comply with ANILCA. The amendments made by Senator Stevens found on page 24, lines 21-23, refer to one provision of the additional findings that he attached to ANILCA. Number 0692 REPRESENTATIVE WILLIAMS asked Mr. Utermohle what would be needed to comply with ANILCA. He also asked Mr. Utermohle whether the bill is trying to change public law in ANILCA. Number 0718 MR. UTERMOHLE replied in order to comply with ANILCA the state would have to adopt something equivalent to a rural subsistence preference, a system of advisory committees, and regional councils. The bill is asking for the elimination of that finding in ANILCA. Number 0756 REPRESENTATIVE WILLIAMS asked Mr. Utermohle whether the state would be telling Congress to change ANILCA. MR. UTERMOHLE replied, "Yes." Number 0789 CO-CHAIRMAN HUDSON asked Mr. Utermohle whether the state would be divided into areas and in a time of shortage people may apply for the use if they live in the area. Number 0820 MR. UTERMOHLE replied the boards acting jointly would identify the areas of the state that are dependent upon fish and game for personal use for sustenance (dependent use areas). Fish and game dependent uses would occur within the areas. Number 0840 CO-CHAIRMAN HUDSON said the whole state would be divided up according to the levels of criteria in the bill and anybody could apply for the use, as long as he meets the $5-criteria and submits something in writing that he is dependent upon fish and game for personal and family sustenance, or has no alternative means of sustenance in the absence of a cash-based economy, or the decision to adopt a dependent life style. The major difference from ANILCA is that anybody could submit a written request to qualify. He asked Mr. Utermohle whether a person would have to live in a dependent use area to qualify. MR. UTERMOHLE replied, "No." CO-CHAIRMAN HUDSON replied then he could live anywhere and qualify by submitting a written statement. MR. UTERMOHLE replied true. CO-CHAIRMAN HUDSON stated within the preference there could be noncommercial bartering at a documented historical level. MR. UTERMOHLE stated any resident of the state without further documentation may participate as a fish and game dependent user. The criteria would only come into play when the boards identify a shortage in a particular population. CO-CHAIRMAN HUDSON replied he assumed that the shortage triggers the preference. The bill also says that the boards shall set a level of allowable noncommercial barter at a documented historical level that would not subject the barter to fall under the commerce clause of the Constitution of the United States. It seems that everybody in Alaska who declares indigent could go anywhere designated as a dependent use area, take, and eat game there. Number 1037 MR. UTERMOHLE replied that only comes into play when there is a shortage. CO-CHAIRMAN HUDSON stated, "We're really only talking about apples and apples with the subsistence issue in ANILCA that is necessary for us to regain management somehow. Either they got to amend with us or we got to amend with them or we got to come close enough together to where some court would decide that we've met the criteria." CO-CHAIRMAN HUDSON stated anybody in the state of Alaska would qualify as dependent if he possess a $5 license or submits in writing that he is dependent on fish and game with no alternative means for sustenance as the result of the absence of a cash-based economy in the area where he lives - rural Alaska. He wondered whether the bill really identifies rural Alaska by using the language "and" instead of "or" in the bill on page 5, line 2. Almost everywhere in Alaska there is a cash-based economy. Every little village has some type of cash-based economy. They all have a store. There has got to be a payroll, the legislature has put $30 million into sewer and water projects. He understands the intention to meet the equal protection and common use provisions of the state constitution, but it does not meet them. CO-CHAIRMAN OGAN opened the meeting up to public testimony and the teleconference network. Number 1357 PETE SCHAEFFER testified via teleconference in Kotzebue. The bill clearly intends to reconfigure the regional councils and the advisory committee systems. The old way of doing business is quite effective. The regional boards would be required to do significantly more work by determining who qualifies. The intent of the changes do not necessarily serve the rural areas any better. The rural areas have had regional councils before prior to McDowell. In addition, the terms "subsistence" and "sustenance" in the dictionary are the same. He wonders whether the change is to divert attention away from what constituted the main argument for subsistence. It is best to see the bill move out of the committee for purposes of what it is suppose to accomplish. Number 1450 WAYNE HEIMER testified via teleconference in Fairbanks. He prefers this bill to the Stevens-Knowles approach. Dealing with use instead of lifestyle is a great step forward. He is concerned about subsection (6) in the findings and intent language of Section 1 in regards to a pressure on the resources driving the need for a preference. We were driven to ANILCA because of the manipulated perception of an impending disaster. Sections 801 and 802 of ANILCA contain dire predictions of the anti-development hysteria that has not come to pass in the last 20 years. In addition, subsection (7) in the findings and intent language of Section 1 is inconsistent with subsection (6). If subsection (7) is true, he questions the need for a preference of any kind. Any preference - local, rural or economic - provides a disincentive for those with the preference to fix any problems of a shortage. Locals really don't have an interest in non-locals being in their area, therefore, why would they want to invite the board to fix a shortage when they are getting everything that they need. The use of personal and family use for food should be kept, but he questions using the term "sustenance" because it is vague. The text passed in ANILCA was a compromise 20 years ago and it contained no federal takeover language. It still doesn't. He suggests holding the feds to the text of Title VIII of ANILCA as a matter of law. He does not think the constitution should be amended. "We should call the fed's bluff and let it try to take over legally, and let it sue us for a while." Number 1639 CO-CHAIRMAN OGAN stated, in regards to Mr. Heimer's comments on local control, it is whatever the main boards want to delegate. Usually, boards react to crises rather than manage fish and game, and hopefully that will be the way it pans out. Number 1692 JOHN SHRADER testified via teleconference in Mat-Su. The bill looks good. In regards to the debate on using the fish and game in the region it was taken, he is not as likely to go into an area where there is a shortage when there are other places that might be better. He does not see a problem with going to an area for a trophy hunt and making arrangements with the locals for the meat. Given the size of the state, the regional fish and game boards is a remarkable concept. The advisory vote is a good thing to show Congress our understanding of the state's position. Number 1813 DAN SENTZ testified in Juneau. He is representing himself, his neighbors and eight people from work. He has been studying the issue and likes the bill. It treats all of the people in the state the same. It is controlled at the grassroots level. It has protection for those that need it in a time of shortage. The bill appears to hold with the spirit of ANILCA, then the federal government needs to do whatever is necessary to amend it. The state constitution should not be amended. "The only thing about the constitution that we can change is going to be the equal protection clause - Article I, Section 1. If we change that, we've lost more than our fish and game." Number 1907 MICHAEL PATKOTAK testified via teleconference in Barrow. Even with the changes, it does not comply with Title VIII of ANILCA. The bill is about special interest. When he faced Representative Barnes years ago her arguments were in favor of special interests in order to override Native issues. In addition, if the federal poverty level was applied with a replacement factor of 3.5 percent, many of the villages would be in poverty with an average income of $59,000. If it was interpreted at less than 1 percent, the directors of the regional corporations would be disqualified. In conclusion, Representative Barnes is misrepresenting the history of the interpretation of subsistence. Number 2053 DON WESTLUND testified via teleconference in Ketchikan. He agrees the state constitution should not be changed. He suggested changing the language on page 5, line 2, from "and" to "or". He also suggested deleting (B) on page 24. He referred to page 24, lines 21-23, and indicated he was confused. Would the state continue to manage fish and game if it passes an amendment, or if it does not pass an amendment, would it continue to manage fish and game? he asked. Number 2110 VICE CHAIR MASEK replied section 316(b)(3)(B) of P.L. 105-83 extends the moratorium to December 1, 1998 that contains an effective date until laws are adopted in Alaska that provides for the definition, preference, and participation specified in Sections 803, 804 and 805 of ANILCA. The amendments made by (b) of Section 316 shall be effective only for the purposes of determining whether the state laws provide for such definition, preference, and participation. The Secretary shall certify before December 1, 1998, if such laws have been adopted in the state of Alaska. Number 2164 MR. WESTLUND asked, if the bill passes, would it mean that the state has complied with ANILCA. VICE CHAIR MASEK replied, if the bill passes, the provisions that she just read would be repealed. MR. WESTLUND asked for the provisions to be faxed to him. Number 2211 CO-CHAIRMAN OGAN explained the amendment in the subsection made to ANILCA in the conference committee reads as follows: "In accordance with Title VIII of this Act, the Secretary of Interior is required to manage fish and game for subsistence uses on all public lands in Alaska because of the failure of state law to provide a rural preference." MR. WESTLUND asked Co-Chairman Ogan, if the bill passes, would the state continue to manage. CO-CHAIRMAN OGAN replied actually it is the other way around. If a rural priority is passed, as proposed in the Governor's proposal, the language in ANILCA would remain. If a rural priority is not accepted, it would go away. If the bill is passed, it should go away, but he included the language to make sure that it would not reappear. Number 2281 MR. WESTLUND asked ,if the bill passes, would the state be under the federal government's jurisdiction. CO-CHAIRMAN OGAN replied, "No." If the bill passes, an advisory vote would go to the ballot asking that ANILCA be amended to conform to state law. Number 2335 NICK SZABO testified via teleconference in Kodiak. He supports the concept of the bill, but is still troubled by the definition of the term "shortage." It should consider the availability of alternative resources. If there is a sufficient abundance of protein from one or more species to provide for the needs of sustenance users, then they should not necessarily have a preference over other species in the area just because they are not in abundance. For example, if there is a sport fishery in the area, it should not be preempted by dependent users, if their needs can be met by an abundance of salmon at the same time. He suggested including the language "and there are no other similar fish and game stocks available to meet the dependent use needs." after the word "sustenance;" on page 6, line 22. In closing, he supports the effort to solve the problem. CO-CHAIRMAN OGAN stated it is a very good suggestion. Number 2419 LEE TITUS testified via teleconference in Northway. There are a lot of problems with the bill as written, such as the $5-license requirement. The bill does not address the true intent of what the state is trying to do. He explained the subsistence issue was a cry from the Native elders throughout Alaska, and Title VIII of ANILCA addressed their cry. Now, the state is watering down the issue by not dealing with the Indians and by not having them participate in writing a bill. TAPE 98-27, SIDE B Number 0000 MR. TITUS continued. He wondered whether there should be another section to the ballot to change the state constitution to give a choice. In conclusion, elections are coming up so it will be a campaign issue for those involved. "I don't know, maybe we'll see some changes there in Juneau next year." Number 0106 HUGH DOOGAN testified via teleconference in Fairbanks. He is approaching his sixty-seventh year of residency in Alaska. The Alaska National Interest Lands Conservation Act is discrimination because it leaves out the people living in urban areas of the state. The $5-license fee has been talked about, but not the senior citizen or sport fishing license fee. Before he was a senior citizen, he had to use a sport fishing license to subsistence fish in Chitina. Cash of an individual should not be used. The Indians of Alaska have a net worth in the 13 corporations formed under the Alaska Native Claims Settlement Act. He will let them fight for their subsistence rights and let them fight for his also. Number 0215 CO-CHAIRMAN OGAN stated the assets of the Native corporations are not considered when determining eligibility for public assistance. The $5-license is an appropriate barometer. A person would qualify for a $5 license, if he is on public assistance or makes below $8,200. Number 0240 REPRESENTATIVE FRED DYSON asked Co-Chairman Ogan whether it is necessary to adopt the proposed