JOINT MEETING HOUSE JUDICIARY STANDING COMMITTEE HOUSE RESOURCES STANDING COMMITTEE May 27, 1998 10:20 a.m. HOUSE JUDICIARY MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Jeannette James Representative Brian Porter Representative Norman Rokeberg Representative Ethan Berkowitz Representative Eric Croft HOUSE JUDICIARY MEMBERS ABSENT All members present HOUSE RESOURCES MEMBERS PRESENT Representative Scott Ogan, Co-Chairman Representative Bill Hudson, Co-Chairman Representative Beverly Masek, Vice Chairman Representative Ramona Barnes Representative Fred Dyson Representative Joe Green Representative William K. ("Bill") Williams Representative Irene Nicholia Representative Reggie Joule HOUSE RESOURCES MEMBERS ABSENT All members present OTHER HOUSE MEMBERS PRESENT Representative Gene Kubina Representative Mark Hodgins Representative Pete Kelly Representative Joe Ryan Representative Terry Martin Representative Alan Austerman COMMITTEE CALENDAR * HOUSE JOINT RESOLUTION NO. 101 Proposing an amendment to the Constitution of the State of Alaska authorizing a priority for subsistence uses of renewable natural resources that is based on place of residence; and providing for an effective date. - HEARD AND HELD * HOUSE BILL NO. 1001 "An Act establishing a priority for subsistence uses of fish and wildlife that is based on place of residence; relating to the management and taking of fish and wildlife for subsistence uses; relating to certain definitions for the fish and game code; delaying the repeal of the current law regarding subsistence use of fish and game; amending the effective date of secs. 3 and 5, ch. 1, SSSLA 1992; and providing for an effective date." - SCHEDULED BUT NOT HEARD PREVIOUS ACTION BILL: HJR 101 SHORT TITLE: CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR Jrn-Date Jrn-Page Action 5/26/98 3966 (H) READ THE FIRST TIME - REFERRAL(S) 5/26/98 3966 (H) RESOURCES, JUD, FINANCE 5/26/98 3966 (H) FISCAL NOTE (GOV) 5/26/98 3966 (H) ZERO FISCAL NOTE (LAW) 5/26/98 3966 (H) GOVERNOR'S TRANSMITTAL LETTER 5/27/98 (H) JUD AT 10:00 AM HOUSE FINANCE 519 5/27/98 (H) RES AT 10:00 AM HOUSE FINANCE 519 WITNESS REGISTER BRUCE BOTELHO, Attorney General State of Alaska Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-2133 CHARLES E. COLE, Former Attorney General Representative, Bipartisan 1997 Task Force on Subsistence 406 Cushman Street Fairbanks, Alaska 99701 Telephone: Not Provided CARL ROSIER, Representative Alaska Outdoor Council; and former Commissioner, Alaska Department of Fish and Game 8298 Garnet Street Juneau, Alaska 99801 Telephone: (907) 789-9117 LYNN LEVENGOOD, Attorney at Law 1008 16th Avenue, Suite 200 Fairbanks, Alaska 99701 Telephone: (907) 452-5196 FRANK RUE, Commissioner Alaska Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Telephone: (907) 465-4100 WAYNE REGELIN, Director Division of Wildlife Conservation Alaska Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Telephone: (907) 465-4190 ROBERT BOSWORTH, Deputy Commissioner Alaska Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Telephone: (907) 465-6140 DICK BISHOP, Vice President Alaska Outdoor Council 211 Fourth Street, Suite 302A Juneau, Alaska 99801 Telephone: (907) 463-3830 DAVID KELLEYHOUSE, Secretary Alaska Outdoor Council; and former director, Division of Wildlife Conservation Alaska Department of Fish and Game Fairbanks, Alaska Telephone: (907) 455-7882 WALT SHERIDAN, Natural Resource Consultant; Board Member, Alaska Outdoor Council; and retired Forest Service employee 2155 Cascade Street Juneau, Alaska 99801 Telephone: (907) 789-4059 KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801-1182 Telephone: (907) 465-4990 RON SOMERVILLE, Technical Consultant Senate/House Majority Alaska State Legislature 4506 Robbie Road Juneau, Alaska 99801 Telephone: (907) 780-4812 RALPH SEEKINS, Representative Alaska Wildlife Conservation Association Address Not Provided Fairbanks, Alaska Telephone: Not Provided ACTION NARRATIVE TAPE 98-91, SIDE A Number 0001 CHAIRMAN JOE GREEN called the joint meeting between the House Judiciary Standing Committee and the House Resources Standing Committee to order at 10:20 a.m. Present at the call to order from the House Judiciary Committee were Representatives Green, Bunde, James, Porter, Rokeberg, Berkowitz and Croft. A quorum was present to conduct business. Chairman Green announced the meeting would be teleconferenced for listen only. Number 0042 CO-CHAIRMAN SCOTT OGAN called the House Resources Standing Committee to order. Present at the call to order from the House Resources Standing Committee were Representatives Ogan, Joule, Nicholia, Masek, Hudson, Williams and Green. Representatives Dyson and Barnes arrived at 9:47 a.m. and 11:21 a.m., respectively. A quorum was present to conduct business. Number 0079 CHAIRMAN GREEN: I have been awarded the privilege of acting as the moderator for the joint session today. I will recognize from time to time - I'm looking now to see if there are any other representatives or senators here - I don't see any. From time to time we'll interrupt for the record to recognize those. HJR101 - CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE Number 0101 CHAIRMAN GREEN: I would like to mention that we are going to be discussing House Joint Resolution 101 which as most of you know, is the task force vehicle for a constitutional amendment. We will only be discussing a portion of that today; that would be as that affects the amendments to the Alaska National Interest Lands Conservation Act (ANILCA). We have - and anyone who wants a copy of them, they are available - a list of 15 issues with ANILCA, as written and modified, that we feel are onerous and unacceptable to the members of these committees as well as the people of the state of Alaska. So, we will be discussing that and I would appreciate trying to confine your testimony this morning and this afternoon, if necessary, to those issues; that is, the changes to ANILCA rather than the entire program of a bill or an amendment to the constitution. I know there will be some times when you may drift, but I will try and keep you focused on just those changes to ANILCA. Number 0215 CHAIRMAN GREEN: As I mentioned, we are on teleconference listen only. We are not planning to take any public testimony and as you have seen there is a document that has been prepared by Legislative Research which shows that over 1,100 people from the public have testified from time to time on the subsistence issue. We have had over 100 different hearings - last year alone we held some 35 hearings throughout the state and in towns and since we began in January, we have had both the Senate and House Judiciary and Resources Committees holding hearings so there has been more than ample time for the public to address this issue. If people do want to send additional testimony - I'm sure it's going to be a repeat of everything we've heard - we will take that, but we will not be taking direct testimony. Number 0279 CHAIRMAN GREEN: With that, I would like to establish that we are confining our comments, as near as possible, to the amendments - changes to ANILCA as written. I would like to advise the members of both committees that the questions should be as questions and not as debate issues. We will debate this again in our respective committees, but that if there is an issue that is stated by one of the testifiers and you want to expand that to determine for a question or clarification only, we will take those, but we don't want to get embroiled in any kind of debate. And I would appreciate it since we are rather unwieldy with 15 members here that you would address all questions through the Chair and the same with the testifiers - if you would work through the Chair, that way we will maintain as much order as possible. And with that then, we have with us several members of invited guests to testify and we will begin then with Attorney General Botelho - if you would please come forward, Bruce, and identify yourself for the record and give us your testimony. Now did you have some visual aids? Number 0363 BRUCE BOTELHO, ATTORNEY GENERAL, STATE OF ALASKA, DEPARTMENT OF LAW: Mr. Chairman, with your indulgence, I do have some visual aids. Let me first, however, identify myself as Bruce Botelho, Attorney General for the state. Mr. Chairman, with your indulgence, would it be permissible to invite both former Attorney General Charlie Cole and Julian Mason to join me at the table. CHAIRMAN GREEN: Absolutely. Number 0398 ATTORNEY GENERAL BOTELHO: What I think might be helpful in terms of perspective, is to talk about the initial or original ANILCA, how we got there, talk about the changes which Senator Stevens sought and achieved in the last Congress before going through the list. And with that -- with some help here, let me make a little room for my colleagues and Mr. Chairman, would you allow me to take my jacket off, as well? CHAIRMAN GREEN: I think that's actually a very good idea. As long as it's legal, we'll do that. Number 0452 ATTORNEY GENERAL BOTELHO: Let me just start out in terms of how we got to ANILCA in the first place. I gave a fairly long discussion yesterday and I'll make this much briefer. I know that several of you had a chance to watch it and in any case, many of you have worked through this issue either because you were there at the beginning or some middle stage. But I think the story goes back into pre-statehood. First, with the passage of Public Law 280 in 1953 - Alaska was added to that list in 1958 on the assumption that it was going to become a state. And that particular law we dealt with primarily in the context of Indian country, but part of the message there was that no state could adopt regulations dealing with hunting and fishing that were -- hunting and fishing regulations of aboriginal Native or American Indian hunting and fishing that was inconsistent with federal law. That's maybe the first precursor here. Number 0518 ATTORNEY GENERAL BOTELHO: The next issue comes in the Statehood Act itself, which required -- Section 6 of the Statehood Act transferred to the state jurisdiction over fish and game management to the extent the federal government exercised it in the state. But there was a caveat and it was found in Section 4 of the Statehood Act which required the state, as a precondition to admission to statehood, to disclaim any right or interest in any aboriginal title and in parentheses including fishing rights of Alaska Natives. And Alaska actually did that and it's found in Article XII, Section 12 of the constitution - that disclaimer. There's been some discussion in prior committee hearings as to what that term meant and the answer is really found in a Supreme Court decision from the U.S. Supreme Court in Organized Village of Kake v. Egan, the 1962 case decided by the U.S. Supreme Court. And the court basically said the purpose of that language is not to determine at that point that there were legitimate aboriginal claims, but to reserve that issue for Congress - neither to diminish aboriginal rights nor to firmly establish that those rights, titles were somehow compensable. And so, the state was admitted with that caveat. Congress ultimately did come back to the issue and it came back to the issue in 1971 when it enacted the Alaska Native Claims Settlement Act (ANCSA). Now for us, we associate the Settlement Act primarily with transfer of lands, some 44 million acres in the state, to regional and village corporations and also the financing of their initial operations. But there was another major issue that came up during the course of ANCSA and that had to do with aboriginal rights itself, and if one looks at the Senate version of House Resolution 3100 which was the vehicle for ANCSA, it specifically provided recognized Native subsistence hunting and fishing rights, and also had a specific provision saying, "Secretary of the Interior, you're called upon to withdraw lands around Native villages in the state to protect their right to fish and hunt a subsistence way of life to the exclusion of all others." Number 0715 ATTORNEY GENERAL BOTELHO: In the conference committee - House/Senate on ANCSA - they decided to drop those provisions, partly because they assumed the Secretary of Interior already had that power. But when they forwarded the final bill to the floor, the conference committee also had some very specific language, which I think bears noting here. It said specifically, "The conference committee expects both the Secretary and the state to take any action necessary to protect the subsistence needs of the Natives." So in 1971, you have congressional intent that between the Secretary of the Interior and the state of Alaska, there would be provision for protection of Native subsistence rights. Not much happened after 1971. The state made some initial attempts to deal with subsistence. A law passed in 1975 conferred authority on the Board of Game to create subsistence hunting areas and that was amended in 1976, but the boards never did it. In 1978, we have our first state statute which for the first time identifies subsistence as the highest beneficial use of the state's fish and game, but it doesn't answer the question who gets to use it. Now all of this was happening in the context of debates in Congress which had started almost immediately after ANCSA was passed in 1971 to deal specifically with Native subsistence rights. And that led ultimately in 1980 to the passage of the Alaska National Interest Lands Act - ANILCA, a major provision of which they proposed ultimately became Title VIII. And again, Alaska Natives were pushing for a Native subsistence priority that had ample support in terms of Supreme Court decisions which authorized, expressly supported Congress' power to enact just such a preference. The state of Alaska took a different position. It said, "From our perspective this is bad public policy for our state, we urge you, Congress, not to provide a Native preference, but to provide a preference based on geography" and while we understand that that might be in some respects over-inclusive; that is, there'd be some people in rural Alaska that don't need subsistence, don't hunt subsistence, or fish subsistence and on the other hand, there'd be some people in urban Alaska who have relied on it, will be left out, this roughly makes sense. And Congress bought that. Number 0893 ATTORNEY GENERAL BOTELHO: And so we have Title VIII which in its original form is actually several sections long. I want to highlight just some specific features. We first of all have the policy which Congress set forth, and I highlight for you that consistent with the management of fish and wildlife in accordance with recognized scientific principles. And again, I think that we've learned to talk about sustained yield - the purpose of this title is to provide the opportunity for rural residents who engage in a subsistence way of life to be able to do so. That was the policy. The next, I think, feature to highlight of the Act is definitions - what is subsistence or subsistence uses and here again, customary and traditional uses of wild renewable resources for direct personal or family consumption. And again, probably reflecting that choice that Congress made, not Native preference or Native priority, but here uses by rural residents. And finally, we have in the Act in terms of the guts of it, the actual preference that is established by Congress which is that "Except as, the taking of public lands - [public lands meaning federal lands] - of fish and wildlife for subsistence uses shall be accorded a priority over the taking for other purposes." And again, the subsistence uses ties back to the definition. ATTORNEY GENERAL BOTELHO: Now obviously there's been a lot of debate historically about whether it should have been a Native preference as opposed to a rural preference; that debate continues today and there are many who would argue if Congress were to make any change it should go for a Native preference rather than a rural one. I think I would just like to show you two graphs that I think support the rational basis of Congress and for the state's position in supporting a rural subsistence preference. The first one - and I realize this is fairly difficult to see - outlines a study that was done by the Department of Fish and Game back in 1987. What it did was to survey 98 communities in Alaska ranging from the very largest in the state - Anchorage, Fairbanks and Juneau to the very smallest - to determine what was the per capita consumption of wild fish and game in the state. And what this chart shows is that in the urban areas - here in Anchorage, Juneau, Fairbanks, Mat-Su - the annual per capita consumption was 30 pounds. It ranges to Northwest Arctic with an average of over 1,000 pounds a year - again, of wild fish or game for personal consumption. We have that displayed in a slightly different chart which I think makes it .... CHAIRMAN GREEN: Excuse me, Bruce. Number 1094 CO-CHAIRMAN OGAN: Mr. Attorney General, on that last point - you said, the chart said -- thank you, Mr. Chairman -- the chart said subsistence foods ... ATTORNEY GENERAL BOTELHO: Yes. CO-CHAIRMAN OGAN: ... but you said wild fish and game. ATTORNEY GENERAL BOTELHO: Yes. CO-CHAIRMAN OGAN: So, we're saying that if I get my moose .... ATTORNEY GENERAL BOTELHO: Yours would be counted. If you .... CO-CHAIRMAN OGAN: Even though I got it on a sport license. ATTORNEY GENERAL BOTELHO: That's right. So it has tried to take that into account. CHAIRMAN GREEN: For the record, that was Representative Ogan and I would like to recognize that Representative Martin was here earlier and had to leave. We also have Representative Austerman with us. Excuse me. ATTORNEY GENERAL BOTELHO: Again, I think in a more dramatic sense, you have a picture of the relative dependence and use of wild fish and game resources on this chart. Again, we're talking about per capita consumption. You'll find Fairbanks at the low end, Anchorage following, and again, ranging to the Northwest Arctic. CHAIRMAN GREEN: Representative James, you had a question? REPRESENTATIVE JEANNETTE JAMES: Thank you, Mr. Chairman. Mr. Botelho, my question is in getting these numbers together, was there any consideration, say in Anchorage or Fairbanks, that's the pound per person of everybody in Anchorage and Fairbanks, was there any delineation of the pounds per person that was done by those people who do hunt and fish in Anchorage? ATTORNEY GENERAL BOTELHO: I think the answer is yes, Mr. Chairman. This is a very good point that I intended to make in terms of trying to interpret this - we have to recognize that there are several factors that would account for the low per capita; one of which is the large numbers of people who do not hunt or fish at all would certainly lower the average. You also have, even among those who do, the fact that you have a cash economy - people are working, so there's less time to hunt and fish and you have the availability of alternative resources so your need, your dependence on wild fish and game generally would be less than you would find in less urban areas. CHAIRMAN GREEN: Follow-up? REPRESENTATIVE JAMES: Yeah, one follow-up. Also, when you're talking about wild food harvests, where have the migratory birds and the marine mammals - are they included in that because .... ATTORNEY GENERAL BOTELHO: Yes, they are. REPRESENTATIVE JAMES: .... they're only allowed for Native people so, I wondered if you have a chart that says how much of that is those folks. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I can tell you that those were counted in here, in actual surveys of the communities, all wild fish and game, including those that would be marine mammals are reflected here. The actual breakdown - I'll have to ask Fish and Game whether they can provide it. Number 1257 ATTORNEY GENERAL BOTELHO: I think the important thing that you want to note here again about the rational basis for the rural preference is graphically illustrated here in terms of the dependence. One could say there are three observations. First, that the farther away you get from the urban centers, the greater the dependence. You will also find that in this mid-range area, that the communities that are tied either by road or by rail or by ferry tend to, while they have a heightened dependence on fish and game resources compared to Anchorage, still are dramatically lower than those in the areas that are what are truly, truly Bush. And again finally, I would just note again, that there are a lot of different reasons that would account for the very low numbers in Anchorage, Fairbanks and other urban areas and again, I would attribute those primarily to the fact that we have high numbers of people who do not engage in fish and game hunting or harvesting at all, the fact that they are a cash economy and they have alternative food sources, and the fact that people engaged in employment do not devote the same amount of time in harvesting the resource. CHAIRMAN GREEN: Excuse me, Bruce. Is there a possibility you could make a copy of that available to the members of the committee? UNIDENTIFIED SPEAKER: I think we've got it. CHAIRMAN GREEN: We do have it? Oh, I'm sorry. ATTORNEY GENERAL BOTELHO: Mr. Chairman, if we have not done so, I'll make sure that they have it. CHAIRMAN GREEN: Okay, we have some handouts I haven't gone through. Representative Bunde. Number 1330 REPRESENTATIVE CON BUNDE: Thank you. Mr. Attorney General, this was a study done in 1967? ATTORNEY GENERAL BOTELHO: 1987. REPRESENTATIVE BUNDE: Excuse me, '87 yes, thank you. So, it's some 12 years - 11 years old now. Can you point on that chart for me where Bethel is located? ATTORNEY GENERAL BOTELHO: Sure. Maybe it's only (indisc.- coughing). REPRESENTATIVE JAMES: It's not there. CHAIRMAN GREEN: Do you see the copy? REPRESENTATIVE JAMES: It isn't there. CO-CHAIRMAN OGAN: No, I haven't looked for it. ATTORNEY GENERAL BOTELHO: The answer is, it isn't there. Number 1368 REPRESENTATIVE BUNDE: Okay. The thrust of my question, if I might Mr. Chairman, is that I just used Bethel as an example of a very dynamic city or community that has grown very rapidly in the last ten years and so I would submit that some of this data is probably out of date and certainly from my point of view, Bethel is based on a cash economy and if you're not including cities like Bethel in there, then my point is moot. But I think it would be important, however, -- and I don't want the department to use useless studies or spend more money, but Alaska's a dynamic state and it's changed a lot in ten years and it would be nice to know what the current information is. Number 1407 ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think there are a couple things that are important to state and I certainly agree with Representative Bunde - it is a changing state, it is dynamic and we have areas of growth (indisc.-coughing) the purpose of this presentation, I think what it is intended to do primarily is emphasize the fact there was a rational basis for Congress to have chosen rural as opposed to a Native preference, that it has continuing vitality today and that it was a policy decision recommended to Congress by the state of Alaska. To urge from this chart which communities should be in and out is not my intent today, except to illustrate what I think are still valid patterns today, without talking about an individual community. CHAIRMAN GREEN: Representative Nicholia. Number 1449 REPRESENTATIVE IRENE NICHOLIA: Thank you, Mr. Chair. I'd just like to state for the record that Bethel may be a large community, but they've had a lifestyle that they've practiced for years and that lifestyle is harvesting different foods from season to season. That doesn't change. You know, I grew up in Tanana and we went through a lot of changes from having no TV to having TV and all this stuff, but our eating patterns - our harvest patterns never changed. We still have the same harvest patterns that we had when I was little and I'm like 41 years old now. So, Bethel doesn't change - the people there don't change - their harvest lifestyle don't change. CHAIRMAN GREEN: That I think is straying a little anyway because what we're after is information and I think your point is being made - whether Bethel is in or out. So, please continue. ATTORNEY GENERAL BOTELHO: Yes. Let me just include, in terms of historic perspective on ANILCA Title VIII. I think the final .... CO-CHAIRMAN BILL HUDSON: Mr. Chairman, can I ask him one question? CHAIRMAN GREEN: Sure. While we're changing charts, Representative Hudson .... Number 1504 CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. Bruce, one thing I would like to try to have some better understanding of is, we use this term "rural" and it goes way back, as you've indicated here. Has it ever been described or defined in federal law. I mean the federal law is talking about rural and all of us probably have a little different idea of what rural is. I feel like I live in the rural part of Juneau - I live out in the Valley. ATTORNEY GENERAL BOTELHO: Mr. Chairman. Again, I think that's a very good question - it was one of the problems which the task force believed was inherent in the federal law; there was no definition of rural and you'll find that one of the changes made was to provide that kind of guidance in the federal law in the amendments that Senator Stevens sought and achieved last year and I'll start reviewing that, because I think that's a very important .... CHAIRMAN GREEN: Questions beget questions, but on that chart that you showed of the escalated usage, were there, to the best of your knowledge, sprinkled indiscriminately, areas that had been called rural and urban other than of course, you've got the low end there - the railbelt, but as you got out into the middle and the upper end of that were there all "rural" areas or were there some of those areas also considered urban? ATTORNEY GENERAL BOTELHO: I'm not sure that people, in looking at the chart, tried to classify the communities as one or the other. We certainly do when we talk about Anchorage, Fairbanks, Juneau and the Mat-Su, in terms of urban. Beyond that, I don't think we focused on it that way, but we certainly are looking at Petersburg, Wrangell, Ketchikan, Sitka, which I think by Alaska standards are generally considered a certainly more urban area, but we don't describe them as that. Number 1495 CHAIRMAN GREEN: The only reason I was asking is that there were some questions about the designations like Saxman, Ketchikan and things like that that were somewhat inconsistent and I just wondered if without regard to that, if you recall on the chart whether some of those were working their way up; whether they happened to be designated by that list that came out some time back .... ATTORNEY GENERAL BOTELHO: Right. Mr. Chairman, what I'd have to do is go back and look at the list .... CHAIRMAN GREEN: Okay, it's not worth the effort. ATTORNEY GENERAL BOTELHO: I'd be glad to do it on a break and then we can get back together. CHAIRMAN GREEN: Okay. ATTORNEY GENERAL BOTELHO: I think the final thing just to talk about ANILCA Title VIII in its original enactment is simply what is called the local-regional participation is the heading, but the ability of the state to manage. Now again we're talking about federal land and federal management for subsistence uses. They didn't have to give the state any role to play at all, but Congress recognized that it makes sense to have a dual management system; that is one that's a federally run system and one for the state or maybe one management system, but two different regimes. And so, it provided in Section 805(d), the ability of the state of Alaska to manage for subsistence uses on federal lands in the state if the state were to enact and implement laws of general applicability which are consistent with - and that's kind of a key phrase - and which provide for three things: the definitions that are found in ANILCA; the preference, which we talk about in Section 804; and the participation specified in the Act. And without going into the long history, the state, of course, was not able initially to come into compliance. The requirement was really a holding off of the Secretary for action, unless within one year the state had enacted such laws. What ended up happening in 1982 - or 1981 when the legislature had been unable to reach agreement on the law, the Boards of Fish and Game went ahead and adopted regulations to accomplish that end. Those regulations were ultimately struck down in 1985 in what is known as the Madison case, saying "Boards, you don't have sufficient statutory authority to adopt regulations inferring the rural priority and that led to the 1986 statute which provided for that priority expressly. We had the McDowell decision in December of 1989 which struck it down and really the struggle we've had in the last 8 1/2 years to resolve it. Number 1734 ATTORNEY GENERAL BOTELHO: Let me now kind of just move ahead and suggest that what might be worthwhile is to look at that portion of the package which the task force proposed last year dealing with changes to ANILCA itself. As you'll recall, the task force which met all last summer, beginning on June 1, proposed that the solution really lay in three distinct areas: One is a constitutional amendment which would authorize the legislature to act and actually, Charlie, if you ... CHAIRMAN GREEN: While, you're getting that, Representative Ogan had a question and I would like the recognition that Representative Dyson has joined us. Number 1761 CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. Welcome, Representative Dyson. Mr. Botelho, were you in Washington, D.C. when the agreement was struck to replace Native with rural? ATTORNEY GENERAL BOTELHO: I was not. CO-CHAIRMAN OGAN: You're implying that the state agreed to the term rural being used. It's my understanding that the state never opposed the use of rural. ATTORNEY GENERAL BOTELHO: I'm sorry - never opposed? CO-CHAIRMAN OGAN: Never opposed the use of rural in the deliberations in Congress when that was going on. ATTORNEY GENERAL BOTELHO: Every record that I've seen has suggested that the state of Alaska actually strongly supported rural and opposed the Native preference - that was a suggestion that came from the Hammond Administration. CO-CHAIRMAN OGAN: Mr. Chairman, if I might follow-up. CHAIRMAN GREEN: Yes, follow-up? CO-CHAIRMAN OGAN: Mr. Dick Bishop yesterday testified in Senate Resources that he was there and indicated that the state was forced to accept this terminology. Seems to me we have a first hand person - at least that's his perception of it. Do you care to comment on that or .... ATTORNEY GENERAL BOTELHO: I can't, I didn't .... CHAIRMAN GREEN: Dick is signed up to testify, maybe you could ask him. CO-CHAIRMAN OGAN: Okay, we'll ask him that question today. One other question, along the lines of what he's been discussing. CHAIRMAN GREEN: Representative Ogan. CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. You said that ANILCA - they originally were given instructions in the original version to withdraw lands around villages to the exclusion of all others and they dropped those provisions. But, in fact, the 44 million acres were deeded fee simple, including the subsurface rights, to the Native corporations that -- because of private property owners, they can exclude people from trespassing on their property and thus, have an exclusive right -- if they wanted to, have an exclusive right to hunt and fish on those lands even though they're managed by the state -- hunting seasons and those types of things. And was not the intent of the 44 million acres, at least partially, to provide for subsistence? ATTORNEY GENERAL BOTELHO: I won't dispute the fact that that was a possibility. It's not reflected in the record that the purpose there was to do anything other than settle aboriginal claims to title and the focus in terms of the withdrawal power was a recognition that the Secretary already had that power in other statutes if he chose to exercise it. That's what the congressional record and the conference committee report reflect. And, of course, probably what I haven't stated is that was an exchange in part for the deletion of - or the extinguishment of aboriginal hunting and fishing rights. CO-CHAIRMAN OGAN: Mr. Chairman, a couple of quick follow-ups. Would you be kind enough to put up the Section 804 of the subsistence priority placard that you had. That'd be helpful .... ATTORNEY GENERAL BOTELHO: Sure, (indisc.). CO-CHAIRMAN OGAN: Section 804 talks about granting a subsistence priority and do we not already have the authority under our constitution in Article VIII, Section 4 that sustained yield principle that I quote from memory says, "Fish, forest, wildlands, grasslands, and other replenishable resources shall be managed on a sustained yield principle subject to preference on beneficial uses." Beneficial use of that fish and game can be subsistence and that we can give a preference for subsistence use of fish and game as a priority over all other uses. ATTORNEY GENERAL BOTELHO: Mr. Chairman, everything that Representative Ogan said is absolutely correct. We have the power to identify the beneficial use and in fact, this legislature in 1978 did identify the subsistence use as the highest beneficial use. The issue that we have before us is not the use, but the user and what 804 provides as one ties into the definition under federal law, the nonwasteful subsistence uses being described here ties to the definition which makes it clear that the use is by rural residents which is the feature that we don't have in state law, the feature which is not permitted right now by the constitution of the state because of the determination by the state Supreme Court in the McDowell case. And that is really kind of the nub of the issue. If the state of Alaska wishes to manage for subsistence uses, fish and game on federal lands, it must according to Section 805(d) enact laws which, again, are consistent and again, I should also emphasize the general applicability, but must enact laws that are consistent with and provide for the definition, the preference and the participation. And so the issue is not making subsistence the priority use, but making a decision about who the priority user may be. And in federal law, that by definition, is a rural resident. So for the state to come to the position that it can manage on federal lands, it must similarly provide for the same preference for rural residents. That's really in large part, the debate of the last nine years - should the state do it? Can it do it? With that, I think it would probably be helpful to look at the changes made ... Number 2007 CHAIRMAN GREEN: Just one moment, we have possibly a follow up here and two other questions. CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I believe that the congressional record shows that Senator Ted Kennedy moved the amendment which increased from 22 million acres to 44 million acres based on the need for subsistence. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I can't answer the question. I don't have the text here, but I do have it in my office. CO-CHAIRMAN OGAN: Thank you. CHAIRMAN GREEN: Representative Williams. Number 2032 REPRESENTATIVE BILL WILLIAMS: Thank you, Mr. Chairman. I'm glad the co-chair of resources has been looking up in the -- doing some research on this. I appreciate it. I've been doing some research on this since I got here to Juneau. When I started the subsistence issue, I didn't quite understand how subsistence got there because people were telling me, "We can't discriminate; we can't make other citizens better than the others." The Alaska Native Claims Settlement Act was a negotiated settlement, as I believe. Would you say that? ATTORNEY GENERAL BOTELHO: Mr. Chairman, there are some who would say that it was actually - that there were terms that were imposed over objection of some Alaska Natives, but in essence, I think it's true to say that it was a combination of the administration in place - the Nixon Administration, Alaska Natives represented through the Alaska Federation of Natives and Congress obviously working with our delegations. REPRESENTATIVE WILLIAMS: There was a lot of give and take during that period of Alaska Native Claims Settlement Act and the big push at that time was the oil pipeline that we were trying to put in here and during that time, this equal protection provision that we're trying to protect today was part of this negotiated settlement. When they came in and said that Alaska Natives, at that time, had a land freeze going in order to get the pipeline going, but one of the things that the Alaska Natives had said all along was that the three things that they wanted to be part of this negotiated settlement - let's say that it was a negotiated settlement for this discussion - was land, compensation and subsistence and I don't know what order it was at that time. But those three things were always there. Can the state, under this negotiated settlement, negotiate away the equal rights provisions in Article I? Can they do that and give the Alaska Natives the subsistence rights and the Alaska Native gives the right to get the pipeline through. Can the state do that? Number 2142 ATTORNEY GENERAL BOTELHO: Let me see if I understand the question because it's a fairly complex one - could the state right now decide to modify its equal protection provision in recognition of what was conceded earlier? REPRESENTATIVE WILLIAMS: Well, let's say that we're here - prior to the Alaska Native Claims Settlement Act we were talking about this and the Governor came back and said these are one of the things that the Alaska Natives want - they want subsistence lifestyle and we want the pipeline, what are we going to do. Can the state say that we're going to give up our equal rights protection provision under that portion? ATTORNEY GENERAL BOTELHO: Mr. Chairman, if I understand ... REPRESENTATIVE WILLIAMS: What I'm trying to get to ... ATTORNEY GENERAL BOTELHO: ... can we negotiate away our constitutional protections in exchange for something. Could the Governor unilaterally do that? I think the answer is no. I think our structure of government in this state is based on this fundamental document called the constitution and it sets the fundamental policies. The only way to negotiate it as it were, is to change it and there's only one mechanism for doing so and that's the two-thirds vote by resolution and passage by the electorate. REPRESENTATIVE WILLIAMS: So how did we get into this provision? How did the subsistence become a preference during that negotiated settlement? ATTORNEY GENERAL BOTELHO: Mr. Chairman, I realize that Representative Williams may have come in a little late and if you don't mind me just running through again - I see it as largely results of the reserving at statehood the issue of Native claims hunting and fishing rights which took another 12 years for Congress to finally deal with, which it did in ANCSA, it extinguished expressly aboriginal hunting and fishing rights, but also made clear that it expected the Secretary of Interior and the state to specifically protect Native hunting and fishing rights. Some would say nothing happened, there were activities that took place between then and enactment of ANILCA in 1980, but certainly enough pressure created on Congress to say, "we need express protection in federal law for subsistence hunting and fishing" and the ultimate product of that is Title VIII. CHAIRMAN GREEN: We will be taking a one-hour break at noon and I don't know how many of the members of the joint committee have had a chance to review Mr. Heimer's report that was passed out by Representative James. There is a very good chronology in there that I would suggest those of you who haven't read it, to review that and if there are still some questions, then maybe we could ask Attorney General Botelho. REPRESENTATIVE WILLIAMS: If I could move on to another question, Mr. Chairman. CHAIRMAN GREEN: Representative Williams. REPRESENTATIVE WILLIAMS: Under the amendments to ANILCA that was provided to us by Senator Stevens, in there -- during one of our meetings with Senator Stevens, he told us that under these amendments, ANILCA amendments, that we were concerned about the federal court oversight - okay, that was a big issue there - under these amendments, Senator Stevens, I believe, said at one of our meetings that with these amendments to ANILCA, that in order for a Katy John or a (indisc.) or whoever was going to sue because of subsistence, wouldn't have to go through -- wouldn't go right straight to federal court - they'd have to exhaust the court process within the state. Is that true or is that .... ATTORNEY GENERAL BOTELHO: Well, it requires the administrative process and this is really a good time to talk about those changes and let me urge you to - if you have your subsistence notebook - the changes to ANILCA that took place start out on page 105 in the notebook and with regard to your specific question, I'd like perhaps General Cole here to talk about it because it's an area that he focused great attention on, I think articulated the concerns about the role of federal oversight and what we think we gained out of it. CHAIRMAN GREEN: Before we start, General Cole, we have a couple of other questions that may have been on prior testimony, if you will please. Representative Berkowitz? REPRESENTATIVE ETHAN BERKOWITZ: I think they're going to get to what I want to hear. CHAIRMAN GREEN: Okay. Then Representative Hudson. CO-CHAIRMAN HUDSON: I'll pass. CHAIRMAN GREEN: Go ahead, General Cole, please. TAPE 98-91, SIDE B Number 0001 CHARLES E. COLE, FORMER ATTORNEY GENERAL; AND REPRESENTATIVE OF THE BIPARTISAN 1997 TASK FORCE ON SUBSISTENCE: .... the Stevens amendments. Those were amendments by the way, which the task force recommended to Senator Stevens. Before any amendments to ANILCA, Section 807 with respect to the right to go to federal court, reads (indisc.), "Local residents and other persons and organizations aggrieved by a failure of the state or the federal government to provide for the priority for subsistence uses set forth in section 804 (or with respect to the state as set forth in a state law of general applicability if the state has fulfilled the requirements of section 805(d)) may, upon exhaustion of any state or federal, (as appropriate) administrative remedies which may be available, file a civil action in the United States District Court for the District of Alaska to require such actions to be taken as are necessary to provide for the priority." So what that section says, that before any person claiming to be aggrieved by their failure to get subsistence rights, either under ANILCA or under state law if the state has assumed subsistence management, must first exhaust administrative remedies. And by that the statute means that they must first go ultimately before the state Boards of Fish and Game and say, "Look, I haven't gotten my rights, I want you to correct it" and that