committee substitute that testimony is being heard on. CO-CHAIRMAN OGAN replied he meant to do it after the overview. He entertained a motion to adopt the proposed committee substitute. Number 0252 REPRESENTATIVE DYSON made a motion to adopt the proposed committee substitute for HB 406, version 0-LS1573\P, Utermohle, 3/5/98. There being no objection, it was so adopted. Number 0270 MR. DOOGAN further stated that he does not believe in changing the state constitution because it protects everybody in Alaska equally for the use of the resources. "Let the feds sue us, and stand by our guns and our constitution." Number 0295 REPRESENTATIVE BARNES asked Mr. Doogan whether he was part of the constitutional convention. MR. DOOGAN replied, "No." His brother Jim was part of the constitutional convention. He has talked to many members of the convention. They worked hard on it. It is one of the best constitutions ever written. REPRESENTATIVE BARNES asked Mr. Doogan whether he is related to Mr. Doogan of the Anchorage Daily News. MR. DOOGAN replied he is Jim Doogan's son and his nephew. Number 0330 DEAN PADDOCK testified in Juneau. He is representing himself. Today, he is well into five decades of research, management and harvest of the fish and wildlife of Alaska. He belongs to the school of whatever it takes to avoid a federal takeover. He agrees with Senator Stevens that federal management would be hell. "I believe that the management scheme as it's presently conceived is virtually unworkable." Senator Stevens used another word that resonated with him - a seamless society. Number 0215 CO-CHAIRMAN OGAN asked Mr. Paddock if the management scheme he is referring to is the one in ANILCA. MR. PADDOCK replied, "Yes." MR. PADDOCK stated prior to statehood he came to Alaska under the Territorial Department of Fisheries as a young, idealistic and naive biologist. He believed in a seamless society then and still does. He strongly supports an Alaskan solution. The responsibility for the management of fish and game has been delegated to the boards thereby it is their responsibility to bring subsistence use into the mainstream of the new paradigm of one state-one people. Under former Governor Jay Hammond, he worked with the advisory committees and felt that rural input was being overlooked, ignored and occasionally repressed by fish and game managers. It is his belief that the paradigm of a seamless society failed largely due to resistance and negative attitudes by professionals in the Department of Fish and Game. The boards tried, but they were not provided with adequate input. Some of the boards with power simply did not encourage rural input that would have led rural users to regard the process as their own. The created a subsistence section within the Department of Fish and Game, followed by a subsistence division, followed by a subsistence preference. The bill is not perfect, but he gives due credit to those that have put it together. Number 0563 REPRESENTATIVE DYSON stated it seems the bill tries to empower local advisory boards. He asked Mr. Paddock how that part could be done better. Number 0574 MR. PADDOCK replied he has not had time to study the bill in detail. In the past, there has been a reluctance to decentralize control over fish and game resources. Advisory committees were originally conceived as "advisory." With the right blend of local and central authority, there is "light at the end of the tunnel." Number 0623 REPRESENTATIVE DYSON stated he would appreciate further scrutiny by Mr. Paddock and any suggestions. He sees a problem with migrating species and competition for their uses on the borders of the regions. There needs to be a central conflict of resolution for their preservation. Number 0660 MICHAEL COONS testified via teleconference in Mat-Su. He opposes a constitutional amendment to bring a state constitution in-line with a federal statute. The way ANILCA has been implemented in the past is an abomination of the state's rights. Changing the constitution under the guns of tyranny is in direct violation of the public's trust. The voters could defeat the issue, but he shudders at the prospect of a vote. The issue has been filled with false information from the media, Governor's office, and Senator Stevens' office. He wonders whether the voters have an accurate understanding of what exactly would happen if the constitution is changed. He is concerned that, if the constitution is changed, President Clinton would not sign major legislation to give the state full rights to fish and game management. President Clinton and Vice President Gore have not shown one reason to trust them when it comes to hunting, fishing or land use issues. Senator Stevens has warned the state that the President would mostly likely close federal lands to firearms and hunting if a constitutional amendment is not passed. He strongly supports the bill in its entirety. He also supports the federal lawsuit brought forth by the legislature. "Yes, I am concerned that if we loose in our present approach to maintain our state's rights in land and fish and game management, that we'll be worse off than we are now. However, the United States Supreme Court has not ruled on what is happening in our state. I am confident that the U.S. Supreme Court will rule in our favor if we get to that point." In closing, the issue has never been about ensuring fish and game for rural people, it is about federal control over states. President Clinton and his environmental buddies want total control of the land, and it should never be given to them under any circumstances. Number 0853 MYRON NANENG testified via teleconference in Bethel. A lot of people don't realize that in 1971 the state of Alaska made a promise to protect subsistence because of the state's failure to recognize Title VIII of ANILCA. Many people in rural Alaska welcome federal management because the state's management system has not been equitable. The bill would take the state back to the days of the suppression of the rural people. Management structures would be set up once again the way urban people want it to be at the expense of the rural people. The bill fails to recognize subsistence. It fails to recognize that people in villages are just as much a part of fish and game management. It fails to recognize the people who have utilized the resources from time immemorial. It fails to recognize tribal co-management. The bill needs to be rewritten to recognize subsistence. It is hard to put on paper the very reason why people still live in places to hunt and fish for their existence. Number 0975 REPRESENTATIVE JAMES referred to the moose situation in Togiak where it was suggested to hunt for caribou 200 miles up river in order to build up the moose herd. The people wanted to hunt for them nearby. She asked Mr. Naneng whether he is familiar with the case. MR. NANENG replied he is not familiar with the case. However, if there is a need for food for subsistence, a person is not going to go to an agency for a $5 license. They will go out and hunt for their food. They might need the $5 for gas or ammunition in order to go hunting. REPRESENTATIVE JAMES stated it sounded like the Federal Subsistence Board was not very sensitive to the issue in Togiak. MR. NANENG replied the Federal Subsistence Board is made out of people who live in Anchorage. A regional council would be more supportive. Even the state managers are out of reach and in many instances really don't know the issues that affect rural people. The bill does not address these concerns. REPRESENTATIVE JAMES asked Mr. Naneng whether that is the reason why he suggests cooperative management. MR. NANENG responded the federal and state managers have said that the only way to manage resources is through tribal co-management. The Native community has worked cooperatively with the state on issues like migratory birds, and their population numbers have increased. Number 1129 REPRESENTATIVE BARNES stated it was the local advisory board, not somebody out of Anchorage, who wanted to build the herd up to 600 animals. It was the local people who did not want the hunt to take place. Number 1166 DICK BISHOP testified via teleconference in Fairbanks. He read the following testimony from Mary Bishop: "I'm sorry I could not stay to testify. However, I do not want to leave you with these comments before your final committee deliberations. Even though I have only had about two hours to contemplate this bill, I've spent two decades working with the issue. "(1) The bill looks like an acceptable vehicle for working towards an Alaskan solution. I particularly feel it is important to have a public vote and I'm pleased that addition has been made. "(2) Your bill appears to provide what Alaskans probably wanted and thought they had all along. That is, a preference for resource dependent people in times of shortage. Many people assumes that is what ANILCA gives us right now, but most of here in this room know differently. The federal law gives all rural residents a strong priority or customary and traditional use all the time. Back when the state was incompliance, one village had a six-month moose and eight-month caribou season. The federal judge in this 1989 case ruled that it was not consistent with the federal law. He required the Board of Game to submit new regulations. The judge finally allowed almost year-round not bag limit seasons because, 'need is not the standard. Again, it matters not that other food sources maybe available. The standard is customary and traditional use of game.' And customary and traditional use meant opportunistic year- round hunting. We cannot continue to have a law that allows that type of judicial interpretation. In summary, I like the direction. I like the public vote. It would be okay by me to add refutable presumption for all members of very small communities that have limited job opportunities to have the preference. This was done in the federal bill, but it gave it to too many larger communities. I have a problem with the idea of regional boards and the 'eat-it- where-you-shoot-it" provisions. I've got to think a lot more about that. It may not be necessary to change the subsistence division, although you might consider putting that division in the community and regional affairs rather than in the fish and game department. Senator Lincoln often says and I agree with her that subsistence is far more than just hunting and fishing. I can't exactly say what subsistence is. I just know that the concept is very important and almost spiritual. I know it involves more than just hunting and fishing. But, what we are debating is a priority for hunting and fishing, not all of subsistence. I agree subsistence is a basic human right and I don't want to take it away from anyone. I certainly don't want to take ir or give it on the basis of zip codes. But, I am perfectly willing to realistically limit those people who have a hunting and fishing priority to those who are truly resource dependent. "Thank you. You are moving in the right direction." Number 1361 ROBERT HALL, Representative, Houston Chamber of Commerce, testified via teleconference in Mat-Su. We appreciate the amount of work done, but the there are many details and definitions that need to be worked on. The statement that the best use of fish and game is for family and personal use is very important. Any legislation should establish a preference for Alaskans to feed their families over other uses. The establishment of regional boards is a positive step. There needs to be a definition of the terms "dependance" and "subsistence." The word "subsistence" might need to be used instead of sustenance to work with ANILCA. The effort to establish an "eat-it-where-you-shoot-it" provision is good, but needs some fine tuning to make it work. A rural preference or advantage is implied by the regional board concept. Please, don't be afraid of a federal takeover. It already manages game in the state. It is really a threat to takeover the allocation of fishery resources. Most people in the Mat-Su valley are not really pleased or satisfied with the current state management anyway. He understands the pressure on the Resources committee to move a bill out, but unless one is passed out that a majority of Alaskans understand and agree on, it will be radically changed before it gets to the Floor. However, the Resources committee is the appropriate place to do the majority of the work and make most of the changes. Number 1536 DICK STOFFEL testified via teleconference in Mat-Su. He is happy with the fact that the bill gives a preference for those who really need it in areas when there are a shortage. He is more excited about the stipulation that conforms the federal law to the state law. Number 1640 GLORIA STICKWAN testified via teleconference in Glennallen. [DUE TO TECHNICAL DIFFICULTIES, HER TESTIMONY IS INAUDIBLE] CO-CHAIRMAN OGAN asked Ms. Stickwan to fax her testimony to the committee. Number 1876 TOM SCARBOROUGH testified via teleconference in Fairbanks. He appreciates the efforts of Representative Ogan and the committee for dealing with the subsistence issues created by Senator Stevens. There is still a preference in the proposed committee substitute. A preference is still a preference and will discriminate against somebody resulting in a violation of individual rights. Natural resources in Alaska are held as common property and belong to all residents - a right granted by the state constitution. It cannot be voted away at the ballot box, even if it is a preference for those that buy a $5 license. Article I of the Fourteenth Amendment of the Constitution of the United States says, "No state shall make or enforce any law which shall abridge the privilege or immunities of a citizen of the United States; or shall any state deprive any