furnishes an opportunity for the state Boards of Fish and Game or the federal administrative agencies to correct the error if they believe that the claim is valid. And then when their relief sought by the claim has been denied, they may then file an action in the United States District Court just to gain their rights under ANILCA, but not to declare "the state out of compliance if it has assumed management." But let me add and comment now upon the following sentence, which I think also is important: "In a civil action filed against the state, the Secretary may be joined as a party to such action. The court may grant preliminary injunctive relief in any civil action if the granting of such relief is appropriate under the facts upon which the action is based. No order granting preliminary relief shall be issued until after an opportunity for a hearing." So that affords the state of Alaska to come in and say, "Hey, the administrative agency has done the right thing and the claimant is not entitled to the relief sought." And then it goes on, and this is very interesting, "No order granting preliminary relief shall be issued until after an opportunity for hearing. In a civil action filed against the state, the court shall provide relief, other than preliminary relief, by directing the state to submit regulations which satisfy the requirements of Section 804; when approved by the court, such regulations shall be incorporated as part of the final judicial order and such order shall be valid only for such period of time as normally provided by state law for the regulations at issue." So, that limits the period during which the federal relief is effective and it provides, in my view, an opportunity for the Boards of Fish and Game at the next regular meeting or the annual meeting to say, "And we have to make a little change in the regulation to be able to afford these rights under state and federal law." Number 0385 MR. COLE: Now with respect to the actions of the administrative agency under which this relief is sought, the state in the Kenaitze case, said and argued before the Court of Appeals, "Look the determinations of the state administrative agencies should be afforded the same deference as the federal court would give to actions of the federal administrative agencies"; give them sort of benefit of the doubt you might say, to put it in the vernacular, and the Court of Appeals - the learned Court of Appeals for the Ninth Circuit said, "No, this is not federal action and so we're not going to give deference to the actions of the state administrative agencies." So in the task force we said, "You know, that doesn't sort of sound right." If the state is administering the subsistence provisions of federal law and state law by which it has assumed management, its decisions - decisions of the Boards of Fish and Game - should be given deference by Judge Holland, if you will, United States District Court, to the same extent that Judge Holland would give deference to decisions of federal administrative agencies." And I say - I can't emphasize and I think the effect of that change to ANILCA and that amendment cannot be over-estimated because it's a remarkable change and it's a shifting of the balance of power. So if you will, now with respect to that amendment, it really deprives the federal court of a lot of flexibility it had before number one, and it sort of says, you know in that close pitch when it's 3-2, the call goes to the state and not to the claimant. That's where you come down and I say, and I implore this body and the legislative body to bear that in mind when it's deciding what to do because if the task force amendments enacted into law with, by what I call the Stevens amendments, and the state does not regain management, that vital provision floats away - it's gone - and we're right back to where these close calls - actions that give deference and I can guarantee you that when these federal subsistence boards act, they're going to give the close call, the hard call, to the subsistence users. Now that's the purpose of their being - I mean, they're going to further -- because they don't want to get sued, so they act very carefully and they will extend subsistence rights to the outer limit and the federal courts giving their actions deference, is going to say, "All well and good." Do you know who is going to be at the bottom of the rung - well, first the top of the rung is going to be the subsistence user. I understand how the Natives feel - they're going to get pretty much what they want. Number 0640 MR. COLE: Second is going to come the commercial fishermen because the federal government can't say we have an economic disaster down in Southwestern Alaska - we can't open the state (indisc.) to support them, so they're going to come next; the bottom - sports fishermen, sports hunters - they're going to be at the bottom. They're the ones that if we don't regain that management of wildlife - they're the ones who are going to take it on the chin - I guarantee it. Thanks. Number 0675 CHAIRMAN GREEN: Thank you. We have two or three questions, here. Representative Bunde. Number 0708 REPRESENTATIVE BUNDE: Thank you, Mr. Chairman. General Cole, I had the pleasure of your testimony in Judiciary earlier on HB 406 and if my memory serves -- I'd appreciate a little latitude here, Mr. Chairman, because this has been really core to this whole issue for me - the difference between federal oversight and federal management -- and I think you said in a moment of candor that knowing the federal government, they'd be here as much or as little as they wanted to be, no matter what we did. And it's important that I understand the difference between oversight and management and I think you've explained it to me, but is Representative Williams correct in that under federal management, any redress is sought immediately through federal court, where under federal oversight, the redress is through the state courts and then on to federal court. Or am I over-simplifying? MR. COLE: Well, you're confusing me - that I will acknowledge. REPRESENTATIVE BUNDE: Let me take another run at it. One of my concerns has always been - and I realize some of my colleagues disagree with me - we're damned if we do and we're damned if we don't. We pass a constitutional amendment, and using what I think I heard you say before, is we'll have as little or as much federal management as the federal government wants to have. What's the long-term gain? We pass the constitutional amendment and we still are in danger of a considerable federal oversight. We don't pass a constitutional amendment and we have federal management. Please help me understand the difference. Number 0786 MR. COLE: Well, I'm not sure there is a major difference. In the first place, when the state sort of "fell out of compliance," it fell out of compliance because of a decision of the Alaska Supreme Court and we no longer had the state statute which enabled us to manage subsistence on federal land - state land. That's number one. Basically, the power of the federal courts under the statute which I read to you, is to guarantee the individual subsistence user his or her subsistence rights and if, after the claimant has exhausted his or her administrative right, then it may go to federal court, but not before. I think that's the fundamental issue that I try to get across. And on this same vein, if the Chairman would permit me, you see as I've said before, Blackstone sort of had it right - possession is nine points of the law and when the state gets management - if this legislature sees fit to take action to regain management - then the state makes the call. It decides what provisions shall be adopted to afford subsistence users their subsistence rights. It makes those decisions and then, you see, the burden -- when we talk about possession -- then the burden shifts to someone else to set aside that action of the state administrative agency. And that requires proceedings before the Boards of Fish and Game to seek relief, it requires the filing of an action in the United States District Court and the burden of going forward falls on someone else. See, the state is then in the power position. Now if we do nothing and the federal government is managing subsistence, we're sort of left out in the cold. I mean, what do we really do to resist the actions of the federal government? Our powers are limited and in the meanwhile, the federal government is continuing, expanding its power, making more regulations, further burdens on the nonrural resident and so, in my view, I think that the so-called fear of federal oversight is grossly overstated. The state is in control on management; it decides what the bag limits are to protect subsistence users, it decides what streams shall be closed and when to afford to subsistence rights. I mean, it makes all those decisions and it's up to someone else to say those actions are wrong. It's up to someone else to say that the actions of the administrative agency are not valid - basic - and so the state really becomes in the better position and (indisc.) of the view that until this whole thing is thrashed out, the powers of the federal government to enact ANILCA, until the extra-territoriality powers or those issues are resolved and litigated, then the state should be in the power position. And then if the lawsuit is satisfactory, if the state wins the lawsuit, if the state's successful in making changes to ANILCA or others are successful in making changes to ANILCA, then the legislature has the freedom and then the ability to make appropriate changes. That's why I say the state should place itself - you know, rather than do nothing, rather than default if you will, to federal subsistence management with its creeping extensions of power, that the state should reserve as much of its power as it can and then continue with what actions that its citizens wish to take with respect to final resolution of these issues. CHAIRMAN GREEN: Follow-up? Number 1084 REPRESENTATIVE BUNDE: Just to help my understanding - the best case scenario, the state then can fight - at least a delaying action, may prevail and if nothing else, at least they can be an obstacle to someone getting federal relief. But after having gone through all that system, they still will end up with - if the state doesn't prevail, we end up with the federal management. MR. COLE: Not federal management. Not federal management - just the decision to - not federal management. Just in this particular case before the court, if the United States District Court finds that the actions of the state administrative agency were arbitrary or capricious or an abuse of discretion, it can grant relief. That's a tough burden for one claiming to be aggrieved to overcome - to shoulder. I mean, it's time consuming, it's expensive and it's legally, very, very difficult. But it is not, if one person says, "I didn't get my subsistence right," that doesn't throw the whole system out. This is just dealing with say, one river - one creek, if you will - one stream. That's all that federal issue - federal court case is going to direct itself toward. But not the management and the other - well, let's see 103, you know, 350 million acres. Just very limited. REPRESENTATIVE BUNDE: I understand - maybe that's my semantic problem. When I say management, I think if they grant injunctive relief to a single person they are managing that person's activity. But you consider management for more of a statewide basis and I understand the difference. MR. COLE: Yes, thank you. Number 1194 CHAIRMAN GREEN: Although I don't like this idea of -- on that point -- that's been kind of an in-house problem, but on that point, you mentioned something about that particular creek. If it were made available that there would be a priority to those affected as opposed to all subsistence users, would that pass muster, in your opinion - wherever that may be and it probably would be a moving target. MR. COLE: I think the court, you know following traditional judicial practice or rules is going to say, "We grant relief only in the case before us. You know, if we're down in Saxman, we're not granting relief to someone up in Noatak, unless for some ways they're parties to the lawsuit or it's a class action. The relief is very specific. CHAIRMAN GREEN: Good. Thank you. We have Representative Porter. Number 1245 REPRESENTATIVE PORTER: General Cole, you began with what I thought was something that I totally agreed with (indisc.) with the statement that was incongruous to what you said all the way through. So let me make sure that I understand it. From what you have just said, to me there is a distinct difference between federal management and state management. MR. COLE: Indeed. REPRESENTATIVE PORTER: Okay. I thought I understood you to say that there's an insignificant difference between those two things at the beginning. Alright, very good. If we had federal management, which we would get December 3, save being able to satisfy Congress, and someone had a grievance on subsistence, would they not go to a - on public land - would they not go to a federal regulatory consideration and then to a federal court? MR. COLE: Yes, if a federal administrative agency is managing subsistence, they must go to the federal agency, exhaust their administrative remedies, (indisc.) says, and then go to the federal court. REPRESENTATIVE PORTER: If though, we were to satisfy ANILCA in its current form or were able to reach some accommodation with ANILCA and in conformance with ANILCA and kept the provisions of the "Stevens amendment" would not that grievance first go to a state regulatory agency for their determination and then if it was appealed to the federal system from there, the federal system could only look at that appeal in relation to is it an arbitrary or capricious discretion ... MR. COLE: ... or otherwise contrary to law. REPRESENTATIVE PORTER: ... or contrary to law. That's ... MR. COLE: The answer to that is correct. REPRESENTATIVE PORTER: In your experience, is there any better position that this state could be in in relation to federal oversight which will never go away because they own two-thirds of the state. MR. COLE: Well, I think that is the best position the state can be in, number one. Number two, let me say this - we talk about going to the federal courts - bear in mind that this is a federal statute. Article III, Section 2 of the Constitution of the United States says the judicial power of the United States shall extend the cases and controversies arising under the Constitution of the United States and statutes of the United States. So, you know, Congress - I don't know - probably 1789 - from day one - said the United States District Court - one of the inferior courts established by Congress under the Constitution - shall have the right to hear and decide cases rising under federal statutes. There is no way that the Congress of the United States is ever going to deprive the United States District Court of the right to hear cases arising under a federal statute; i.e., ANILCA. So the best position, as you say, is for the state to get in essentially the most position of power that it can get in and then continue to see what it wishes to do - and continue to prosecute the lawsuit. I favor the continued prosecution of that lawsuit. It needs to be resolved, but then if the plaintiffs are successful in that lawsuit, then it can just repeal the statute - be done with it. CHAIRMAN GREEN: Follow-up, Representative Porter? Number 1444 REPRESENTATIVE PORTER: Mr. Chairman, getting to the meat of this hearing then, I totally agree with the position that 807(a) - the Stevens amendment to that regarding the federal court's requirement to look at it only if it's arbitrary and capricious or abuse of discretion, is an extremely good position to be in. What seems to me to be confusing - at least it confuses me - is 801 which adds(b)(4) "In accordance with Title VIII of this Act, the Secretary of Interior is required to manage fish and wildlife for subsistence on all public lands in Alaska because of the failure of the state law to provide a rural preference." I would like to think that that provision goes away as soon as we meet the otherwise requirements of ANILCA, but here it is and it doesn't look like it's coming out, so. MR. COLE: I think that only means that's the existing finding of Congress on the day that it enacted this. I don't think there's any problem there. REPRESENTATIVE PORTER: Certainly, you would then think, if I may Mr. Chairman to follow up, that as we hope we come into conformity with ANILCA, federal management goes away. MR. COLE: Well then there's also this provision in there at some section later on, that the Secretary no longer has the power to issue regulations .... That's ... ATTORNEY GENERAL BOTELHO: 814. MR. COLE: That's 814. I see someone questioning that. REPRESENTATIVE PORTER: 814? ATTORNEY GENERAL BOTELHO: Yes, it's on page 117, at the bottom - if you have your notebook with you. REPRESENTATIVE PORTER: ... during any time that the state has complied with Section 805(d) the Secretary shall not make or enforce regulations concerning 805(a),(b) or (c). Number 1554 REPRESENTATIVE RAMONA BARNES: Mr. Chairman, on the point that Representative Porter just raised. CHAIRMAN GREEN: Representative Barnes. REPRESENTATIVE BARNES: Would you also address that in the context of the amendments that was put into the appropriation bill last year? MR. COLE: Which particular ones, may I ask. I'd be pleased to do that. ATTORNEY GENERAL BOTELHO: Mr. Chairman, just to clarify. That particular amendment was one that was part of the so-called Stevens amendment package - the 814 addition which says that during any time the state is managing, the Secretary is deprived the power to adopt or enforce regulations under Title VIII. MR. COLE: ... the task force, we wanted to be certain we put that in to be certain that the Secretary of the Interior did not have any power in any respect to act in furtherance of the subsistence priority under federal lands or state lands during the period of time that the state is in compliance. Some of us thought that it was clear otherwise, but to remove any doubt, we put that in after lengthy discussion. Number 1616 REPRESENTATIVE PORTER: Mr. Chairman, if I may by point of clarification ... CHAIRMAN GREEN: Representative Porter. REPRESENTATIVE PORTER: If I read this, it only curtails the Secretary's ability to make or enforce regulations concerning 805 (a), (b) and (c) and as I read that, those are just the regional council and advisory council sections, not ... ATTORNEY GENERAL BOTELHO: Mr. Chairman, it is under those sections that the subsistence priority is on the ground exercised; that is the establishment of regulations arising out of the Federal Subsistence Council - Federal Subsistence Board to set up the fish and game management regimes, federal protection of subsistence harvests. So, it is the guts of the .... CHAIRMAN GREEN: We might come back to that then. We have several other questions. Representative Masek. Number 1666 REPRESENTATIVE BEVERLY MASEK: Mr. Chairman, thank you. Mr. Cole, in your time of serving as attorney general and being involved in the government of the state of Alaska, do you know if there is any case that have ever been won - a state case in a federal court dealing with subsistence? MR. COLE: I don't know of any. REPRESENTATIVE MASEK: So, is that a no or a yes? Give me a clear answer. MR. COLE: I answered your question - do I know of any cases - and I said I don't know of any cases. REPRESENTATIVE MASEK: So that means no, then. MR. COLE: It means I don't know of any cases. REPRESENTATIVE MASEK: It probably means no, if I'm listening to you correctly. Just to follow-up on that, Mr. Chairman, too. In regards of what Representative Porter was discussing about the changes that Senator Stevens did in ANILCA, I believe that by looking at it in a comparison with ANILCA as it was prior to the amendments that were made by Senator Stevens, it seems apparent to me that the changes have only strengthened the federal government over the state as far as any judicial issues that may come up in the courts. And some of the sections that I believe that Representative Porter talked about, there's one concern that I have - well there's several - in all the changes dealing with the local and regional participation - that's Section 805 and that's under Section 805(d) says "unless a court of competent jurisdiction determines that the state is out of compliance, the Secretary may bring a judicial action to enforce this subsection" and it says that throughout this whole issue of where [Senator] Stevens made those amendments and it really bothers me because of the issue itself on saying we have to change our state constitution in order to get true state management back. But to me it's really a slap in the face because of the tightening up of this Public Law 105-83 that has been done. I don't think it will bring it back because of these onerous changes that have been made and discussing that issue as well - as far as that findings section in 801(b), which Representative Porter just read. But if we don't provide that rural preference, then the Secretary is required to manage on all public lands because the state failed. That's pretty downright to the table - required - it does not say shall, does not say may, it's required and I think that really, clearly runs over our state constitution as far as the state managing it when you have that requirement there. And also under the savings clause, Section 316(c), "does not affect Native government authority over lands or fish and wildlife assertions of Indian country in Alaska, assertions that ANILCA is Indian law, or the authority of the Secretary of Interior under Section 314(c) of ANILCA." And that goes on as far as the effective. It says, "Secretary must certify that the state is in compliance before amendments become effective." Mr. Chairman, I just brought those up because I believe it should be brought up; it's really important on any things that we do come up with today and I'd like to hear more on their testimony, but to talk about the issues that are really within what we're talking about, I don't think we're getting to the point and that's why I'm bringing them up. Number 1843 CHAIRMAN GREEN: Well, I appreciate that, Representative Masek. Again, I want to emphasize that what we're after here are clarifications, questions of where we are - I think that was good - we don't want to get into a debate on whether that's good or bad yet. We want to find out what it means. REPRESENTATIVE MASEK: Thank you, Mr. Chairman. MR. COLE: Mr. Chairman - Representative Masek. You know the state has not done well in the federal courts on these subsistence issues. I acknowledge that. And one of the purposes of the proposed amendments made by the task force was to limit the powers, particularly the learned Court of Appeals for the Ninth Circuit - in my view, one of the premier legislative bodies in the United States - and we wanted to put some definitions in there to pin down what rural meant, to pin down what customary and traditional meant, so that these courts couldn't run wild and read into the statute anything they wanted to say, which they've been doing. So, the purpose of those amendments was to curtail the power so we would have greater confines on the powers of these federal courts and that's why we did that. It wasn't to weaken that Act with respect to the position of the state of Alaska and of course, if we don't come into compliance, the Secretary is going to have to take over management of fish. Not only under, in my view, not under the reserve water rights doctrine concocted, if you will, by the Court of Appeals for the Ninth Circuit, but under the extra-territorial powers of cases like Block v. Minnesota - like Minnesota v. Brown - and so that's what the federal government's going to do if we don't get back into compliance. And soon, before you know it, they're going to be managing all fish and wildlife in the state of Alaska - in all waters; not only navigable waters, but in all waters of this state and out beyond the territorial borders of the state. I mean it's a very, very serious matter which I think that this legislature should take steps to preclude. CHAIRMAN GREEN: Representative Ogan. Number 1960 CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I would point out that the legislature has taken steps to, especially the navigable waters issue, to work with our litigation that unfortunately this Administration chose to drop, but had they not, we might not be here today, we would know where we stand legally. ATTORNEY GENERAL BOTELHO: Mr. Chairman, if I might. CHAIRMAN GREEN: Mr. Botelho. ATTORNEY GENERAL BOTELHO: I think there may be some confusion. The state of Alaska fought the navigable waters issue all the way to the Supreme Court and if there's some misunderstanding about that, let me clear the record. The Katie John case was one the state fought first in the district court, allied with the U.S. at a point when the United States government took the position that it didn't have authority to include navigable waters, the district court ruled that under a doctrine called "navigational servitude" it had a requirement to adopt regulations on navigable waters, we appealed that to the Ninth Circuit - we argued that case to the Ninth Circuit. We lost there. The Ninth Circuit rejected the idea of the navigational servitude as the basis; came up with another doctrine called, "reserved water rights." We petitioned the Supreme Court for review and the Supreme Court denied the petition. So, any suggestion that this or any administration dropped the ball in trying to take that case all the way, is erroneous. CO-CHAIRMAN OGAN: Well, I don't want to get into a debate on it, so I won't. But I do have some questions. REPRESENTATIVE BARNES: Mr. Chairman, on the point of navigable waters, if I might ask for clarification. CHAIRMAN GREEN: Representative Barnes. Number 2030 REPRESENTATIVE BARNES: Mr. Attorney General, is it not true that in the Dinkum Sands case, Sandra Day O'Connor felt clearly that the state of Alaska has the right to manage navigable waters. Is that not true? ATTORNEY GENERAL BOTELHO: Mr. Chairman, the majority opinion authored by Justice O'Connor makes reference to management over navigable waters and the fishes therein. It's important again to note that that was not at issue in the case - it'd be called in legal terms "dicta" - that is not the direct holding of the case. I don't think it's inconsistent with the position that the federal government has asserted over its power. We believe we have that authority - the Alaska Supreme Court has said so in its decision in Totemoff that in its view the federal government does not have authority to manage. But you have a Ninth Circuit decision whose decision is on a par with that of the state Supreme Court. So you have federal managers following the directives of the Ninth Circuit and you have state managers that will follow the law as found by the Alaska Supreme Court and you have a conflict and there's a way to avoid that conflict on the grounds affecting individuals; that is, that if this state enacts laws of general applicability which are consistent with the ANILCA provisions, the state manages everywhere in navigable waters and the conflict between the federal government and the state government go away because it's only the state that's managing. Number 2104 CHAIRMAN GREEN: On that point again - I keep doing this, but one of the issues that will be discussed by this combined committee has a negotiation point in it to override that navigable servitude decision. In your opinion, can that be negotiated since it's been through the court? ATTORNEY GENERAL BOTELHO: Mr. Chairman, should we be looking at the specific provisions that ... CHAIRMAN GREEN: We will get to it. It was just a question, while we were on it. MR. COLE: That requires, Mr. Chairman, if I will - I believe, an amendment of ANILCA. CHAIRMAN GREEN: That's right. MR. COLE: It requires an amendment of ANILCA and .... CHAIRMAN GREEN: My question though - that's among the litany of things that we would like to change in ANILCA because we feel that that's onerous and unfair and all of those nasty things you can come up with - can we legally in your collective opinions, negotiate that change of ANILCA even though the court has rendered a verdict. ATTORNEY GENERAL BOTELHO: Mr. Chairman, let me respond in this way. Congress and in deed this body, frequently changes laws in response to decisions rendered by courts, oftentimes as a result of the view that interpretations of law have been improper or that despite the propriety of the decision, they believe that it's better public policy to go a different direction. So, I think conceptually, the power of Congress to change the results of courts on issues that are not constitutionally based but are statutorily based, is present and that would extend to this body as well under our state constitutional framework with regard to state laws. The bodies are not free to change constitutional rights, but certainly rights that are conferred by statute. REPRESENTATIVE BARNES: Mr. Chairman, would you put me on the list, please. CHAIRMAN GREEN: Yes, we have you there. CO-CHAIRMAN OGAN: Thank you, I have about five different questions on the issues that we've discussed and previous things that have been brought up. First of all, since the navigable waters is an issue that we will be addressing in requesting ANILCA changes, is it not true that in 1953 the Submerged Land Act deeded fee-simple title to all submerged lands to the states and that in the Statehood Act, it was specifically referenced that we also got title to submerged lands and with that there are case law in the U.S. Supreme Court that repeatedly expresses that with that comes the right to manage not only the waters with the natural resources within and that's.... ATTORNEY GENERAL BOTELHO: Mr. Chairman, those were exactly one part of the holding of the Alaska Supreme Court in the Totemoff case, which was rendered some six months after the Katie John decision by the Ninth Circuit which looked to the Submerged Lands Act of 1953 as one of the bases for concluding that the state rather than the federal government had management authority over navigable waters and tied to that, management over any species in it. So, yes that again is one of the underpinnings of the State Supreme Court decision which is in direct conflict with the Ninth Circuit. Number 2241 CO-CHAIRMAN OGAN: Follow-up on that point. And just for the record, navigable waters include all your inland waterways like Icy Straight and all the inland waterways - saltwater - Prince William Sound, the rivers that you can navigate a boat upon and three miles out from the outer coastal regions. Is that correct? ATTORNEY GENERAL BOTELHO: Also, it includes inland lakes, I think it's larger than 100 water acres - I can't recall the exact - I think it's 100. Let me turn around to see if there's anyone who will answer that if you'd like a complete .... CHAIRMAN GREEN: (Indisc.) of the arcs - straight lines between the arcs. CO-CHAIRMAN OGAN: Right. It's pretty extensive, but in the Ninth Circuit ruling on the Katie John case I believe it was, it said -- the majority ruling said "unfortunately ANILCA's language and legislative history did not give us clear direction necessary to find that Congress spoke with precise question of which navigable waters are public land." And they said - and I'll paraphrase it - it begs for a legislative solution. So, do you think it'd be reasonable as one of the ANILCA changes to ask Congress to clarify that indeed navigable waters should be state managed as they are in every other state of the union, if I'm not mistaken? ATTORNEY GENERAL BOTELHO: Mr. Chairman, we believe we're managing them in this state as well, so that there not be any doubt about that. The issue that arises is the extent to which the federal government in protecting (indisc.) of cases which General Cole was very eloquent about, talk about the power that the federal government in protecting lands over which there's no dispute about the ownership, can exercise authority on adjacent lands or waters and that that is the basis, it's not a question of title, not a dispute with the state over whether the state also has management authority, there is a question of who trumps and that brings us to questions of the supremacy clause that plays a role here and I just lost my thought here in trying to respond here to another part of your question. Number 2344 CO-CHAIRMAN OGAN: That's okay. I think it established that there is some ambiguity in the court ruling and the Ninth Circuit and ... ATTORNEY GENERAL BOTELHO: As I remembered, again the battle over the extent of federal authority in terms of what its territorial reach is, is one we don't have to deal with if the state enacts laws of general applicability. Because once that's happened, under ANILCA itself, the state is managing in every reach of the state and during that time, the Federal Secretary is precluded from trying to enact, set up, any competing management regime and that was in our view the most rational and direct way .... TAPE 98-92, SIDE A Number 0001 ATTORNEY GENERAL BOTELHO: ....to dealing with the Katie John issue and, in a more general sense, the overwhelming case law about the power in federal courts about the extra-territorial reach of the federal government. Number 0032 MR. COLE: May I add one thing, sir? CHAIRMAN GREEN: General Cole. MR. COLE: One thing that I think it's important to clarify is in what I call the Babbitt case, others have called it the Katie John case - the Court of Appeals said look, it's true that the state has title to the lands beneath the navigable waters and it has the right to control the fishing in those navigable waters. But what the Court of Appeals said in the Katie John case is say, when the state got that power, it did not get complete and full power. It said when the Submerged Lands Act was passed, in essence, the federal government reserved water rights out of those navigable waters. And here's just what the Court of Appeals said in that regards. It said, "The United States has reserved vast parcels of land for federal purposes through a myriad of statutes. In so doing, it has implicitly reserved appurtenant waters including -- I mean, appurtenant - next to - including appurtenant navigable waters to the extent needed to accomplish the purposes of the reservation. By virtue of its reserved water rights, the United States has interest in some navigable waters. Consequently, public lands subject to subsistence management under ANILCA includes certain navigable waters." So, and like I say, what the Court of Appeals was there saying is, "Look, the state's rights in those navigable waters are not unlimited. The federal government has reserved some rights in those navigable waters." And we're saying that reservation includes reservation of such powers to the United States in those navigable waters necessary to effectuate the purposes of ANILCA. That's what they say. Now it's a big stretch. I mean I agree with that. I don't like that decision. It's highly disturbing to me personally and as a lawyer, but nevertheless that's what the Court of Appeals did. And the way the Court of Appeals or, you know, the United States effectuates that power and that decision - it says no, you know, to the extent the Subsistence Board acts, it says if those waters are closed by the Federal Subsistence Board, I mean there won't be any fishing there. And those who fish there will have a tap on the shoulder by a federal agent and say, "Come with me." And you know he'll have a gun and furthermore, he'll say, "I want your boat - you're going to forfeit it." I mean that's what we're faced with and how do you deal with that when that fellow, the fisherman is out there fishing in an area where the subsistence board says, "No fishing, the season's closed because we have to let the upstream subsistence fishermen get their subsistence rights" and he takes their boat. And what does the state do in that circumstance? It's powerless. Number 0330 CHAIRMAN GREEN: And all of that, if I may is unique to ANILCA which makes it unique to Alaska, which says that now we have been sidestepped on equal footing with other states. MR. COLE: Congress, virtually daily, passes laws dealing with the "okie/fanokie" - whatever they are - swamps in Florida. It passes special statutes dealing with the border waters, canoe area, wilderness area. It passes statutes dealing with wild and free roaming horses and burrows in New Mexico. It passes statutes dealing with the Grand Canyon. They don't apply any place else different - different statutes of the Congress of the United States apply different doctrines in different national parks. There is no necessity for Congress to act uniformly in every national park in the United States - that just defies common sense. Number 0409 CHAIRMAN GREEN: But if that were confined to a national park, it would be similar. We're saying statewide here. None of those others that you've cited are statewide. MR. COLE: Well we start, remember, with just federal lands. That's ANILCA - federal lands - and it's important not to confuse the fact that if we want to manage on federal lands, here's the terms of the deal: you can manage all you want on federal lands - the state can if it comes into compliance, except there's one string attached and that one string attached says, "you must give the subsistence user priority." But we have vast management rights under federal lands other than -- and these waters under the reserved water rights doctrine other than just the subsistence and we should keep all those powers we can. Number 0493 CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I know you said you were going to break at noon, it's .... CHAIRMAN GREEN: We have four other people, so .... CO-CHAIRMAN OGAN: The subsistence council - there was some discussion about that earlier. The make up of the board is that four members - and these are the changes that Senator Stevens got through - four members that are appointed from tribal councils, three subsistence users and three sport, commercial fish users. Now, earlier you stated that - you said you're not sure there's a major difference between federal oversight and federal management and is it not true that we have to adopt the federal system of management called ANILCA which includes, I think, an unprecedented act of federal government telling that the governor shall -- in federal statute saying, the governor shall appoint this many people to the board with this kind of a make up and we adopt the federal system of management into our statutes and constitution and we get to call it state management and run around with this state flag saying, "Hey, we're managing now." But, in fact, the changes that Senator Stevens made to ANILCA last year in Section 102, "In accordance with Title VIII of ANILCA 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." So, for the first time ever, the Secretary of Interior has the authority to manage, if he feels we're out of compliance. Before that he had to go through the courts. But, you know, maybe the Secretary's having a bad day or maybe he's had a fight with his wife .... What I'm worried about is, we got the Secretary of Interior's authority to manage and it's never been there before and to me that is an egregious act that the Secretary's authority has been expanded and first time defined in a state statute and we don't really get state management; we get federal management with a state name on it. Number 0660 MR. COLE: Mr. Chairman, the Secretary of the Interior has had authority to manage from day one except there was this one year interregnum, as I call it, which allowed the state to what they call, opt in and come into compliance, but when the state is no longer in compliance, you can't expect there to be a vacuum and no one has the power to enforce this federal statute. Surely, the Secretary of the Interior had the power to implement ANILCA when the state didn't have the power to do that. But let me say another thing about this management sort of a thing .... CO-CHAIRMAN OGAN: If I might on that point, only after judicial authority - judicial intervention. Number 0699 MR. COLE: Well, I mean, we wouldn't want the Secretary to be able to unilaterally come in and just seize power. You know, we would want some federal brakes on him, hopefully. But I want to talk about this council business. You know, when I was on the task force, I gagged a little bit on those provisions, but I swallowed them, like you legislators do I'm sure, often there are provisions I'm sure ... REPRESENTATIVE BARNES: .... speak for himself. I don't gag and swallow anything - I vote "no." MR. COLE: Well, that's alright. I'm sorry, I didn't mean to be personal, but this is a give and take process, and in there I had reservations about it, but I accepted them because I thought it was vital that we accomplish the purposes for which we were convened. That's one I had a little trouble with - I didn't have trouble with anything else. Number 0765 ATTORNEY GENERAL BOTELHO: Mr. Chairman, might I offer a perspective, as well. What I wish to remark is severalfold. First of all, to support the statement that the federal Secretary of Interior has always, under the Act, had authority to manage on the public lands on subsistence. That is a fundamental issue there; it isn't a power that derives through the federal court. The federal court remedy is one that is to be a check on the federal power or when the state is managing, a check on the state power and under the circumstances now with the changes, it's important to underscore first the deference - Representative Masek made reference to the win/loss record and certainly as Mr. Cole indicated, there's a fundamental shifting of power that's a result of the Stevens amendment which now requires the federal court to give the same degree of deference it has traditionally extended to federal agencies to the agencies of the state of Alaska and also, limits, again, the basis upon which the courts may overturn the management decisions. But fundamentally, the Act itself, Title VIII of 1980, conferred the power on the Secretary - not the Secretary through the courts - the courts serve as an auditing function, if you will, not a management function and that pattern continues. In terms of the language found in [Section] 801, I think it's important again to underscore, these are not, just as would be the case in findings that the legislature has made in numerous acts, not themselves substantive law; they are expressions of course of views, policy or rationale for substantive law, but they themselves have no force and effect. So, to the extent that you disagree with those terms, obviously very free to do so, I think it's important to underscore however, that they, themselves have no force and