person of life, liberty or property without due process law; or deny any person within its jurisdiction the equal protection of the law." It is clear that the Founding Fathers foresaw a time when a state would give a preference to some portion of its population violating the right of the other citizens. The Fourteenth Amendment prohibits the state from establishing a preferential right to discriminate, and the federal supreme court will not go for it. It is also very clear that Article I, Section 1 of the Constitution of the State of Alaska spells out the equal rights of the state citizens. There is no doubt that Title 16 would need a lot of revision to establish that personal use is the highest and best use of the fish and game resources. He opposes HB 406, as written, because of the preference, but there are a lot of good sections that are valid. "If you take out the preference, why we would be marching down the right path." It is not going to please the federal government, but the real decision is to determine whether Alaska is going to be a state with equal status of the other forty-nine, or is it going to continue to be a federal territory under the illusion of a state. Number 2170 ROD ARNO, President, Alaska Outdoor Council (AOC), testified in Juneau. He applauds the efforts of the House Resources committee in its attempt to craft legislation to resolve Alaska's loss of fish and game management to federal land managers considering Article I, Section 1; Article VIII, Sections 3, 15 and 17 of the state constitution. With the emphasis on more local control of fish and game through statute, more trust is needed between urban and rural hunters. In that spirit, there are numerous opportunities to work together and move forward such as the (indisc.) bison reintroduction. An example of co-management problems is Proposal 73 before the Board of Game where state policy has been to re-establish musk oxen throughout their former range on the North Slope, but the shareholders have agreed that the principle goal of musk oxen management should be to restrict the herd. On the North Slope there are approximately one-half million caribou that migrate across and less than two thousand musk oxen. They were put there on a reintroduction program using Pittman- Robertson federal matching funds with the hope that they would be allowed to expand so that urban hunters could harvest them by entering federal lands, but if they are not allowed to expand, it will not happen. Urban hunters were not part of the coalition that put together the proposal, but rather the North Slope Borough's Department of Wildlife Management and the Alaska Department of Fish and Game. The AOC values biological, sustainable uses of fish and game first and human use second. Thus, there is concern about subsection (7) on page 2. After 33 years of guiding in rural areas in Alaska, he can say that there will come a time when the state will not be able to adequately provide the biological and reproductive capabilities to provide abundance for all uses. TAPE 98-28, SIDE A Number 0000 MR. ARNO continued. Taking out P.L. 105-83 of ANILCA to ensure that the Secretary of Interior does not have the authority to manage fish and game for subsistence uses on public lands is not part of ANILCA today. Section 5 states that the subsistence priority required on public lands under Section 804 of the Act applies to navigable waters in the U.S. as reserved water rights. Number 0109 REPRESENTATIVE BARNES asked Mr. Arno whether the Pittman-Robertson funds are used primarily for buying fish and game hunting licenses, ammunition, sports gear, etc. MR. ARNO replied, "Correct." It is an excise tax and provides 85 percent of the resources for fish and game management in the state today. REPRESENTATIVE BARNES asked Mr. Arno whether he said the funds are 85 percent of the budget for managing sports hunting and fishing in the state today. MR. ARNO replied, "Yes." REPRESENTATIVE BARNES asked Mr. Arno whether the Pittman-Robertson funds are primarily derived from the non-rural areas of the state. MR. ARNO replied they are mainly derived from outside of the state the nonresidents who come to the state which averages about 8,000 to 10,000 licenses annually. It has been that way for the past 23 years. REPRESENTATIVE BARNES asked Mr. Arno, if those funds were not provided or were in jeopardy, would the state have to come up with a much larger dollar amount to put into its budget each year. MR. ARNO replied yes for the level of management that the state has today which has been budgeted based on the amount of funds made available through license sales and federal excise taxes. REPRESENTATIVE BARNES asked Mr. Arno whether a few years ago some of the Pittman-Robertson funds moved out of its category for hatcheries. MR. ARNO replied he does not feel qualified to answer that. REPRESENTATIVE BARNES stated she thinks it is a fact. She asked Mr. Arno, if the Pittman-Robertson fund was used for the herd he talked about and it was not managed for the purposes of the funds, what kind of problems could the state encounter. MR. ARNO replied there could be ramifications. In the mid-1970s there were open meetings where a plan was developed to reintroduce the musk oxen back into the North Slope. It was presented to sportsmen nationally as a good use of that money with the idea that in the future the hunters would be allowed to harvest the herd on federal lands. REPRESENTATIVE BARNES asked Mr. Arno how long he has been involved with the Alaska Outdoor Council. MR. ARNO replied five years. REPRESENTATIVE BARNES asked Mr. Arno whether the Alaska Outdoor Council used to be called the Alaska Conservation Council. MR. ARNO replied it used to be called the Fish and Wildlife Federation for Alaska. REPRESENTATIVE BARNES asked Mr. Arno in the time that he has been involved with the organization whether he has known it to come out with a position in support of amending Alaska's constitution. MR. ARNO replied, "No." Number 0526 REPRESENTATIVE DYSON stated hopefully in a week or so he will have a bill before the House Resources committee that will legalize farming of moose and caribou to provide a basis for more reintroduction. He would enjoy the support of the AOC. Number 0589 EMIL PORTSCHELLER testified via teleconference in Mat-Su. In general he supports the legislation. The committee members deserve praise for taking on such a stressful and political issue. He has been involved for about 30 years in resource use and management in the state. Many who worked in the resource field several decades ago were fearful that the state was heading in the wrong direction with the development and implementation of ANILCA and the Alaska Native Claims Settlement Act (ANCSA). In fact, many felt it was wrong to pass them. They have amounted to a political wedge between the people of the state. Amending the state constitution to conform with ANILCA is the wrong direction. The state constitution represents a much more appropriate approach in dealing with equal opportunity to access the natural resources than what is provided for in any of the provisions in ANILCA. He agrees, in part, with the attorney general's representative that the "use-it- where-you-hunt-it" segment would infringe on some people in the state. He opposes the idea of establishing regional boards and committees. They tend to become politically and sometimes racially charged to the extent that they become ineffective. They also represent a redundancy within the political system. When there are effective legislators in place such as Representative Ogan and Barnes there is a significant avenue to provide input on natural resources. He strongly suggests deleting from (C) on page 4 to (3) on page 7. He has spoken with a number of resource managers about this particular area and it seems to represent an intrusion by government into the private lives of Alaskan residents. There really is no functional need for the provisions. In addition, having talked to a number of federal resource managers, they have indicated that they should serve only as an additional resource to state managers. He also agrees with Ms. Bishop's comments earlier that the proposed legislation is a reasonable vehicle to accomplish addressing the subsistence issue in general. In regards to the "use-it-where-you-hunt-it" provision, if he shot a moose across the border of a given region or resource management unit, he would have to set up camp there, even if his cabin was a short distance away. Potential circumstances like this need to be addressed. Number 0981 REPRESENTATIVE WILLIAMS asked Mr. Portscheller how to get around the agreement made with ANCSA. It takes both sides to break an agreement. Number 1030 MR. PORTSCHELLER replied frankly there are several avenues to pursue to accomplish the necessary changes in ANILCA. The primary problem is a lack of zealousness by the congressional delegation. Senator Stevens has not represented Alaska in the most positive light when dealing with natural resource use. Many who have worked in the natural resource realm have long discerned an agenda with regard to ANILCA with the congressional delegation. Number 1083 REPRESENTATIVE WILLIAMS stated ANCSA says in order to fulfill the policies of the Act as a matter of equity it is necessary for Congress to invoke its constitutional authority over Native affairs and its constitutional authority over the property and commerce clause to protect and provide opportunity for continued subsistence uses on the public lands by the Natives and non-Natives and rural residents. He asked Mr. Portscheller how to get around the promise made in ANCSA. Number 1146 MR. PORTSCHELLER replied ultimately it is necessary to reconsider the ANCSA situation as a whole. He recalled in the earliest period of the implementation of ANCSA that there was a tremendous amount of angst on the part of resource managers that has led to the wedges between the people. There were enough provisions in place to provide for subsistence opportunities before ANCSA was developed. The Alaska Native Claims Settlement Act was the initial political bias placed into the resource management picture in the state, and most people have been afraid to touch it because of the underlying racial and ethnic issues. If those issues can be addressed more openly, history will show that there was not a considerable need to establish ANCSA and ANILCA as once was thought. Number 1244 REPRESENTATIVE BARNES explained the conference committee report indicates that the Secretary of Interior and the state are expected to address the subsistence needs of the Natives. However, a law was adopted and it extinguished the titles to lands, fish and wildlife. The conference report was simply made part of congressional record. It was never adopted into law. Number 1282 MR. PORTSCHELLER stated he applauds Representative Barnes' historical record. Number 1290 REPRESENTATIVE WILLIAMS stated along those same lines subsistence was part of the negotiations in 1971. It was part of the senate bill which resulted in the conference committee. The push to settle the negotiations was the need for an oil pipeline. The state of Alaska tried to take care of the subsistence needs of the Natives in 1975 and 1976, but it did not come forth with a solution resulting in ANILCA. Number 1409 CO-CHAIRMAN OGAN stated the only way to meet the intent of the conference report is to give a Native preference, and that is not practical. Number 1423 REPRESENTATIVE WILLIAMS replied he is not trying to go for that. He is trying to keep the promise out in front. Number 1434 REPRESENTATIVE BARNES stated, looking at the ANCSA debates, originally there was going to be only 5 million acres given to the Natives, then 10 million acres. Finally, 44 million acres and $1 billion were given to extinguish aboriginal rights to lands, waters, and etc, if there were any. A conference committee report is one thing, but it did not became part of the law. "You can't say something was part of a negotiated settlement when it wasn't put into the law. So, you have to keep trying to reach a consensus on it that works for everybody, and I think that's what were trying to do." Number 1529 ROB BEACH testified via teleconference in Fairbanks. If he killed 260 moose a month and left them he would be thrown in jail. The train runs over more moose than any Indian in the Interior has killed in one year. The amount of highway kills have been averaging 20 per week on the Sterling Highway. In the Anchorage area there is another 20 per week. In total, that is 260 per month wasted. Anybody with common sense could see that the resources are not unlimited. There have been shortages ever since the buffalo have been extinct. There has been a shortage since Elmendorf Air Force Base killed off all of the ducks. There has been a shortage since Hinchenbrook (ph) made the navy look like a boat parade. "We would appreciate that you have consideration and kindness towards our outlook on life. I don't see any of you out here in the bush trying to stir up some agricultural development. Maybe brining in some other game into this area so that there would be plenty enough for everybody. Now, if you'll just take a minute and have it understood that I'm totally upset. I just...I just cannot believe the pipeline and the amount of people that came from all over the world and came up here and started shooting anything that moved and not a word was said about that. But, as soon as an Indian gets down to the nitty gritty here and there's a last moose out there, who's going to have to give up on that last moose? he asked. Now, before we get to that point, I would like to appreciate this whole committee to understand that you can work with us or you know just go on about and starve just like you're making us have to do. You cut us off from the fish when we were fishing back in the 70s with our fish wheels and found that was illegal. You found us taking game out of your supposed seasons was illegal because we could transport the game a lot easier in the winter and we didn't have to worry so much about the storage because it was frozen. Now, we've given and we've given and we've given. It's just too bad that I don't have the old people around anymore, the people from Tetlin that first sat down with the people with paper to have to work out this subsistence and every other issue that comes along. I just wish I could hurry up and be with them." Number 1738 CO-CHAIRMAN OGAN explained the bill would give a preference to the people who depend on the resource in a time of shortage. MR. BEACH stated that will be the train line. Number 1769 LINDA ANDERSON testified via teleconference in Mat-Su. She is concerned about the language, "principle characteristic of the economy and way of life of an area depending on the relative important of the dependence of the fish and game." These days living in the bush is a choice "no matter who you are." And, if "you can't feed and cloth your children then you have to go where your job can go, or where you need to go to feed and cloth your children." Jobs are few in the bush, but it is a choice to live in a remote area these days. The world has gotten so small. She has American Indian in her family, but she does not want any special rights. Every person has the same right to vote and send public opinion messages to be involved. It is 1998, and according to history, people have migrated from everywhere to everywhere. A constitutional amendment is not needed. Her family, although not living in rural Alaska, depends on meat for food. It is a lot cleaner and healthier to hunt and fish. She endorses, trusts and supports Mr. Ogan and the board's efforts. She wants to see equality, not special rights given to a particular race or group of people. Number 1940 TOM LAKOSH testified via teleconference in Anchorage. Representative Ogan's suggestion of subsistence and personal use be the superior public purpose and beneficial use of fish and game is a "no brainer." It is purposely implied by the state constitution. In Kenaitze the superior court judge hit the nail on the head when he found that subsistence is an inherently local use. It is clear that locals should be given some priority, as long as all Alaskans have priority of their area of residency. It was found that since personal use regulations allowed for the same thing as subsistence us regulations, they were effectively the same opportunity. Now, however, there is no longer the same type of access to the fisheries for personal use in the urban areas (non-subsistence areas). He wondered whether a commercial fisherman who ate all of his fish would be in violation of this proposed law. Number 2059 CO-CHAIRMAN OGAN replied it does not apply to commercial fishing at all. It only ties to sustenance/personal use in a time or shortage. MR. LAKOSH replied that is the point. Number 2079 DANNY GRANGAARD testified via teleconference in Tok. "If you're gonna put this bill 406 up to the constitution that don't meet ANILCA, I think we're beating our head against the wall, personally." The other major problem is the $5 license. The people who live in a village and who make too much money will not be able to hunt. The people who work in a gas station making $10 an hour won't qualify and they probably need the meat more than anybody, but they will still be over the $5-requirement. Basing it on welfare is a mistake, otherwise it is a good bill. It looks like it is designed to eliminate as many rural residents as possible. Somebody could move from the Lower Forty-Eight and one year later join welfare and go hunting, when people who have lived here for 30 years would not qualify. That's not fair. A lot of rural people, including village people, will not vote for this bill as it stands now. If the rural people don't vote for it and it won't meet Title VIII of ANILCA, then what is the point. Number 2153 REPRESENTATIVE BARNES stated while the bill does not qualify with Title VIII of ANILCA and the rural people in the state might not support it, the attempt is to make sure that all people in the state are treated equally. Number 2187 PATRICK SAMSON testified via teleconference in Bethel. The rural areas are being left out. The remote rural people of Alaska make up most of the subsistence use which only harvests 3 to 6 percent of the natural resources. Sport and commercial fishing take up the rest of the harvest. The high cost of living is offset by the subsistence harvest in the rural areas, especially remote rural areas. Basing the requirements on income and welfare is all wrong because people in the remote areas have jobs to finance their subsistence activity who in turn almost always share their harvest with those who cannot finance their subsistence activities. Number 2233 CO-CHAIRMAN OGAN explained the bill has two tiers. In a time of shortage, the board "shall" allocate according to the highest and best priority (tier I). The only time the boards would differentiate amongst people who qualify would be when there is not enough to go around after allocating for subsistence/sustenance use (tier II). Number 2274 MARTINA RAPOZA testified via teleconference in Bethel. She is originally from the village of Kipnuk. Not enough time and information has been given on the bill to give adequate testimony. But, even if enough time and information had been given, there are many subsistence users that do not have the means to testify. Number 2295 CO-CHAIRMAN OGAN stated there was five and one-half hours of testimony from the public last Saturday. Number 2307 VIRGINIA CHARLIE testified via teleconference in Bethel. The subsistence issue is important enough to at least include all parties, especially the subsistence users. Number 2330 REPRESENTATIVE REGGIE JOULE stated, if the bill should move from the House Resources committee, there will be further opportunities to testify in the next committees of referral - Judiciary and Finance. Number 2347 CO-CHAIRMAN OGAN stated that is a very good point. It will also go to the Senate with at least two to three committee referrals. Number 2381 MS. CHARLIE replied even with more time there are no teleconference sites available for subsistence users. Number 2389 CO-CHAIRMAN OGAN stated that is a problem. There have been people who call in through the bridge. There is also the mail and faxes. Number 2412 FRED SMITH testified via teleconference in Bethel. He is originally from Napaskiak. He opposes any actions that would diminish the intent of ANILCA and that would threaten livelihoods of many rural Alaskans including their cultures and values. The Administration and the legislature need to accept the premise that Congress has accepted and acted on. The one thing that has led the state down the wrong direction is the premise of one state-one people when that is not the case. There are tribes in rural Alaska with federal recognition and certain protections. If the state can't meet those protections in place then maybe it is not the best one to manage the fish and game resources. TAPE 98-28, SIDE B Number 0017 CO-CHAIRMAN OGAN closed the public testimony portion of the committee hearing. Number 0023 CO-CHAIRMAN OGAN called for a recess until 6:00 p.m. CO-CHAIRMAN OGAN called the meeting back to order at 6:07 p.m. CO-CHAIRMAN OGAN asked for a roll call. Members present at the roll call were Representatives Barnes, Dyson, Green, Joule, Masek, Hudson and Ogan. Representative Williams arrived at 6:10 p.m. CO-CHAIRMAN OGAN called on Geron Bruce from the Department of Fish and Game. Number 0075 GERON BRUCE, Legislative Liaison, Office of the Commissioner, Department of Fish and Game, stated the department has looked at the changes and continues to have concerns as expressed in a letter from the Department of Law, the commissioner, and Mary Pete. The proposed committee substitute still does nothing to stop a federal takeover of fish and game management. The individual eligibility system is inconsistent with the traditional patterns of community sharing, the hallmark of a subsidence economy. It still has burdensome requirements on persons who want to take fish and game for subsistence use - the application procedure. It places additional responsibilities on the boards that are already struggling with their present responsibilities. The subsistence conflict can be solved if it is approached practically by recognizing a priority consistent with federal law while still providing an abundant opportunity for other uses. A management system can be constructed to achieve that. It may not be perfect, especially at first, but the problems could be worked out over time. Number 0201 REPRESENTATIVE GREEN asked Mr. Bruce why the bill would not prevent a federal takeover if the constitutional portion is resolved by tweaking ANILCA. Number 0223 MR. BRUCE replied, according to the newspaper, an official from the Department of Interior said the bill would not comply with ANILCA, and it would not prevent a federal takeover because it would not provide for a rural priority. Number 0250 REPRESENTATIVE GREEN wondered what version the official in Washington D.C. looked at. It certainly was not this version. He asked Mr. Bruce whether the official is a decision making type or just an average person like the rest of us. Number 0280 MR. BRUCE replied it was Deborah Williams, the Secretary of Interior's assistant in the state. Number 0292 CO-CHAIRMAN OGAN stated the job of the Department of Fish and Game is to not worry about setting policy, but to worry about managing fish and game. "I don't think you need to come in here and remind us that this doesn't conform with ANILCA. We're aware of that. So, I'd appreciate it if you would keep your comments to--I think the last comments you made was about the additional regulations were probably the most appropriate that you made in this committee. We'll worry about the policy. You guys worry about how you manage it." CO-CHAIRMAN OGAN stated the revised bill allows the boards to delegate some authority to the regional boards, a tool to take off some of its workload, especially the Board of Fisheries. In addition, the simplified qualifications greatly reduces the burden of the boards - a $5 license and a signed statement. Number 0362 MR. BRUCE stated there is an adjudicative process with the boards acting together to decide any denials referred to them. An adjudicative process can be very lengthy, contentious and expensive. The Commercial Fisheries Entry Commission adjudicates permit denials that take years. It is a whole realm of work that historically the boards have never done and now would be required to do. CO-CHAIRMAN OGAN stated the point is well taken. Number 0411 REPRESENTATIVE DYSON stated it is his understanding that even with the Governor's task force proposal and a constitutional amendment the state would still be under federal court supervision for all of its fish and game actions that relate to public lands. He asked Mr. Bruce whether that is his understanding. Number 0443 MR. BRUCE replied that is really a legal question. Number 0458 REPRESENTATIVE BARNES asked Mr. Bruce how long has he worked for the Department of Fish and Game. MR. BRUCE replied a little over six years. REPRESENTATIVE BARNES asked Mr. Bruce whether he was around for part of the Hickel Administration. MR. BRUCE replied, "Yes." REPRESENTATIVE BARNES asked Mr. Bruce whether he was aware of the bill introduced at that time relating to regional areas and the "eat-it-where-you-kill-it" sort of thing (SB 443 and HB 552). MR. BRUCE replied yes he was familiar with them. He has not looked at them recently, however. REPRESENTATIVE BARNES asked Mr. Bruce if the Department of Law writes a legal opinion is it the opinion of the Department of Fish and Game, until it is rebutted with a separate opinion. MR. BRUCE replied, "Yes." REPRESENTATIVE BARNES asked Mr. Bruce to get a copy of the legal opinion written to Representative Georgianna Lincoln and Senator Lyman Hoffman on SB 443 and HB 552 and read it in the context of the bill before the House Resources committee. She also told Mr. Bruce to be prepared to tell her whether there is anything to rebut that opinion in the department, and, if so, how it is different. Number 0578 REPRESENTATIVE JAMES stated Mr. Bruce has testified that the bill would not meet ANILCA and avoid a federal takeover. She asked Mr. Bruce whether that is his position because the state has been told it has to have a rural priority in its constitution. Number 0597 MR. BRUCE replied he is not sure what she means by the state has been told. REPRESENTATIVE JAMES stated it has been touted that the only way to avoid the federal takeover is to have a rural priority amendment to the constitution. She asked Mr. Bruce whether that influences his decision on the bill. MR. BRUCE replied it influences him to the extent that is what the Department of Law, federal officials, and Senator Stevens have said. REPRESENTATIVE JAMES read a letter from Frank Murkowski regarding whether the state could adopt a statute to implement a rural priority required by federal law. "Some Alaskans can be granted a priority over other Alaskans to use fish and game for subsistence purposes without a constitutional amendment if the priority is granted using criteria rationally related to the legitimate policy objective of protecting the subsistence lifestyle." she asked Mr. Bruce whether HB 406 grants a priority based on criteria rationally related to the legitimate policy objective of protecting a subsistence lifestyle. MR. BRUCE replied, "Yes." It is the intent of the legislation, but he is not sure whether