effect. If it would be helpful, we can go through more of the changes in detail or it may be, Mr. Chairman, you would prefer to break at this point or finish .... Number 0988 CHAIRMAN GREEN: What I'd like to do is - we have four other questioners - I'd like to go through those before we break. Number 0994 CO-CHAIRMAN OGAN: I have another question. Isn't it true in the savings clause of the original version of ANILCA it says, nothing shall be construed that Alaska shall have to amend its constitution to conform with ANILCA? ATTORNEY GENERAL BOTELHO: Mr. Chairman, I don't recall any prefatory language that makes any reference to the state constitution; it only makes reference to the need that the state have enacted laws of general applicability and that's in the original language and also in the amendatory language of last year. Number 1029 CO-CHAIRMAN OGAN: I'd be happy to show it to you. I'll bring it after the break. ATTORNEY GENERAL BOTELHO: In the findings of Congress? CO-CHAIRMAN OGAN: In the findings section in the savings clause. It specifically says that nothing shall be construed that we should have to amend our constitution to conform with ANILCA. CHAIRMAN GREEN: Representative Berkowitz, on that point. Number 1047 REPRESENTATIVE ETHAN BERKOWITZ: It's my understanding that the cause for amending our constitution doesn't flow from ANILCA, it flows from our own Supreme Court opinion. Is that an accurate statement? ATTORNEY GENERAL BOTELHO: The need to amend - yes, that's correct. It's the McDowell decision which is what has triggered the need to amend to the extent the state wishes to manage on federal lands. REPRESENTATIVE BERKOWITZ: Sorry, I just want to be clear on this point. We are not amending our constitution as a result of any federal mandate; we're amending our constitution, or hope to amend it, based on our own Supreme Court opinion? ATTORNEY GENERAL BOTELHO: Mr. Chairman, the answer is yes; based on that and based on obviously a desire to manage on federal lands. The state isn't required to do it at all, if the state doesn't want to, we can all go home. Number 1093 CO-CHAIRMAN OGAN: Mr. Chairman, it would seem to me that if there's - certainly the congressional intent if they put it in there was that the state should not be required to amend its constitution and so that I believe the federal government and Congress can change ANILCA to conform with our state law because I think that was the intent when they wrote the law - it's right there and I'll show it to you. CHAIRMAN GREEN: Any follow-up? CO-CHAIRMAN OGAN: No, I'm done, thank you. CHAIRMAN GREEN: Representative Croft. Number 1122 REPRESENTATIVE ERIC CROFT: Thank you, Mr. Chairman. In serving on the Judiciary Committee with you, I've occasionally been argumentative or occasionally mixed discussion or debate into my questions, but I don't think I've done this level yet. I've been waiting an hour and a half just to talk about what I thought we were here to talk about - the proposed additional changes to ANILCA and to ask these people who I think have something to contribute on that, questions about them. So, I apologize for going through our lunch hour, but that's what I'd like to do - is go through these - it was 12, now 14 or 15 - and you twice characterized these as onerous portions of ANILCA and even characterized them on behalf of the committee - respectfully disagree. I don't believe some of these, possibly not all of them, are onerous and that's what I'd like to get to is why, particularly if we're about to, as Representative Porter said, come into compliance with ANILCA or put together some other management scheme if it's our intent to reassert under ANILCA, our right to manage on federal land, why these would be objectionable. Do you have a copy, either of the sheet titled "Proposing Changes to ANILCA" or the un-numbered joint resolution relating to changes in Title VIII to ANILCA? ATTORNEY GENERAL BOTELHO: I don't at hand, but I know my staff does here, so ... CHAIRMAN GREEN: Representative Croft, do you want to ask them a question about -- should we get them a copy now or -- I was going to address those after we resume if that's ... REPRESENTATIVE CROFT: We could do it that way if you'd like and we could go through them then ... CHAIRMAN GREEN: We'll certainly get you one so that you can review them over lunch hour. ATTORNEY GENERAL BOTELHO: That'd be great. CHAIRMAN GREEN: And you're right, Representative Croft - this was probably - we took liberties and the reason I did that was because of the historical sequence that was given by both Generals - to allow a little broader discussion so that everybody was working the same page - but you are right. REPRESENTATIVE CROFT: And for the record, I don't think the minority has yet taken those liberties - we may try to, but we haven't yet. CHAIRMAN GREEN: I appreciate that. Representative James. REPRESENTATIVE CROFT: Do you want to break and then let them do that? CHAIRMAN GREEN: Beg your pardon? REPRESENTATIVE CROFT: Do you want to break and then after I can resume those questions ... CHAIRMAN GREEN: Yes, we'll resume after lunch and then you can take those up. Representative James. Number 1255 REPRESENTATIVE JAMES: Thank you, Mr. Chairman. First of all, I would like to respond to Representative Croft because I have only had questions to ask about the people with comments that they made and I want to be sure that I have not been out of line because I haven't been discussing these things. I think it's appropriate to ask questions when the questions come up and that's what I have here. CHAIRMAN GREEN: And in his defense, Representative James, I don't think he was referring to you - I think he was referring to some of the others of us. REPRESENTATIVE JAMES: Alright. Anyway, some of the questions that I had because I've been on the list a long time, have been responded to from other questions and so, I have to skip down through some of the things that I have here. But the one thing that somebody said is, "Who trumps?" They asked the question, yes, we have the right, but who trumps? And so, my concern -- and one other question that I have -- wouldn't you say that because there are so many conflicting court decisions and other things that this whole issue begs for some court responses and some court decisions on this issue. Wouldn't you believe that this issue is that complicated? ATTORNEY GENERAL BOTELHO: Mr. Chairman, it's interesting that the Judiciary used almost the exact same words in the Katie John Ninth Circuit - that this begs for a legislative, not a judicial solution. Recognizing that the courts deal with specific controversies in front of them and that despite our general discussions about judicial activism - and there's clearly lots of evidence of that - the courts generally don't try to solve the big problems; they deal with the controversies in front of them, they render the decisions that may or may not make sense in a larger rational scheme if you were trying to solve them all - it's incremental. That's one answer. I think a second that I would give is that courts are very loath, even when presented with the big problems, to try and answer them. Their doctrine of judicial restraint suggests that they will decide the narrowest question possible; that if there are reasons not to get to the merits of the case - that is, questions about standing or the ability for the opposing views to be represented or to make sure they're not rendering simply advisory opinions - that there be an actual case in controversy, but that there's a whole sifting process so that we have a bias in our judicial system overall and the courts not decide big issues as opposed to deciding them. And, of course, what's notable in our judicial history are some of the big cases that did make major decisions, but that's compared to the hundreds of thousands of decisions that are narrow, have no impact, and I think, underscore using the Judicial Branch as the place to solve problems of more policy nature is just the (indisc.) place to do it. Number 1418 REPRESENTATIVE JAMES: Well, thank you. Mr. Chairman, to follow-up on that issue then, if this begs a legislative fix which is what we're here presumably to find, doesn't it appear to you that the problem we need a legislative fix for is because we have a federal law that's conflictory with our constitution. Isn't that the problem? ATTORNEY GENERAL BOTELHO: Mr. Chairman, there are a lot of ways of defining it and that is certainly one way. Again, the federal response would be, "they're federal lands, we as the federal government, have the right to manage our lands in any way that we choose - we have plenary power" and certainly the courts have said so - that has been the fundamental premise of Congress in action, and certainly the Executive and in enacting this particular piece of legislation, it is exercising those powers to manage; however our sufferance, we're going to defer (indisc.) law of the state to undertake management of subsistence activities on federal lands if the state of Alaska will do this. It's not a requirement, in fact, I think the U.S. Supreme Court in another case described this as cooperative federalism - ANILCA itself in this particular arrangement. The state of Alaska is not required to (indisc. - tape garbled). If it chooses to, these are the conditions. REPRESENTATIVE JAMES: (Indisc.) legal or okay for us to pass a piece of state legislation - a statute - that would allow and provide for a rural priority for subsistence only on federal lands - make a state law that would only allow rural priority subsistence on federal lands. ATTORNEY GENERAL BOTELHO: To do it only by statute would not be sufficient ... REPRESENTATIVE JAMES: Providing that we had a constitutional amendment for rural priority, but that the statute only allowed it on federal lands, not on state lands. ATTORNEY GENERAL BOTELHO: The answer, I think, is fairly difficult. I don't think there's a clear answer. I would put it this way that it would certainly - probably satisfy ANILCA requirements, but then there's a separate question about whether it would satisfy other state constitutional requirements. Is there a basis for distinguishing simply federal versus nonfederal lands? Would the court simply say is there a rational basis or would it require some other analysis? REPRESENTATIVE JAMES: If I might follow-up on that then. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think it might be helpful to see it -- again, I'm just one person here sharing my views and it may well be that Mr. Cole has a different one. Number 1571 MR. COLE: Could I just supplement that? The problem which would arise in that situation, at least under my analysis, is the Babbitt decision, the Katie John decision, giving the federal government the reserve water rights in navigable waters. I don't see how we can just do it on federal lands - maybe we could. The problem is (indisc.) not state lands - I thought about that, it seemed like a compromise so to speak - the problem is, is how do you deal with the reserved water rights doctrine in the navigable waters? See I don't think we can get over that in that fashion. REPRESENTATIVE JAMES: Well, if I might then, continue on this thought. It appears to me that what we currently have is a federal regulation on federal lands that said we will do a rural priority there and that if we do a constitutional amendment, then we can apply to that, but we extend the rural priority to all state lands. At the same time, if we have statutory authority to do that (indisc. - tape garbled.) Number 1630 MR. COLE: That's exactly what ANILCA provides and the question is to this legislative body, "do we want to accept that as the price for regaining management over wildlife and precluding the federal takeover of fishing in navigable waters? That is the issue, I think, before this body - right smack dead on. In my view, it's worth the price. Number 1654 REPRESENTATIVE JAMES: Now, if I might continue on this vein then, it appears to me -- and I'm thinking of the Bolt decision in Washington where the salmon were reserved for the reservation upstream which is about the same issue. But that's because that is an Indian reservation and that the federal government has the right to manage for Indian rights, which I agree with that and I'm not contesting that. In this particular case, we have a federal law that gives it not only to Natives, but to non-Natives. That's not the same thing in the fact that this is not a reservation upstream and if it was only to be serving the Natives, I think they'd have a good argument. Could you respond to that issue. MR. COLE: Well, I think (a) ANILCA is fully supported by the property clause of the United States Constitution which gives the Congress the right to make all needful rules and regulations respecting federal properties. And the United States Supreme Court said in the Kleppe case that the power of Congress dealing with federal lands, has been said by the Supreme Court, many times to be without limitation. So in my view, ANILCA dealing with the management of wildlife on federal lands is fully supported by the property clause and it is fully supported by the case of New Mexico v. Kleppe decided in 1976 by the U.S. Supreme Court. That's point number one. Number 1735 MR. COLE: Point number two is that with respect to the power of Congress to regulate fishing in navigable waters, as we've said the Court of Appeals dealt with that issue in the Babbitt case. Now the next level of management in congressional power is the power of Congress and the Secretary to make needful regulations off federal lands, outside of federal waters even where there exists a reserved water rights, and to effectuate policies on state and private lands necessary to fulfill the policies underlying ANILCA. And the Courts of Appeals have since 1977, since the Kleppe case, almost routinely said, "Where there is a rational connection between the policies sought to be effectuated by Congress on federal lands necessary to effectuate those policies, it's possible for Congress to exercise its powers under nonfederal lands." That law in my view is well settled. And so, here's how that comes into play and how I believe that the courts will decide this case. The Secretary of the Interior will soon say, if he hasn't already said, "Look in order to effectuate the subsistence priority for caribou on federal lands, it's necessary for us to exercise power over the bag limits of caribou on state lands because otherwise there's a risk that the state will allow all the caribou to be harvested on state lands and there won't be any caribou to be harvested on federal lands and we know these caribou go across state and federal land." So that's what exercising the powers in cases Block v. Minnesota, United States v. Little Duck Hunter in the Voyager's National Park, U.S. v. Brown and even a case in the Ninth Circuit - I can tell you it's 525 fed 2d and 5, United States v. Lindsey; it said they have this extra-territorial power and here's where, in my view, the cheese really begins to bind when the Secretary says -- they threaten to do. Look up here in the Porcupine, you have (indisc.) subsistence fishing, we have reserved water rights there, but we can't allow the downstream taking of enough salmon so as to preclude effective subsistence rights up in Porcupine. So, it's an easy call. To me, there's clearly a rational connection as the Secretary is proposed to do in his regulation, he's gonna say, "I'm gonna regulate the harvest of king salmon at the mouth of the Yukon and make sure that there is enough upstream migration to afford subsistence users in the Porcupine their subsistence rights." And in my view, it's an easy call. The courts are going to sustain that exercise of power and so what I'm saying is that if we don't put the brakes on this expansion of federal power immediately, it won't be long before the federal government is going to be managing the fish and game throughout the state of Alaska. That's my thesis. CHAIRMAN GREEN: On that point, Representative Croft. REPRESENTATIVE CROFT: Thank you, very quickly Mr. Chairman. Representative James raised two issues and you brought up another. When we were talking about just doing this on federal land, ANILCA said a law of general applicability - is that part of the question whether it would be a law of general applicability if it only applied to federal land? MR. COLE: Yes. REPRESENTATIVE CROFT: Easy answer and succinct. Secondly, she talked about the Bolt decision down in Oregon or Washington ... UNIDENTIFIED SPEAKER: Washington. REPRESENTATIVE CROFT: If Congress wanted to, could it - and as I understand it, the reservation upstream gets 50 percent of the salmon run - we're not talking the 5 or 10 (indisc. - tape garbled) 3 or 4 I've heard, but 50 percent of that salmon run - if Congress were at the end of its patience, could it say Alaska now has tribes with full tribal power, Indian country where they didn't have it before - reservations - and go ahead and enforce them fully on those powers. Could Congress do that? MR. COLE: It's too horrible to think about it. CHAIRMAN GREEN: Yeah. REPRESENTATIVE CROFT: Is it possible? MR. COLE: I'll defer to Attorney General Botelho. Number 1970 ATTORNEY GENERAL BOTELHO: Mr. Chairman, does Congress have the power to do so - the answer is yes, it does. That's an entirely different issue about whether it's good or how politically feasible it is, but in terms of the power of the Congress to make something that wasn't, Indian country today, it has the power to do that. I think it's important though - the Bolt decision isn't a result of there being any particular reservation, it really derives from two treaties in the last century guaranteeing aboriginal hunting and fishing rights. But it's not tied to location. It's managed because of where people live in the Prince William Sound or up river, but it's not strictly speaking, based on a reservation. It's based on two treaties in the late 1860s, but it may be a little later than that. REPRESENTATIVE CROFT: Mr. Chairman, if Congress did establish tribes with full tribal authority (indisc.-tape garbled) with whatever sort of guarantees of access to fish and game resources and we wouldn't be a party to that negotiation or that treaty. ATTORNEY GENERAL BOTELHO: Again, Mr. Chairman, the power theoretically is there, but Congress has had a policy since the late 1870s not to enter into treaties with the Indian tribes of the Nation, so for that to happen, it would be turning over 120 years of practice. REPRESENTATIVE CROFT: Fair enough and a final one for General Cole. You said that that would mean that the cheese would really begin to bind. What in the heck does that mean? [LAUGHTER] MR. COLE: The problems get severe. Number 2064 REPRESENTATIVE JAMES: I just have one more. CHAIRMAN GREEN: One more follow-up because we have two more people and then we do need to take a break. REPRESENTATIVE JAMES: Okay. We keep referring to the Kleppe case and little burrows down in New Mexico and the federal government's ability and right to protect the animals, but I don't believe the Kleppe case gave them any right of allocation of the use of those animals. Could you respond to that. MR. COLE: Well, yes Mr. Chairman. Certainly the facts are different in Kleppe than the facts here, but Kleppe said (indisc. - tape garbled) change in federal law. As a footnote in one of the later cases and I think it's in the Block case, the Court of Appeals for the Eighth Circuit said, "There were cases from which one could make a strong argument before Kleppe that the United States only had the rights of a landowner or of a proprietor over its lands and not legislative or police power over those lands." But the Kleppe case said the United States not only has the power of the landowner, because the landowner doesn't have any right to harvest as much game on his or her land as it wants, it's still subject to state law - you can prevent people from coming on, but you can't say how many animals one can harvest from one's privately owned land - but in addition, then the court in Kleppe said Congress has legislative or police powers over federal lands and what that meant is, you know the power to establish rules and regulations for the harvesting of wildlife on federal lands and Kleppe said, "Look, the power of Congress over federal lands is without limitation." Now what I say is, I just don't see any federal judge saying, "Well, I know what the United States Supreme Court said, congressional power over federal lands essentially is without limitation, but I'm going to put some limitations on it" - it's not going to happen, because that (indisc.) case said, "Congress' power is plenary over federal lands" and those are decisions - the decisions as to what to do with the federal lands and federal waters are within virtually exclusive power of Congress - we're not going to second guess the management of federal lands by congressional action. That's what I think Kleppe stands for. It's a very broad, strong case (indisc. - tape garbled). Number 2180 REPRESENTATIVE BARNES: Mr. Attorney General, you are not going to sit there and say that Congress has police powers over lands within the boundaries of this state, are you? MR. COLE: Yes, federal lands. Federal lands ... REPRESENTATIVE BARNES: No sir, I disagree with you. They do not have police powers over federal lands - federal lands as a part of this state. The state of Alaska has the police powers to control and go on those federal lands. Number 2202 CHAIRMAN GREEN: Under certain circumstances ... MR. COLE: May I respond to that ... CHAIRMAN GREEN: ... such as oil and gas. MR. COLE: Representative Barnes, I agree that the state of Alaska also has police powers over federal lands located in the state of Alaska; civil and criminal powers of the state enacted by the legislature are applicable as well to federal lands except when they collide - a term I use - with federal actions. CHAIRMAN GREEN: And I have a different view on Kleppe, too. I thought Kleppe had to do with those migrating off federal land and their jurisdiction there, but I don't want to debate that issue. We do have two other people. Representative Dyson, if you can remember what it was that you were going to talk about. Number 2232 REPRESENTATIVE FRED DYSON: I can, but it may be inappropriate at this time. I'll ask the Chair and if it is, you can (indisc.). My question was on the constitutional amendment that we had sitting up here - is that inappropriate at this time? CHAIRMAN GREEN: The constitutional amendment that the AGs referred to? REPRESENTATIVE DYSON: Yeah, the proposed one. CHAIRMAN GREEN: Go ahead. REPRESENTATIVE DYSON: As I remember, Warren Olson has been party to some of these actions and somewhat knowledgeable, has said not threatening but, that two or three milliseconds after we put an amendment on the ballot, he and others will be in court seeking an injunction to stop it from going on the ballot based on his conviction that we have no authority to give away (indisc. - tape garbled) equal protection sorts of rights for people in the state and to subject those to ballot propositions. At least that's what I understood that he said. In your opinion, what would be the probable success of a court action like that - either of you or both. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I will take (indisc. - tape garbled) provisions of the constitution are exactly that - part of the constitution. There are provisions to change the constitution - to modify it - it's the process we're talking about now. No one part of the constitution trumps another, nor is there a basis for challenging the merits of a constitutional change in the courts. One can challenge whether, for example, two-thirds majority was obtained in each house. Obviously, there might be questions about the phrasing of the ballot summary, but in terms of the fundamental ability of the people of the Alaska to change its governing documents, to the extent that those are (indisc.) conformed to, there's not an authority in the courts themselves, to declare a proposed constitutional amendment unconstitutional - beyond the purview of the state courts. CHAIRMAN GREEN: Representative Berkowitz. REPRESENTATIVE BERKOWITZ: On that point, there was a constitutional amendment regarding limited entry which impacted the equal access clause, were there any challenges (indisc. - tape garbled) success did they have. ATTORNEY GENERAL BOTELHO: Mr. Chairman, there was a constitutional challenge and the Alaska Supreme Court found, in fact, that provision in fact placed restrictions on provisions otherwise in the constitution, expressly found that it had equal validity to all other provisions or dignity equal to all the provisions in the constitution and to the extent that it limited in some respects other provisions, but it governed in the specific area of limited entry. TAPE 98-92, SIDE B Number 0001 REPRESENTATIVE DYSON: .... for a constitutional amendment and it was clearly contradictory to an existing provision. What's the process that we go through to reconcile those things? ATTORNEY GENERAL BOTELHO: Mr. Chairman, the task in interpreting the constitution ultimately falls to the courts of the state and the final arbiter of that is the Alaska Supreme Court. I think the Ostrosky case which is really what we're talking about in terms of limited entry, probably provides that guidance. It would be worthwhile actually perhaps circulating that and we could have it available to you after the break, which I think tries to explain exactly how the court will deal with that. REPRESENTATIVE DYSON: So, somebody challenges it and it goes through the court process (indisc. - tape garbled) now constitutional provision prevails for what the limitations are? ATTORNEY GENERAL BOTELHO: And the primary focus, Mr. Chairman, is to try and harmonize with the understanding that the document has to be read as a whole and that the provisions should not be seen as standing in conflict with each other, but to be harmonized with each other. And that requires obviously some adjustment - you have an amendment that may otherwise affect rights that existed before. REPRESENTATIVE DYSON: Thank you. That's all. Number 0128 REPRESENTATIVE BARNES: Mr. Attorney General. The Ninth Circuit - and most of what I've heard you say here today has been based upon a Ninth Circuit Court opinion - do you agree with me that out of 29 times that the Ninth Circuit has been to the United States Supreme Court, they've been overturned every time except 1. Is that not correct? ATTORNEY GENERAL BOTELHO: ... this year and its batting average has not been much better in the last couple years. REPRESENTATIVE BARNES: Back to the case of Katie John and navigable waters before the Ninth Circuit. The question of navigable waters outside the Ninth Circuit does not apply - is that not true - because their opinion is only based upon that which is within the confines of the Ninth Circuit. ATTORNEY GENERAL BOTELHO: Mr. Chairman, that is correct. Number 0199 REPRESENTATIVE BARNES: So, when the United States Supreme Court Justice Sandra Day O'Connor, writing for the majority opinion, wrote that the state owned all the navigable waters - and it was real clear and this was after the Katie John case, we all know that - since the language of that ruling was written by Sandra Day O'Connor was quite clear as it related to navigable waters, would you tell me which opinion holds - that of the Supreme Court or the Ninth Circuit? ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think the misunderstanding is that the U.S. Supreme Court has never dealt with the factual situation in Katie John and that the issue obviously raised in Dinkum Sands was who owns, among other things, the offshore islands. REPRESENTATIVE BARNES: Mr. Chairman, I'm very familiar with what it was about, having been here ever since the Dinkum Sands case originated and all the money that we pumped in to fight that through the years. What I'm saying is that the language that was in the Dinkum Sands case spoke - I'm not talking about any of the offshore oil leases or whatever - but the language that related strictly to navigable waters and what it said - because I'm going to ask that a copy of that opinion be made available to the committee members. ATTORNEY GENERAL BOTELHO: Mr. Chairman, as I explained earlier, I think the language is clearly there. I think it's important to point out (indisc.-tape garbled) first of all Katie John was petitioned to the Supreme Court - it chose to let the Ninth Circuit decision stand. It's not an expression itself on the merits of the case, but that was the final opportunity for us in terms of exhausting our judicial remedies on the power of the federal government in navigable waters. It is true that there's language in the Dinkum Sands case that talks about the powers of the state in navigable waters and I think it's - again, I would say it's not inconsistent with the Katie John ruling. The state continues to exercise powers in the navigable waters of the state and as I also emphasized, we have an Alaska Supreme Court decision which is directly at odds with the Ninth Circuit decision in the case, in which rejects fully the view expressed in Katie John that the federal authority extends to the navigable waters of the state. CHAIRMAN GREEN: Follow-up? Number 0411 REPRESENTATIVE BARNES: Mr. Chairman, sir, excuse me - my allergies are bad today. In the question of the Katie John case and the Supreme Court not hearing it, that does not in any way preclude raising that same issue before the court again, does it? The question of navigable waters in some other form. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think the place where that challenge would be, would not be on the fundamental premise, but whether the selection made by the federal managers was a correct one ... REPRESENTATIVE BARNES: ... or that Title VIII of ANILCA is constitutional. ATTORNEY GENERAL BOTELHO: Mr. Chairman, under doctrines of collateral estoppel, the state would not be in a position itself to relitigate the same issue once it's been decided and taken to its highest level of appeal. Other parties who do not stand in the identical position of the state have that freedom. REPRESENTATIVE BARNES: Mr. Chairman. The facts are ... CHAIRMAN GREEN: Representative Barnes. Remember now, we're not trying to debate an issue here, we're trying to find ... REPRESENTATIVE BARNES: I understand, but I don't want the record to get all befuddled here without there being some clarification of it because I know these two gentlemen to be quite intelligent and they're quite good at muddying the record, so I'd just like to have some clarification on the record of what goes on here. Because I know that simply because the Supreme Court chose not to hear this case at this time, does not preclude the state or some other body from on a separate issue of going to court on the navigable waters issue. ATTORNEY GENERAL BOTELHO: Mr. Chairman, and that is a correct statement. REPRESENTATIVE BARNES: Okay now, earlier one of you, Mr. Attorney General, said that - you talked about state management versus the federal management - and I believe also that one of the provisions in ANILCA was quite clear upon the amount of money that the federal government was supposed to pay to the state every year for state management ... UNIDENTIFIED SPEAKER: Five million. REPRESENTATIVE BARNES: Five million dollars a year and they didn't do that. In fact, we've paid the bill. They've paid maybe a total of $5 million. I want to know if either one of you, in the exercise of your authority as the chief law enforcement agent of this state, have filed suit against the federal government to collect the money they've owed us? ATTORNEY GENERAL BOTELHO: Mr. Chairman, ... CHAIRMAN GREEN: I think that's probably not germane to the issue that we have before us. I think that might be a ... REPRESENTATIVE BARNES: They raised the issue, I didn't. CHAIRMAN GREEN: No, I mean as far as whether or not we have filed suit to get the $5 million per year, I don't know that that has to do with our amendments. REPRESENTATIVE BARNES: Maybe not, but they raised the issue so I wanted to find out if they've done anything to collect the money. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I have not and to my knowledge Congress has, for the most part, refrained from appropriating the money which obviously is the condition precedent to the expenditure. It is $5 million (indisc. - tape garbled) - $5 million. REPRESENTATIVE BARNES: Mr. Chairman, I'm not quite done. CHAIRMAN GREEN: Alright. REPRESENTATIVE BARNES: The Eighth Circuit decision regarding Brown and the boundary waters case do deal with extensions of authority outside boundaries of withdrawals; they deal specifically with in- holdings, is that not true? Number 0652 MR. COLE: That is true, but they deal with (indisc. - tape garbled) to enact provisions to exercise its power over state navigable waters. That's the underlying fundamental issue in Block and in Brown. In each case, the Eighth Circuit said Congress may in effect exercise its powers over state navigable waters. REPRESENTATIVE BARNES: The Eighth Circuit said what again now? MR. COLE: That (indisc.-tape garbled) pursuant to regulations issued by the Secretary of the Interior - maybe the other case was the Secretary of Agriculture - can preclude certain actions; i.e., hunting in the Brown case and the use of snowmachines and motor boats in the Block case on state navigable waters. REPRESENTATIVE BARNES: But it does not deal with that issue outside their boundaries, is that not correct? MR. COLE: (Indic.-tape garbled) out of the boundaries of the reserve - that is correct. REPRESENTATIVE BARNES: I have another question to you, Mr. Attorney General. You have indicated that the task force attempted to tie the hands of the federal courts by inserting deference (indisc. - tape garbled) Assistant Attorney General Greg Cook wrote an opinion for the Territorial Sportsmen which said, "The term deference is so imprecise that it does not tie the hands of the judge." I understand that you may disagree, but the question is, what if he is correct - we could experience unimpeded federal court interaction with state management in exchange for changing our constitution (indisc.). Number 0782 REPRESENTATIVE CROFT: Point of order, Mr. Chairman. CHAIRMAN GREEN: Your point. REPRESENTATIVE CROFT: It's generally improper on the floor to read statements or canned questions, does that apply to a committee meeting? CHAIRMAN GREEN: (Indisc. - tape garbled) that requirement. REPRESENTATIVE BARNES: Mr. Attorney General, could you speak to that, please. Yes, I did read a question and we're entitled to do that. REPRESENTATIVE CROFT: I asked - some people object to it on the floor. CHAIRMAN GREEN: That's different, though. ATTORNEY GENERAL BOTELHO: Mr. Chairman, first of all Mr. Cook is not and never has been a member of the Attorney General's staff - I think I may have misheard, but let me emphasize I think a more fundamental issue - there is a large body of case law which deals with the degree of deference that should be given. It's obviously difficult to say in any given instance how that would be applied. I think the point of it is that if one were to look generally at how federal courts and indeed state courts when looking at state administrative agency decisions, are required to give deference, I don't think there's any doubt that it means that if there is a basis for upholding actions of the agency, it is expected to do so and that the fundamental presumption is in terms of regularity by the agency and its decisions rather than working from an opposite assumption. I mean deference is that to the extent that the agencies have acted in accordance with the laws - that is, those directives given it by the legislature, by the constitution and to the extent it's conformed to its own regulations, that unless it is arbitrary, capricious or an abuse of discretion, the courts must uphold the decision rather than deciding - and it's recognizing that a court may say, "If we were deciding this by ourselves, we might have decided this a different way, but as long as there's a rational basis for the decision, the agency's decision should be upheld." And that generally is the language one will find in decisions of the courts - both the state courts and the federal courts. Mr. Cole may have ... REPRESENTATIVE BARNES: Mr. Chairman, may I just ask ... CHAIRMAN GREEN: Representative Barnes. REPRESENTATIVE BARNES: May I just ask you - did not Mr. Greg Cook - was he not the attorney for the Department of Fish and Game? ATTORNEY GENERAL BOTELHO: Mr. Chairman, Mr. Cook has never been an employee of the department ... REPRESENTATIVE BARNES: What did he do for the Department of Fish and Game, because I do know that in the past he ... CHAIRMAN GREEN: We have Mr. Rosier here that may be able to answer that. Could you speak so that we pick it up on the microphone. Number 0964 CARL ROSIER, REPRESENTATIVE, ALASKA OUTDOOR COUNCIL AND FORMER COMMISSIONER, ALASKA DEPARTMENT OF FISH AND GAME: Thank you, Mr. Chairman. He was Executive Director of the Boards of Fish and Game. REPRESENTATIVE BARNES: Thank you very much. CHAIRMAN GREEN: Thank you, Carl. REPRESENTATIVE BERKOWITZ: Point of order. I'm just curious how many tangents we're going to hit before we get to eat lunch. CHAIRMAN GREEN: We're rapidly coming to a position that we're debating now I think more the amendment than the questions to the changes to ANILCA. Do you have any questions about the ANILCA changes? REPRESENTATIVE BARNES: Mr. Chairman, I have lots of recommendations for ANILCA changes, but I'm not going to go into them with these gentlemen. But these gentlemen brought each of these questions that I have asked up on the record and I believe as a committee member, I have an absolute right to ask for clarification of their testimony. And that is what I have been attempting to do - to keep them from muddying the record and it remaining unchallenged. REPRESENTATIVE BERKOWITZ: Mr. Chair ... CHAIRMAN GREEN: I would prefer not to use that word, but if it's a clarification, I will allow it. REPRESENTATIVE BERKOWITZ: Mr. Chair ... CO-CHAIRMAN HUDSON: Could we break now and at least - or do you want to finish ... CHAIRMAN GREEN: Well, I would like to finish - unless there are some -- do you have a long litany or just a short one? REPRESENTATIVE BARNES: I'm done. CHAIRMAN GREEN: Okay. Representative Ogan, the last question. CO-CHAIRMAN OGAN: Very briefly, I'm ... Number 1029 REPRESENTATIVE BILL WILLIAMS: They're a good resource - I hope that once they leave here, they're not going to come back -- that they will be back. CHAIRMAN GREEN: I hope so. ATTORNEY GENERAL BOTELHO: Mr. Chairman, we're here for you, sir. CHAIRMAN GREEN; Thank you. CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. Mr. Cole, I have a very short question for you - who are you representing here today? Number 1056 MR. COLE: I said yesterday when I appeared before the Senate that I have no clients who have any interest in this issue. Other than what is in the best interest of the state, I have no personal interest in this issue. I am not a commercial fisherman - I'm not a commercial guide - I shoot about a box of 12-gauge shotgun shells looking for ducks, trying to hunt a duck over in Mineral Flats in the fall - I don't hunt big game - I've not been paid for my service on the task force, it's been entirely at my own expense and I've spent hundreds of hours on that issue. I'm representing no one here other than what I believe to be the public interest. CO-CHAIRMAN OGAN: So, you would say you're representing yourself? MR. COLE: No, I'm speaking for the public, as a public citizen. I'm not representing anyone. I'm here as a member of the public. CO-CHAIRMAN OGAN: One follow-up to that very briefly - are you under contract in any way with the Governor's Office at this time? MR. COLE: No. And let me say this - I've steered away from that because I did not want people to say when Charlie Cole left as attorney general, he left with a big fat bunch of contracts in his hip pocket. They haven't been able to say that because I didn't. Number 1143 CHAIRMAN GREEN: We're going to stand in recess until 2:00 p.m. and for the information of the committee, the Senate has reconvened and there may be some interesting things going on there. [EDITORIAL NOTE: Chairman Green recessed the meeting at 12:53 p.m. and called the meeting back to order at 2:43 p.m.]