it achieves its goal. REPRESENTATIVE JAMES replied she is not totally convinced it does either. She asked Mr. Bruce where the bill does not achieve its goal and what needs to be fixed. MR. BRUCE replied he just received the committee substitute this morning. The department would like an opportunity to look at it with more detail and to speak with people from other divisions. He could provide information to her at a later time. REPRESENTATIVE JAMES stated she looks forward to his evaluation. Number 0738 CO-CHAIRMAN HUDSON stated the definition of the term "rural community" in ANILCA is, "an area or community substantially dependent on fish and wildlife for nutritional and other subsistence uses." The only major definition in federal law. Deborah Williams has said that Secretary Babbitt will not agree to a needs-based plan that does not give a rural priority for subsistence fishing and hunting. The bill defines rural without saying "rural" by creating dependent use areas. He disagrees with the rural plan put forth by the task force because it would include everybody, but Juneau, Anchorage, Fairbanks and a few other communities based on population. Number 0899 CO-CHAIRMAN OGAN stated Deborah Williams has also said that there will not be changes to ANILCA unless there is a consensus. If the people ratify the advisory vote, there is a consensus. CO-CHAIRMAN OGAN called on George Utermohle from the Legislative Affairs Agency. Number 0955 REPRESENTATIVE MASEK refereed to the language that defines a dependent use area and who qualifies as a dependent user. She asked Mr. Utermohle whether the criteria on pages 4 and 5 would apply to situations outlined on page 3 subsection (b); and, if so, would only those people qualify to hunt in restricted areas like the Nelchina caribou area. Number 1025 MR. UTERMOHLE replied page 3, lines 3-9, provide for the highest priority as consumptive use for personal and family use for sustenance. There is no individual preference just a preference for the use above other uses. REPRESENTATIVE MASEK asked Mr. Utermohle whether the criteria outlined on pages 4-5 would apply to situations outlined on page 3, lines 3-9. MR. UTERMOHLE replied no they would apply only to situations described on page 4, lines 13-29. REPRESENTATIVE MASEK asked Mr. Utermohle how would they affect the people who qualify to hunt in restricted areas like the Nelchina caribou herd area. Number 1154 MR. UTERMOHLE replied assuming that the Nelchina caribou herd is present in a fish and game dependent use area and there is a shortage, the Board of Game has the option of establishing a preference for persons who qualify as dependent on fish and game for personal and family use for sustenance. The boards have the ultimate word as to who qualifies under the criteria. Number 1255 REPRESENTATIVE MASEK asked Mr. Utermohle, if there is a hunter from Palmer who hunts in the Nelchina area, would he have to meet certain criteria in order to go back up and hunt there. He can hunt there now. Number 1284 MR. UTERMOHLE replied in the event the hunter in Palmer does not qualify under the criteria established and there are no additional resources available to him he would not be eligible to participate in the hunt in that area. Number 1310 REPRESENTATIVE MASEK asked Mr. Utermohle whether a person from Southeast would be able to qualify. MR. UTERMOHLE replied regardless of where a person lives in the state, if he does not satisfy the criteria and is not approved by the boards, he would not be able to participate in a hunt for a stock subject to a shortage. Number 1352 REPRESENTATIVE DYSON asked Mr. Utermohle whether the Governor's task force solution would leave the state under federal court supervision. Number 1378 MR. UTERMOHLE replied yes there still would be an opportunity for federal judicial oversight of the implementation of subsistence by the state. Number 1388 REPRESENTATIVE DYSON stated the solution, if successful, would eliminate the word "rural." He asked Mr. Utermohle whether the state would have the same amount of federal court supervision. Number 1425 MR. UTERMOHLE replied assuming the judicial oversight provisions in ANILCA are not changed, probably the same level of oversight would occur as if the state complied under the Governor's plan. Number 1444 CO-CHAIRMAN HUDSON stated, if Congress was to accept the changes to exclude state lands, private lands, and navigable waters to ANILCA; and, even if the state could not preclude federal oversight on federal lands, that would be the only area of federal court oversight. He wondered whether the federal courts would have any primacy over state, private and navigable waters, if ANILCA was changed. Number 1508 MR. UTERMOHLE replied federal jurisdiction would not attach to land. It would attach to that which arises under the federal Act. It could go anywhere in the state, where it operates in compliance with ANILCA, and act as an oversight. Number 1555 CO-CHAIRMAN HUDSON stated as long as the state accedes to a statement of compliance the federal court has oversight. MR. UTERMOHLE replied, "Yes." Number 1571 REPRESENTATIVE BARNES asked Mr. Utermohle whether the 97 amendment language would go away. MR. UTERMOHLE replied the language of Senator Stevens' amendment would go away, yes. REPRESENTATIVE BARNES responded then the state is back to the status quo. The status quo would not have Secretarial or court oversight written into law. The state would be back to the point it is today, minus the amendments, if it does not comply. "We could go forward to Congress and ask that they change the wording in Title VIII to make our bill conform, and then we would be out from under Secretarial oversight and court oversight, as long as it was taken care of in those amendments." MR. UTERMOHLE replied, if Congress amends ANILCA to that effect, that is what will happen. Number 1670 REPRESENTATIVE JAMES referred to a letter written from Frank Murkowski answering the question of federal oversight. She read, "Some Alaskans can be granted a priority over other Alaskans for the use of fish and game for subsistence purposes without a constitutional amendment if the priority is granted using criteria rationally related to the legitimate policy objective of protecting the subsidence lifestyle." She asked Mr. Utermohle whether HB 406, as drafted, uses criteria rationally related to the legitimate policy objectives of protecting a subsistence lifestyle. Number 1729 MR. UTERMOHLE replied the bill does not speak to subsistence. It speaks to sustenance. It provides a basis for protecting personal and family use of fish and game for sustenance. It does not provide a preference except in a time of shortage. "To the extent that's consistent with our common use clause and our equal access provisions of our constitution, we can do that without a constitutional amendment." Number 1770 REPRESENTATIVE JAMES asked Mr. Utermohle what the rural priority was designed to do in ANILCA. Number 1786 MR. UTERMOHLE replied, according to his understanding, it was intended to give a preference for subsistence uses to certain classes of people within the state of Alaska. Number 1845 CO-CHAIRMAN OGAN announced all members are present, except for Representative Nicholia. Representative James has been here for the duration of the meeting. Number 1888 REPRESENTATIVE MASEK referred to page 5, lines 12-27, and stated the provisions will probably be very costly and cause an administrative problem. She wondered how the state will pay for the new regional board concept and the new administrative duties that will be attached to it. She wondered whether there will be a fiscal note attached to the bill. Number 1970 CO-CHAIRMAN OGAN stated right now there are 82 advisory committees in the state. The bill calls for 5 regional boards with 9 advisory committees, a total of 45 advisory committees. The Finance committee is the appropriate place to determine the fiscal impact, but he hopes it will be a wash. The task force recommendation calls for more than five regional boards throughout the state with ten members on each board. The governor shall appoint the membership of the boards based on a certain makeup which is a violation of the state's rights. "The federal government shouldn't tell the governor of our state who to appoint where." Hopefully, the main boards will be able to delegate some authority and chores to the regional boards that will save time and money. "If it gains acceptance, and I think our state can move forward, there's been some testimony from rural people that they like the regional approach that if it makes us move forward with a solution, I think, whatever the costs are worth it. Cause the costs of not doing something are greater." Number 2114 REPRESENTATIVE MASEK referred to page 8, line 9, "(3) the recommendation involves issues of statewide significance; or", and asked Mr. Utermohle to explain the provision. Number 2145 MR. UTERMOHLE replied a statewide significance would be determined by the Boards of Fisheries and Game. Number 2165 CO-CHAIRMAN OGAN stated the regional boards would need to have some sideboards because there will be regional conflicts. The Yukon- Kuskokwin and False Pass areas are good examples. The language in the bill says the boards "shall" defer to the regional boards, unless (1) there is a contrary recommendation from another regional board; (2) the recommendation is not consistent with the conservation of the fish or game resources or with the sustained yield principle; (3) the recommendation involves issues of statewide significance; or (4) the recommendation involves conflicts between regional boards. Number 2254 REPRESENTATIVE BARNES stated the representative from Tanana said the advisory committees are only allowed to take one trip per year which seemed less than it should have been, but the advisory committees should not have to travel at all to deal with a regional boards. They should be able to convey their message to the regional boards via the telecommunication system in the state. Furthermore, the regional boards should not have to travel a lot either because they are dealing with a region, not the state as a whole. She would like to see the travel cut down, unless the members are willing to pay for their own travel for whatever purpose. It should not be looked upon as somebody obtaining membership on a board for the sake of traveling. Number 2387 REPRESENTATIVE JOULE stated the opportunity for the local advisory committee members to speak informally with the people at the meetings goes a long way. It speaks to the continued involvement at all levels. It is similar to the legislature. The people have the ability to talk directly to legislators outside of the committee process. Number 2465 REPRESENTATIVE BARNES replied the people who come down to Juneau and talk with the legislators are doing it at their own expense. TAPE 98-29, SIDE A Number 0016 CO-CHAIRMAN OGAN stated, for the record, the federal government promised the state up to $5 million per year when ANILCA was passed. It has never given the state over $2 million. If it would hold up its end of the bargain, maybe the state could get some more money out of it. Number 0053 REPRESENTATIVE BARNES pointed out that the state could just let the federal government have it, and then it could pay $30 million a year. CO-CHAIRMAN OGAN called on Stephen White from the Department of Law. Number 0105 REPRESENTATIVE BARNES thanked Mr. White for providing the opinions she requested earlier. She asked Mr. White whether the opinion dated March 2, 1992 is the prevailing opinion in the department. Number 0197 MR. WHITE replied the opinion was written relative to a regional preference provision. At the time, Lance Nelson, author of the opinion, thought it could be defended constitutionally. When the department gets a court decision, it does not contact everybody the department has given an opinion to. It only updates its advise when the issues comes back before it. Therefore, it has not retracted the advise, but in light of the Kenaitze decision, the department would have a different opinion. Number 0253 REPRESENTATIVE BARNES asked Mr. White how the opinion would differ. MR. WHITE replied the department could not conclude that a regional area preference would be constitutional. In particular, because of the language stressed in McDowell that people who reside near a fish or game population do not have a higher claim to it than state residents who live further from it. The law is evolving and as the state supreme court gives the department an opinion on the common use clause it learns more about it. The court has pretty much closed the door on preferences based upon where a person lives in Kenaitze, however. Number 0313 REPRESENTATIVE BARNES stated the bill would not prohibit access, even though it sets up regions, for people moving from one region to another. Number 0335 MR. WHITE stated it would not prohibit people from coming into an area to subsistence hunt and fish. All it does is prohibit the taking of the resource outside of the area to use it. Number 0347 REPRESENTATIVE BARNES asked Mr. White whether he feels there would be a problem with prohibiting the taking of the resource as long as they otherwise generally qualify outside of the region. MR. WHITE replied yes he believes it would be viewed as practically prohibiting them from using the resource. Number 0386 REPRESENTATIVE BARNES asked Mr. White whether that would be the only problem he would have with a regional preference - the "kill- it-and-eat-it" in the same place provision. MR. WHITE replied, "Correct." Number 0407 CO-CHAIRMAN OGAN asked Mr. White whether a $5 license would prohibit a person from participating in an area where there is a shortage. He is not absolutely clear whether the bill prohibits a person from removing fish and game from an area. The bill says that the boards "may". If the boards write a regulation that says anybody statewide can participate in a hunt and take the meat out who qualifies. He asked Mr. White whether that would make it constitutional in his opinion. Number 0502 MR. WHITE replied as long as the criteria that allows people to come in and participate is uniformly applied, whether they live inside or outside of a region. Number 0515 CO-CHAIRMAN OGAN asked Mr. White whether it would basically depend on how the boards write the regulations. MR. WHITE replied, "Correct." CO-CHAIRMAN OGAN stated as long as the Department of Law is advising the boards on how to write the regulations and they do not exclude those that live outside of the area then it would be constitutional. Number 0545 MR. WHITE replied as long as the regulations say that everybody can come to an area. But, if the regulations say that they can only use the resource inside of an area, it would be a preference based on where somebody lives. Number 0562 CO-CHAIRMAN OGAN asked Mr. White, if the law is written to give permission to allow those that qualify under subsection (c), pages 4-5, it would be okay, as long as the boards interpret it correctly. MR. WHITE replied there would be no constitutional problem with the criteria under subsection (c), pages 4-5. CO-CHAIRMAN OGAN asked Mr. White whether the "use-it-where-you- shoot-it" criteria would be constitutional, as long as the boards don't misinterpret it. MR. WHITE replied, as long as the boards don't apply it in a way that would give a preference to people inside versus outside of an area. If they implement what is suggested in the bill, there would be a constitutional problem. If they don't implement it, there won't be a problem. CO-CHAIRMAN OGAN asked Mr. White whether he would do his best to make sure that the boards implement it correctly. MR. WHITE replied, "Yes." He would advise them not to implement it because it would be difficult, if not impossible, to defend. Number 0685 CO-CHAIRMAN OGAN asked Mr. White whether he is the guy that the boards would give their regulations to for scrutiny. MR. WHITE replied they would send them someone in the department, not him personally. CO-CHAIRMAN OGAN stated, if the bill passes and goes into law, he will do his job to make sure that the boards will be constitutional. Number 0735 CO-CHAIRMAN HUDSON referred to page 4, subsection (b), and wondered whether the language "by requiring that the flesh or meat of fish and game be used within the region or area where the fish or game was taken" is needed. He suggested ending the subsection after the word "area" on line 27. He asked Mr. White whether that would be constitutional. That is what Co-Chairman Ogan wants the regulations to read. MR. WHITE replied yes, if the language stops after the word "area" on line 27, the constitutional problem would be avoided. CO-CHAIRMAN HUDSON asked if the language "substantially dependent upon fish or game for personal and family use for sustenance" or the language in ANILCA "substantially dependent on fish and wildlife for nutritionally and other subsistence uses" was inserted on line 24 would it come close to defining rural in ANILCA. Number 0873 MR. WHITE replied yes it would come closer. CO-CHAIRMAN HUDSON asked Mr. White again whether it comes pretty close to satisfying the federal rural preference in ANILCA. MR. WHITE replied yes, but the biggest impediment is the means test. The Alaska National Interest Lands Conservation Act does not have a means test right now. Number 0906 CO-CHAIRMAN HUDSON asked Mr. White whether eliminating the indigent test on page 5 would come close to ANILCA. MR. WHITE replied it would get closer. The problem of trying to hit around rural is that with a rural priority everybody in an urban area is disqualified. And, if there are criteria that would otherwise qualify urban people, the rural people would say the competition for the resources has been increased and, therefore, have incentive to challenge its compliance with federal law. It is very hard to come up with something that is the same as rural without saying "rural," without giving those that would otherwise qualify an opportunity to sue. Number 1008 REPRESENTATIVE JAMES stated a rural priority is not fair. It is not fair for the people who live in the rural areas who depend on subsistence, and it is not fair for the people who live in the other areas who should be entitled to subsistence. She asked Mr. White whether the purpose of a rural priority in ANILCA is to provide for a subsistence lifestyle for the Natives. Number 1054 MR. WHITE replied he can't answer the question. He is not sure what the purpose of a rural priority in ANILCA is. He can only read the language. REPRESENTATIVE JAMES asked Mr. White whether he has read the language. MR. WHITE replied, "Yes." REPRESENTATIVE JAMES said the language does not do what it is intended to do because it includes a lot of other people. She referred to page 5, line 8, "(i) the absence of a cash-based economy in the area where a person lives;", and asked Mr. White whether there is an area in the state that does not have a cash- based economy. MR. WHITE replied he is not personally familiar with any, but he has not traveled to a lot of rural areas in the state. Number 1104 REPRESENTATIVE JAMES stated the reason she is asking the questions is because there seems to be a problem in meeting more than just the $5-criteria. MR. WHITE stated he did not mean to imply that getting rid of the $5-criteria would give the state functionally the equivalent of rural. "I'm not sure whether we can get there by anything other than rural, but it's conceivably possible." REPRESENTATIVE JAMES asked Mr. White, if the intent is to meet the subsistence lifestyle needs and rural does not do it because it is unfair, doesn't it sound reasonable to define it some other way. MR. WHITE replied it is a decision whether to accept the inequities of a rural priority in order to gain state management or attempt another definition. Number 1194 REPRESENTATIVE BARNES stated the bill recognizes the preference for sustenance as a fundamental right. The attorney general has stated that it raises the level of scrutiny to a level that the courts must use. She asked Mr. White whether that is correct. MR. WHITE replied, "That's correct." REPRESENTATIVE BARNES asked Mr. White whether the fundamental right to sustain life in a region is a high enough public purpose to overcome a challenge to those who would remove life-sustaining protein from an area who need it. MR. WHITE replied he does not have an opinion as to whether it should be a fundamental or important right. A fundamental right is in the classification of racial equality and voting rights, the highest rights under the constitution. The courts are very reluctant to allow classification or discrimination based on a fundamental right. If it is less than a fundamental right, the courts give a lot more discretion to the legislature in drawing lines between people. Number 1259 REPRESENTATIVE BARNES stated the right to maintain one's life legitimately is the highest of all rights. The common use clause of the state constitution says the resources belong to the people in common. MR. WHITE replied personally he thinks it is a very important use. However, he has not been in a position to rely on subsistence resources so he does not know whether it is a fundamental or important use. Once it is declared a fundamental right, the courts will look very closely at how it is defined and whether people are in or out. Number 1365 REPRESENTATIVE BARNES stated for the record why she feels so strongly about the issue. She grew up in Tennessee. She spent the first nine years of her life in a rural area of Tennessee. By the time she was two years old she could ride a horse as good if not better than most men. She used to ride with her father into the back country to salt the goats. As a young girl, she was taught to shoot a gun. Having said that, however, she does not subsist off of the land now, but her kids were brought up fishing and hunting. "I do not believe that anyone has a constitutional higher right than me or my children or their friends or my family or the people that I have been elected to represent. I do believe that in a time of shortage of the resource that those who need it the most--that there has to be an accommodation made for them. And so I have worked toward that in a non-discriminatory manner." In reference to Representative Joule's speech about bird hunting with his son and offering it to the spirits, her father was considered the best turkey caller in all of Tennessee and when he died in 1976 the casket was carried to his grave and out of nowhere two big wild turkey gobblers came with their tails spread and stood over his grave. "Your spirit to the heaven is no more than mine and I think we as a people have to work to accommodate all of our people knowing that one spirit is no different than the other." Number 1575 CO-CHAIRMAN OGAN called for a brief at east at 7:21 p.m. CO-CHAIRMAN OGAN called the meeting back to order at 7:30 p.m. CO-CHAIRMAN OGAN called on Ron Somerville to clarify the record in regards to the Nelchina caribou herd question asked earlier by Representative Masek. Number 1632 CO-CHAIRMAN OGAN asked Mr. Somerville what would happen to the Nelchina caribou herd under the bill. Number 1698 RON SOMERVILLE, Contractor to House and Senate Majority, replied if the boards determine that there are not enough caribou, they could establish a ranking and give a preference of consumptive use for personal and family use that would apply to everybody who uses the herd. It would not necessarily be for a dependent use at all. But, if the boards describe a dependent use area such as Units 11 and 12, and the characteristics of their economies were extremely dependent upon fish and wildlife, they could take a portion of the Nelchina herd in Unit 13 and describe it in such a way that it would give a preference. It would not necessarily exclude those from the metropolitan areas. The boards could describe the entire Nelchina as a dependent use area and those people in the metropolitan areas would not qualify because there probably would not be enough of the resource to meet all of the needs. Number 1806 CO-CHAIRMAN OGAN stated the board does that now. The people who live around Copper Center, Glennallen, and Nelchina are under tier I, the dependent use area in the bill. And, the preferred-use group could be essentially what is now under tier II. REPRESENTATIVE BARNES asked whether the tier II-group is a permit system. MR. SOMERVILLE replied the whole Nelchina is under a permit system. CO-CHAIRMAN OGAN stated a person gets tier I if he lives in the area. A person gets tier II based on a ranking of how long he has lived there, how much meat is used, and other criteria. He asked Mr. Somerville whether that is correct. MR. SOMERVILLE replied, "That's correct." CO-CHAIRMAN OGAN stated it could remain exactly the same. Number 1860 MR. SOMERVILLE stated the structure of the bill requires more of a dependence on fish and wildlife for personal and family consumption - a different description. Number 1898 REPRESENTATIVE MASEK asked Mr. Somerville how the regional concept and preferred status would work under the bill. Number 1920 MR. SOMERVILLE replied his understanding of the word "deference" means a court gives the benefit of the doubt in interpreting its meaning, unless there is clear reason to override it. In this case, the regional boards would consider all of the regulations from the advisory committees and make their recommendations to the statewide board, either the Board of Fisheries or Board of Game. They would have to "defer" to the recommendations unless they met the criteria called for in the bill. It is a quasi-regulatory type of authority. It gives them a considerable amount of weight in the regulatory process. Number 1999 CO-CHAIRMAN HUDSON made a motion to delete the language, "by requiring that the flesh or meat of fish and game be used within the region or area where the fish or game was taken.", on page 4, lines 27-29. Number 2043 CO-CHAIRMAN OGAN objected. It has been established clearly tonight that it is permissive language. The board "may" adopt a preference, as long as the board allows people from other regions to hunt and remove the meat, it is constitutional. And, as long as the attorney general's office scrutinizes the regulations from the boards. He asked Co-Chairman Hudson whether he made the motion because he thinks it is unconstitutional or because it is a bad policy call. CO-CHAIRMAN HUDSON replied he thinks it is unconstitutional the way it is written. Number 2115 REPRESENTATIVE BARNES stated, according to Mr. White, if the section is deleted the bill would be constitutional. She believes that it should come out of the bill. If somebody from Anchorage qualifies in every other way and goes into a region to hunt, what is he going to do when he is hungry. Number 2152 CO-CHAIRMAN OGAN stated unfortunately she was out of the room when he discussed the issue with Mr. White. REPRESENTATIVE BARNES stated it does not matter. Number 2178 REPRESENTATIVE GREEN stated, if somebody challenged the provision to find out the reason for it, and if the answer was to discourage people to come from others areas, there will be a constitutional problem. CO-CHAIRMAN OGAN stated discouraging someone from coming into an area helps the species. There are a lot of examples in regulations and laws of discouraging people. "We discourage people from hunting caribou in certain areas by not allowing them to go in on a motorized vehicle or any number of methods and means, and he felt that was constitutional." Number 2241 REPRESENTATIVE