. CHAIRMAN GREEN: ... House and Joint Judiciary and Resources Committees of the House. We left just before our break with a review by Generals Botelho and Cole, and I hope - I believe we went through all the questions that were asked about their presentation. Are there any questions now or do you gentlemen have any further testimony you'd like to give before we move on the calendar. REPRESENTATIVE BUNDE: Mr. Chairman. CHAIRMAN GREEN: Yes, Representative Bunde. Number 1175 REPRESENTATIVE BUNDE: If I might - thank you, Mr. Chairman. A question that - and it may be just legalistic, double speak, but something that I've always had a hard time understanding and if either of you two or three could help me through it is - the statement of the abolition of aboriginal hunting and fishing rights and then following shortly thereafter by federal verbiage that said, "Well, we have to deal with Native hunting and fishing rights" and could you help me understand how those two notions mesh? ... bought and paid for, I guess on one level and then in a relatively short time there was further legislation that said we must then deal with .... Are aboriginal rights different than just Native hunting and fishing rights? Number 1225 ATTORNEY GENERAL BOTELHO: Mr. Chairman, I guess I would describe the issue as what was part of the deal - if we can call it that - the settlement in 1971 and there was express language which extinguished aboriginal hunting and fishing rights. But if one takes the conference committee report as an expression of what the expectations contemporaneous with the deal were, the expression was that Congress expected between the Secretary and the state to take measures to protect language of the committee report - Native subsistence needs - and I think ANILCA comes in the context of what was probably widely believed as a failure of both institutions - perhaps particularly the Secretary - to take care of that intent. And the push and concern, I think, aggravated by dramatic population growth connected with the pipeline into the state that Native subsistence hunting and fishing rights were being threatened and also, of course, the legislature having itself identified in 1978 subsistence hunting and fishing as the highest priority. So, I don't think there's a complete disconnect here at all. I think if one sees as part and parcel of one package - ANCSA, the conference committee (indisc.) expectations, and Title VIII being a rough effort to -- when I say rough effort -- an approximation of trying to satisfy that and not doing it on the basis of aboriginal or Native rights, but to do it on the basis of geography instead. Number 1336 CHAIRMAN GREEN: What I'm going to do - I'm going to take three more questions and then we're going to move on because we got a big full house and we've got an awful lot of people to testify. So, follow-up briefly. REPRESENTATIVE BUNDE: Yeah, to follow-up on the conference committee - I'm sorry Representative Williams isn't here because he has a lot of concerns about that - and having read the - was it Mr. Heimer - that information that Representative James had distributed - said that there's some questions based on his historical view that the conference committee version was never adopted by the House and so that brings into question the legitimacy of the whole agreement or the validity I should say, more than the legitimacy and would this be addressed in the pending lawsuit or just the comments on Mr. Heimer's report? ATTORNEY GENERAL BOTELHO: Mr. Chairman, I'm not sure. I haven't seen the report that you're referring to so I can't directly respond to what that says. Clearly, I think the conference committee report acknowledged the rejection of the Senate proposals on the House Resolution 3100 about setting aside the conference committee, I think it's a product of the final compromise, not pre- Senate action on the House bill. MR. COLE: May I add a footnote, sir. CHAIRMAN GREEN: Go ahead. MR. COLE: Mr. Chairman, to a certain extent, if not to a total extent, it's really irrelevant because Congress has done what Congress has done and we are now in a position of responding to what Congress did in ANILCA in 1980 and the reasons that motivated its actions are largely irrelevant. We have to face what it did and deal with it now. REPRESENTATIVE BUNDE: Thank you. CHAIRMAN GREEN: Okay, Representative Berkowitz. Number 1442 REPRESENTATIVE BERKOWITZ: Thanks very much, Mr. Chair. This is more a question for you actually. Given the list of proposed ANILCA changes, I'm curious to know if anyone's had any contact with our congressional delegation indicating that they might even be willing to shoulder some of these burdens. CHAIRMAN GREEN: What we have done -- they are aware of what the list is essentially -- to my knowledge they're aware of 13 and there is somewhat of a mixed bag. One of the delegates says that we can't expect any significant change to ANILCA; the other says if you have the concurrence of both bodies and the Governor, we will take the changes proposed for hearing. So, that's a pretty wide spectrum. Now that's not current, in all fairness. That is several - at least a few weeks old. REPRESENTATIVE BERKOWITZ: So, there's no clear indication that either of our Senators or Congressman Young would be willing to carry these ... CHAIRMAN GREEN: Yes, I think there is. I think the one that said that they would carry it, will support that. REPRESENTATIVE BERKOWITZ: And in terms of the logistics of trying to get something like this moved through Congress - has anyone done any recent investigation as to the feasibility of rolling this through in the remaining time. CHAIRMAN GREEN: They're vague on it, but they do say that time is of the essence because there is an absolute shutdown and they want to actually have this prior to July in order to effectively do any good. REPRESENTATIVE BERKOWITZ: Just so I'm clear - who is it that says that they can run this through? CHAIRMAN GREEN: [Senator] Murkowski. Okay, Representative James. REPRESENTATIVE JAMES: I'll pass. CHAIRMAN GREEN: Representative Croft. REPRESENTATIVE CROFT: Thank you, Mr. Chairman. Before the lunch break, I'd wanted to talk about the unnamed House Resolution and some of the proposed ANILCA changes because I took that to be our ... CHAIRMAN GREEN: That is our charge. REPRESENTATIVE CROFT: Good -- and you have a copy ... ATTORNEY GENERAL BOTELHO: I do, Mr. Chairman. REPRESENTATIVE CROFT: Starting on page 2 then, after the "Whereases" which we just put in ... ATTORNEY GENERAL BOTELHO: Mr. Chairman, I have one that simply reads "Proposing Changes to ANILCA". I don't have a resolution - I just have a list of ... CHAIRMAN GREEN: You should have a work draft A, House Resolution No. blank. REPRESENTATIVE CROFT: They're primarily the same, but there ... CHAIRMAN GREEN: Representative Croft. REPRESENTATIVE CROFT: ... are some changes, so let's - if we could get the ones so we could work off the same numberings. CHAIRMAN GREEN: We're getting a copy for him, but as .... There we go. CO-CHAIRMAN HUDSON: Mr. Chairman, are you going to go by this draft? CHAIRMAN GREEN: The draft resolution, yeah. CO-CHAIRMAN HUDSON: Not the list, but the draft - the work draft. REPRESENTATIVE CROFT: Mr. Chairman, at any rate on both of them -- while we're getting that together -- they start 1 through 4 with the same 1 through 4 which are essentially four different takes on the Katie John case. I guess - is that your understanding - either of you - and if we can deal with the point of order so that I can title them correctly, I'm going to refer to them as Generals Botelho and Cole. I have a fax from the Conference of Western Attorneys General saying that that is the correct - has always been in the United States, the correct way - has no military connotation - that is the way that in polite conversation, you refer to an attorney general and I'd be glad to give any member a copy who wanted that. So either General Botelho or General Cole, is it your understanding that 1 through 4 would in different ways overrule the Katie John case? ATTORNEY GENERAL BOTELHO: Mr. Chairman, that's correct. I believe I would also add number 10 to that list; that those paragraphs 1 through 4 and 10 have that effect. Of course ... REPRESENTATIVE CROFT: Let's get on the same one - because that'd be 10 on the proposing changes to - but if we can work off the House Joint Resolution ... ATTORNEY GENERAL BOTELHO: Yes, and I don't ... REPRESENTATIVE CROFT: ... it's 11, I think. ATTORNEY GENERAL BOTELHO: I show it as number 10 on mine, as well. REPRESENTATIVE CROFT: I see - quite right. ATTORNEY GENERAL BOTELHO: At line 28 on page 2. Number 1660 REPRESENTATIVE CROFT: If this is part of a package that brings us so that we can have state management, why do we need to overrule Katie John? Put another way, I guess - is Katie John jurisdictional and if we've got our management back, what's the point of doing it? ATTORNEY GENERAL BOTELHO: Mr. Chairman, Representative Croft - you're absolutely correct. If the state has management, these issues are irrelevant because the state will be the sole governing body that will be managing on all the waters and lands of the state. REPRESENTATIVE CROFT: Okay, and that applies to 1 through 4. [Number] 10 is a findings section, so it's not even particularly a statute, but I take it -- I don't have it here -- but it's a finding relating to the Katie John case. ATTORNEY GENERAL BOTELHO: Mr. Chairman, maybe we're working from a different draft - mine shows that 10 would repeal Section 801(b)(5). REPRESENTATIVE CROFT: Okay. And if I can skip around just a little so I understand all that we're doing. From the resolution - from the unnumber HJR, number 12 starting "amends Title VIII ANILCA, as amended, as necessary to limit subsistence uses and the preference for subsistence uses to fish and wildlife;". What other, besides fish and wildlife would be covered under ANILCA with (indisc. - tape garbled). CHAIRMAN GREEN: Timber and things like that. ATTORNEY GENERAL BOTELHO: The statute specifically talks about other renewable natural resources. Timber as an example; that is wood for fuel, for shelter; it would include berries for gathering; it would include grasses that would be used for baskets, for example - handicrafts - those types of resources. Number 1774 REPRESENTATIVE CROFT: Has there been any significant problem with people making too many baskets, harvesting too many berries or taking wood too much for their houses or other purposes? ATTORNEY GENERAL BOTELHO: Mr. Chairman, I'm unaware of absolutely any circumstance where anyone has claimed that there has been an abuse of that section with relation to timber, berries, grass .... REPRESENTATIVE CROFT: I'll go on through them and I'll do them as quickly as I can, Mr. Chairman, but in the back of my mind is that characterization of these as onerous and I'd like to know if anyone has examples of why not limiting it to fish and wildlife has made an onerous impact on ANILCA. On 8 - again, I apologize for moving around, but I had to organize them sort of into groups - 8 starts "amends the subsistence preference of Title VIII reasonable opportunity" - haven't we already done that in ANILCA? ATTORNEY GENERAL BOTELHO: Mr. Chairman, the amendments that Senator Stevens pushed, expressly address that under the Definitions Section and I would refer the committee to page 111 - it's Section 804(d), "The priority granted by this section is for a reasonable opportunity to take fish and wildlife. For the purposes of this subsection, the term reasonable opportunity means an opportunity consistent with customary and traditional uses as defined in 803(3) to participate in a subsistence hunt or fishery with a reasonable expectation of success and does not mean a guarantee that fish and wildlife will be taken." So, again the answer is that it is expressly addressed in the amendments that have already been enacted by Congress. Number 1841 REPRESENTATIVE CROFT: And 9 and 10 on our list, just below it of course, amending or repealing, I guess, 801(b)(4) and (b)(5) - it looks to me like that is part of the findings section - (b) starts "Congress finds and declares further that ...." So, I guess I'm not sure how this can be onerous at all - we all know about findings sections not having the force of law. One relates to us being out of compliance, which we clearly are - wouldn't be if we changed things and Section 10, 801(b)(5) just talks about Babbitt so, am I missing something? Are those just findings or do they have the force of law? ATTORNEY GENERAL BOTELHO: Mr. Chairman again, these relate to findings. I think it's important again to reiterate that - and we don't have to be concerned about Secretarial management in the event that the state has laws that are consistent with ANILCA. I think the difficulty in assuming, generally speaking, that the Secretary doesn't have power, that it somehow devolves to the state - in many respects that was the issue in the Babbitt portion of Katie John where the federal court said, "Look, if it isn't the Secretary who has the power, it's the federal law that's going to be carried out and the default is to the federal courts, not to the state of Alaska." It will be the federal courts that will be responsible for overseeing, in essence, the practices of subsistence hunting and fishing on federal lands. CHAIRMAN GREEN: I think some of the thought processes were that did Congress, in fact, delegate authority that it has to the Secretary and that's part of the litigation as you're aware that that wasn't done and therefore, what was done by the Secretary is invalid. Number 1934 REPRESENTATIVE CROFT: I'm almost done with this list - we've moved through eight of them pretty quickly. And that brings me right to court oversight and regulatory oversight - so that's 5 on the list which purports to eliminate federal court jurisdiction over management and 11 which purports to eliminate regulatory jurisdiction. Maybe I'm missing something, but if the federal courts can't enforce a federal law and the federal agencies can't enforce a federal law, who does? ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think that General Cole gave a fairly detailed and, I think a very accurate description of the power of the federal courts and that they derive their authority from the Constitution, Article III, Section 2, to interpret federal laws. In that respect, I think one has to ask oneself whether it makes sense to be even asking this of Congress, recognizing that this is not power which is going to be revoked in terms of interpreting federal law. From the purview of the federal courts, Congress is unlikely to consider it - I'd say even more unlikely to pass it. CHAIRMAN GREEN: In my reading of that, what I'm seeing is that what this says is any specification in ANILCA under Title VIII that says the federal court will have jurisdiction over private lands, waters and state land rather than federal land - we're saying no. That portion of ANILCA would drop out and if it inures back to the fact that there is ultimate supremacy - example, Supreme Court of the nation - that's alright. But what we're just saying here is that that which is brought out in ANILCA as a right of federal courts, we want taken out. ATTORNEY GENERAL BOTELHO: And would the assumption be, Mr. Chairman - because I have not had a chance to talk with anyone about this - that the judicial remedy would be having the state courts make the determinations? CHAIRMAN GREEN: That's what, I think, the purpose behind that. Any other - yes. REPRESENTATIVE CROFT: Just continuing if ... CHAIRMAN GREEN: Yes. REPRESENTATIVE CROFT: ... I could. Almost done with them. But 11 removes regulatory authority completely and 5 removes court jurisdiction partially. ATTORNEY GENERAL BOTELHO: Mr. Chairman, again as we indicated earlier, paragraph 11 is really not necessary in the sense that when the state is managing under Title VIII, the Secretary was expressly barred from doing so. CO-CHAIRMAN HUDSON: Under what, specifically? ATTORNEY GENERAL BOTELHO: Barred from doing so and again, I think that's Section 814 which requires among other things, during any time that the state has complied with Section 805(d), the Secretary shall not make or enforce regulations under Section 805, which is the core function that the Secretary does - the Secretary does everything in terms of management through his regulation authority. This section makes clear that when the state is doing so, he may not do so. So, again and to the extent that our goal here is to have a unitary management system in the state managed by the state of Alaska, this section makes clear that the Secretary may not during those times create that dual management system. CHAIRMAN GREEN: And it may well be that this will need to be purged for the reasons that you have given in response to Representative Croft. I think the attitude was that to list the litany of things that have caused grief - perhaps that's too harsh a word - I'll defer to you again, Representative Croft, things that are perceived or for some reason have caused some people to be upset - list them maybe one will actually take care of another - maybe with certain things some of them aren't needed - there may be duplication - or there may be a way to combine - that's what the charge is for this group today. ATTORNEY GENERAL BOTELHO: I understand, Mr. Chairman. REPRESENTATIVE CROFT: And that's what I'm trying to do is see if we can't narrow it - see if we can't get back to what the original charge was. The only ones that I see that make substantial debatable policy choices are 6 and 13, talking about co-management and the regional advisory councils and I'm not sure that these testifiers are the appropriate ones on that, but all the others that we've just gone through, seem to me to be either unnecessary if we have state management, been no problem in the case of berries ... CHAIRMAN GREEN: That sounds more of debate than question though and we'll hold that until we get through with all the questions. REPRESENTATIVE CROFT: ... sort of summing up, but okay. Thank you, Mr. Chairman. CHAIRMAN GREEN: Thank you. Number 2158 CO-CHAIRMAN HUDSON: Mr. Chairman, before we get off of this though, if I may. Bruce you were saying that 814 essentially takes away the Secretary's enforcement of duties - regulatory and enforcement duties, but it does specifically say "concerning Section 805(a),(b) and (c)." Would there be any other provisions in here that we would want to have the Secretary's regulatory authority lifted? ATTORNEY GENERAL BOTELHO: Mr. Chairman, again I think there are a couple of other areas where obviously the Secretary has power to do something. For example, the co-management provision - he is authorized to enter into agreements - not required to, but authorized just as there's a provision that the state would do. There's another provision which authorizes the Secretary to go into a federal court to have a determination made that the state is out of compliance. It is a power. That formulation is, I think, a substantial change in terms of the amendments - before the Secretary could simply make a finding that the state was out of compliance and now we've limited his ability to do that and then they leave it to the courts and courts alone to make that determination, but leave him the opportunity to go into court to do so. Those are the powers that come to mind. It strikes me that when we're talking about management regime and the adoption of regulations dealing with how, where and when subsistence activities may happen on federal land, those are found in 805 and the purpose of this is to say, "Mr. Secretary, when the state is actively managing - has satisfied requirements - you may not do so - you can't adopt regulations, you can't enforce them." And to me that is the heart - the core power in ANILCA Title VIII for the Secretary. CHAIRMAN GREEN: Representative James. Number 2243 REPRESENTATIVE JAMES: Well, thank you. I just have to get this one thing clear because I keep hearing this over and over again that if we get state management back, then there is no problem with the federal government coming back again. And I just want to give an analogy here because my experience is on other issues besides this issue, is that our laws are a living and breathing document and they get changed all of the time - 29 times ANILCA's been amended or so, something like that -- what is the guarantee they're not going to change it again? And then to go on from that is that in the management of fish and game and the decisions made by the Board of Fish and the Board of Game, they must be flexible to make rules and regulations to effect what they're trying to effect on the ground and if the regulations that are currently in place don't go away, they're still there - if the statute stays there, it's still there - where do we get our permission to react to needed changes along the way without having federal management come back in and take over because we are veering away from the federal law. What I see the problem here is - and you keep saying that we're not going to have any problem with the federal law then, once we capitulate and go ahead and accept federal law into our laws, then we're home free. And I feel very vulnerable on that issue. So, where in the world do we have that kind of protection if we don't make the changes in ANILCA that makes those guarantees for us. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I don't think that either of us have indicated there are iron-clad guarantees or there's the possibility the federal government might at some future date find - federal court find that the state is out of compliance and that there might be a federal presence again. I don't think we can give that guarantee. I think that Representative James is correct; this is a constantly changing process. There have been changes before and there could be changes again, there can be dramatic changes in Alaska itself, that might bring that about. The mechanism that we've tried to establish here is one that we think furthers good management by the state, that there have been changes to federal law which bring the federal law closer to where the state has historically practiced; that is in terms of getting definitions, clarifications that didn't exist before - largely relying on definitions in state law, that we have curbed fairly broad authority of the federal courts in terms of examining individual decisions of the Boards of Fish and Game and their management. That we've also created a mechanism in terms of the ability, I guess, to make .... TAPE 98-93, SIDE A Number 0001 ATTORNEY GENERAL BOTELHO: .... that you have proposed which is item 14 which would (indisc.). This is really something that the task force had looked at - one that I don't think is appropriate at this time for the constitutional amendment because it really would be at the point that you have the statutory regime in place, but our goal had been that once we had all the pieces together, you would have Congress saying essentially what is here - that what we have put in place satisfies the requirements of ANILCA. Now under the old law, it is the Secretary of Interior making that decision and being left to the Secretary's judgment about whether we were in compliance or not. This approach was intended to have Congress say, without having the state submit anything to the Secretary of Interior, to say, "State of Alaska, the laws that you've put in place, as they are, satisfy the requirements of ANILCA" and that is instructive not only to us, but is instructive to the Secretary and most importantly, to the federal courts that to the extent that we operate under that framework Congress has said, we have satisfied the requirements of Title VIII. Again, I say that I think it's premature here because affirming that the laws in the state are consistent, we presume that we already have the management scheme that comes with whatever statutory framework we put together. But I think this approach is one that is really intended, in part, to be another safeguard to address the very concern about changes and changing approaches by the federal government. CHAIRMAN GREEN: Representative James. REPRESENTATIVE JAMES: Well, Mr. Chairman, if I might just briefly follow up on that because if we also have to do a constitutional amendment to allow us to manage the way ANILCA is scheduled to be managed now - we have to have that in order to make that constitutional - then we have to immediately accept all of, I believe, the rules and regulations that the federal government's using in order to be in compliance and so therefore, we are managing by the state under federal rules. Number 0198 CHAIRMAN GREEN: I'm going to ask both the questions and the answers to be extremely brief, otherwise I'm going to shut down further discussion. We are way behind schedule and we have a long way to go. So, very, very briefly on the questions and very briefly on the answers. Thank you. ATTORNEY GENERAL BOTELHO: Mr. Chairman, the state of Alaska would not be required to adopt any of the regulations that the federal government had used. I think you're going to hear from our Department of Fish and Game managers and I think it's an appropriate question to ask them and I do respectfully suggest this is an important question and it would be beneficial to hear their views about that. CHAIRMAN GREEN: Yeah, they are going to discuss several issues. Representative Ogan. Number 0257 CO-CHAIRMAN OGAN: Mr. Attorney General, earlier in the discussion we talked about the section of ANILCA that .... ATTORNEY GENERAL BOTELHO: Yes. CO-CHAIRMAN OGAN: .... and I gave you a handout and what it is, it says "16 U.S.C. 3202, Sec. 1314(a) says, "Nothing in this Act is intended to enlarge or diminish the responsibility and authority of the state of Alaska for management of fish and wildlife on public lands except as may be provided in Title VIII of this Act or to amend the Alaska Constitution." Now, I would suggest that the Secretary of Interior is violating federal law demanding that we amend our constitution or in holding a gun to our heads threatening us with federal takeover if we don't amend our constitution, when it's very clear on its face in the federal law, that nothing in this Act is intended to amend the Alaska Constitution. ATTORNEY GENERAL BOTELHO: Mr. Chairman and Representative Ogan, thank you for the courtesy of giving this to me in advance to read. I think this language is to make clear exactly what we've said before which is the federal government wasn't mandating any change in Alaska law or the Alaska Constitution. The state wasn't required to make any changes; it didn't make the decision though of whether it wanted to manage or not. If it chose not to, it did not have to enact any laws that were consistent with ANILCA. I don't think this section can be read to say that somehow the Secretary is violating his duty and that we're being required by the federal government to change our constitution. The fact of the matter is, the federal government hasn't taken the position that we must change it - certainly the Secretary has encouraged the state to do so because in his view it makes more sense to have a unitary system which is under state management. That's my view of what that means. CO-CHAIRMAN OGAN: I respectfully disagree and it seems to me that if we're being told we don't have any choice, but ANILCA says that nothing is to be construed that we amend our constitution. Anyway, I guess, people see things differently. Number 0499 ATTORNEY GENERAL BOTELHO: Mr. Chairman, just again to make clear - that the constitutional need didn't arise from anything Congress did or the federal Executive did - that really is a result of a Supreme Court decision under Alaska law that our constitution would not permit the legislature to enact laws that conclusively provided for a rural priority. It's not triggered by what the federal government did - it's triggered by an interpretation by our court - the highest court in the state - of what our state constitution provided as the limitations on the state's power; not a federal imposition of limitations on the state's power. CHAIRMAN GREEN: Representative Croft, on that point. Number 0547 REPRESENTATIVE CROFT: Real quickly - was there any court case, state or federal, on December 2, 1980, that said anything in ANILCA was contrary to, or anything in the state management under ANILCA, was contrary to the Alaska Constitution? Any court case that said that then? ATTORNEY GENERAL BOTELHO: Mr. Chairman, the first time that the constitutionality of a rural preference in state law arose was in the course of the McDowell case itself which was decided in December of 1989. CHAIRMAN GREEN: Representative Joule. CO-CHAIRMAN OGAN: Mr. Chairman, I wasn't quite done. CHAIRMAN GREEN: Oh, one more question and then we're gonna move on. CO-CHAIRMAN OGAN: Alright. What I'd like to do is take the opportunity to clarify some things that were said on the record by you folks earlier about the Kleppe case and the property clause - and the Kleppe case was about the property clause. You stated, I think, I believe Attorney General Cole said last night that well, we all can agree that the Kleppe case proved though they have broad authority to do anything they want and in fact, in the current Attorney General's collocation, I think I saw some quotes from the Kleppe case, but I'd like to put on the record some quotes from the Kleppe case and you can respond if you like. They claim the property clause gave the federal government unlimited power on federal lands and totally exempted federal lands within the state borders of all state or local power sovereign, including police powers as was discussed here earlier, but the court disagreed when it held that such total exemption was, "total unfounded." Justice Marshall, writing for the court said, "The Secretary of Interior's position that the property clause totally exempts federal lands within state borders from state legislative powers, state police powers, and all rights and powers of local sovereignty and jurisdiction of the states is totally unfounded." The same Kleppe court recognized the state's broad powers over wild animals on federal property and removed any possibility that the property clause could be used to dictate ANILCA-type allocation system, which is my own editorial. The court said unquestionably the states have broad trustee and police powers over wild animals within their jurisdictions, no doubt is true as between the state and its inhabitants - the state may regulate the killing of wildlife. Now Kleppe was about managing live animals, wild burrows and horses and Congress gave them express authority to do that. However, I don't think it's an apples to apples comparison because what we're talking about is the killing and taking of wildlife rather than simply managing live animals and you dispute the Supreme Court's writing, sir? Number 0731 ATTORNEY GENERAL BOTELHO: I don't think that anything, Mr. Chairman, that General Cole said earlier is contradictory. I think he made it quite clear that the states had concurrent police powers on federal lands. The question that's confronted though - I'm not just talking about Kleppe and in fact, bringing it closer to home and if we look at the Alaska Supreme Court in the Totemoff case - the Alaska Supreme Court doesn't dispute the authority of Congress to preempt state law in the management of subsistence hunting and fishing on federal lands. The question the court tried to grapple with initially was whether it could discern a federal congressional intent to actually preempt the exercise of police powers, but there's no state police powers. There's no question that under, not only the line of cases coming from Kleppe, but also our own Supreme Court, acknowledging the obvious which is the supremacy clause of the laws in the Constitution of the U.S. and the power of Congress to decide the extent to which it's going to permit the state governments to exercise power. With that ... CHAIRMAN GREEN: On federal land - on federal land. ATTORNEY GENERAL BOTELHO: Yes. Number 0810 MR. COLE: Maybe if you will, Mr. Chairman, read on in Kleppe, here's what the court went on to say, "The federal government does not assert exclusive jurisdiction over the public lands in New Mexico and the state is free to enforce its criminal and civil laws on those lands. But where those state laws conflict with the Wild, Free Roaming Horses and Burrows Act or with other legislation passed pursuant to the property clause, the law is clear - the state laws must recede." And then it goes on in talking about the wild animals, "Appellee's Contention that the Act violates traditional state power over wild animals stands on no different footing. Unquestionably, the states have broad trustee and police powers over wild animals within their jurisdiction. But as Greer v. Connecticut, cautions those powers exist 'only insofar as their exercise may not be incompatible with or restrained by the rights conveyed to the federal government by the constitution.' No doubt it is true that as between the state and its habitants, the state may regulate the killing and sale of wildlife, but it does not follow that its authority [that is, the state's] is exclusive of paramount powers." And then it talks about some exceptions. "And the property clause give Congress the power to thin over-populated herds of deer on federal lands contrary to state law. We hold today that the property clause also gives Congress the power to protect wildlife on the public lands, state law notwithstanding." That's about as strong a statement as one can get saying that when the federal Congress has acted with respect to the administration of federal lands, any action which the state takes which is inconsistent with that action must fall by virtue of the supremacy clause. Now you can say, well this is not killing animals, this is protecting animals, this is allocating. Those are distinctions without a difference. I mean as the court said - and let me say because it's so important - "and while the furtherest reaches of the power granted by the property clause have not yet been definitively resolved, we have repeatedly observed that the power over public land thus entrusted to Congress is without limitation" - without limitation. Now I don't know what could be plainer than that. CO-CHAIRMAN OGAN: On that point, Mr. Chairman, and I will close with that. CHAIRMAN GREEN: Thank you. CO-CHAIRMAN OGAN: I would just like to close the discussion with it. And that's certainly the case in the case of national parks, national monuments and expressed reservations, but not, I don't believe, that it doesn't apply to federal lands as a whole unless there's an express reservation made as in a national monument, national park and those kind of things. We're experiencing that in Glacier Bay and I know we ... MR. COLE: I really ... CHAIRMAN GREEN: We're in a debate now and I'm going to rule that that's not - you don't need to answer that question. The next one, Representative Joule. Number 1017 REPRESENTATIVE REGGIE JOULE: The first question that I have is on item number 13 with regards to co-management of agreements and I just wanted to ask the attorney general if there are examples currently in the state where there are co-management agreements and how many are working out with regards to how this is being referred to. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I might - in fact, the Department of Fish and Game does rely on a variety of organizations in parts of the state to assist them in management of resources. I think probably it would be best to allow the department when it testifies to focus on it. But certainly the task force, in looking at co-management thought it made sense and incorporated that concept in its proposed statutory changes to allow for the state to make use of local knowledge and resources in the management because of the view that those are the folks who are going to know best and rely most on the resource and hence would be most concerned about satisfying sustained yield and making sure that the resource was there for generations to come. Number 1096 REPRESENTATIVE JOULE: Follow-up to that. Outside of resource management issues, are there other examples of co-management with the state with regards to other types of ... ATTORNEY GENERAL BOTELHO: Mr. Chairman, the state does it in a variety of contexts. For example, in a way one might describe our VPSO [Village Public Safety Officer] program as a way of co- management - the state troopers working with regional organizations to provide a first responder in many of the communities of the state. We turn to many of the regional nonprofits to assist in social work areas, the relationship we have in terms of the Indian Child Welfare Act would be another instance where we have relations that might not as strictly be co-management, but are attempts again to look to cooperative agreements in trying to deliver governmental services. CHAIRMAN GREEN: One follow-up. REPRESENTATIVE JOULE: Well, on another number unless anybody else has a question in that area. You mentioned about utilizing local knowledge and I was wondering whether or not we could address the thinking of the task force on the issue of the regional councils and what the thinking of the task force was there. ATTORNEY GENERAL BOTELHO: Thank you, Mr. Chairman. I think to begin with, one has to realize that the regional council concept is in the original law; it's not something that's new to the amendments. What happened with the amendments was to, I think, in more detail explained the role in the composition and again, Mr. Cole may wish as a member of the task force to speak to this in somewhat more detail, but the recognition was that as the federal government has used its advisory bodies, there's been real satisfaction in large areas of the state about the degree to which local residents feel that they can have input in the final decisions that are being made and that they're listened to and that there's been a structure that provides for that concern - their concern about protecting their subsistence interest - and the task force recognized that if the state was going to regain management, it also had to do some things to give a level of confidence that whatever state system was in place would provide at least the same degree of opportunity for input into the decisions of the Department of Fish and Game, to the Boards of Fish and Game, and looked at what the best features were of that federal system and decided there were some other things that could be done as well. One of the features of it was to, unlike the federal system, provide room for nonsubsistence users to have input as well, recognizing that we have a broader concern and that it is important to foster and (indisc.) dialogue between commercial, sport, as well as subsistence users even in making subsistence decisions. So, that feature is incorporated into the federal act, but really narrows a recommendation that was made by the task force in what the state structure should look like. And also attempt to define, again, what that relationship should be between the regional subsistence councils and the Boards of Fish and Game, recognizing that, again, they are advisory, but they should again be given deference unless they conflict with certain specific policies. The final decisions for management still rest with the Boards of Fish and Game. Number 1308 MR. COLE: I think, Mr. Chairman, that Attorney General Botelho has well expressed the views of the task force on that subject. Myself, I gave deference to the views of the majority of the task force on that issue. CHAIRMAN GREEN: Were there representatives of the nonurban community that expressed a different view that they would want more than just a may or advisory, that they would want actual authority delegated to them? ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think in the course of the public testimony that the task force had, there were those who advocated that there should be strong co-management in the sense of both developing a regulatory regime as well as simply helping in the execution of the regime. If I can make that distinction, one is the creation of the ground rules and the other is the carrying it out. So, there have been those who voiced the view that it should be stronger. Number 1375 REPRESENTATIVE JOULE: There's been some discussion and Representative Croft brought it up, about the federal oversight issue as it relates to this and I'd just like to get an idea, I guess, of some other areas (indisc.) issue where the relationship between the state and federal government, where the government (indisc.) has that oversight relationship (indisc.). The thing that came to mind is like water, maybe even air or something along those lines. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think the area of environmental law is one example, but I think most places where you see federal monies being involved, whether you're talking about transportation, whether you're talking about social services, whether in your example talking about air and water, you may have the federal government exercising control that's saying to the state that, "You, state of Alaska or state of California, may carry out the program as long as your program meets these criteria and to the extent that they're at least as strong as the laws that you have as the federal program, you may carry it out" and frankly, we do that in large segments of what our state government does today. And I'm not sure that's a particular endorsement in some areas in terms of looking at the volumes of federal laws and regulations that one has to comply with, but it is pervasive in the federal/state relationship. CHAIRMAN GREEN: Representative Berkowitz. Number 1462 REPRESENTATIVE BERKOWITZ: Thank you very much. I understand the need to move as quickly as possible here and that's why I've got this question. Mr. Chair, you indicated that Senator Murkowski might be willing to carry the ball, but it's my understanding that as recently as today, his position was that he would try and do something with ANILCA if the Secretary of the Interior and the Governor were on board. It's my understanding that the Secretary of Interior says there will be no substantial changes to ANILCA, so it seems to me that these provisions here would not meet with his approval. It also seems to me that based on my understanding of the Governor's position, he would not be in favor of any of these positions. I want to know, that being the case, it seems incredibly dubious whether Senator Murkowski will indeed do anything, this exercise here seems to be somewhat futile and perhaps our time could spent better doing something else. CHAIRMAN GREEN: Such as? CO-CHAIRMAN OGAN: Going fishing? REPRESENTATIVE BERKOWITZ: Going fishing would be one. CHAIRMAN GREEN: That's what we're doing, Representative Berkowitz, is fishing. If we can actually craft something that we can have a negotiation with the Governor - to stand pat and do nothing I think is dereliction of our duties so that if we can come up with a list, have something to discuss, then I think we've spent our time well. REPRESENTATIVE BERKOWITZ: My concern, Mr. Chair, is that in an effort to appease people who are not particularly anxious to move, you might wind up losing the support of people who are already supportive of these proposals. CHAIRMAN GREEN: That's certainly the chance a person takes. CO-CHAIRMAN OGAN: Mr. Chairman. CHAIRMAN GREEN: On that point, we have another testifier and then we have to go to other people. CO-CHAIRMAN OGAN: Last time I checked, it's Congress' authority to change the policy in the country, not the Secretary of Interior. CHAIRMAN GREEN: We're in a debate issue now - we'll come up with that later after the testimony. Representative Hudson. CO-CHAIRMAN HUDSON: Mr. Attorney General, would you take these items 1 through 14 and give us something in writing relating to each one of them. We've talked about 1 through 4 and 10, for example, and indicated this isn't necessary because of this reason. For those of us who are not legally attended, it would really help if we had something like that. We have to deal with this list and anything else that is good for the state of Alaska to consider as an amendment to ANILCA or at least to put into some sort of an indication on our part that we want these changes. But I've listened carefully now to the dialogue that went on between our two friends over there as well as on this side and yourself and I haven't got it all. And rather than take the committee's time, perhaps - you've got a wonderful big staff behind you there - you could just take the 14 of them and put down "not needed" and here's the reason why and just give us a quick reference. We'd appreciate that - I would. ATTORNEY GENERAL BOTELHO: Mr. Chairman, I'd be delighted to (indisc.). CHAIRMAN GREEN: I would ask to amend that just slightly. There is another list, if you don't have, we'll get to you, which says in effect that there are three caveats to a constitutional change that if subsequently we were held we'd still be in violation of ANILCA, or if the Secretary or Congress will change ANILCA substantially as we've said - or there are three litanies there that would then render this constitutional amendment moot. We'd like to have your opinion on that, as well. ATTORNEY GENERAL BOTELHO: Mr. Chairman, we'd be delighted. CHAIRMAN GREEN: Okay, thank you. With that we appreciate it and very likely we'll have additional questions for you. But on teleconference we have Mr. Levengood. We have a request from someone here who has a very short fuse. Mr. Levengood, we would like to hear from you - I understand you also have a time constraint. Number 1650 LYNN LEVENGOOD, ATTORNEY AT LAW: My time constraint has resolved. CHAIRMAN GREEN: Good, thank you. With that then, we'll go to Mr. Frank Rue. Frank, would you identify yourself. I know you've expressed a concern about timing, but I think it's very important to hear what we had talked about as far as with or without changes how will fish and game be managed. Number 1673 FRANK RUE, COMMISSIONER, ALASKA DEPARTMENT OF FISH AND GAME: Mr. Chairman, thank you. For the record, I'm Frank Rue, Commissioner of the Alaska Department of Fish and Game. I have with me Wayne Regelin, the Director of the Wildlife Conservation Division and Rob Bosworth, the Deputy Commissioner. I just wanted to make a very quick point. I don't want to dwell on a lot of issues unless you all have questions. The main point I wanted to make was to follow up on what Attorney Generals Botelho and Cole talked about earlier and that is the difference between federal management and state management under a rural priority - ANILCA rural priority and federal oversight. To me, there is a huge difference. Anyone who believes otherwise hasn't been paying attention to what's been going on with the Federal Subsistence Board and our ability as a state to manage resources. If you look at the way the two organizations - the two management structures are put together, it's quite clear why that is. Under the state system, if we were in compliance with ANILCA, you would have the state Boards of Fish and Game as the final decision makers as opposed to the Federal Subsistence Board which is made up of heads of federal agencies. In addition to that, you would then have implementation by the department - and let me back up just for one second. I've got a good chart there that shows what federal management led to and we've all referred to it before and this chart shows what happened to our salmon resources under federal management and then what's happened when state management took over and I think a lot of that has to do with the use of good science and the use of in-season management, both of which will be compromised with federal management. CO-CHAIRMAN OGAN: On that point. CHAIRMAN GREEN: Representative Ogan. CO-CHAIRMAN OGAN: Mr. Commissioner, you mean to tell me that the federal government will ignore the state management system and the policies that the state has put in. I've been told that what they'll do is they'll mirror the state management system on fisheries. So, I believe that -- I've heard that from the Secretary's assistant. COMMISSIONER RUE: Mr. Chairman, all you have to do look at the regulations. CO-CHAIRMAN OGAN: And I don't believe for a minute that we're gonna go back down to the kind of crash and allow -- the feds are gonna allow that to happen because what they will do - and what I've been told that they will do - is that they will work very closely, in fact I've heard Debra Williams say that if I'm not mistaken - if I am, I apologize to Debra - but if I recall correctly, I heard Debra Williams and I met with her myself, said that they'll basically deal with the state system and work with the state and mirror what they're doing with the exception that they will manage for subsistence resources first. They'll allow the subsistence take first. Other than that, it'll be pretty much the same system. CHAIRMAN GREEN: On that point, Representative Croft. Number 1810 REPRESENTATIVE CROFT: I didn't hear the question. You know, that was just saying what we believe and I can state my beliefs on that, but maybe in the form of a question - what is it about federal management that caused those sorts of declines in territorial days? Was it over the general law or the political influence they were under or the fact that they're too far away, or whatever? And what is it that has led to better success under state management? COMMISSIONER RUE: Mr. Chairman, a couple of answers on this. One, regardless of what the Secretary's representative is telling you, the proposed regulations are very intrusive on fishing. In fact, we've got, I think it's around 40 pages of comments trying to back them off in the aggressive way they're entering into our fisheries for subsistence purposes, and I'm sure you can all either get copies - we'll be happy to give you copies of what the words on the page say in terms of federal regulations versus what they may be saying about cooperation. In fact, there's very little cooperation and very little dependence on the state system. Their budget message was they're asking for 77 new people in the state of Alaska to oversee fisheries. That's a huge staff. So, regardless of what they say about cooperation, the regulations do not support that. My view of this is that the thing that allowed the state to manage well and the feds not manage well - and I think others may be able to speak to this better than me - is the federal system was very inflexible; it was not managed by area managers in-season; people living in the area managing the fisheries, having the authority to implement closures on an as-needed basis, on a very quick real time basis; it was not based on the kind of science we have today and basing our management on escapement information, where conservation of the resource was first. So I think that general system has stood the state in very good stead over time and is really what has led us to that. I think what you'll see with federal management - and crab and scallops have shown us a good example of that - is a very slow ponderous system that cannot respond to in-season changes. In fact with crab, we tried to have two managers - we had a federal and a state manager - it didn't work. We were trying to do the same thing in that case; we were trying to both manage for commercial harvest. Two systems just will not work well together. In the case of crab, the federal government authorizes the state to manage under general guidelines of the North Pacific Fisheries Management Council. The two just do not work well together, much less where we're going in different - have different charges. Number 1928 COMMISSIONER RUE: The difference between - so let me get back to why I think it's very different with federal management, if the federal managers are here, you'll have a federal board made up of federal bureaucrats with one mission - subsistence. The state Board of Fisheries is not federal bureaucrats; it's made up of citizens of the state, which you all confirm and the Governor nominates, they listen to not only subsistence concerns, but also sport, commercial, personal use and have to balance all of those within that priority. Very, very different system. I think the other thing that's very different is the on-the-ground management and we're starting to see it already in wildlife. A very reluctant federal bureaucracy - they were reluctant to step in to tell you the truth - they Xeroxed our wildlife regulations their first go around. They have slowly begun to change the federal regulations and get out of sync with state regulations. They are more and more stepping into the day-to-day management, the second guessing on the biology, and Wayne Regelin can point out any number of examples of that. You will see a constraining of the state's on-the-ground management. Number 1988 CO-CHAIRMAN OGAN: Very briefly. CHAIRMAN GREEN: Representative Ogan. CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. That's because the Federal Subsistence Boards are making pretty much those determinations - those are the federal regulators you're talking about - the Federal Subsistence Board - they've made some determinations that I've seen your signature on saying that they're making determinations to manage below sustained yield on certain stocks of wildlife and that kind of thing - is that correct? COMMISSIONER RUE: That's correct. That's correct. CO-CHAIRMAN OGAN: And a quick follow-up. Do you believe that that's because those Federal Subsistence Boards are managing for subsistence and is there a bias towards subsistence over sound management, or why do you think they're doing that? Number 2009 COMMISSIONER RUE: I think two things are going on. One is they will expect the state to take the burden and the other users to take the burden of conservation. The attorney general talked earlier about the extra-territorial authority of the federal government to effect state actions. The other way the federal government can effect state management, is they can appropriate the resource for federal subsistence users and leave the conservation issues to the state managed sport, commercial, personal use, subsistence fisheries, for example, down river - they just won't care. They'll say, "We're going to have our folks harvest and you all take the responsibility for sustaining the resource and shut down your fisheries." We've seen that with musk oxen on the Seward Peninsula as a prime example where the state had to shut down a state hunt to make sure the resource was managed under a sustained yield. I think it's a combination of things. And Wayne, I don't know if you want to add to that, but ... The other thing I wanted to point out that's come out is sustained yield in the task force proposal is always the highest priority - it would be in the constitution and it would continue to be in our statutes. Any customary and traditional uses would be still within the constraints of sustained yield. That to me is fundamental and is the only way we'll successfully manage and I think it's in all the proposals before you. I've already mentioned the way the federal government can reach out and effect our management through appropriation as well as extra-territorial. I guess my sense of the results will be a disaster if federal management comes in. I think if we manage under a rural priority under ANILCA, we will be in the driver's seat; we'll be able to make it work. We had a rural priority before. I think the amendments to ANILCA that have already been put in place will make it easier for the state to manage. The definitions help keep the courts from interpreting key terms. We, the managers and the boards will be able to interpret those things. I think the constraints on the federal court oversight will help us continue to be able to manage and we will be in the driver's seat. The burden of proof will be on others to try and say that we're not doing a good job. I think that's a very fundamental point and I feel confident that we could make it work and provide opportunities not only for subsistence on state and federal lands, but also for sport, commercial, personal use and maximize those other opportunities. CHAIRMAN GREEN: History certain supports your position. COMMISSIONER RUE: I think it does. If you'd like, Rob Bosworth could mention quickly how oversight worked during the '80s when we had federal - rural priority. CHAIRMAN GREEN: I think that would be in order. Do you want to hear that before your question - I know you had a question .... Number 2123 REPRESENTATIVE BUNDE: .... for Commissioner Rue and, you know, I understand the concern about the impact on commercial fishing - I have a number of commercial fishermen in my district who are vitally concerned and frightened of federal management and I understand that. My question is, five years ago apparently the federal government took over management of game and maybe it's my fault - I never heard about that - there wasn't the hue and cry that we hear now and could you give me an idea why there wasn't the concern, at least in the public, about federal management in the game area as now in the fish. I know there are - if you look at the number of licenses - there are a lot more people who fish than hunt, but there are far fewer people who commercial fish than do either and I'm just wondering how this came to be that suddenly now we're coming to a crisis point. COMMISSIONER RUE: Mr. Chairman, Representative Bunde, I believe there was a hue and cry - we had a number of lawsuits against the federal government, Governor Hickel convened a task force to try and deal with this issue - I think there was a great deal of concern we didn't get there. Senator Stevens put a moratorium on fish - implementing the regulations for fish - so, I think there was a hue and cry. I think fish is more difficult than game because they pass through so many more jurisdictions and users - game very often are fairly localized - there is movement, but I think the hue and cry is partly - it was there. Second, I think fish - there are a lot more people who use fish and too, it's much more complex and much more likely to impact a lot more people than wildlife. We've spent an awful lot of time trying to keep the federal system from impacting Alaska. It's a tremendous amount of work and we have not been very successful. Does that answer your question? Number 2003 REPRESENTATIVE BUNDE: Very quickly, on another topic. We had a chart earlier showing the use per capita per year of wild game and wild fish and I think it would be really useful if the department could give us also a chart showing the number of hunting and fishing and trapping licenses that are bought throughout Alaska. COMMISSIONER RUE: Mr. Chairman, I'm sure we could get that kind of information for you. REPRESENTATIVE BUNDE: Thank you. CHAIRMAN GREEN: Representative James. Number 2219 REPRESENTATIVE JAMES: Thank you, Mr. Chairman. I'm back to this chart because that's when I got my name on the list and I wondered when did we institute the FRED Division and when did we start the hatcheries to do the comm [commercial] fish? And one more question then is do we know how much of the fish is comm [commercial] fish and how much is wild fish? Do we have any kind of calculation on that? COMMISSIONER RUE: Mr. Chairman, Representative James, Commissioner Rosier who is in the audience could probably answer. I think the FRED Division started in the early '70s in response to some of the very poor runs you see there and our hatcheries were built up through the '70s. I believe right now the commercial fish hatchery take is about 20 percent of the commercial fish and I'd have to double check that, but that's roughly the number of .... CHAIRMAN GREEN: Does everyone understand what the FRED Division is? Number 2250 COMMISSIONER RUE: It's the - basically, the former FRED Division - it no longer exists. CHAIRMAN GREEN: Yes. COMMISSIONER RUE: It's the Fisheries Rehabilitation Enhancement Division. Number 2258 REPRESENTATIVE JAMES: One more question - it's not related to that, but something that Mr. Rue said and that was your comment about managing for subsistence and having to shut down - that the federal government will shut down everything else to protect subsistence. I thought that's what we were supposed to do. I thought that ANILCA is all about making subsistence be the first issue and that you don't take away any subsistence rights until after everything else is gone. I thought that's what it was all about. Now I don't know why you're condemning the federal government from doing that in saying we're not going to do that. COMMISSIONER RUE: Mr. Chairman, Representative James, I think the issue is the heavy handedness and the ability to work with multiple users, if you will and the extra-territorial issue. First of all, the state would require reasonable opportunity, is the first thing. The other is that the state boards will work with the various user groups through the process to make sure that you get enough subsistence resource, but not unduly restrict other users. And I think a perfect example is the Yukon River where all the users - commercial, subsistence and sport users on the Yukon River are in a joint group called the Yukon River Drainage Fishermens' Association - they came up with a plan which actually did restrict commercial and the escapement for commercial to make sure subsistence happened. But it was a very surgical restriction and it allowed other uses to occur to the maximum extent they could and still have enough fish for subsistence. With a federal board over here that will not have interaction with commercial, sport users, I think you will see, and we've seen, a very heavy handed use of the subsistence priority. And .... Number 2322 REPRESENTATIVE JAMES: If I just might follow-up on that. I think the Yukon River Fisheries is an excellent example of the people who I have been in contact with, that federal management would do a better job than what we have right now. But .... Number 2332 REPRESENTATIVE NICHOLIA: Chairman Green, can I get into that one because I already know about a proposal that the federal government has submitted to the people in the state of Alaska and this would have the impact on the Yukon River Drainage Fishermens' - and that is that they said -- it's been published for public comment, by the way -- and a limited entry permit holder could not also fish for subsistence. That's going to have a dramatic effect on .... TAPE 98-93, SIDE B Number 0001 COMMISSIONER RUE: .... and there's been a moratorium, but Wayne, you may want to give an example or two on game to give you a sense of why we're concerned. Number 0027 WAYNE REGELIN, DIRECTOR, DIVISION OF WILDLIFE CONSERVATION, ALASKA DEPARTMENT OF FISH AND GAME: For the record, my name is Wayne Regelin. I'm the director of the Wildlife Conservation Division. I'd like to just make a few comments based on 29 years as a game manager; 22 of them in Alaska and for the past 6 years, trying to manage a dual system that isn't working very well. There's been a lot of questions about what happens under state management versus federal oversight versus federal management and we don't have to speculate on the wildlife side about what's going to happen like we do with the fish side - we've got a clear record and it's not good and it's not good wildlife management, in my mind. We get decisions made by a federal board of federal bureaucrats - you know, some of them - the regional director of the park service - he doesn't care about the hunters of Alaska, but he sits on that federal board, making the final decisions. We've seen decisions that are based on consideration of only one user group. They don't care about the sport hunter, the guides, anybody else - they have one requirement and they say that over and over - they don't have to consider other users. We've seen decisions made by that board that aren't biologically based; they're based on basically no information. I think we've seen some terrible wildlife management come out of that board in the past six years and if you'd like I can give you some examples. But in general, we've seen decisions that have resulted in the over-harvest of game in some areas, harvesting in excess of sustained yield and they refuse to restrict that harvest even though we've urged them to and keep going back and telling them they're doing it the wrong way. We've seen them waste wildlife resources where they have closed seasons to everyone but the federal subsistence clients when it's not necessary and that wastes the resource - it's (indisc.-coughing) harvest, we should harvest it. And we've seen decisions that exclude all but federal subsistence users when no shortage exists and to me this is all poor wildlife management and I can give you specific examples if you want me to of each one of those. REPRESENTATIVE BUNDE: Mr. Chairman. MR. REGELIN: I will do that in just a second. CHAIRMAN GREEN: Representative Bunde. REPRESENTATIVE BUNDE: Well, he can give them to me in writing, but I'd like to see them. CHAIRMAN GREEN: Yes, would you please - in writing. MR. REGELIN: Okay. But I think under state management, we get a subsistence priority based on reasonable opportunity; that means we can have seasons and bag limits. The federal standard is not based on reasonable opportunity unless the law is changed; it's based on the least adverse impact to the subsistence user. Very, very different. Over time I don't think we'll see seasons and bag limits because of an adverse impact. That really worries me. If we only have federal oversight, I think, but not federal management, that means we're back in control. I know a lot of my good friends are going to talk to you a little later, and they disagree with me on this. But I think some things are very clear that will happen if we have just federal oversight - the federal Subsistence Board will go away - that will be disbanded; it won't be there. The federal regional subsistence advisory councils will go away; they're not going to be there. And I can't believe that we can't sit down and work with our congressional delegation and make sure that that federal bureaucracy is disbanded and they go away and then we are back in charge - we can assist them and we can do this and make it work and it will evolve over time. I think the system that's set up is extremely complicated, but it will evolve; but will evolve on the basis of what we want not some federal board doing this because we have these -- I think it will evolve and I've got some things that I would like to see it evolve to make it more simple because I think what we have is very complicated. But right now if we have federal oversight, they have to overturn every specific regulation we have one at a time and it's a very complex process. They have to do it and they defer back to us. Everybody keeps worrying about federal oversight and I don't worry about it that much - we have federal oversight in almost everything, but that doesn't mean that they're in control. We're back in control if we do this the right way. And everybody - all my good friends keep saying, "We want state management, we got to have it." The only way I see us having it and maintaining it is to not - or is to pass a constitutional amendment and move forward. Anyway, I've got examples of just bad wildlife management and it will get worse, guys. I'm just convinced that it will. CHAIRMAN GREEN: Representative Williams. Number 0421 REPRESENTATIVE WILLIAMS: I guess - maybe you guys can tell me the difference between the federal management that is happening on the Tongass National Forest today versus what we can get into - and I heard your answer - but is that another example that we can use as far as the type of federal management that we can expect. We did have a timber industry here in Southeast Alaska at one time and now we're close to not having a timber industry. COMMISSIONER RUE: Representative Williams, I think Wayne brought up an important point. The state Board of Game, Board of Fish are focused on using the resource for all users. I do not believe that the federal government will continue to have or have that same level of interest in the users of the resource, is my humble opinion. And I think you will see more influence in the federal arena for nonuse than you will in the state arena is my sense. I think that was the point you were getting to. UNIDENTIFIED SPEAKER: Mr. Chairman. COMMISSIONER RUE: If it's useful, Rob Bosworth could quickly describe federal oversight when we had a rural priority and state regulation and statute before and whether that was onerous or not. And that, I think, was under a worse federal statute - if the Stevens amendments go through - I think that helps our case and makes federal oversight less onerous even than it was during the '80s. If it would be helpful to the committee, we could just .... CHAIRMAN GREEN: Representative Hudson. Number 0525 CO-CHAIRMAN HUDSON: Thank you. Mr. Chairman, I came to work for Governor Hammond in 1974 and was rather immediately put on the board to take a look at the development of the hatcheries - we didn't have the hatchery program in those days - we had about 25 to 26 million salmon coming back at the state. We were on the verge of collapse and we've seen, I think, by strong and effective state management that coming up. So, I think - in response to my good friend from Fairbanks - my observations and analysis of this is that too many federal managers come to Alaska to get the high three years so they can retire. I know I'm straying .... CHAIRMAN GREEN: We've strayed considerably and we better get back on ... CO-CHAIRMAN HUDSON: ... but I do have one question, but that (indisc.) bring up and I thought I'd put that on the record. What would happen in Southeast Alaska and Cook Inlet to the mixed stock fisheries with multiple management or federal management, for example. What do you think? Number 0596 COMMISSIONER RUE: Mr. Chairman, Representative Hudson, let's take the Russian River as one possible example, where you have federal land, you have a federal rural designation - none of it is inconsistent with the state rural - Cooper Landing, Hope and Ninilchik - any one of which could ask for a federal subsistence fishery on the Russian. If they - depending on how much the federal board granted them - you could then have two things happening. One, if there are lots of red salmon, for instance if that were the allocation to a federal subsistence fishery on the Russian, if there are lots of salmon coming back to the Russian, you'd have a gear conflict - some people would be able to go down with a net, for instance if that was allowed for subsistence, and others would only use hook and line. So you might have that level of conflict. If there were a conservation concern as we have once every four years or so on the Russian River, I think the federal government and the federal subsistence fishery would cause us, the state - because I don't think they would back off - to restrict the sport fisheries and the commercial fisheries down stream. When we're in control of management, we've been able to do that very surgically. We've been able to just limit within the Russian and then maybe just a little bit down from the Russian, because we've had control of all the various users. It's also a nonrural area - nonsubsistence area. We don't have the issue of subsistence on the Russian. So, there's the kind of thing where it could move all the way down the river either because we absorbed the entire burden of conservation through the state fisheries that we're still managing which would be sport, personal use and commercial, and depending on how much they allocated to the subsistence fishery on the Russian and how big our conservation concern is, we might have to go all the way out into Cook Inlet to restrict the sockeye fishery to make sure that federal subsistence was achieved at the Russian. That is a possibility in my mind. Number 0719 CHAIRMAN GREEN: Have you seen the proposal to tie in with a possible constitutional amendment that we would want changes to ANILCA - have you seen that litany of 14 potential changes .... COMMISSIONER RUE: Mr. Chair ... CHAIRMAN GREEN: ... we have copies, if you ... COMMISSIONER RUE: ... I saw it and I listened as Attorneys General Botelho and Cole went through it. CHAIRMAN GREEN: How do those or any of those either help or hinder your activities or the sustained yield, the ability to have a multiple use fisheries? Do you see those as good, bad or indifferent? COMMISSIONER RUE: Mr. Chairman, I haven't had a chance to analyze them in that light. I have looked though at the ones that have already been done - the amendments, the definitions, that I think are helpful - if you mean the definitions that are in the Stevens amendments when you talk about customary and traditional, customary trade, barter, the definition of rural, which was added to ANILCA by Senator Stevens and that helped a lot too, because now we have a common definition in state and federal statute. Those sorts of things are helpful. The others I haven't had a chance to analyze. One I would mention is co-management. To me I see that as something that's a positive; it doesn't require that we do that. It just allows for it. I think that any co-management agreement or implementation would always be contingent on the state of Alaska retaining ultimate authority to make management decisions. So, I do not see the state giving up any management authority. I do see us working with people in both the regulatory process - you know, Yukon River Drainage Fishermens' Association - it's us working with the users to come up with regulations that work for everybody. The board has the final say whether to do it. Research - we do it a lot now - we have weirs done by Kawarek, for instance, and we do weirs and counting of fish is something we can do cooperatively. Research in marine mammals - we work with local hunters. They gather samples for us. To me those are all parts and examples of what co-management could be. I don't see us ever giving up authority to make management decisions, nor the board giving up. But I think that's a useful thing, so I wouldn't want to see that proscribed. Number 0861 CHAIRMAN GREEN: If we were to regain authority over navigable waters, and then with that, the jurisdiction authority for fish and game within the state on all navigable and other inland waters, does your department have the personnel to handle that additional load? COMMISSIONER RUE: Mr. Chairman, I believe that it will actually be -- I think we do, yes is the simple answer and I think by adopting a constitutional amendment and statutes that bring us in compliance, I think given the amendments to ANILCA, we can definitely do it. I think that it would be nice to have the federal government help out with the costs of some of the data gathering for subsistence. I think that would be a good addition - it would help us. But it's perfectly -- I think we would do a much better job - I think it will be a lot cheaper in the long run. Dealing with two boards is hugely expensive, hugely complex. We have people who not only go to the state Board of Fish and Game, we have to pay attention to the federal board. We tried to keep it from breaking down - we tried to keep the federal board from doing a totally (indisc.) thing. That takes a lot of effort - it's a lot of wasted effort. I think it will be cheaper if we have a unitary system, both regulatory and then management. CHAIRMAN GREEN: Well, there was some talk at one time if we actually did control on federal land that there would be, I think it was $5 million, that would be allocated by the federal government. Could your department handle it for five or less? COMMISSIONER RUE: Mr. Chairman, I think if $5 million of federal money were added to our budget to help with the subsistence system; i.e., data gathering and any regional council form that you might create or advisory committee work, yes. That would be very helpful. Far more than the whole subsistence division gets today. CHAIRMAN GREEN: Yes, Representative Nicholia. REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. And on that point, when the federal government took over their boards and their advisory committees, we did lose a lot of money from our budget. I remember seeing those losses when I first came here six years ago and it was a substantial amount and I know that our departments surely could use them. Just being a member of the Yukon River Drainage Fishermens' Association and talking about funding for the commercial fisheries division .... I know they could use it and that was a loss. Number 1005 CHAIRMAN GREEN: Any other questions of the members of the .... COMMISSIONER RUE: Mr. Chairman, would it be helpful to have Mr. Bosworth give you a quick overview of what it was like when we had a rural priority and federal oversight or ... CHAIRMAN GREEN: If you could do it in just a few minutes, it would be .... Number 1017 ROBERT BOSWORTH, DEPUTY COMMISSIONER, ALASKA DEPARTMENT OF FISH AND GAME: Very briefly. Mr. Chairman, thank you. I just wanted to remind the committee that it's not entirely necessary to speculate about the situation where the state manages fish and game on all lands in the state in the context of federal monitoring and oversight. This was the condition throughout the 1980s and I will simply point out that that all came to a screeching halt not because there was a hue and cry over onerous provisions of ANILCA or there was a hue and cry over the untenable presence in the pressive nature of federal oversight - it came to a halt because of Sam McDowell and others who felt that they were disadvantaged by not being able to hunt and fish in rural areas under subsistence regulations. Up until that time - I don't want to make this picture sound too rosy - there was a lot of work to figure out how to implement ANILCA. There were few court cases, including the Madison decision which required reconfiguration of the state's subsistence law - we worked through that. There was a major effort by the Boards of Fisheries and Game involving literally hundreds of hours of deliberation to identify the rural areas, to identify the customary and traditional uses, and to draft the regulations that provided for those uses on federal and on state lands for fisheries as well as wildlife. We did have the rural preference; we did have the regional councils - the regional councils are still on the books - they're still in state statute - we don't operate them because we're not required to by ANILCA any longer, but those were by and large successful bodies which one of the only regional bodies that advised us on fish and game issues. We had the regional council report that went to the Secretary and advised the Secretary about how good a job the state was doing. We actually learned quite a bit from those reports. When they would come out we would read them to get the feedback from the regional councils on how good a job we were doing from their perspective. Was there a problem with the abalone fishery in Southeast that they didn't think we were doing a good enough job in managing. We often found that out best from the regional councils themselves. Customary and traditional use was a major effort to identify those uses - well informed by the regional councils. Those uses are still in place and are still part of the regulations that we use to this day. MR. BOSWORTH: We could manage for sustained yield. All the management tools that we need to have to be effective managers whether it's setting seasons and bag limits, opening and closing seasons, size, sex, all the variables having to do with appropriate management - we had those. The Secretary was there - there were all of the provisions that seemed to be so worrisome to some and I'm here to tell you that from our vantage point in this day and age, those look like the golden years. We weren't dealing with dual management; we weren't dealing with the controversy that bogs us down at the present time. And I'll also make the point that Commissioner Rue made that there have been necessary changes to ANILCA. We did learn something during the '80s about the need for better definitions. Some of the court cases that have been discussed were brought specifically because of the fact that our boards were either not following, in some cases, appropriate procedures or were operating without adequate definitions in ANILCA and there was a conflict that resulted and needed to be resolved by the courts. Number 1220 MS. BOSWORTH: The ANILCA amendments that were drafted and included by Senator Stevens in ANILCA, we do have those definitions now in place. We included those definitions in the '92 law, once again, based on what we learned during the '80s, so we actually have an improved situation now, potentially above and beyond what we were operating with in the '80s. I'll leave it there, Mr. Chairman and answer any questions. I just wanted to point out that from my perspective, it's not necessary to be too speculative about what oversight means - 1989 doesn't seem that long ago when we were doing this. Thank you. Number 1254 CHAIRMAN GREEN: Are there any questions from members of the committee? Seeing none, I want to thank you gentlemen for giving us a presentation. REPRESENTATIVE NICHOLIA: I have one more question for Frank Rue. CHAIRMAN GREEN: Representative Nicholia. REPRESENTATIVE NICHOLIA: Can you -- do you have this list proposing changes to ANILCA? COMMISSIONER RUE: Yes, I do. REPRESENTATIVE NICHOLIA: Can you comment on Section 12 where it eliminates berry picking, logs for shelter and stuff like that. COMMISSIONER RUE: Mr. Chairman - Representative Nicholia, I am not sure that that's ever been invoked or dealt with through the Boards of Fish. In fact, I don't believe it has. I'm not sure how that has been an issue. REPRESENTATIVE NICHOLIA: So, it hasn't been an issue ... COMMISSIONER RUE: It hasn't really come up as a major point of conflict before where any other uses had to be restricted because of a subsistence use of other natural resources that I'm aware of. It just hasn't been an issue. REPRESENTATIVE NICHOLIA: Alright, thank you. CHAIRMAN GREEN: Thank you very much, again. The set up that I have now, as I understand it, Carl Rosier, Dave Kelleyhouse, Dick Bishop and Walt Sheridan were going to act as kind of a group and each of you take a few of the proposed concerns that we have here and discuss those. Is that a correct understanding? MR. ROSIER: That's the way we understand it. CHAIRMAN GREEN: Great. Would you gentlemen please come forward and we'd like to hear your comments about the concerns that have been raised with ANILCA. Number 1353 MR. ROSIER: Thank you very much, Mr. Chairman. It's been an enlightening morning and afternoon here to say the least. CHAIRMAN GREEN: That's the nicest (indisc.). MR. ROSIER: For the record, I'm Carl Rosier and I'm here as a retired ex-commissioner at the present time and I might add that I'm glad that I'm not having to sit through this as the commissioner at the present time. Anyway, in speaking to the ANILCA amendments on this, this list is obviously quite inclusive and I think this is a good effort to in fact explore the changes because I think the criticism that's been out there of this whole system has been, "You know we need to make the changes in ANILCA" and we might be able to in fact get back to a reasonable management system here on this. I would like - because there's a lot of things that bear on ANILCA here on this thing - I think the committee heard quite a little bit this morning about the Section 801(b)(5) and whether it was inadvertent or on purpose on this, it seems to me that that particular section may have limited the state's options a little bit in that it would appear, anyway to me, that you're kind of looking at the possibility of the state -- the endorsement of the decision on the Ninth Circuit -- that in fact gives congressional approval for that particular decision and that under that set of circumstances - without being a lawyer, I'm strictly a layman - but it would appear that it would limit the state's abilities to in fact challenge the navigability issues that were involved in Katie John. Number 1458 REPRESENTATIVE PORTER: Mr. Chairman, which section are we addressing right now? MR. ROSIER: This was 801(b)(5). REPRESENTATIVE BERKOWITZ: On that point, Mr. Chairman. CHAIRMAN GREEN: Representative Berkowitz. REPRESENTATIVE BERKOWITZ: Mr. Rosier, you're indicating that 801(b)(5) which reads, "The Ninth Circuit determined that the subsistence priority required on public lands applies to navigable waters". That's just a finding - I don't see how ... MR. ROSIER: Under normal circumstances -- excuse me, I'm sorry, I apologize. REPRESENTATIVE BERKOWITZ: No, that's my question. What is that - anything more than just a simple finding. MR. ROSIER: My feeling on this is that these are the kind of words that come back to haunt you in future legal challenges and these are the types of things that get used in terms of future legal challenges. REPRESENTATIVE BERKOWITZ: If I could follow-up. Is that an imprecise summation of what that case stands for in part? MR. ROSIER: I'm sure it is. As I say, I'm not a legal eagle here on this, but that's my impression - I'm reading the amendments that Senator Stevens was capable of getting under which we are now taking a look-see at the whole picture of the proposed changes to ANILCA. CHAIRMAN GREEN: Representative Croft, now I want to caution you that we're not in debate mode now; we're in questions concerning clarity. Number 1518 REPRESENTATIVE CROFT: Right and we're finally going directly to this and they're talking about Section 10 here ... CHAIRMAN GREEN: Exactly. REPRESENTATIVE CROFT: Yeah, and they brought it up. No, I'm not debating it, but the Ninth Circuit -- 801(b)(5) is very short. "The Ninth Circuit Court of Appeals determined in 1995 in State of Alaska v. Babbitt (73 F.3 698) that the subsistence priority required on public lands under section 804 of this Act applies to navigable waters in which the United States has reserved water rights as identified by the Secretary of the Interior;". Now that's just the truth - whether we like it or not, the Ninth Circuit did determine that, isn't it? MR. ROSIER: Mr. Chairman, I think we heard from the attorneys here this morning that basically the feds can do anything they want to and the federal courts can do anything they want to. That was, to say the least, a little on the discouraging side to hear those particular statements being made. But the fact still remains is that this again, seems to be one of those areas that in fact, at least in my mind, short stops future actions because Congress has now spoken. The Supreme Court couldn't speak, but Congress has now spoken in the findings, as I see it, as a result of Public Law ... CHAIRMAN GREEN: 96-487. MR. ROSIER: Right. Number 1593 CO-CHAIRMAN HUDSON: Mr. Chairman, on that point. CHAIRMAN GREEN: Representative Hudson. CO-CHAIRMAN HUDSON: Carl then, if I hear you correct, you believe that Section 10 should remain as a provision of -- we want that change in ANILCA. MR. ROSIER: Absolutely. You know, as far as I'm concerned, I think that that's a necessary change. There was discussion here earlier that this was probably not necessary - that this was -- I think that it's, you know, -- I feel quite strongly the other direction. My feeling overall on this is, is that basically the state should in fact be looking to carve out as much as they possibly can on state and private lands at the present time. And I think that these amendments that you're proposing here do a very good job of that particular thing. I'd like to read if I might, very briefly, some provisions of the environmental assessment that was done by the feds on the regulations that were to be implemented. CO-CHAIRMAN HUDSON: Are you drowning in paper ... MR. ROSIER: Here it is - here it is - I got it, Dick. This is from the environmental assessment and I think that this points out some of the things that were mentioned to you earlier today about how aggressively the feds are in fact looking at this fisheries issue here in Alaska. This is directly from the federal environmental assessment done to in fact support the regulations that are being proposed for the takeover of the fisheries on this thing: "First, the key aspect of the