GREEN stated it is one of those areas where there are attorneys on both sides of the issue which makes him nervous. Number 2269 CO-CHAIRMAN OGAN stated if he let opinions from attorneys influence him he would not do anything. "Attorneys are like bellybuttons- everybody's got one." A policy is needed that works and helps the people in the areas where there is a shortage. Number 2294 REPRESENTATIVE DYSON wondered what the amendment would do to the bill's intent and purpose. He keeps hearing that it is offensive to folks in rural areas for others with a lot more money, resources, and equipment to take fish and game out of their area. Number 2354 CO-CHAIRMAN OGAN replied, if regional preference language is constitutional, we can asked the congressional delegation to amend ANILCA to reflect a regional preference for the use of fish and game rather than a rural priority for the user. "Our Senator in Congress did not give the nod to it, but he is willing--he has indicated--we're talking about Senator Murkowski--his willingness to look at making amendments to ANILCA. I think that's--even if it's a little bit risky it's a worthy goal because I think most-- there's not a tremendous amount of difference between a regional preference and a rural priority, and I would suggest with all due respect to the attorney general's office, if they were a little bit more aggressive about it and they weren't pushing the Governor's agenda on this thing, they might see things our way as our attorney that works for the legislature." They won't support it because of the politics, however. Number 2417 REPRESENTATIVE DYSON stated from Co-Chairman Ogan's perspective a principle reason for doing this is to present the best face in order to equip the congressional delegation to modify ANILCA. CO-CHAIRMAN OGAN stated that is correct. That is one of the reasons. Number 2437 REPRESENTATIVE BARNES stated she respects what Co-Chairman Ogan has said, but there are criteria in order that only a certain group of people can qualify for a sustenance preference based on a $5 license tag with an income level of $8,200 or less a year. TAPE 98-29, SIDE B Number 0000 REPRESENTATIVE BARNES continued. If there is a person who qualifies and makes less than $8,200 a year, he would not have a lot of money to get on an airplane and fly to Kotzebue, for example. Therefore, it is not necessary to say "eat-it-where-you- killed-it" in the bill, otherwise there is the risk of it being found unconstitutional because it limit people from traveling all over the state. If a person qualifies under the provisions, "you don't have this whole bunch of money to go antler hunting as which I think you talked about earlier. People could go out--they could go out and leave the meat in the village. Well, if they can qualify under your bill, they're not going to leave the meat in the village. And, if they qualify under this bill, Mr. Chairman, they need the meat for their 'sustenance' - the word you gave us. Not its horns or not its antlers, but the food. And to say that they can't take it out of the area they shot it in and again somebody only makes $8,200 or qualifies under these other provisions, are going to have a lot of money for airplanes trips and stuff to get out into the rural areas, they're not going to do it." Number 0090 CO-CHAIRMAN OGAN stated the attorney general agreed that as long as the board does not limit the people who qualify under the criteria from going into an area where there is a shortage and a restriction on removing the meat it is constitutional. The statute itself is not unconstitutional because it says "may" and as long as the boards write the regulations so that they do not discriminate and the Department of Law scrutinizes them, they would be constitutional. He asked Mr. Utermohle whether that was what Mr. White said. Number 0140 MR. UTERMOHLE replied he cannot speak for the Department of Law. According to his understanding of what Mr. White said, as long as the board does not exercise its authority to impose a requirement that the fish and game be consumed in the area where it was taken, it would not violate the equal access provisions of the constitution. Number 0182 CO-CHAIRMAN OGAN stated the conversation was about restricting someone else who qualified in another region under the $5-criteria. MR. UTERMOHLE stated as long as the preference does not have the effect of excluding anybody based on where he lives or gives him an undue preference based on where he lives, it would be constitutional. CO-CHAIRMAN OGAN stated in a time of shortage the only people who would qualify are the ones who meet the $5-criteria no matter where they are in the state. He asked Mr. Utermohle whether that is correct. MR. UTERMOHLE replied, "Yes." CO-CHAIRMAN OGAN stated, as long as the people who qualify under the $5-criteria are not restricted and are allowed to go into an area where there is a shortage and remove fish and game, it is not unconstitutional. He asked Mr. Utermohle whether that is correct. MR. UTERMOHLE replied, "That's my understanding of what Mr. White said." REPRESENTATIVE BARNES said stop them from removing it. Number 0245 CO-CHAIRMAN OGAN stated someone from another region who qualifies under the $5-criteria can go into another region where there is a shortage, hunt and remove the flesh of the animal, then.... Number 0259 CO-CHAIRMAN HUDSON stated the right to set up a constitutional bar should not be put into law. The boards should not have a preference to violate the constitution. Number 0290 REPRESENTATIVE BARNES stated under Co-Chairman Ogan's scenario different regions would be established in the state and how people qualify in a time of shortage. Once they qualify in one region, they qualify in another region, but if they go to another region and get a moose, they have to eat it there. Number 0343 CO-CHAIRMAN OGAN stated not necessarily. REPRESENTATIVE BARNES said the language says, "by requiring that the flesh or meat of fish and game be used within the region or area where the fish or game was taken." It means that if a person leaves one region and goes to another region and shoots a moose, he has to eat it in the region it was shot. CO-CHAIRMAN OGAN stated his intention is to allow anybody who qualifies in another region under the $5-criteria to go into another region and remove the meat. "What we don't want is the people that don't qualify under that $5-criteria to come into that region and remove the meat." REPRESENTATIVE BARNES stated the way the bill is written only in a time of shortage would the criteria kick in. Therefore, anybody with a regular hunting and fishing license would not qualify. They would hunt in the area only under seasons, bag limits, and etc. It would not have anything to do with antlers. She asked Mr. Utermohle whether she is wrong. Number 0385 MR. UTERMOHLE replied, "The provision does allow for fish and game dependent uses that are not subject to a preference. If the board establishes that as a new user group, anyone who engages in fish and game dependent uses of fish and game could go out and shoot a moose and eat it. The criteria of the $5 licence only comes in the event of a shortage and they establish a preference." Number 0408 CO-CHAIRMAN OGAN asked Mr. Utermohle, when the boards establish a preference, whether other people cannot hunt unless they have a $5 license in the region. MR. UTERMOHLE replied, "Yes." It provides that a preference be accorded only to those persons determined to be dependent upon fish and game under the criteria. Number 0424 CO-CHAIRMAN OGAN removed his objection. CO-CHAIRMAN HUDSON reiterated his motion and asked unanimous consent to delete the language, "by requiring that the flesh or meat of fish and game be used within the region or area where the fish or game was taken.", on page 4, lines 27-29. There being no objection, it was so moved. Number 0451 CO-CHAIRMAN HUDSON made a motion to add the word "substantially" after the word "be" on page 4, line 24. CO-CHAIRMAN HUDSON stated adding the word "substantially" would come closer to the definition of the term "a rural community or area" in ANILCA. Number 0571 REPRESENTATIVE GREEN objected for discussion purposes. He asked Co-Chairman Hudson whether the amendment would extend to the rest of the section as well. CO-CHAIRMAN HUDSON replied yes it would strengthen it. Number 0598 CO-CHAIRMAN OGAN called on Ted Popely to answer any questions. Number 0654 MR. UTERMOHLE stated in ANILCA the term "substantial dependence" defines a community. In the bill it defines a group of users. It does not necessarily define the same thing. In order to conform, the amendment would require language to be changed throughout the bill. CO-CHAIRMAN OGAN asked Mr. Popely whether he concurs with that. THEODORE POPELY, Legislative Assistant to House and Senate Majority, Alaska State Legislature, replied, "I do." Number 0702 REPRESENTATIVE JOULE stated ANILCA talks about an area of substantial dependence and the bill talks about an individual. There is a considerable amount of difference. Number 0737 CO-CHAIRMAN HUDSON replied a use is only as good as the people who use it. Number 0786 REPRESENTATIVE GREEN stated it seems that the amendment would pull the bill away from the definition in ANILCA. There would have to be dependent people that qualify within a substantially dependent area. There would be people that do not qualify, but the area will still be substantially dependent. Number 0817 CO-CHAIRMAN HUDSON replied the other criteria would kick in. Number 0824 MR. POPELY stated if the amendment is to comply with ANILCA it would fail because it defines a user and not a community. The general scheme under Title VIII of ANILCA affords a priority to residents of the area regardless of their personal characteristics, and HB 406 does something in principle quite different. It does not use dependent use areas to provide a preference for everyone who lives in the area. Number 0892 CO-CHAIRMAN HUDSON withdrew his motion for an amendment. Number 0908 CO-CHAIRMAN HUDSON referred to page 5, line 10, and wondered whether it is a good place to add the words "customary and traditional use of or the decision to adopt a fish and game dependent lifestyle." The bill does not try to draw a correlation to customary and traditional uses. It might help to gain some degree of support from rural Alaska and Natives who feel very strongly about those two words. Number 0998 REPRESENTATIVE BARNES noted that the language, a customary and traditional lifestyle as a mainstay of one's livelihood, needs to be close to the $5-license requirement. Number 1044 CO-CHAIRMAN OGAN called for a brief at east at 8:18 p.m. CO-CHAIRMAN OGAN called the meeting back to order at 8:26 p.m. Number 1095 CO-CHAIRMAN HUDSON stated it sounds like his idea is far more involved than what he intended. He withdrew his intention for a motion. Number 1140 REPRESENTATIVE GREEN referred to page 5, line 23, "defer", and asked Co-Chairman Ogan how it would work. Number 1179 CO-CHAIRMAN OGAN replied right now the main boards have to consider each proposal submitted to them. In the bill, the proposals would come through the advisory committees and forwarded to the regional boards. The regional boards would not have to defer to the advisory committees, just look at the recommendations. The regional boards would look at the proposals and transmit the chaff recommendations to the main boards. Authority is not being delegated because the statewide boards would have to consider all proposals and hopefully it would cut down on time of the main boards. It also would empower people locally by giving them a sense that their regional concerns are listened to. Number 1291 REPRESENTATIVE GREEN stated he is concerned about the delegation of authority. The local advisory committees would make recommendations to the regional boards. The regional boards would then make recommendations to the state boards. But, if the state boards would essentially "rubber stamp" any recommendation, then the language is bad. It says "shall" not "may" defer to the recommendations of the regional boards which in effect says the regional boards make the decisions. Number 1327 REPRESENTATIVE BARNES stated her concern is the delegation of the legislature's general authority. There have been occasions when the main boards have gone beyond what the statutes say. REPRESENTATIVE BARNES referred to page 8, line 3, "(2) the recommendation is not consistent with the conservation of the fish or game resource or with the sustained yield principle;", and wondered whether both would have to be read in context. She cited an example of a regional board citing a sustained yield at 450 moose and the main board citing a sustained yield at 600 moose. If the regional board came to the main board to harvest ten of those moose prior to the herd growing to its sustained yield of 600, the main board would say no because it has not to grow to its sustained yield size yet. REPRESENTATIVE BARNES further stated, in reference to the question of cost and how hard the boards work, now there are 80 something advisory boards that take up every recommendation. The bill would allow the main boards to look at proposals in a more rational manner because they would have fewer proposals, maybe. CO-CHAIRMAN OGAN stated that is the hope and intent. Number 1548 REPRESENTATIVE GREEN stated, if it is left as a recommendation to the board, they will look at it anyway thereby not relieving any burden. Number 1612 CO-CHAIRMAN OGAN stated this whole discussion is worth having because the concept is a major departure from where it is now. REPRESENTATIVE BARNES stated the current system is one that she has always opposed. CO-CHAIRMAN OGAN replied a lot of people have opposed the current system and many have come to him advising to look at it. Number 1648 REPRESENTATIVE GREEN asked Co-Chairman Ogan to explain how the concept in the bill would differ from the current system. Would the main board have to look at a recommendation? he asked. Number 1692 CO-CHAIRMAN OGAN asked Mr. Utermohle what the term "defer" means. It is not established in statute. It kind of came out of the Governor's task force. Number 1708 MR. UTERMOHLE replied the Governor's bill uses the term "deference" in reference to deferring to the advisory and regional councils. The bill provides for a delegation of the Boards of Fisheries and Game's responsibilities to a lower entity. They would still be the ultimate board to adopt fish and game regulations. They would still have to make a determination whether a recommendation conflicts with the sustained yield principle and the other standards in the bill. If a recommendation does not violate any of the standards the board doesn't have to proceed any further and the recommendation is essentially adopted. Number 1781 REPRESENTATIVE GREEN asked Mr. Utermohle whether that is the way it works now. They still would make a recommendation to the main boards and they would adopt it. In this case the main boards would adopt it because the regional boards said yes. He is having difficulties determining the difference. Number 1831 MR. UTERMOHLE stated under the bill the statewide boards would receive recommendations from the regional boards and they determine (indisc. -- coughing). They do not have to go back to the basic proposal and review the information submitted by the public and fact finding that is normally part of their job. Number 1868 REPRESENTATIVE GREEN asked Mr. Utermohle whether the statewide boards would review the entire case including the ancillary things or just the recommendation. MR. UTERMOHLE replied they would just take the recommendation. If the recommendation violates the sustained yield or conflicts with different regions, then the deference goes away and they have to make their determination based on the entire record. Number 1920 REPRESENTATIVE GREEN stated they do that now. If there is agreement they don't have to go to all the nuances, but if there is an objection they have to go back and do it all over again. Number 1936 REPRESENTATIVE BARNES asked Mr. Utermohle whether the boards have to take up any recommendation that comes to them now. MR. UTERMOHLE replied that is his understanding, yes. REPRESENTATIVE BARNES asked Mr. Utermohle whether the boards have to have a full-blown public hearing. MR. UTERMOHLE replied they take written and oral testimony on all of the proposals before them. REPRESENTATIVE BARNES stated under the bill the boards would not have to do this for every proposal that comes before them. Number 1975 REPRESENTATIVE GREEN asked whether under current conditions the full boards have to redo the whole thing. REPRESENTATIVE BARNES stated yes. REPRESENTATIVE GREEN replied that is a major difference. Number 1994 CO-CHAIRMAN OGAN stated, as a safeguard, the main board can consider any proposal or have a hearing on any proposal, but they are not locked into "rubber stamping" a recommendation from the regional boards. REPRESENTATIVE BARNES stated they can override any recommendation based on the criteria on page 8 subsection (b). CO-CHAIRMAN OGAN asked Mr. Utermohle whether they can override a recommendation based on that criteria. MR. UTERMOHLE replied yes based only on those criteria. CO-CHAIRMAN OGAN suggested expanding the criteria in order that the boards retain their full authority on every proposal. Number 2082 REPRESENTATIVE JOULE asked whether the regional boards are now active. The local advisory committees have always been fairly active. CO-CHAIRMAN OGAN replied, "No." REPRESENTATIVE BARNES replied there are federal boards under the federal regime. She is pretty sure that is where the Governor's task force came up with its regional ideas. Number 2171 REPRESENTATIVE JOULE stated he understands that the federal advisory boards are active. He asked whether the state regional advisory boards are currently active. CO-CHAIRMAN OGAN replied there have not been active state regional boards for quite some time. He asked Mr. Utermohle whether that is correct. MR. UTERMOHLE replied he cannot say. REPRESENTATIVE BARNES stated there have never been regional boards. There have been regional advisory boards. CO-CHAIRMAN OGAN called on Warren Fox (ph), an expert on boards. Number 2243 WARREN FOX (PH) stated he has spent about 30 some years in the Department of Fish and Game. There has never been a fish and game state board. There was for a short period of time a fish and game council where the chairs of each of the advisory committees sat on it. It was dropped because it was simply too expensive. Number 2300 REPRESENTATIVE BARNES stated what the state has had are advisory committees. MR. FOX stated there have been advisory committees from day one. REPRESENTATIVE BARNES stated they are pretty active still. MR. FOX stated they are very active. REPRESENTATIVE BARNES stated they are very active throughout the state. The regional concept came about under Title VIII of ANILCA and the first implementation was when the federal government took some control of hunting in federal areas. MR. FOX stated that is correct. Number 2359 CO-CHAIRMAN HUDSON stated the regional boards embodied in the bill would also determine who receives a special permit which bothers him. TAPE 98-30, SIDE A Number 0000 CO-CHAIRMAN HUDSON continued. The regulations and recommendations won't be the problem. The problem will be who gets it and who doesn't get it, and who shoots who. CO-CHAIRMAN OGAN stated hopefully nobody will be shooting anybody except for critters. Number 0059 CO-CHAIRMAN OGAN suggested a conceptual amendment on page 8, line 10, to add a new provision "(5) the recommendation is deemed inappropriate or unworkable." Something along those lines. Number 0090 REPRESENTATIVE GREEN suggested "(5) the board determines any other criteria that is appropriate." Number 0127 MR. UTERMOHLE suggested changing the word "shall" to "may" on page 8, line 4, in order to maximize the discretion of the boards. Number 0190 CO-CHAIRMAN OGAN made a motion to change the word "shall" to "may" on page 8, line 4. REPRESENTATIVE GREEN stated the language should also be changed from "shall" to "may" on page 5, line 23. MR. UTERMOHLE stated on page 8, line 5, the sentence would end after "regional board." CO-CHAIRMAN OGAN asked Mr. Utermohle whether to strike all the language that follows in (1) - (4). MR. UTERMOHLE replied, "Yes." Number 0259 REPRESENTATIVE BARNES stated she understands why Mr. Utermohle is striking the provisions, but there needs to be something kept that says something about the sustained yield principle. Number 0314 REPRESENTATIVE GREEN suggested on page 8, line 5, the language read "recommendation of the regional board consistent with the sustained yield principle." Number 0329 CO-CHAIRMAN HUDSON suggested after the word "may" on page 8, line 4, add the language "subject to the sustained yield principle defer". Number 0358 MR. POPELY suggested changing to word "shall" to "may" on page 8, line 4. Remove the word "unless" and insert the word "provided" on page 8, line 5. Eliminate (1), (3) and (4) on page 8, starting on line 6; leave (2) and delete the word "not" on page 8, line 7. Number 0439 REPRESENTATIVE BARNES made a motion and asked unanimous consent to change the word "shall" to "may" on page 8, line 4. Remove the word "unless" and insert the word "provided" on page 8, line 5. Eliminate (1), (3) and (4) on page 8, starting on line 6; leave (2) and delete the word "not" on page 8, line 7. There being no objection, it was so moved. Number 0473 REPRESENTATIVE JOULE asked whether the motion included the language on page 5, line 23. REPRESENTATIVE BARNES stated the amendment was for just page 8. Number 0502 REPRESENTATIVE GREEN made a motion to change the word "shall" to "may" on page 5, line 23. CO-CHAIRMAN OGAN stated he believes the language needs to be kept in place. The disputes should be settled at the regional board level, not at the main board level. The people in the area will have their finger on who is a qualified user and who isn't, more so than the oversight boards. The motion would insulate the main boards from determining who qualifies. Number 0655 REPRESENTATIVE BARNES agreed with Co-Chairman Ogan. Number 0663 REPRESENTATIVE GREEN withdrew his motion. Number 0710 CO-CHAIRMAN OGAN called for a brief at ease at 8:57 p.m. CO-CHAIRMAN OGAN called the meeting back to order at 9:00 p.m. Number 0714 CO-CHAIRMAN OGAN made a motion to delete the second "or" on page 8, line 8, after "resource" and replace it with "and" in order to correct the grammar. There being no objection, it was so moved. Number 0749 CO-CHAIRMAN HUDSON made a motion and asked unanimous consent to move CSHB 406(RES), version 0-LS1573\P, Utermohle, 3/5/98, as amended, from the committee with individual recommendations and attached fiscal note(s). Number 0799 CO-CHAIRMAN OGAN stated, for the record, he happens to have some fiscal notes. They happen to be zero. He wrote them himself. He expects as the bill moves along that the affected departments will come up with more appropriate fiscal notes as close to zero as possible. Number 0816 REPRESENTATIVE BARNES stated each bill that moves from a committee must have fiscal notes attached. Since the departments have not had an opportunity to provide a fiscal note for the most recent version, it is appropriate for the Co-Chairman to prepare a zero fiscal note and allow the departments at some later time to present a fiscal note. She doesn't think it will cost more considering the fact that there will be fewer advisory boards and there is already a Subsistence Division, that will have to changed to "Sustenance Division." Number 0879 REPRESENTATIVE BARNES made a motion to amend the motion in order to adopt the zero fiscal notes. REPRESENTATIVE GREEN objected for discussion purposes only. REPRESENTATIVE GREEN stated, according to testimony, there would be a significant impact from changing the boundaries from six to five and yet there is a zero fiscal note. "We're flying in the face of that testimony." REPRESENTATIVE GREEN withdrew is objection. CO-CHAIRMAN HUDSON withdrew his motion to move the proposed committee substitute out of the committee in order to open the meeting up for further discussion. Number 0960 CO-CHAIRMAN HUDSON stated, typically, a zero fiscal note can be transmitted along with information to the next committee of referral that there has been a request for fiscal notes from the involved agencies as a friendly amendment. Number 0996 REPRESENTATIVE BARNES stated she does not believe that anything has to be said about the agencies. If there is a request and it is not forthcoming a fiscal note is written. The law says each bill that leaves from the first committee of referral must have a fiscal note(s) attached. Therefore, by adopting the zero fiscal note from the Resources committee, it has a fiscal note attached. Number 1053 REPRESENTATIVE BARNES reiterated her motion and asked unanimous consent to adopt the zero fiscal notes. There being no objection, it was so moved. Number 1069 CO-CHAIRMAN OGAN made a motion to add a section (F) on page 24. REPRESENTATIVE GREEN asked whether section (E) is being stricken. CO-CHAIRMAN OGAN replied, "No." Number 1171 CO-CHAIRMAN OGAN called for a brief at east at 9:08 p.m. CO-CHAIRMAN OGAN called the meeting back to order at 9:10 p.m. Number 1182 CO-CHAIRMAN OGAN withdrew his motion. He thought there was a technical mistake, but according to the bill drafter it is correct. REPRESENTATIVE GREEN asked Co-Chairman Ogan what about proposed (F). CO-CHAIRMAN OGAN replied proposed (F) is already covered under navigable waters under (C). He suggested adding "reserved water rights" in the House Judiciary committee. Number 1248 CO-CHAIRMAN HUDSON made a motion and asked unanimous consent to move CSHB 406(RES), version 0-LS1573\P, Utermohle, 3/5/98, as amended, from the committee with individual recommendation and the attached zero fiscal notes. Number 1264 REPRESENTATIVE JOULE objected for discussion purposes. REPRESENTATIVE JOULE stated he appreciates the efforts of Co- Chairman Ogan and other members of the committee. It has taken a lot of hard work and time. The bill has further committees of referral and hopes that the people will continue to follow it and provide input. From the standpoint of an individualized needs- based bill, it is an area that he personally has problems with as well as a lot of his constituents. Subsistence is something that is way more than individual, it is community, and the bill "legislates out" some of the community values and standards that have existed for a long time. "I think all of us want to see the state manage our resources, and I recognize that each of us has a different way that we would like to get there. And, I can certainly respect each of our different ways as this bill moves forward. And, you know on this issue we may have some disagreements on how to get there. And--but--and I guess that's why the referral committee is the way it is...so that it can get worked along the way." Number 1453 REPRESENTATIVE JOULE removed his objection and asked the public to stay with the bill and follow it through all the committees. Number 1496 CO-CHAIRMAN OGAN stated it is an honor to have Representative Joule on the committee. He hopes that the bill is the genesis of an Alaskan solution. Number 1556 CO-CHAIRMAN OGAN asked whether there is any further objection. There being no further objection, CSHB 406(RES) was so moved from the House Resources Standing Committee. ADJOURNMENT Number 1569 CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee meeting at 9:19 p.m.