federal/state cooperation will be the adoption of what are now the state fishery management plans into the federal program. In general, this will involve the regional councils and Federal Subsistence Board in the evaluation of existing plans. Modification, if necessary, to adequately address and accommodate subsistence uses and development of new plans, where necessary." If they don't like the state plans, they're going to do it themselves. In the assessment, they looked at three alternatives: One, the no action alternative; two, a limited federal jurisdiction; and three, the preferred alternative which is much larger in scope than alternative two. And I'd to read for you alternative three: "Jurisdiction in alternative three is broader than in alternative two for lands managed by the Department of Interior, but remains the same for lands managed by the Department of Agriculture. In alternative three, all inland navigable waters within and adjacent to exterior boundaries of DOI [Department of Interior] conservation system units would be included under federal jurisdiction. As in alternative two, however, navigable waters on most BLM lands [Bureau of Land Management] would not be included." Of the 196,234 miles of rivers and streams - and I don't know how they ever came up with that - in the state, 102,491 - 52 percent - would be under federal subsistence jurisdiction and 93,743 or 48 percent, would remain under state jurisdiction. But it appears to me right off the bat that the feds are going to have jurisdiction over the majority of our waterways. "Land ownership patterns are the same as discussed in alternative two; however, the extent that jurisdiction differs significantly, the difference is due to the inclusion of inland waters within the outer perimeter of DOI's [Department of Interior's] CSUs [conservation system units]. Inclusion of those waters avoids the problems associated with checkerboard pattern of land ownership in lands managed by the Department of the Interior." It just seems to me that it pretty well outlines - at least in my mind - how aggressive the federal agencies are going to be. Someone made the statement here earlier today that the feds will take whatever they want - it may be a little, it may be a lot. I think with the resources that we've got up here in the federal withdrawals, my personal feeling is, is that we're going to see a very significant, hard nosed federal approach to these resources. This idea that we're going to get state management - while it may look good on paper - my feeling is that unless the state, in fact, takes all the jurisdictions that it possibly can on this, and the bottom line certainly has to be state and private lands, basically we're going to lose the ball game. If we capitulate state lands and private lands to the federal system on this, I'm not sure what we've got left. We have then a single system under a federal law observed by federal agencies and ultimately in cases of dispute, you're in fact looking at the federal court system in fact resolving those disputes. MR. ROSIER: And I'm not sure what the leverage is of the state if you in fact capitulate state and private lands under those circumstances. Why would -- thank you -- where's the state's leverage, what do you deal with under those circumstances on this? It escapes me where you go once you in fact capitulate to the image of the ANILCA management system here on this. Number 1859 MR. ROSIER: I quite agree with Commissioner Rue and some of the statements that he made here. The reason that those -- on that chart that you saw up there -- the reason that those salmon runs were going up following the major declines - and if you really look closely at the resources here in the state - generally speaking from the Aleutians south, those resources are in really fine shape. There are some problems in the Yukon; there's some problems in the Kuskokwim drainages; there's certainly some problems further north. Those came about as a result of 1) late development of fisheries; 2) the lack of information in many cases to in fact manage correctly in those areas in the early days. There wasn't money, there wasn't staffing and this type of thing in many cases. Subsistence was the priority in those areas kind of north of Bristol Bay, for instance, and commercial fisheries didn't come along until in the '70s in those particular areas. And those areas do have some problems at the present time and they will be worked out. Number 1908 MR. ROSIER: It seemed to me that in one of the examples that was given this morning in terms of how this system might end up in a controversy with the Secretary and I'd have to agree with that - the Yukon River, for instance, there's been a long established allocation based on species of salmon in that particular river. The king salmon were in fact basically allocated to the lower river, there was some limited subsistence, the subsistence needs were being met further up river on this, those communities grow and all of a sudden you're looking at demands for king salmon. And I use this only as an example. As you look at king salmon, there's only one place to take them - it's going to come out of the lower river - and it's going to come out of the commercial catch down there because that's all there is. There is no recreational fishery down there on that. And you will see, in my view, under the proposed regulations under the ANILCA system, a situation in which basically the state will in fact be forced to do that because it doesn't go away - they just kind of step back and it's kind of like getting the cream off of the cow without actually taking care of the cow. The state is going to have to make those decisions. They will have to make the tough decisions related to reallocation of those resources. They can't escape that in my estimation and it's a situation in which you may get by with it one year, there will be a shortage of that king salmon in the upper river on this thing - believe me, there will be pressure on the staffs and the boards to in fact make the changes to reallocate resources back up to that subsistence fishery because that's what it is. The feds along with the priority for subsistence, that's right at the top of the list and there's not going to be a way to in fact effectively avoid that type of confrontation on a pretty regular basis, as I see it. Number 1992 MR. ROSIER: Initially, I would say that we'll see the feds come in - it'll be a very soft shoe type thing, just as it was in the early days - they relied heavily on us - in fact, trained their people so to speak on this. We'll see the same approach in the case of fisheries, but it'll be a war of attrition and believe me within ten years we will see a major involvement in the fish and wildlife resource management by the feds. You look at the demands that are placed on the Secretary of Interior within the provisions of ANILCA - they are significant. He is going to have to have staffing that's going to have to be working closely with the Department of Fish and Game here in the state and it just seems to me that you're going to have additional pressures, additional considerations that are going to be a regular part of that area management biologist that has been the key, as Commissioner Rue said, to the success of our programs up here. He's going to be faced with that, making those kind of decisions to further allocate resources, to work with the other user groups and convince them that the thing to do is to have to give additional fish - to get them up the river. And when we give up the idea of the emergency order or field order type management that has been so successful in this state to a cumbersome, federal system on this thing, I'll guarantee you we'll in fact lose our resource because that, as somebody asked the question earlier today, that was probably the major reason, along with the political pressures on the management agency, in fact caused the major declines. Number 2067 CHAIRMAN GREEN: Briefly, there are two things that have been kicked around I've heard repeatedly; one is that this is still another bluff - that the federal government really doesn't want to take over and that if this were to happen - we don't do anything - they would either not come in or they would come in and in a matter of a few years we could regain it. Do you have an opinion on either of those? MR. ROSIER: Mr. Chairman, my opinion would be that probably at the upper levels of the agencies, my guess is that they were at least sincere in the early days anyway, that they did not want to do this, but I'll guarantee you at the mid-manager level and at the field level, these people are anxious to do this and that's just the way the system works. Number 2095 CHAIRMAN GREEN: And maintain it once they get it. MR. ROSIER: You bet. CHAIRMAN GREEN: Representative Nicholia. Number 2101 REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. Commissioner Rosier, do you want the state of Alaska to regain full management of our fish and game resources? MR. ROSIER: Mr. Chairman, I would very much love to see Alaska gain full control of this and the only way that that can in fact happen is for ANILCA to go away. REPRESENTATIVE NICHOLIA: Oh, a follow-up question to that one. Do you really think that ANILCA will go away? MR. ROSIER: Mr. Chairman, I wouldn't speculate on that. I would say under political conditions at the present time, absolutely not, but it will continue to be a sore spot for a long, long time to come. REPRESENTATIVE NICHOLIA: A follow-up question, Chairman Green. Back to when the state had management of our resources, you were with the department at that time? MR. ROSIER: Yeah, 40 years worth. REPRESENTATIVE NICHOLIA: And was the federal government a problem during your time with the state Department of Fish and Game? MR. ROSIER: Mr. Chairman, they definitely were. I mean I saw - if you look at that chart and I was working with the state prior to statehood and I saw what happened at public hearings and I saw what happened in terms of the decision process. The feds - you can say what you want to - they do not delegate authority. The authority is in Washington, D.C. and that's where the decision gets made. You might get recommendations from field people on any given issue, but the decision despite all of the conversation and putting it out to the regions of the authorities to make those decisions, it just doesn't happen. Number 2175 CHAIRMAN GREEN: So, the decision - what you were saying earlier - would be that by the time the decision were here, the run is .... MR. ROSIER: Sure. CHAIRMAN GREEN: Representative Nicholia, follow-up? REPRESENTATIVE NICHOLIA: This as a follow-up to that is then, that we do have a December 1 deadline coming up and if we don't do anything, then we will have the regime you're talking about - that you fear, dread. What do you think about that? MR. ROSIER: Mr. Chairman, my feeling on that is that at this time you have the opportunity to in fact carve out within the confines of the legal considerations that you heard here this morning, the right to in fact carve out the state's role here on this. And like I say, I think that it's crucial that we in fact carve out all of the authorities that's associated with state and private lands in the state. Ultimately, the other decision, I think, is going to have to be made. I think the feds are going to be here - my feeling is the feds will be here December 1 whether you do anything or not - whether we have a constitutional amendment or not. My feeling is they will be here. Perhaps in a little different role, but they'll be here and they will continue to keep the pressure on in terms of management of the resources. So, my feeling is the legislature was on the right track with [HB] 406 in terms of an interim step on this - we've got lawsuits out there, for instance, at the present time that we don't know the answers to at this time; we don't know what lawsuits may in fact be in the wings that will give us clarification on this. But everybody says we don't want the feds and we all know what the solution is to not let the feds in, but we don't seem to be able to come together in terms of doing the thing that's necessary to keep them from coming up. Because we're going to get them one way or the other. CHAIRMAN GREEN: One more follow-up. Number 2254 REPRESENTATIVE NICHOLIA: Just briefly and just a comment on that. If we don't do anything - if we don't pass the constitutional amendment, we're going to have the feds. If we don't give this to the voters, we're going to have the feds. That's all I have to say, thank you. CHAIRMAN GREEN: Representative Berkowitz. Number 2267 REPRESENTATIVE BERKOWITZ: Thanks very much. Commissioner, do you feel in order to forestall federal management there need to be changes to ANILCA? MR. ROSIER: I think that that might help and it would probably better define the role of the feds if there were changes to ANILCA. REPRESENTATIVE BERKOWITZ: I just want to understand this because theoretically, we're here today discussing changes to ANILCA. MR. ROSIER: Yeah. REPRESENTATIVE BERKOWITZ: And you don't feel that any changes to ANILCA would necessarily preclude the federal government from coming in and managing fish and game? MR. ROSIER: Mr. Chairman, the only thing that would keep the feds would be dropping the rural priority - that would be the only thing that would keep the feds out. REPRESENTATIVE BERKOWITZ: Dropping it? MR. ROSIER: Yes, that would be the only thing that would keep the feds out. REPRESENTATIVE BERKOWITZ: The federal government dropping that requirement? MR. ROSIER: Yes. REPRESENTATIVE BERKOWITZ: Okay. MR. ROSIER: You said changes to ANILCA. REPRESENTATIVE BERKOWITZ: And how would you anticipate a change of that magnitude occurring in ANILCA? MR. ROSIER: Well, obviously Congress would have to take the issue up. As I said earlier, I don't think the political will is there to in fact, do that at the present time. Now I'm saying that basically and what I'm asking the legislature to do is in fact carve out the state role within the parameters of what we've got on the table with the various lawsuits and various decisions that have been made by the courts to date. REPRESENTATIVE BERKOWITZ: I'm trying ... MR. ROSIER: At that point, then you, in fact, take the next step, then you have to go after additional changes in ANILCA. REPRESENTATIVE BERKOWITZ: I'm just trying to get a sense of what role you think we ought to take and what I'm hearing you say is that changes to ANILCA are not part of what's necessary. CHAIRMAN GREEN: That's not what he said. REPRESENTATIVE BERKOWITZ: That is what he said. He said in order to retain state management, the federal government had to do something. What I'm asking him is what should the state legislature do? MR. ROSIER: The state legislature - to make it real short and simple there on this thing - is adopt every one of these changes. REPRESENTATIVE BERKOWITZ: Okay, that's where I wanted to go. Because those are the changes that require the federal government to do something, which means that you do want the federal .... TAPE 98-94, SIDE A Number 0001 REPRESENTATIVE BERKOWITZ: ... that point. CHAIRMAN GREEN: No, my point is that the concept was that each of them would handle a few and so what I would rather do is wait until they each have spoken on their (indisc.) and then we can adjust it. REPRESENTATIVE BERKOWITZ: Then if I could ask the general questions here. Who, in Congress, is going to move these changes through? MR. ROSIER: The only commitment that I've seen and I have a copy of a letter from Senator Murkowski and he has indicated that he would prefer to have everybody on board, but he says that may not be possible and under the circumstances that he would be willing to hold hearings on this if the legislature, in fact, moved the proposal. CO-CHAIRMAN HUDSON: Could we get a copy of that letter? There's so many of these letters going around, I believe it would be helpful. CHAIRMAN GREEN: Yeah, that would be helpful because we've been told that we do need the Governor on board, as well. UNIDENTIFIED SPEAKER: I'd like a copy of that, yeah if you could get it to the ... MR. ROSIER: I'll get it to the Chairman. Mr. Chairman, I don't want to take the whole time here on this thing and I'd like to have maybe Dick go ahead here on the ... CHAIRMAN GREEN: I appreciate that, we do have four people who have got questions apparently for you and we'll take those and then we'll go on with your .... Representative Bunde. Number 0112 REPRESENTATIVE BUNDE: Yeah, very briefly because I was on the same point as Representative Berkowitz. I've talked to a lot of commercial fishermen that share your fear of a very aggressive federal, negative impact in their livelihood and I guess I view it as the carrot and the stick and I look at these 14 items as maybe the stick or the tradeoff or whatever that we could get in this compromise that we're hoping to achieve and we don't need them now, but if you folks could go over them maybe tonight and then tomorrow, in writing, prioritize these 14 changes to ANILCA to see what we can change in order to forestall, or at least ameliorate the impact of the federal government. Number 0186 REPRESENTATIVE ALAN AUSTERMAN: You've been saying a couple of times now that these four gentlemen are here to break up these 14 items and talk about them. The commissioner has talked for however long here and he hasn't really got into any one of them ... CHAIRMAN GREEN: Well, I think he's got into two of them. He's specifically talked about two of them. REPRESENTATIVE AUSTERMAN: Okay. Number 10 and number 9 ... CHAIRMAN GREEN: ... and 5 when he's talking about navigable waters. UNIDENTIFIED SPEAKER: And 5. REPRESENTATIVE CROFT: Five on which list, Mr. Chairman? The HJR list? CHAIRMAN GREEN: Yes. Representative Joule. REPRESENTATIVE JOULE: Thank you, Mr. Chairman. Commissioner Rosier, (indisc.) but to a comment made with regards to -- you made mention to the fact that with regards to House Bill 406 that you felt that was a step in the right direction and I've heard it said since we've come into special session that probably most everybody can agree that subsistence is the highest and best use of our resource and yet within House Bill 406 the people that are adversely impacted are those who are subsistence users in terms of the individualized needs based, specifically, the individualized needs based kind of system that was within those proposed statutes. And the other thing, it created this cumbersome bureaucracy. But I just wanted to hear, I guess, from you if you felt that -- if you do, in fact, feel that our current constitution is fine the way it is. Does that mean then that you feel that House Bill 406 is an act of good faith by the state to resolve the subsistence issue? MR. ROSIER: Mr. Chairman, very simply - yes. And I saw 406 -- yeah, I would agree with Representative Joule that the bureaucracy and so forth that was involved there was going to be significant. We're talking about state management now - we're talking about real state management - we're talking about management of a resource that is subject to fluctuations and we just can't afford to in fact gamble with that resource. I'm really saying you got to maintain the state management of that resource and it's a fair system. Yesterday in the other chamber I got into a discussion with one of the representatives there about population growth and I think you have to look at population growth as impacting rural areas - many of these rural areas and at some point you're in fact going to have to get down to a system of individually dividing. I think that's inevitable. The Bush areas are growing just like the rest of the state and you have to deal with that - you have to deal with it far enough in advance that people can in fact expect to know what's going to happen to them on this. And I think this whole subsistence thing, in my view anyway, is something that has to be worked out here. I mean with all due respect to our congressional delegation and so forth, these people basically are reacting to political scenarios on this and the schemes that they come up with meet that scenario. You know, what's good today in terms of federal law may not be good tomorrow. Number 0488 CHAIRMAN GREEN: Okay, we've digressed again and I'm going to hold us to the point that we're talking now about the three issues that Commissioner Rosier has talked about. REPRESENTATIVE JOULE: Okay. CHAIRMAN GREEN: And we'll ask questions then of the others as they come up. Representative James. Representative Croft. Number 0510 REPRESENTATIVE CROFT: Mr. Rosier, you said the only way to avert a federal takeover is to get rid of the rural preference in ANILCA and that this is the way to do it. Can you just point for me to the provision that eliminates the rural preference in ANILCA in our resolution. MR. ROSIER: It isn't there. REPRESENTATIVE CROFT: That's all I wanted to know. Number 0532 REPRESENTATIVE WILLIAMS: Mr. Chairman. CHAIRMAN GREEN: Representative Williams. REPRESENTATIVE WILLIAMS: You mentioned something earlier about the population growth that we are concerned about and I am concerned about that because of the fact that Bethel, for one, is an area that probably will grow here before too long above the 6,000 mark or whatever that mark is (indisc.-coughing) for our definition, but once we get this, if let's say for this discussion - maybe you'll understand where I'm coming from - let's say that we do get our management back for our resource management - okay, whatever it may be - fisheries or wildlife. Under this amendment that is before us today that we are discussing, I believe ... CHAIRMAN GREEN: Actually, we're talking about these changes to ANILCA, if that's what you're referring to. REPRESENTATIVE WILLIAMS: Okay. Well, under the population growth, what I was concerned about is that once we get the management back, we will be able to talk about those areas and work and make it an Alaskan fix, but we have to get our management of our resources back. And you mentioned earlier about your feeling, well my feeling is that I believe we should have -- I don't know if we should get into feelings right now ... REPRESENTATIVE CROFT: Share your feelings. CHAIRMAN GREEN: Are you going to enter into song? REPRESENTATIVE WILLIAMS: I think everybody has their feelings here and I don't want to get into scare tactics and I think feelings are very close to it because you really can't go and say, "This is going to happen, but I feel it right here cause ...." Maybe we should stay off of that. Thank you, Mr. Chairman. Number 0652 MR. ROSIER: Mr. Chairman, I'd like to say this again was a subject that was brought up earlier that -- I'm having an old age moment here ... CHAIRMAN GREEN: Perhaps we could move on to one of the other ... MR. ROSIER: I think it would be a good idea at this point. CHAIRMAN GREEN: Dick, are you next? Number 0713 DICK BISHOP, VICE PRESIDENT, ALASKA OUTDOOR COUNCIL: I guess I am, Mr. Chairman. Thank you very much. I'm Dick Bishop. I'm with the Alaska Outdoor Council and currently my hat is vice president of Alaska Outdoor Council and I am testifying on their behalf. I would like to just make a couple comments on the proposed amendment relating to navigable waters. It is, as the discussion has indicated, extremely important here - that issue as far as jurisdiction over navigable waters and I think it really does go beyond simply an observance of fact - a factual matter that there has been a court decision. By having it in the congressional findings, I think that it ratifies that decision as being correct and accepted as the end of the story. How much significance is attached to that may be a matter of opinion, but it constantly amazes me how obscure documents come back to be used in the various discussions of this and other issues from time to time even though they're in no way part of the law. So, this in fact is listed as a finding of Congress and it is part of the statute that has been adopted by Congress and will remain in effect if the state comes in to compliance again. I think that it has considerable significance and in that regard I would point out that in S 1920, Senator Murkowski and Representative Young, who have combined to work on that bill in Congress, specifically put a paragraph in their bill that essentially did what this proposed amendment does; that is, make sure that the definition of federal public lands does not include state navigable waters or those navigable waters that are considered federal reserve waters. Senator Murkowski knew perfectly well that that was an extremely critical issue with respect to management of fisheries in Alaska and went to the extent of putting it in his proposed bill, which I don't have in my hip pocket, but I do have it in town. So, I want to emphasize the importance of that. Number 0832 MR. BISHOP: Similarly, I think it's extremely important with number 4 in 801 that the expansion of the Secretary's authority to manage fish and wildlife beyond what was in the original ANILCA is totally uncalled for and I'm not at all pacified by the idea that the attorney general brought up that well, if the state conforms to the federal law and is managing, you don't have to worry about it. And I'm not pacified by that with respect to navigable waters, either. These things set a precedent and you can argue about how much of a precedent - excuse me, Mr. Chairman - but the precedent is there. Again, I just repeat committee reports, congressional record and so on that are used to give inflection to laws that are passed even though in fact they have no bearing on the content or necessarily, the intent of the law. So, I think those things are really important. Number 0906 MR. BISHOP: I would like to go on to another issue that has been discussed a little bit - well, more than a little bit as a matter of fact - there has been quite a bit of discussion about the extent of the federal authority under the property clause and in testimony, I think it was probably early this morning, it may have been late last night, but maybe early this morning in the Senate Resources Committee, I really urge the Senate Resources Committee to get a second opinion on the extent of federal authority under the property clause. Former Attorney General Cole made a very strong pitch that the federal agencies - or Congress - have virtually unlimited or as he said earlier today, unplumbed, or whatever the word was, undetermined limits to their authority. Well, that relates, as I understand it and I can't debate it with him, but that relates to what is federal property and as far as I know, fish and wildlife are not federal property even those on federal lands. So there is, as far as I'm concerned, an uncertainty there. Number 0990 MR. BISHOP: And the other factor that's really significant in this that I think is routinely missed - and I do believe that Attorney General Cole missed it as well - the property clause does not go - even though there is substantial power under it - it does not go into effect unless Congress has explicitly authorized it. So they have that authority, but unless they initiate that authority by a specific act, it's not there and I would provide to you and I'll just read briefly from an opinion that we got ten years ago when we were on the same subject from a lawyer, who is probably the leading lawyer nationally on public land law issues, fish and game management issues, his name is Paul Linzini (ph). He's with a Washington, D.C. law firm and eight years ago, in 1992, he was under contract in fact with the Department of Law under Attorney General Cole and as a matter of fact, he's still under contract with the Department of Law. His name is Paul Linzini (ph), nationally and internationally recognized lawyer in natural resource issues and this is what he said several years ago - we contracted with him to examine the extent of the property clause, especially in relation to off federal land authority. So, here's the issue, "ANILCA and the Property Clause, Extension of the Federal Wildlife Jurisdiction over Non-federal Lands." Our question was, "May the federal government exercise regulatory authority over management of fish and wildlife on state and private lands and waters upon implementation of a subsistence program under Title VIII of ANILCA?" And I'll kind of skip around on the discussion. This is the discussion, "Under the property clause of the United States Constitution, Congress is empowered to extend federal regulatory authority over federally-owned lands and activities thereon to the exclusion of state law. The property clause power has been interpreted liberally by the federal courts and it has been held to extend to the management of wildlife on federal land. The property clause power is vested in the Congress" - this is the important part - "which must act affirmatively through legislation to exercise the power." Congress has to act affirmatively through legislation to exercise the power. MR. BISHOP: With regard to off federal lands under ANILCA, his conclusion is, "We conclude that Congress has not exerted its property clause power in ANILCA so as to authorize an extension of federal management of fish and wildlife to state and private lands and waters in Alaska even after the federal government assumes administration of the ANILCA subsistence management system." So in short, that has not been authorized by Congress. There has been no amendment to ANILCA since to accomplish that. The thing I would like to add to that which has come up since he wrote this opinion is that when the Alaska v. Babbitt case went to court and the federal district court Judge Holland ultimately decided that the federal government had authority to manage fish and wildlife on federal lands under ANILCA. Interestingly enough though, he found no where in ANILCA that Congress had acted affirmatively to give the Secretaries of Interior and Agriculture this authority. So, he said by golly, I think that Congress unintentionally and inadvertently forgot - it must have been a lapse, and so he plugged it in. So that's how it (indisc.) and it went to the Ninth Circuit Court of Appeals and as you know the Governor dropped the appeal with prejudice so that that issue could not be taken to the highest extent of law and the issue resolved one way or the other which was a complete disservice to the state of Alaska. But at any rate, that question is now there with regard to federal lands as well, because there's nothing in ANILCA that Judge Holland could find where Congress acted affirmatively to give the federal agencies authority over fish and game management on federal lands, must less as Mr. Linzini (ph) has indicated, off federal lands. Number 1206 MR. BISHOP: So, you know, all I'm saying to you is I really suggest and urge you to take with a grain of salt the sweeping generalization that former Attorney General Cole has made that the federal government can do anything they want on federal lands and off, if I remember his statement correctly. I would get a second opinion if I were you. It's sort of like having a bad tummy ache - you better have a second look at it before you have the thing jerked out. I guess if there are questions on those issues, I'd be happy to entertain them. There's a couple things about definitions I'd like to comment on if I can. CHAIRMAN GREEN: We have at least one. Representative Croft. Number 1242 REPRESENTATIVE CROFT: Can I have that legal opinion? Could I see a copy of it? MR. BISHOP: Sure. CHAIRMAN GREEN: Do you want time to read that Representative Croft and we'll ... REPRESENTATIVE CROFT: Sure. CHAIRMAN GREEN: Representative Porter. Number 1251 REPRESENTATIVE PORTER: Thank you, Mr. Chairman. Dick, if it is that reason that they would not be able to assert this power right now is a technical oversight on their part to assert their right which they have, but haven't effectuated, am I correct that it would not take much for them to correct that oversight? If we prevailed in a lawsuit that had that as a point, would they be somehow unable to respond by just giving themselves that power? MR. BISHOP: I'm sorry, I didn't hear the last part. REPRESENTATIVE PORTER: Congress - would they not be able to respond very quickly by just asserting their power in the positive way rather than .... MR. BISHOP: Mr. Chairman, Representative Porter, I don't know how quickly they could do it, but if they felt that that was an error or omission, they could certainly do that. But if you look at the congressional record, which I referred to a moment ago disparagingly, but if you do look at that what you find - and the various versions of the bills that went through Congress before the final one that passed this ANILCA - you'll find the authority that began that was first included in initial bills proposed for the ANILCA language - from there to the end the authority of the Secretaries of Interior and Agriculture stair stepped - was systematically pared down until, in fact, it was gone. So, what that reflects is that Congress had a kind of a sweeping authorization of authority for the Secretaries at the outset and in the course of their deliberations over a period of three or four years, that level of authority was diminished considerably and it was not done willy-nilly random; it was clearly - if you look at the succession of those, it was clearly done in a systematic fashion. As questions came up, changes were made (indisc. - paper crunching) reflected a greater concern frankly for the authority of the state to retain its traditional management authority. So, they might do it, but I guess I would think that given that record, the odds of Congress sort of saying, "Oh by golly, Judge Holland was right - we did just forget that and we'll plug it in" - I don't think that will happen. That's just my opinion. CHAIRMAN GREEN: Representative Croft. REPRESENTATIVE CROFT: That was sort of my question. Briefly, they have the power to do it, you just don't think they've done it yet. MR. BISHOP: Mr. Chairman, Representative Croft, that's my understanding at this point. I'd get a second opinion on that, too, frankly because I know that there are legal authorities who question how far that goes and I think it does go back to the question of whether or not it's federal property in the first place and I can't argue it, I'm just saying that's a doubt that is raised that I don't know the answer to. Number 1410 REPRESENTATIVE CROFT: Because I agree with this memorandum in its assertion of plenary power by Congress over property in the property clause. I think it says that. Now, it doesn't have a date on this memo - do you remember what date it was? MR. BISHOP: It was about 1990, as a matter of fact. It was 1990 because that was -- let's see what was that -- that was the second special session, I guess or was that the first? UNIDENTIFIED SPEAKER: You can tell time by special sessions .... Number 1436 REPRESENTATIVE CROFT: Because I agree, "Under the property clause of the United States Constitution, Congress is empowered to extend federal regulatory authority over federally owned lands and activities therein to the exclusion of state law." That's the first sentence. "The property clause power has been interpreted liberally by the federal courts and has been held to extend to management of wildlife on federal lands." That's absolutely true. This was before -- well, so I think they probably did do it in ANILCA - we can disagree on that, but I think we agree that they have the power to do it. And if you have anything on that issue of a distinction between federal land that is parks and federal land that is something else, particularly any case deciding that, I'd like to see it, because I haven't. As far as I've heard, federal land is federal land is federal land. MR. BISHOP: Mr. Chairman, I think, if I understand the question correctly, that probably goes to the organic acts that affect the various kinds of conservation system (indisc.) lands and I guess I don't have anything right at hand. CHAIRMAN GREEN: If you find something, it would be good if you could submit that through the Chair, so we'll make copies then for everyone. Number 1499 MR. BISHOP: Mr. Chairman, I suspect I can find something along that line - at least where to look. And if I may, Mr. Chairman, I would like to address some of the definitions here. Some of these definitions - I'm looking at number 7 on page 2 of this proposed Joint Resolution - "customary and traditional," "customary trade," and "barter" I believe, already have been plugged into the amendments to ANILCA that Senator Stevens miraculously got passed overnight and I think there's a couple things about that. "Customary and traditional" for example, should exclude - it presently includes the terms "patterns and practices" of use of fish and wildlife and it should exclude practices and there's a very practical reason for that. By including practices, it can include legalizing or condoning methods that have been consistently illegal under both federal and state law for decades. I'll give you an example from one of the court cases that has been spoken about here - the Totemoff case and that's shining deer at night with a light and shooting them with a rifle. Mr. Totemoff claimed that that was a traditional practice. Well, the state Supreme Court didn't buy that line, but it does provide a good example of the sort of thing that could be arguably condoned as a customary and traditional practice. Shooting ducks at night, shooting ducks or geese or whatever with a rifle which has been illegal for many, many years - things like that and it would be appropriate also to include the term "lawful" to make sure that these customary and traditional uses are lawful so that there absolutely should be no doubt about that. Number 1593 MR. BISHOP: With regard to that term also and its use in "reasonable opportunity", the definition of "reasonable opportunity" says that there should be a reasonable opportunity provided for subsistence use consistent with customary and traditional practices. Well, either that term "customary and traditional" ought to be dropped out of the definition of "reasonable opportunity" in the amendments or the "customary and traditional" definition ought to be tightened up with the deletion of practices and with the addition of lawful so that it does not provide an opening for mischief. Number 1627 MR. BISHOP: Let's see I think there was another one here - yeah, the federal definition of "rural" which is not actually listed on this, but I suggest it be added. The federal definition in Senator Stevens [amendments] refers to reliance on fish and wildlife and other wild renewable resources, I think, for nutritional purposes and other subsistence uses. I believe it would be appropriate to get to the heart of the matter and limit it to food and delete the other subsistence uses. There's one specific reason that we have argued frequently in the past over that and it has to do with the inclusion of the term "cultural" which is a pandora's box of opportunity for new and inventive demands for sanction under subsistence uses. My observation is that I keep hearing of new cultural practices that occur that I've never heard of in 30 years in Alaska and the essence of the subsistence question going way back to the beginning of the argument has to do with the reliance on the taking of fish and wildlife for food and the auxiliary uses of those resources for other purposes, such as furs or implements, et cetera, and I think it's realistic to restrict it in that regard. So, I would recommend deleting "other subsistence uses" or defining it more narrowly in the definition of "rural" areas. UNIDENTIFIED SPEAKER: Mr. Chairman. CHAIRMAN GREEN: I was going to let him finish and then take .... MR. BISHOP: I think that's all I have on those. CHAIRMAN GREEN: Okay. Well, I think you have a good point if we're talking subsistence in looking toward food or something for consumption. The other question I was going to ask was, do you feel that it's necessary if we've shifted now as opposed to rural to place of reference, do you still think there should be a stronger or different definition of rural? MR. BISHOP: Mr. Chairman, that's a difficult question and the short answer is no. CHAIRMAN GREEN: No, on which ... MR. BISHOP: I don't think it ought to be either one .... I guess that's not a constructive answer, is it? If it's a matter of choice between the two, I don't know that I have a choice, I guess, to be candid about it. There are obviously arguments both ways. The one that at the moment appeals to me is that if it says rural, at least it's clear that they're talking about a rural area. I think the other side of the argument "place of residence" gives a little more flexibility. CHAIRMAN GREEN: I said "reference". Yes, Representative Porter. Number 1760 REPRESENTATIVE PORTER: Dick, I was under the impression that the, at least as we've been describing it the Stevens amendment definitions in ANILCA, would only allow the use of fish and wildlife for cultural or other reasons that were by-products of fish and wildlife taken for sustenance reasons. Am I missing it or .... Number 1785 MR. BISHOP: Mr. Chairman and Representative Porter, this is the document that Senator Stevens put out - P.L. 105-83 - I don't know if it's widely distributed today, but on page 6 of that document under Section 803, Definitions, there's several there and if you go to number 5, "rural Alaska resident" means a resident of a rural community or a rural area. A rural community or area means a community or area substantially dependent on fish and wildlife for nutritional and other subsistence uses. And that's the place that I was suggesting simply dropping "and other subsistence uses". REPRESENTATIVE CROFT: On that point, Mr. Chairman. CHAIRMAN GREEN: Representative Croft. REPRESENTATIVE CROFT: On 803 at the top it says, "as used in this act, the term subsistence uses means the customary and traditional uses by rural Alaska residents of wild renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation". That's the inclusive, but then on the cultural, "or for the making and selling of handicraft articles out of nonedible by-products of fish and wildlife resources taken for personal or family consumption." So, while they can directly use subsistence for things that they use, they can only do the handicraft part with the nonedible by-products. They can do seal oil for themselves, they can make a coat out of the skin, but if they're going to do handicraft, it can only be done -- can't be done for that purpose. Is that where you're going .... CHAIRMAN GREEN: That's I think the majority feeling that that's what that reference is. UNIDENTIFIED SPEAKER: I'm sorry ... CHAIRMAN GREEN: I think that's the consensus feeling that because of that consideration, they would have to take it first for food and then what's left over, they would utilize for other consumptions. REPRESENTATIVE PORTER: Food or one of these other specific reasons - fuel, clothing, tools, but the cultural handicraft can only be by-products of things taken for those reasons. Number 1879 MR. BISHOP: Mr. Chairman, I think that's a point well taken. I still have to wonder about how the inclusion of the term "and other subsistence uses" affects the definition of rural community or area. It may not indeed affect the taking of the fish and wildlife, but - I'm trying to think of an example - but if for example, and this is pretty hypothetical, there were some species of wildlife that were taken for ceremonial purposes - significant activity in the community let's say, but they were not used for nutritional purposes, then it seems to me that the way this is worded that could be arguably a basis for declaring it a rural area. It somehow just doesn't seem to fit with the characterization of a rural community or area and if we really ... CHAIRMAN GREEN: ... confusion factor if nothing else, so. MR. BISHOP: Frankly, I think it's probably unnecessary. CHAIRMAN GREEN: Representative Williams. CO-CHAIRMAN HUDSON: Is that one of our points or is this a new one that you're suggestion, Dick? MR. BISHOP: Mr. Chairman, Representative Hudson, I did mention that's a new one, yeah. It was not on the list, but it could be considered along with number 7, for example. CHAIRMAN GREEN: Representative Williams. Number 1948 REPRESENTATIVE WILLIAMS: Thank you. Could you tell me how customary and traditional got into ANILCA? Who pushed it? Why is it there? MR. BISHOP: Mr. Chairman, Representative Williams, I think to the best of my recollection, it probably was simply adopted from state statute that had passed in 1978 because a state subsistence priority law had passed in 1978 and it would have the terminology - almost the very same definition of subsistence uses that wound in the federal law, except it did not have rural. But otherwise, I think it was virtually identical and now that Representative Barnes is here, I'm sure that if I'm wrong, she will correct me. REPRESENTATIVE WILLIAMS: Was it mentioned in the Alaska Native Claims Settlement Act? MR. BISHOP: Not that I know of, Representative Williams, through the Chair - I don't recall that it was. That doesn't mean that I recall correctly, but .... CHAIRMAN GREEN: Follow-up, Representative Williams? Number 1992 REPRESENTATIVE WILLIAMS: He mentioned earlier about the customary and traditional or something to that effect. Maybe you could restate it - it sounded like some people were misusing that term or something to that effect. Could you give me examples of that? MR. BISHOP: Mr. Chairman and Representative Williams, the term customary and traditional in federal law was undefined in fact until Senator Stevens' amendments and now it does have a definition. But the concern about that term was that based on its interpretation by the federal court, it essentially provided the opportunity for no closed season, no bag limit taking of fish and game by subsistence users. An example is the Bobby (ph) case which is the most illustrative, where the judge ruled that regulations of subsistence use could not be more restrictive than what had been customary and traditional practices in that particular area in that time and after hearing the evidence, he concluded that what was customary and traditional there - and this is in reference to hunting moose - had been year-round hunting with no bag limit - no closed season, no bag limit. So, essentially what that meant was that the federal court interpretation of customary and traditional was that if customs and traditions in the collective past did not involve seasons and bag limits, then that was what the federal law - or the state if it was in compliance - should allow. And of course, that makes for a very difficult management regime if you can't use seasons and bag limits to regulate human take. But as I mentioned in the Totemoff case, the other part of the story was more along the lines of your question where Mr. Totemoff alleged that his taking of deer by spotlighting was a traditional means of taking deer in his area, which perhaps it was. But if it was, I don't believe that it's appropriate for either federal or state law to condone it and certainly the state law did not. But I think it would be appropriate that customary and traditional be defined in such a way that there's no possibility that practices such as that that have consistently been illegal for decades literally, should not be condoned in law. CHAIRMAN GREEN: We perhaps ought to move along a little with Messrs. Kelleyhouse and Sheridan. Number 2110 DAVID KELLEYHOUSE, SECRETARY, ALASKA OUTDOOR COUNCIL, AND FORMER DIRECTOR, DIVISION OF WILDLIFE CONSERVATION: Excuse me. Dave Kelleyhouse, former director of Wildlife Conservation and I'm currently on the Board of Directors of the Alaska Outdoor Council as their secretary. The first thing I'd like to address if the legislature is indeed seeking an Alaskan solution, I have a suggestion I think most people here could buy into and has been overlooked for 18 years. If you will look at Sections 802 and Sections 804 of ANILCA, you'll see that the subsistence priority only exists as a priority over other consumptive uses. As former director of Division of Wildlife Conservation, I think I can say with a fair certainty, that the greatest threat that subsistence users in Alaska will face in the future will not be at the hands of competition from urban hunters or sport hunters or personal use hunters, it will be at the hands of federal judges or federal bureaucrats that are trying to substitute nonconsumptive uses for consumptive uses. ANILCA does not give subsistence priority for nonconsumptive uses. And I just thought I'd put that out and it could be cured with changing three words actually - two "consumptives" and one "taking" and it would be a fairly simple thing to do and make it very clear that we take subsistence seriously here over all uses of wildlife. REPRESENTATIVE BARNES: Mr. Chairman, would you ask him to restate. UNIDENTIFIED SPEAKER: Mr. Chairman, where specifically? MR. KELLEYHOUSE: Section 802 (2). It states, "Nonwasteful subsistence uses of fish and wildlife and other renewable resources shall be the priority consumptive uses of all such resources." It goes on to the end of that section and it says, "continuation of subsistence uses of such population, the taking of such population for nonwasteful subsistence uses shall be given preference on the public lands over other consumptive uses." By deleting the word "consumptive" I think it would be very clear then that subsistence is the priority use. Because we're not talking what's going to happen next year or in 10 years or in 20 years, but I would say that in 30 years or so down the road, you will see a constant diminishment of consumptive use opportunities. In Section 804, the term .... REPRESENTATIVE PORTER: Mr. Chairman, could I get clarification ... CHAIRMAN GREEN: Yes, Representative Porter. Number 2213 REPRESENTATIVE PORTER: Take out consumptive in the last line, but leave it in in the first line of that number 2? MR. KELLEYHOUSE: Mr. Chairman, Representative Porter, I would take consumptive out in both places - just say it is the priority use of fish and wildlife and that will cover it. Number 2231 REPRESENTATIVE CROFT: What is the third? You said two "consumptives" and a "taking" - that's in 804? MR. KELLEYHOUSE: The third was in 804 and the wording says, "Except as otherwise provided in this Act and other federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes." Recommended changes would be to delete "taking" and put in instead "uses" and then it would read, "Except as otherwise provided in this Act and other federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over uses on such lands of fish and wildlife for other purposes." REPRESENTATIVE CROFT: I don't see over - I see for - it doesn't I guess make much difference - in 804(a)? MR. KELLEYHOUSE: The second issue I'd like to comment on is number 7 - pardon me - number 6 which would repeal the federal regional advisory councils or amend the powers and functions of the councils. I'd like to point out that Alaska currently has the most democratic system on fish and game regulation formulation of any state in the union. We have over 80 local fish and game advisory committees which are elected by their local people and those advisory committees are empowered to submit regulation proposals, their recommendations to the Boards of either Fisheries or Game, and it's a fairly complicated system and it has worked very well since statehood. Now when I was director, and it still remains the case today, there are only about two dozen area management biologists, wildlife division biologists in the state of Alaska and they are expected to work closely with the local advisory committees and by working closely together develop good, sound conservation proposals and recommendations that are appropriate for the area. And then when it comes time for the Board of Game to address those proposals, I've made a point and the current Administration is doing the same, to try to bring the area biologists into that Board of Game to discuss those proposals when they're on the agenda. That way they're, the board members have the best, most current, accurate information possible when they're making their decisions. By creating another whole tier of bureaucracy is what I'll call it, you're talking a minimum of six regional councils with ten members on each and not in the federal law, but I will point out that in the task force proposal, the task force proposed statutory language goes actually further than the federal law and allows those regional councils to review - requires them to review proposals from the public or from the local advisory committees before they can go to the Board of Game. Quite simply, if the regional councils choose not to review a regulation, there's nothing in law that allows it to go on to the board in that task force proposal. My advice would be to .... TAPE 98-94, SIDE B Number 0001 MR. KELLEYHOUSE: .... members to come from nominees from tribal councils. As far as I know, in state law that might be a first as far as limiting representation on a board to a racially exclusive group. I mean, I can be rural, but I can't be a Native - I'm sorry. And that kind of bothers me. Three other members have to be nominated from local governments or advisory committees in the area - local advisory committees in the region - that would represent subsistence users. And I'm not highly educated in mathematics, but that's seven out of ten votes and then if you bestow powers to establish policy, strategies and recommendations both to the Secretaries of the Interior and Agriculture in Southeast and to the Boards of Fisheries and Game and then require the Secretary or the boards to adopt those regulations, unless they can prove that it's contrary to sound fish and game management or conservation principles not supported by substantial evidence or is contrary to subsistence uses, they have to adopt it. What you've done is regionalize the legislature's own authority to manage fish and game, which you have delegated to the Boards of Fisheries and Game and now you're talking six different entities that can basically dictate to the Boards of Fisheries and Game. I, as a director, would have had a most difficult time supporting those regional councils. I heard my counterpart, Wayne Regelin and Commissioner Rue, state that, "No problem, with $5 million we can do this." Well, we can't. I mean, you can provide clerk typists, you can provide people to coordinate travel, you can pay for travel to get people at meetings and such; you can't afford the biological staff to provide the information. I mean, if the game biologists are at meetings all the time - 80 local advisory committees, 6 or more regional councils and 2 Board of Game meetings a year, they're not out in the woods gathering data. So, what they have to tell the boards may not be as good as what they've been telling them in the past, so my recommendation would be to repeal Sections 805(a) - (c) or at the very least, make sure that they are advisory in nature and that all users - all user groups are represented in a reasonable mix on those regional councils if you're going to create them. Thank you very much, Mr. Chairman. REPRESENTATIVE BARNES: Mr. Chairman, ... CHAIRMAN GREEN: Representative Barnes. REPRESENTATIVE BARNES: It's on the point of regional councils. One of the biggest problems I had with the Governor's task force and with 406 was regional councils and I wanted to say that I absolutely agree with Mr. Kelleyhouse. You absolutely cannot make them work in the way that has been proposed under these bills and it goes all the way back to the late '70s when they tried to establish regional fish and game boards and fish and game know no boundaries and you flat cannot make a system like that work I don't believe and I wanted to take the opportunity to agree with somebody around here on something. CHAIRMAN GREEN: Representative Hudson. CO-CHAIRMAN HUDSON: Dave, I was also looking in that in trying to combine -- or look at that under Section 814 which is proposed by the Stevens amendment, "during any time the state's complied with Section 805(d), the Secretary shall not make or enforce regulation concerning 805(a), (b) or (c)." So they took out - as I see it at any rate - that would take out all of the original ANILCA 805(a), (b) and (c) and then we'd have to take a look at the new language that they put in over in here to see if that's more onerous or not. Have you done that? And is it better? MR. KELLEYHOUSE: Mr. Chairman, Representative Hudson, that's a no, I have not. I have not looked at that ... CO-CHAIRMAN HUDSON: I think we should because I've looked it over and I think it at least satisfies some of what the lady is speaking about over here. CHAIRMAN GREEN: Representative Nicholia. REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. You know we've been talking about the regional councils and I heard what you had to say about them and I served on the local Tanana Fish and Game Advisory Council for 8 1/2 years so I've got experience of being in that level and then representing Tanana at the regional council level. And so, I guess I get mixed feelings from what you're saying that you don't think that system works - is that what you're saying? MR. KELLEYHOUSE: Mr. Chairman, Representative Nicholia, I think it's an unnecessary extra layer of government that's going to be very expensive and very time consuming and I think in my experience as director, it was advantageous to have a local advisory committee representative - a chairman, a co-chairman - talking directly to the Board of Fisheries or Board of Game rather than go through yet another filter - a regional council. And I just think it's unnecessary and I'm just saying from a Department of Fish and Game staffing perspective, trying to keep the best possible information on fish and game populations in front of 80 advisory committees, 6 regional councils and the Boards of Fisheries and Game is a big burden for an agency that only has about two dozen area biologists. I mean we have a lot of support staff - regional biologists - but it would be most difficult to support. Number 0459 REPRESENTATIVE NICHOLIA: Well, I'd have to differ - Mr. Chairman - I'd have to differ with that because I always said and I will stand by this that the best biologists that you have are the people that are in that local area because they know what's going on with their fish and game resources. We know when the fish are running; we know when it's a good run and we let Fish and Game know. And then so that is the information that we share from the local level to the regional council and then to the Board of Game. It's a system that works. Otherwise you're not going to be getting that data. You're not going to be getting that data that they normally -- that you can't spread out all Department of Fish and Game through the whole state of Alaska. We've got the largest state in the whole United States, so to say that that system is not going to help - it's too cumbersome - I don't think so. I think that they serve a really good purpose of getting that data to the Department of Fish and Game, getting that data to the Board of Game because already - if you already look at the state budgets for the Department of Fish and Game, it is low. And for the Board of Game and Board of Fish, it's low as well. So, I don't understand where you're coming from. UNIDENTIFIED SPEAKER: Mr. Chairman. CHAIRMAN GREEN: Is that a question or a debate? REPRESENTATIVE NICHOLIA: Well, it's just a comment like I said because I've got experience of being on those levels. Number 0556 MR. ROSIER: Could I speak to that, Mr. Chairman? A little bit of experience that we had with the state's regional council approach on this, and there was, there was mixed results primarily in what we referred to as the EYK Region, it worked fairly well, just as Representative Nicholia was talking about here on this. Because generally speaking, you had two user groups - they were commercial and subsistence and in most cases, they were the same people, but you didn't get into the allocation issues there that you got into with other areas. Here in Southeastern, we had 18 advisory committees set up down here and out of that, you had virtually every community represented here in Southeastern. Each of those communities had their own allocation problems and they could never - the regional council could not deal with the allocation wrestle because there was just too many interests that were involved there. They ultimately centered on the subsistence issue. They became essentially a regional council devoted to subsistence because everybody could agree with one another on that. But that put them at odds then with the other user groups because the other user groups then, not only did they have to go to their local advisory committee, they also had to be participating in the regional council and there was a lot of resentment toward that regional council system as a result of that thing in the more complex areas. But it did - it worked up in the Bristol Bay northwest coast area and it worked on the Yukon - I would agree. REPRESENTATIVE BUNDE: Mr. Chairman. CHAIRMAN GREEN: Representative Bunde. REPRESENTATIVE BUNDE: On the point of regional councils - it appears that there could be information feeding up from local residents to the advisory council to the regional council, but do you have any experience with how well information goes back the other way and how well it's accepted. I remember reading in the paper this spring or winter I think it was, somewhere in Western Alaska they wanted to have a special moose hunt and the regional advisory council said no and if the quote I read in the paper was correct, the local mayor said, "Well, we'll just shoot the moose anyway and won't tell anyone." Do you have information about the flow of information going the other way? MR. KELLEYHOUSE: Mr. Green, Representative Bunde, when I was director, we did not have state regional councils and I had to make the decision of our level of participation with these new federal regional councils and given the budget limitations - actually right in this room - I had to make the decision that I would have only two or at the most, three staff people just going to the federal regional council meetings to monitor what was going on and to the Federal Subsistence Board so, we didn't have a great deal of involvement with that federal system because I flat couldn't afford the extra personnel to dedicate that amount of time to it. So, I don't know how well information goes back down. I'm not sure how well it went up. CHAIRMAN GREEN: Okay. Walt do you have ... Number 0766 WALT SHERIDAN, NATURAL RESOURCE CONSULTANT; BOARD MEMBER, ALASKA OUTDOOR COUNCIL; AND RETIRED FOREST SERVICE EMPLOYEE: I'll be very brief. My name is Walt Sheridan, retired Forest Service employee, currently a natural resource consultant here in Juneau and I'm also a board member of the Alaska Outdoor Council. While I was with the forest service, I worked for quite a few years with things like implementation of the Alaska Native Claims Settlement Act and also with ANILCA, although I didn't have a whole lot to do with subsistence after the early '80s. I guess I'm convinced though that we, as Alaskans, have the will and the commitment to craft a subsistence management system that will meet the needs of our citizens. And I think we're thwarted in that effort by what I consider to be faulty federal law and that's ANILCA, particularly with Title VIII, the rural preference provision of Title VIII. I think that the rural preference just paints too broad a swath; that it builds in inequities that in my view will lead to resentment and difficulties among our citizens for generations to come. And I think that that provision in ANILCA needs to be changed and with that change then, that we, as Alaskans, can craft that kind of a system that will meet the legitimate needs of our people. And that's about all that I have to say. CHAIRMAN GREEN: Appreciate that. Representative James. REPRESENTATIVE JAMES: I finally had somebody say something that was on the line of my thoughts and I want to ask him a question based on that issue. It's been my opinion for a long time that to have an Alaskan solution on this problem, we need to have Alaska law that fixes the problem and protects subsistence. And I've been working for two years on this issue and I wanted to just see if I've been on the wrong track because I cannot get people to willingly say they will help us write the legislation. And particularly the Native people in the state are so sold on the protection that's given by the federal government, they won't help us write the definition and the way to address it, even if we had to do a constitutional amendment. If we could do this - my question is - if we could do this, if we could write subsistence law that protected the subsistence in Alaska and Title VIII of ANILCA went away, I might even be willing to do a constitutional amendment, but I'm not willing to do it with ANILCA in the background. Would you agree with me on that assessment? MR. SHERIDAN: Mr. Chairman, I absolutely would agree with that and even going so far as to talk about the possibility of some type of a constitutional amendment that may be might be simply just a way of reassuring all the segments of our Alaskan society that we're serious about providing for subsistence needs. CHAIRMAN GREEN: Thank you. Representative Austerman and then we have two people on teleconference. Number 0939 REPRESENTATIVE AUSTERMAN: A question that any of you can answer it and that is given what we have in Washington, D.C. right now as far as the Administration is concerned, do you see ANILCA being changed, taking rural preference out, allow us to go ahead with what to do. Everybody agrees with you that (indisc.), but there's some reality checks here that we're faced with. MR. ROSIER: I'll take a crack at it. The only way that would happen, in my estimation, is if exactly what Representative James was talking about here a moment ago. As long as we're fragmented the way we are, it's not going to happen, but if you have an Alaskan solution on this, and I don't know how you go about making that kind of a deal to where there's a promise that you would in fact have a state system that would, in fact, protect and give a preference for subsistence use, then you might have some success. And I would guess that our delegation would in fact pick up on that. That they would, in fact, be willing to go to bat on this thing, but as long as we're divided the way we are, I don't think so, Alan. Number 1020 REPRESENTATIVE AUSTERMAN: On that point, Mr. Chairman, it gets right back ... CHAIRMAN GREEN: One follow-up and then we're going to teleconference. REPRESENTATIVE AUSTERMAN: Okay. It gets right back to it, I mean, how many years has it been that we've been talking about an Alaskan .... CHAIRMAN GREEN: Dick. MR. BISHOP: Well, Mr. Chairman and Representative Austerman, I think one thing is really clear that if people don't push the envelope, there will be no change and that's why I have argued that I think it's really important for the legislature to do as Representative James has said, and Walt has said, and Carl has said, and that is develop a package that clearly provides strong accommodation of subsistence uses and gives fair treatment to other uses and present that to Congress and the Department of Interior and say, "Look, we have a better idea than ANILCA and we have adopted this and we entreat you to change ANILCA to match it and if you have provided adequately for subsistence uses which is again principally based on food gathering, I think it would be very difficult for the critics that in the past have said that the legislature or the state or whomever has not been responsible in addressing these needs. They will not have that criticism to make. I think it's a very powerful tool, but it's not going to be done unless frankly, the legislature is willing to push the envelope. CHAIRMAN GREEN: I'm not going to take any more questions for just a moment. We are losing our two people who have been standing by for six hours now on teleconference. Mr. Seekins, are you available? Mr. Seekins, can you hear us? Mr. Levengood? Okay, we may have lost them. UNIDENTIFIED SPEAKER: Mr. Chairman, are we done? CHAIRMAN GREEN: I think - oh, one question. REPRESENTATIVE CROFT: Shouldn't we have on this list, a deletion of ANILCA's rural preference? I mean, isn't that what all of you have said and we don't now? Number 1127 REPRESENTATIVE BARNES: Mr. Chairman, while you're trying to get them on the line. CHAIRMAN GREEN: Representative Barnes. REPRESENTATIVE BARNES: On the point that Mr. Bishop spoke to - we brought this issue up twice - HB 960 in 1978 was the law that promulgated subsistence in the state and it is that law that was written into ANILCA. That's where the language in here for customary and traditional use, all of that came from. Is that not true? So, if we could come up with a better solution than what was originally in HB 960, it seems to me that that ought to be given some consideration by those that support a subsistence lifestyle. REPRESENTATIVE WILLIAMS: On that point, Mr. Chairman ... CHAIRMAN GREEN: Representative Williams. REPRESENTATIVE WILLIAMS: I asked him earlier on that same question about where this customary and traditional originated from and he said he couldn't tell me whether it came from ANCSA or this bill. But I can sit here and say also that I think it came from ANCSA. Then that would put a different light on the word "customary and traditional". If we were to sit here and negotiate customary and traditional, who was negotiating customary and traditional at that time for the Alaska Native Claims Settlement Act. It was the Alaska Natives that were talking about customary and traditional. REPRESENTATIVE BARNES: Mr. Chairman, just in response. I would point out that HB 960 was developed by a subsistence task force here in this legislature that was by the Native representatives and it was chaired by the representative from Dillingham at that time. And I think the Washington, D.C. record will reflect that it was that bill carried by Representative Nels Anderson and others from this legislature that put this into federal law. Number 1237 REPRESENTATIVE WILLIAMS: What I'm saying, Mr. Chairman, I don't want to debate it I guess, but I'll say this that we've discussed where did customary and traditional originally come from and I'll say it came from the long public hearings that we were having throughout the state of Alaska when the Alaska Native Claims Settlement Act was being passed. CHAIRMAN GREEN: Dick. MR. BISHOP: Mr. Chairman, I just wanted to nail down the answer a little bit and that is the first time that I know of that that term wound up in statute was in fact in the 1978 law that Representative Barnes was referring to. Its origin, its development, I'd have to go back and dig around. CHAIRMAN GREEN: Representative Hudson. CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. Dave, once again I'd really like to have a further explanation of your recommendations - I thought they were constructive; that is, the removal of consumptive in the two provisions as well as the taking and maybe you could just scratch something out and give it to the Chairman so we can understand. You know, you made reference to that being something that should have happened 25 years ago and it had magic potions. I would like to know in a better context, just exactly what that magic produces. CHAIRMAN GREEN: Representative Ogan. Number 1372 CO-CHAIRMAN OGAN: Thank you. In regards to the question that Representative Croft asked that on these recommendations here if what you were saying was true that rural priority should go away, would any of you have any objections to a constitutional amendment that protected subsistence that didn't compromise equal protection. For example, a clarification of Article VIII, Section 4 and that's the sustained yield portion that says that -- obviously we'd have to do something like that to try to get rid of if we were going to make a recommendation to eliminate rural priority. And give subsistence the highest and best protection in times of shortage because that's what sustained yield is all about. In times of shortage, we constitutionally protect subsistence and ask for Congress to acknowledge that we've constitutionally protected subsistence and that's the highest and best use in times of shortage and ask for rural priority to be eliminated from ANILCA. Would anybody have an objection to something like that if it didn't compromise equal protection? Number 1371 MR. BISHOP: Mr. Chairman, Representative Ogan .... CHAIRMAN GREEN: Identify yourself, please. MR. BISHOP: Excuse me? CHAIRMAN GREEN: For the record would you identify yourself. MR. BISHOP: Dick Bishop, Vice President ... CHAIRMAN GREEN: That's alright - just so she knows who it is. MR. BISHOP: In response to Representative Ogan's question, I think given the right conditions, the answer is probably no. In other words, if it were possible to re-enforce what is obviously the capability of the state to accommodate adequately subsistence uses even by a constitutional amendment if it didn't violate the common use, equal protection provisions that we currently have, I suspect that it would be okay. I guess I'd want to make sure I saw the exact language and so on and so forth. But the concept is one that we have talked about, so I would say that simply from my own perspective, I guess, and qualify it in that regard. CHAIRMAN GREEN: Commissioner. Number 1419 MR. ROSIER: Yeah, Mr. Chairman, I, like Dick, would take a real hard look at that kind of a provision on this because I think we're getting closer to what Jeannette - Representative Jeannette James was talking about here in terms of an Alaskan solution demonstrating our will to in fact do this, but and that's a big one because somewhere, somehow we've got to have the assurance that that's what's going to happen on the other end before I'd go for it. Number 1445 CHAIRMAN GREEN: That kind of brings us full circle then. We've got to have someplace to negotiate from and .... Walt. Number 1449 MR. SHERIDAN: Walt Sheridan. I think that not only does the rural priority provision in ANILCA need to go away, but it needs to be replaced with some language in ANILCA that probably recognizes subsistence uses on federal lands under state management as a legitimate use of those lands. And then that coupled with what we can do as a state, I think that we can probably provide for the legitimate needs of our folks. CHAIRMAN GREEN: Representative Porter. REPRESENTATIVE PORTER: Within that concept, are we still within your comfort zone by defining subsistence use as customary and traditional as it generally appears now in ANILCA. Number 1486 MR. KELLEYHOUSE: Mr. Chairman, you'd be out of my comfort zone unless, as Dick Bishop said, that there was a redefinition of customary and traditional. Because it has become a convenient defense for practices that are not accepted - conservation practices - and I do believe it will lead to abuse. Customary and traditional in my tenure with the Department of Fish and Game, which was 20 years, almost all of it under ANILCA, I've seen customary and traditional use to argue the fact that "my culture and my ancestors used musk ox in the late 1800s; therefore, I should have priority use now" all the way to "Well, I've developed customary and traditional use patterns on a recently introduced animal like rocktail deer in Prince William Sound and therefore, I deserve preference." Customary and traditional has caused some problems; it has been used to justify shooting at deer from moving boats that have been forced to the beach - you know, the deer have been forced to the beach with high snows in mid-winter; it's been used to justify jack lighting; it's been tried to be used to justify chasing animals down with motorized vehicles like a snowmachine and these things -- customary and traditional can be what happened yesterday or what happened 500 years ago and we've got an evolving technological culture right now. Just beware that it's kind of a pandora's box and ... CHAIRMAN GREEN: That was Mr. Kelleyhouse for the record. Representative Porter. REPRESENTATIVE PORTER: Thank you. A quick response. Looking at the suggestions of Mr. Bishop, perhaps just adding the word "lawful" before practices would provide the comfort zone. CHAIRMAN GREEN: Representative Croft and then we have a little wrap up that I'd like to have presented by the Judiciary Council. REPRESENTATIVE CROFT: Great. So, you guys aren't opposed to amending the constitution; you're just opposed to this particular amendment. MR. BISHOP: We have consistently opposed amending the constitution and the reason we have consistently opposed amending the constitution is we have not seen nor have we been able to dream up anything better in terms of sound conservation and fair allocation than that which we have found in the constitution. It seems - and there have been lots of different ideas - it seems that all of them though had some frailty either with regard to the erosion of civil rights, equal opportunity for people - all Alaskans, or some heightened risk as far as sound conservation of fish and wildlife in the state, or both in some cases. An example of both is the terms of ANILCA, not necessarily just the priority. But anyway, that's basically where we've come from. Furthermore, we've always said that based on history there is not a need in order to properly accommodate subsistence uses to have a priority in law. We've also added to that, nevertheless we recognize that the social decision may be that there should be a priority. If there's going to be one, then it should treat all Alaskans fairly and equitably with respect to their standing before the law and their opportunity to qualify for that priority if there is one ... CHAIRMAN GREEN: Carl. MR. BISHOP: ... and it has to assure sound conservation. Number 1670 MR. ROSIER: Thank you, Mr. Chairman. Briefly, again it's the gun to our head called ANILCA - it's the gun to our head. You're dealing from the bottom of the deck in trying to get a constitutional amendment as long as ANILCA sits there with the requirements that it has. CHAIRMAN GREEN: Briefly. Number 1688 REPRESENTATIVE NICHOLIA: Yeah, I just have to respond to the gun to the head - I just have a question on that. CHAIRMAN GREEN: Alright. REPRESENTATIVE NICHOLIA: Thank you, Chairman Green. You said ANILCA is a gun to the head - when the subsistence harvest is only 2 percent of all the harvest - how can that be a gun to your head? MR. ROSIER: Mr. Chairman, it's not the harvest level that bothers us; it's what ANILCA is requiring us to do - change the constitution ... CHAIRMAN GREEN: One percent or five percent - that's not the issue. MR. ROSIER: Yeah, it's not a resource problem. REPRESENTATIVE WILLIAMS: How do you tie in the ... CHAIRMAN GREEN: Representative Williams. REPRESENTATIVE WILLIAMS: How do you tie in the agreement that was made with the Alaska Native Claims Settlement Act with subsistence. The conference committee had said that they're going to take care of the subsistence lifestyle of Alaska Natives - that was part of a negotiated settlement. How can you say that ... MR. ROSIER: Mr. Chairman, I would like to respond to that because I certainly disagreed with what was being said here earlier by the lawyers on this thing. The settlement under ANCSA was 44 million acres. It started out as a much lower figure - perhaps half of that - and it was increased to 44 million acres for control by fee simple on this and the primary purpose of that - at least in my understanding - was that it was in fact for subsistence purposes. CHAIRMAN GREEN: It was a half million and then another half million (indisc.) - a billion. REPRESENTATIVE WILLIAMS: How it went though, I mean - you were here, Carl when this was being negotiated weren't you? MR. ROSIER: I wasn't involved, Mr. Chairman ... REPRESENTATIVE WILLIAMS: No, but I mean you were here in the state of Alaska. MR. ROSIER: Yes. CHAIRMAN GREEN: I think we've strayed a little here now. We're back off of the issue that we're gathered for, but ... REPRESENTATIVE WILLIAMS: Okay, I'll ... CHAIRMAN GREEN: I know where you're coming from and ... REPRESENTATIVE WILLIAMS: Then I'll just say that I disagree with his comments. CHAIRMAN GREEN: Okay. REPRESENTATIVE WILLIAMS: He's way off base. CHAIRMAN GREEN: Representative Barnes. Number 1786 REPRESENTATIVE BARNES: Mr. Chairman, before your attorney wraps up, there is one issue that I most definitely want to raise because it has concerned me greatly and if you will all flip in your book to 810 and read it, because what this subsistence fight is all about is the control of the economy of the state. And if you don't believe it, read Section 810. Now, I don't want to see Section 810 used for controlling ANWR or any other state lands because of the whole subsistence debate and it is crucial, I believe, that we do not let the economy of this state be controlled by a few people. And I believe that's what 810 does and I would like to see it addressed in the amendments that you proposed. Number 1826 CHAIRMAN GREEN: Well gentlemen, I want to thank you very much for taking your time to make a presentation to us and hope we didn't offend anyone with contrary thoughts. MR. ROSIER: Thank you very much, Mr. Chairman. CHAIRMAN GREEN: Questions were asked - whoop, where did he go - by Representative Croft as to what in the world we're doing here anyway with these 15 reviews or issues of ANILCA and I've asked both our Judiciary attorney and the attorney from the joint committees as well as our walking encyclopedia in reference to kind of wrap up for us. So, if you would. UNIDENTIFIED SPEAKER: Our advisory team. CHAIRMAN GREEN: That's right. Number 1868 KEVIN JARDELL, LEGISLATIVE ADMINISTRATIVE ASSISTANT TO REPRESENTATIVE JOE GREEN: Mr. Chairman, for the record my name is Kevin Jardell. I'm the staff attorney for the Judiciary Committee. After the department's presentation, I had made a list of explanations as to why each of the elements in the litany of requests does have a rational reason and a basis for the request. Subsequent to my being here, the four gentlemen broached most of those subjects explaining, from my point of view, basically where the subject matter arose from and why those things are rightfully being asked to be addressed by Congress. What I would like to do in the interest of time, is maybe just ask if there are any questions that we can address on any specific issues there's still confusion on and even more so, to offer our services to sit down individually and maybe present some of the case law as to exactly where these things arose, let you read, and then explain it from that point of view. Sometimes this gets confusing whenever you start talking about what judges have said in one case and another case and sometimes just reading on your own, specific phrases clarifies it. So, at that time if it's okay with the Chair, I'd like to just open up for questions. CHAIRMAN GREEN: We can start off - Representative Croft questioned the first four earlier in the afternoon and we have addressed the navigable waters issue with Dick and Carl, but you might just briefly give us a reference. MR. JARDELL: Briefly, as far as the navigable waters, in a nutshell we have an Alaska Supreme Court case saying that the state has the ability to regulate fish and game in navigable waters. We have a Ninth Circuit Court of Appeals case in opposition to that and we have a United States Supreme Court case in (indisc.) which isn't quite controlling, but is persuasive, tending to go along with the Alaska case. The Court of Appeals in the Ninth Circuit made several references to the fact of the inadequacy of the Congress addressing the issue. They filled in the blank - they recognized that it was inappropriate. That being said, it is an appropriate question for Congress to address, they are the people who should address it and we should ask them to address it in the manner in which the best interests of the state are preserved. CHAIRMAN GREEN: Representative Croft. Number 1973 REPRESENTATIVE CROFT: Doesn't that presume that we're not going to be in compliance? I mean, if we come into compliance, whether by doing what ANILCA says, some compromise, or whatever, we don't care what the jurisdiction is if we're not in compliance. MR. JARDELL: Through the Chair, two parts to that. One, I think, both as policy makers and as citizens, we do indeed care whether or not we have ownership of navigable waters in the state of Alaska. As far as us as a state being in compliance, if, in fact, we do have navigable waters, our subsistence regulations regarding those waters may not be subject to attack by the Department of Interior which would greatly reduce the amount of land that the department will be controlling or supervising or have an overview of the outcome. So, I think the impact would be severe even if we were in compliance as to future litigation - what we're required to do, I think from a policy standpoint, the more control that the state can have over its own lands, the better off the state is. CHAIRMAN GREEN: Ron. Number 2028 RON SOMERVILLE, TECHNICAL CONSULTANT, SENATE/HOUSE MAJORITY, ALASKA STATE LEGISLATURE: Mr. Chairman, if I might just add briefly to what Kevin has said. My name is Ron Somerville. I'm technical consultant to both the Senate and House Majority. Just quickly, my background is 23 years with Fish and Game and under the Hickel Administration, I served as kind of a liaison with the Department of Law so I had some chance to deal on a daily basis between the commissioner's office and Charlie Cole's office and the staff in Anchorage. As was presented by Attorney General Botelho and former Attorney General Cole, 1 through 4 and 10 do deal with the Katie John case and what the majority asked us to do - and this is precisely what the staff was asked to do when we were involved in the Katie John case is what if we lose it, what's necessary in order to fix it. And the attorneys, and who are still with the Department of Law, in essence came up with kind of this - now you could argue that any one part isn't necessary, but this is the ultimate - if, in fact, the intent policy of the legislature is a quid pro quo for us amending our constitution which was instruction given to the staff here, what changes to ANILCA can we initiate that will assure that the state sovereignty of its lands and waters are protected. I disagree totally that there is no problem as long as you're always in compliance because as soon as a federal court or a federal agency somehow gets involved in saying, "If you don't do the following, you're out of compliance," the threat is always over your head that, in fact, the feds are coming. And we had that - I think it was expressed by former Commissioner Rosier as it relates to walrus. I was director during the period when we managed walrus and that threat was continually there - "We're going to come in and take you to court. Or we're going to do such and such if you don't modify your regulations to, in fact, discriminate against your own residents" in many cases far in excess of what the federal agencies could do themselves. We just finally said we can't do that and we gave it back to them. I'm just using that as an example and that's correct. Charlie Cole and I have had long discussions during the task force meeting on specifically that issue - we respectfully disagreed with each other. I must say I had some experience in the agency in dealing with it - this is only in the matter of what does it look like on paper. Number 2119 MR. SOMERVILLE: So, 1, 2, 4 and 10 are exactly what the majority told us to craft - what can we get in ANILCA which will protect sovereignty of the state and assure the state that its authority to manage in its own lands and water will not be diminished regardless of what the federal agencies do in the future. CHAIRMAN GREEN: Follow-up, Representative Croft? REPRESENTATIVE CROFT: I guess, Ron, where you see a threat, I see a guarantee - I mean, that this the safety net for the ultimate guarantee that there will be -- a federal guarantee that there will be a protection for a rural subsistence lifestyle and for us to now after not doing this over and over to say "Okay, we'll do it as long as you take away the guarantee - you take away the backstop" seems verging on disingenuous. I didn't ask you to write this. I know it was a directive from the majority - there's no minority legal representation there or minority viewpoint, but to the extent that I can add it, it guts the guarantee that got us here and in exchange for us promising we'll be good this time and to me that's no way to bargain. If we're going to do it, we don't care about this. If we're not going to do it, we care a great deal and that may be why we care a great deal about it. MR. SOMERVILLE: Mr. Chairman, if I may. Representative Croft, I mean you make a good point - I guess the policy decision that you people have to make is what did ANILCA intend to do. Was the intent to preempt the state or was it an attempt to set up and manage - I think the people crafted ANILCA, and I was there - nobody even presumed the state would not be managing - I don't think they even thought of the possibility of the situation that we're in today. But the fact is, we're there and certainly, if the state does something - changes its regulations, laws, that puts it out of compliance - it loses the right to manage on federal land. I mean, the laws of general applicability then will kick in and we will be precluded from that. So there is a quid pro quo in what the majority has asked us to draft here and that is sovereignty over (indisc.) state lands and waters and compliance with the federal law. As long as we stay in compliance, we manage on federal land. If we're out of compliance, we don't manage on federal lands, but we're protected on state and private lands. And I think what we were instructed to do was to provide that sort of quid pro quo as an exchange for amending our constitution. I mean, that was what I felt our instructions were. REPRESENTATIVE CROFT: Probably were. CHAIRMAN GREEN: Representative Rokeberg. Number 2216 REPRESENTATIVE NORMAN ROKEBERG: Mr. Chairman, I just - a couple of technical points. I'm looking at the E Version of the House Joint Resolution which became 66, which these particular provisions are from and my notes at the time of the Judiciary Committee were to write it so people understand it and I've got some concerns about - whereas, I understand the distinction, particularly 1 through 5 and 10, that there are differences there, but has there been any further effort for economy of language here to cut those down. I was concerned about that. And another one I have a concern about is, I'm not sure why number 8 is remaining. We had some testimony on that today and perhaps I missed 12 and 13. I'd like to -- 11, 12 and 13 -- why they would stay. Number 2263 MR. SOMERVILLE: Mr. Chairman, if I may -- I'm sorry. Representative Rokeberg, relative to 7 and 8, again the request that we received was if you see a problem in this area -- the only problem that we foresaw and that was the possibility of the federal government would change the law. So, in essence requiring -- and these are kind of key components of the solution -- saying you got to keep it kind of aligned with what we have in state law or else they're going to be responsible for getting rid of the subsistence priority. You know, that certainly could be dropped if you're satisfied and the policy decision is what Congress did, the intent was there, it was good intention - it could be dropped and hope that we don't have a conflict in the future. That was just our instructions, I think, to craft that in such a fashion that we have some guarantee it would remain that way. CHAIRMAN GREEN: Follow-up, Representative Rokeberg. REPRESENTATIVE ROKEBERG: Well, Mr. Chairman, it's just that originally it was drafted to be a part of a constitutional amendment to be offered to the public and that was one of the concerns that we had in committee was that the people would understand what was in here. As legislators, we've had the opportunity to understand this better, but for the average common citizen to understand it, it's extremely difficult, so keeping it as simple as possible, I think, is an important thing and also, to make sure it's explainable on its face is important. CHAIRMAN GREEN: And we will get into that in our respective committee deliberations. Representative Ogan. CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. I'll try to be brief. Mr. Somerville, there was some discussion earlier in the committee with the attorney general about the Section 1314(a) of ANILCA that said, "Nothing in this Act is intended to enlarge or diminish responsibility and authority of the state of Alaska for management of fish and wildlife on public lands except as may be provided in Title VIII of this Act or to amend the Alaska Constitution." You were there when ANILCA was being drafted. You said just a minute ago that surely no one expected that anybody (indisc.-coughing) would manage at the time it was being drafted. What do you think is meant -- I mean, I'm a lawmaker, I'm not a lawyer, but I write laws and I know when I write laws, I intend the laws to mean what they say and to me this is plain on its face that it says that nothing is to be construed that we amend our constitution. I know the attorney general disagreed with me and he gets paid to look at different ways to look at laws differently, I guess - I'm not sure - I'm not an attorney. But I do write laws. As I said, I write them to mean what they say and -- what was the intent ... TAPE 98-95, SIDE A Number 0001 MR. SOMERVILLE: ... Dick Bishop - both of us were volunteers, if you will, on the Governor's task force. I was one of the first people in 1974 - I volunteered for Governor Hammond's task force and we went around the state and crafted what eventually became S 7, the compromise that was agreed to by Senator Stevens, Senator Gravel and Congressman Young and the Governor at the time, Jay Hammond. And I was from the Alaska Department of Fish and Game and during the middle and latter part of our discussion there, I was asked to go back with three specific requests to Senator Stevens. We were working in Jackson's committee at the time in the Senate and we had three - one of which I can't quite remember - it was rejected by Senator Stevens. But the two most important ones are we requested that the boundaries of all the conservation units be limited to mean high tide and the Senator agreed with that and today we were successful in doing that - a very important thing relative to our commercial fisheries. The other was that Alaska not be required to amend its constitution. Senator Stevens said he did not want to place that out as a red flag - that he would insert it someplace within there with the intent of providing that sort of protection. That's why it's where it is - it's kind of vague - I mean, it doesn't do what we requested; that is, have a specific section that clearly mandated that - it's stuck in the back. So, I'm just telling you, that's how it got there and you can interpret however you will. CHAIRMAN GREEN: Representative Berkowitz. Number 0123 REPRESENTATIVE BERKOWITZ: Just on that point and then I have my own question. On December 2, 1980, when this ANILCA came to pass, there was no requirement from the federal government that Alaska amend its constitution. MR. SOMERVILLE: Mr. Chairman, Representative Berkowitz, that's correct. REPRESENTATIVE BERKOWITZ: In fact, the necessity for amending the state constitution didn't actually occur vis a vis ANILCA until the McDowell decision. MR. SOMERVILLE: Representative Berkowitz, that's correct. REPRESENTATIVE BERKOWITZ: So, in 1980 when Congress crafted ANILCA, they had no way of anticipating how the Alaska Supreme Court would act in 1989, is that fair to say, too. MR. SOMERVILLE: Fair statement. UNIDENTIFIED SPEAKER: Mr. Chairman. CHAIRMAN GREEN: Well, I think that you have ... REPRESENTATIVE BERKOWITZ: I have questions of my own. I just wanted to make that point real clear. CHAIRMAN GREEN: You are up now, but I'm wondering if I could -- we do have these two offnet sites back on now, if we could hold you gentlemen at the table, briefly catch these people before they go off again. They've been waiting all day, as well. Mr. Seekins, can you hear us? Number 0202 RALPH SEEKINS, REPRESENTATIVE, ALASKA WILDLIFE CONSERVATION ASSOCIATION: Yes, I can. CHAIRMAN GREEN: Could you briefly tell us what you'd like us to hear. MR. SEEKINS: Well, I'm testifying, of course, I'm with the Alaska Wildlife Conservation Association, which is made up of hunters and fishers across the state and we've put a lot of time into researching just exactly how Title VIII does affect the state of Alaska and one of the things that we have determined by trying to follow the legislative progression of bills, such as Title VIII of ANILCA, is what things can get better, can get worse and the next Congress, Administration, legislature, governor, et cetera, may change the relationships between these two sovereign entities - the state of Alaska and the United States of America. One of the things that we have also found out in our research is that when it comes to a question of defining where the lines are between these two equal sovereigns, the states and the United States of America - that very often some of the most notable and some of the most well debated and longest lasting decisions of the United States Supreme Court come from just those kinds of questions. And we believe that one of the things that has to happen is that the rules, the lines of authority or sovereignty between the United States of America and the U.S. Congress and the legislature of the state of Alaska must be clearly defined so that when we're looking at these areas that intrude or at least the perception is that they would intrude on areas of state's sovereignty, they must be clearly defined by the arbitrator and this is a serious issue with the state today and that's why we're here. We're here not because (indisc.-coughing) anything having to do with subsistence or the need for subsistence or anything at that question, except who has the sovereignty over the lands of the state of Alaska when it comes to management of fish and game, for whatever reason. And I think that question and what we encourage you to do is to say, "Look, we need a time out here where we can sit down - the United States of America, state of Alaska" and go here to this nine-member body and say, "Okay, based on the law, based on the history of this nation, who has this sovereign power to be able to make these decisions on federal public lands, or on state lands, or on private lands." Once we have those rules and lines of authority clearly defined, then I think the discussion can be fruitful. Until that point, what we feel that we're leaning toward is just further confusion in just what can we as a state do, what can they as a federal government do. And so our purpose even to appear to you and we spent some time in an examination of federal authority to manage fish and game in Alaska, we've tried to get a copy of that study to each of you to consider and we see a definite conflict here between what the federal government says they can do and what Alaska feels that the federal government cannot do and what I don't understand in that process is why these two bodies - these sovereign entities can't go to the highest court in the land and say, "Okay, since there is this question of law, who has this sovereign authority and what authority exists in this area of traditional state management on federal public lands." And so I think that if we were to do that, we could finally get to the bottom of solving the subsistence issue because it's not subsistence that we're arguing about, it's authority - it's sovereign authority. Number 0500 MR. SEEKINS: Once we've done that, then the people who, subsistence is part of the fabric of their life, no longer will feel threatened because we'll be able address that issue fairly, soundly and legally so that we can get out of the courts and get on with taking care of the needs of the people. And that's what we would encourage you to do. While it's a good exercise to look at all the points of ANILCA that we think maybe could be changed, we still believe that the basic premise of Title VIII of ANILCA should be challenged, not belligerently, but in order to define and clearly define those lines of authority and sovereignty. Once that's done, again, we believe you could get on with your job and take care of the people of the state of Alaska and we have full faith that you would do that as a body, as the trustees of this great public trust. So, I guess that's the full element of what I would ask you to do. I think that the -- when we talk about the Legislative Council's lawsuit, I don't like to think of that as a lawsuit, an adversarial proceeding, even though at this point the federal government is treating it as an adversarial proceeding and doesn't appear to want to listen to it based on the merits, but would like to throw it out on a technically. But it could be a serious inquiry between two sovereign entities to find out what the rules really are and I think if we were to approach it from that direction, ask the court, "Look, we need to have injunctive relief from any further implementation of this law until we find out what those clear lines of authority are" and then I think we could get on with really solving the conflict. So that is where we're coming from. We're asking that you, as the legislature, get behind that, not from an adversarial, but from a clarification standpoint. Number 0630 CHAIRMAN GREEN: Well, assuming that we may not get injunctive relief through the litigation in time to prevent takeover, do you see a constitutional amendment as the best way as a follow-up to a negotiated situation to try and do something to get relief from ANILCA? MR. SEEKINS: Personally, I would have a problem with a constitutional amendment coming from the state because it weakens the appearance of the state's position on the issue. Do you, as a body, really feel that you have the sovereign authority to manage fish and wildlife inside the state of Alaska. If you think that Section 6(e) of the statehood agreement gave you that authority, that the Presidential Executive Order of December 29, 1959, gave you that authority, that the Submerged Lands Act of 1953 gave you that authority, and if you think that any other state has that sovereign ability, then I think that it would be wrong to go in and change what is a very strong and very powerful constitution to erode any part of it. But I do believe that if you were to go to the court as the entire legislature - Senate and the House - and you were to ask the Governor to join with you - I don't know whether he would or not - Senator Stevens, Senator Murkowski, Congressman Young - to join with you to say we want this clarified in the courts, I think that the court in all justice would probably give injunctive relief and that as long as there was a good faith effort on all the parties to finally delineate where that authority is. So, I don't want to think that we would take a weak position on something if you felt that you, as the legislature, were acting on the proper side of the line of your sovereign authority. To compromise, I think at that point, the perceived battle line the next time the issue of sovereignty comes up is wherever we left it with a constitutional amendment. So, I would rather continue to argue the issue until I had a final decision of the Supreme Court than to fashion an amendment which might be necessary to repeal. Number 0786 CHAIRMAN GREEN: Yeah, well I would assume then from that response that you're not in any particularly receptive mood to discuss the 15 changes to ANILCA. MR. SEEKINS: Well, I would say that -- for my response, I would say it is a good exercise to say okay, maybe if we're going to compromise, where do we ask them to back off, but I would be reluctant to compromise. I do believe some of these things are hitting right at the meat of the issue and that I think from what I see in these 15 proposals, you basically are saying that you believe that the state has sovereign authority to manage fish and game within this jurisdiction of the state of Alaska. Am I incorrect there? CHAIRMAN GREEN: I would think that that certainly is my feeling and I'm not so sure how many others, but I think it's the majority feeling. MR. SEEKINS: ... if you believe that you have that sovereign authority, then I think you have a trust responsibility to the people of the state of Alaska to assert that authority. And so, I'm not telling you what to do - I guess it's difficult. I wouldn't want to be the one having to make the final decision, but I do believe that looking at these proposals that at least the majority or the submitters of these proposals do believe that the state does have that authority. So, I would try to pursue that as far as was rationally possible. I guess I would ask all the parties - and I don't know, you guys know better than I do - how receptive the federal government is going to be towards trying to discuss the issue on the merits or whether they want to kick it out on a technicality and take control. CHAIRMAN GREEN: Well, thank you. I don't see any questions. CO-CHAIRMAN HUDSON: I have a question. CHAIRMAN GREEN: Oh, excuse me. Representative Hudson. CO-CHAIRMAN HUDSON: Ralph, this is Bill Hudson. Have you -- you're representing a very powerful and obviously important group in the state of Alaska - have you brought your own attorneys to bear on trying to strategize how the state can develop its best position and how likely it might be to do what you're just suggesting that we do; that is, to try to get to the Supreme Court with this kind of an issue. MR. SEEKINS: Well, we looked at it and based on some of ... LYNN LEVENGOOD: Ralph, I'm standing by on the line. MR. SEEKINS: Okay. Based on that, Lynn Levengood, our attorney who has been working with us on this issue could probably answer that better than I can. But, you know, I think the thing that I've seen - and then I'll let Lynn talk about the legal aspects of it - is that this is a question which has never been presented to the U.S. Supreme Court before and based on that and based on the continuing refinements of how the property clause would apply to federal public land, I think it demands what the Supreme Court calls a de novo review and I think that they would review it simply because it is a clear issue of trying to delineate the line between state sovereignty and federal sovereignty. There's a very good discussion on that that was written by Justice O'Connor in a 1992 case called New York v. United States of America where she goes into great lengths - three or four pages - to say that it's a necessary thing for the Supreme Court to do exactly that - delineate the lines of authority and sovereignty between these two sovereign entities. And neither can exist without the other and both must be strong. So, I think that - I could defer that to Lynn - he'll probably give a different answer .... CO-CHAIRMAN HUDSON: Thank you. CHAIRMAN GREEN: Well, I'd certainly agree with the fact that if we could get a de novo review, that would be great, but -- Lynn, are you available. MR. LEVENGOOD: Yes, Mr. Chairman. My name is Lynn Levengood. I'm an attorney in Fairbanks, Alaska. I'm an executive member of the Alaska Wildlife Conservation Association and as our Chairman, Ralph indicated, we're the group that put together the examination of the court decision and other authorities regarding the management of fish and wildlife in Alaska. Hopefully, you've all had a chance to read that. We believe that Alaska has a very strong case - that finality is what all Alaskans want because without finality we will not be one people under one law. And to get finality will require a review by the U.S. Supreme Court and it can come in one of two ways. The quickest way is for the legislature to ask the Governor and I think the rest of the delegation would join and bring a direct action suit against the United States government on this issue, it'd go directly to the Supreme Court and would, by necessity, be handled with the next session of the U.S. Supreme Court. That's the quickest way, the fast way. However, if the Governor refuses to defend Alaska's sovereign interests, the existing suit brought by the legislature could wind its way through the federal system and into the Supreme Court (indisc.) one to two years. But the dilemma you're in is one that you do have a strong case and my testimony is going to be very different from what you heard from former Attorney General Cole and Attorney General Botelho. And this is a very, very important point. First of all, the property clause provides that the federal government does have superior authority for the management of federal lands where they occur. And the main issue there is lands. They do not have the ability to manage wildlife, per se. ANILCA - and everybody that's read ANILCA in the room can raise your hand and if you've read ANILCA, you'll find that there's not one word in ANILCA that provides management authority to the federal government or the Secretary of the Interior. Now, Senator Stevens put that in his last set of amendments, that may come into being if we capitulate to a constitutional amendment, but as written, there is no management authority. Number 1129 MR. LEVENGOOD: Now that being said, the property clause gives them vast authority if there is negative impact to the land which the federal government is managing - and we've heard about the Kleppe case which is a case involving the protection of wildlife - in this case burrows and free roaming horses that were on federal lands that were endangered. That is the reverse of the situation in Alaska. In Alaska, this is an allocation scheme in which the federal government is attempting to allocate the sovereign wild natural resources of the state of Alaska discriminatorily to one class of people and - very important point here, very important legal point - even if the federal government has management authority on federal lands - which our research believes they don't and ANILCA doesn't provide that - ANILCA only provides them the ability to provide for subsistence on federal lands, not to manage wildlife, but to provide for subsistence. And that's my point. Even if the federal government had management authority on federal lands in Alaska, they must abide by the federal public trust doctrine that requires absolute impartiality in the treatment of all trust beneficiaries. The trust beneficiaries of wildlife resources are every citizen in the United States and every citizen of Alaska; past, present and future. And the violation of the public trust doctrine to allocate to one user group over another. So, even if the federal government has the ability to manage wildlife on federal lands, which we don't believe they do, they cannot discriminatorily provide higher allocation to one user group over another. It's a very important point. We believe the Supreme Court would rule in our favor on that issue. Number 1285 MR. LEVENGOOD: You, as a body of the state of Alaska, have the same public trust responsibility as the trustees of Alaska's wildlife resources that you also cannot discriminate in the allocation of Alaska's resources unless there is a shortage and a rationing situation occurs. Under Title 16, current state law, we provide in times of shortage that preferences are provided. That is legal and should be maintained. But to provide for a 365-day preference to rural persons violates that public trust doctrine and if it was attempted to be placed into statute would be subject to being overturned under both the federal court under the federal public trust doctrine and under state court under your responsibilities as trust beneficiaries of Alaska. More importantly, another court legal point that you haven't heard today is that ANILCA is not Indian law. If it was Indian law, the word Native could be placed in ANILCA and there would be no question that the federal government could provide a Native preference and we would not be having this debate. But, regardless of what the conference committee note says (indisc.) actually had Native preference in their version of the bill before us (indisc.), Congress chose not to make this law Indian law. Now you've all heard that ANCSA has extinguished the aboriginal claims to fish and wildlife resources and the important point here is that you, as the legislative body, cannot under the 14th Amendment to the U.S. Constitution, provide a discriminatory allocation scheme favoring certain classes of people over others. If you did, it would be challengeable under the U.S. 14th Amendment which precludes states from discriminating among their citizens. Under state law, we have the same equal protection problem that cannot be got around and yesterday on the Senate side, and you may hear it later tonight, we had a plea by a certain group for the Senate to craft legislation that would fancifully tip toe around the equal protection clause of Alaska's Constitution. You can't do it. So, you're in a dilemma that is unresolvable - if you try to amend our Alaska Constitution, it would be challengeable under the federal equal protection clause and under the public trust doctrine. Number 1444 CO-CHAIRMAN OGAN: Mr. Levengood? MR. LEVENGOOD: Yes. CO-CHAIRMAN OGAN: This is Representative Ogan. Through the Chair, if I might interrupt for just a minute. I'm pretty familiar with the public trust doctrine; in fact I have the book sitting on my desk in front of me and we've had some discussion today about it. Are you familiar with Article VIII, Section 4 of the Alaska Constitution? MR. LEVENGOOD: Which one's 4? CO-CHAIRMAN OGAN: Sustained yield on fish and game, wildlife ... MR. LEVENGOOD: Common use. CO-CHAIRMAN OGAN: No, that's Section 3. Section 4 is sustained yield. MR. LEVENGOOD: Sure. CO-CHAIRMAN OGAN: It says that we must manage these resources on a sustained yield principle, subject to preferences among beneficial uses and so we have the authority to give a preference of the use of fish and game and I would interpret the sustained yield portion to be in times of shortage. Do you feel if there was a constitutional amendment that was passed to clarify that the highest use of fish and game shall be for subsistence that that would be a violation of the public trust doctrine? MR. LEVENGOOD: No, absolutely not. Use is consistent with the Alaska Constitution, but user is not. So, subsistence uses could be the highest and best use and/or the predominant use (indisc.) protective use, but the user could not be defined as where they live geographically by zip code. You understand that distinction is very important. CO-CHAIRMAN OGAN: Sure I do. Thank you very much. CHAIRMAN GREEN: Piggybacking on Representative Ogan's question then, if that were the tact to be taken, do you feel that that would suffice to allow the preference that is necessary if we can't get all of the changes to ANILCA that we would like? MR. SEEKINS: This is Ralph again. You know, if you read the McDowell case, you notice even the state Supreme Court says that it's just the way that it was presented where it was a monopolistic group that was reprehensible to the court and to the constitution, but I don't think you would need an amendment to the constitution to be able to say that you want to dedicate as the highest beneficial use for human subsistence and they were pretty clear in their signals, I think, in the reading of that case that if there was some kind of -- if it was based on a needs basis or other personal qualifications or individual qualification basis, that it would comply with our constitution. It's just when it's a monopolistic group that it has the problem. Number 1584 CHAIRMAN GREEN: Well, the question wasn't whether or not it would go along with our constitution so much if we had the constitutional amendment, but whether or not it would suffice to satisfy the requirement that we're getting from the Secretary that we have to be in compliance with ANILCA. MR. SEEKINS: I don't think it would because they're just saying it must be rural - that's the litmus test, but that's my own opinion. MR. LEVENGOOD: Yeah - okay, I agree with Ralph. The rural preference is a dilemma that you cannot satisfy and if you all had your pencils handy and a piece of paper, I think I may have the magic bullet and that is if you define subsistence as the reliance upon wildlife resources for basic sustenance - that means the ability to feed your family - basic sustenance - and that is defined as a universal, natural right of all Alaskans, then with that definition we would not need a constitutional amendment ... UNIDENTIFIED SPEAKER: What we have now. MR. LEVENGOOD: But the issue is, by defining subsistence in the manner I just did, the protected class of people under the ANILCA are rural people that, and then you have to use the state definition, people who rely upon wildlife resources for their sustenance, because the term subsistence is not defined in ANILCA. If you define it, then the federal courts have to use your definition. So, back to my analysis. The class of people protected under ANILCA would be rural people who relied upon wildlife resources for their sustenance. State law protects not only that group of people, but all people in Alaska who rely upon wildlife resources for their sustenance. Because the Alaska state law would protect all of the class of people protected under federal law, under a conflict of laws analysis, Alaska state law would be in compliance with ANILCA because it gives absolute protection to the protected class under the federal law. Now, that being said, for insurance I would ask that one of the changes you ask for ANILCA is that they drop the word "rural" and put in the definition of subsistence as I just defined it. But that is another avenue which would get Alaska out of this dilemma without a constitutional amendment. And because I believe that the ability to feed -- while the common use clause is an important individual right, guaranteed by the Alaska Constitution, that it is not a proper subject of a plebiscite. You cannot put on the popular ballot the ability to take away individual rights of other Alaskans. The next thing people will be wanting you to do is to take away the rights to keep and bear arms by popular vote because some people will get in a majority that didn't want to do that. Well, we're a country of individual guaranteed rights and it's not the proper subject of a plebiscite. So, ignore these pleas by the rich few who are flooding the airwaves and the newspapers with "just let us vote" because it's not the proper subject of a plebiscite. Number 1750 CHAIRMAN GREEN: Well, the problem I think some of us are having is that we're not sure that we will have anything to offer for, even as you say, just a redefinition of rural to include what you've said for subsistence - that we would have that right without some sort of a constitutional change if we just rely on legislation that can be changed at the next convening of a legislature. I'm one who is concerned that we would get any relief at all from the federal government, but that's an opinion rather than fact. Representative Ogan. Number 1775 CO-CHAIRMAN OGAN: Well, briefly, Mr. Chairman, because I know we have a 7 o'clock deadline. Mr. Levengood, you're an attorney by training, is that not correct - a member of the Bar? MR. LEVENGOOD: That's correct. CO-CHAIRMAN OGAN: And you -- would you consider not only fish and wildlife, but other natural resources like oil are public trust resources? MR. LEVENGOOD: I'm sorry, I didn't hear the question. CO-CHAIRMAN OGAN: Oil and gas are held in public trust as well, along with fish and game - all natural resources are, according to our constitution, held in trust for the people of the state, is that correct? MR. LEVENGOOD: Alaska's unique since they have subsurface resources, as well - correct. CO-CHAIRMAN OGAN: So, I guess - I'm going to make a comparison of the public trust issue here if we gave a rural priority for permanent fund dividends because our permanent fund dividends reflect our share of the earnings off the royalties from that asset held in public trust. Would you think that's a fair comparison? MR. LEVENGOOD: That is an analogy that is acceptable, certainly. CO-CHAIRMAN OGAN: Okay, I don't think a whole lot of people would support having a priority with that dividend, but thank you. CHAIRMAN GREEN: Representative James. REPRESENTATIVE JAMES: Thank you, Mr. Chairman. Lynn, I had been thinking about this question and it has to do with the customary and traditional use as being one of the qualifiers and I know that in our current state regulations relating to subsistence, I believe that there is a rule that says, I think, one generation of use or something qualifies a person, so, one generation of use. And my question is, the issue that we had with the permanent fund dividend and also, the longevity bonus and a lot of other issues is that we were not able to provide anything different to someone who had been here a long time to someone who hadn't been here. And I wonder does that - does that rule or that provision at all relate to us giving a priority to someone because they've been here longer than others? MR. LEVENGOOD: Well, I think I understand your question - Mr. Chairman and Representative James - I think I understand the question and the way it would work with wildlife resources and it's similar to the tier II hunt analysis we have under today's state law, but using the definition that I promulgated earlier - subsistence users are those who rely upon wildlife resources for their basic sustenance - anybody who said that they relied upon this wildlife resource could participate in a subsistence hunt and that would be done just like it's done now with an allocation by the Board of Game, but then when a shortage occurs and there was not enough of whatever resource is being harvested to provide for all subsistence uses, then we'd go into a situation like we have today under a tier II in which the question would be asked of all people who relied upon that particular stock, how long have you relied upon this resource for your sustenance and it would be then allocation would be given first to those who relied upon it the longest. So, while it's not a -- so, I guess my answer to your question is, it wouldn't be a universal exclusion based upon a ten year (indisc.) threshold; as long as there was a reliance on the resource established, that would be the threshold level and until there was a shortage that required discrimination among users, it would just then be based upon those who relied upon it the most. Did that answer your question? REPRESENTATIVE JAMES: Not really, but I'll think about it. CHAIRMAN GREEN: Representative Hudson. Number 1955 CO-CHAIRMAN HUDSON: Lynn, how did we get by with limited entry in this provision - I mean, it's no time of shortage, it's ... MR. LEVENGOOD: Well, the Ostrosky case of the Alaska Supreme Court struggled with that question, said in very blatant terms that they hated the concept because it violated the common use clause and I guess quite frankly, how did we get it? Well, it was a situation where we had at that time when limited entry was created, a very limited resource and just an economic, I guess, situation that was determined to be something that could not sustain open entries and in economic terms, the reason it differs from the common clause of our wildlife resource - or common use clause, I guess or basic sustenance - subsistence - is that because then the commercial harvest which is available to people who can go out and get enough money to buy a permit, even through a bank loan or whatever. So, it still is open - equal protection still applies - anyone who wants to become a commercial fisherman has the ability to do so, it's not restricted by zip code or anything else. But it was an economic decision and not an individual right decision based upon your basic sustenance. And that's a very -- not a very thick line at all. The Supreme Court struggled with it quite heavily and they did not like it at all. That's as close as I can come to explaining it ... Number 2030 CO-CHAIRMAN HUDSON: This is Bill Hudson, again. My only concern is, is that when we originally issued them, we didn't issue them on the basis of who's going to pay for them; we issued them on the basis of how many years and poundage and all of those kinds of things - it was an allocation issue and so, under your current discussion of what our dilemma is here, it never would have passed. CHAIRMAN GREEN: Well, I think that's probably true. CO-CHAIRMAN HUDSON: I guess I'm asking. MR. LEVENGOOD: I guess under a current analysis, I think it would be very difficult to redo limited entry (indisc. - tape garbled). CHAIRMAN GREEN: Representative Berkowitz. Number 2056 REPRESENTATIVE BERKOWITZ: Just a quick point on the limited entry which is, you know you can get a limited entry permit - they're fairly expensive, but it's cheaper than that to move rural, so ... MR. LEVENGOOD: Well, clearly. REPRESENTATIVE BERKOWITZ: That's something people ought to contemplate before they throw the equal protection analysis. But what I really have for you, sir, is a challenge and the challenge is this - if you think that the case is so strong, I think you ought to take it to court and show it in court. And if it's going to sustain itself, let the courts decide. If it's not, let us get on and do our job here. MR. LEVENGOOD: Well, the AOC - the Alaska Outdoor Council has recently filed an intervener in the legislature's action which raised public trust issues and other issues that the Legislative Council suit did not have in its suit - these are issues that we collaborated with and so, I guess legally the (indisc.) feels that the issues that private citizens can bring are now in that legislative suit. However, the most important rights that the state has are, the Tenth and Eleventh Federal Constitutional Amendment guarantees the state sovereignty amendments to the U.S. Constitution and those can only be brought by the attorney general through the Administration. And it is those issues raising the state sovereignty to the Tenth and Eleventh Amendments that we would implore the Governor to bring - enjoin the legislative suit and bring the sovereignty issue as well and that would get us to the Supreme Court immediately and we would have resolution within the (indisc.). CHAIRMAN GREEN: Representative Joule. Number 2131 REPRESENTATIVE JOULE: Just a quick comment because I know you need to go. But with regard to the comment on defining subsistence with the wording of using sustenance. For people who engage in the activity of subsistence, sustenance is only a very small portion of what subsistence is and that was discussed and rehashed when that issue was brought before us as part of 406 when it first came out. So, I just wanted to bring that out ... MR. LEVENGOOD: And I agree with you 100 percent; however, as it relates to the wildlife resource itself, the fish or the wildlife animal - the primary concern is that it is harvested -- I mean, the priority is that that animal is harvested to provide basic sustenance for the individual and/or his family members. Beyond that, certainly it has the handicraft aspect, et cetera, but I'm not so sure that the state needs to get into the protection of all these other esoteric qualities when it's the basic sustenance issue that's related to the wildlife harvest that is the primary state concern (indisc.). And the reason I say that is, if you take the other end of that spectrum, you find the state trying to guarantee the protection of a culture and if there's anything that the United States of America is, it's a melting pot of all cultures and the state government and federal government has no business and no legitimacy in promoting any one certain culture over anyone elses. CHAIRMAN GREEN: Messrs. Levengood and Seekins, I want to thank you very much for standing by. We are out of time and with that - the joint committees will stand in recess to the call of the Chairs of the various committees. [EDITORIAL NOTE: CHAIRMAN GREEN recessed the Joint House Judiciary and Resources Committees at 7:02 p.m.] TAPE 98-96, SIDE A Number 0001 CHAIRMAN GREEN: Call to order the Joint Judiciary and Resources Committees to address House Joint Resolution 101. We will be taking that up for adoption by individual committees and so I will hand over the gavel - wherever he is - to the Chair of the Resources Committee ... [EDITORIAL NOTE: The Joint House Judiciary and Resources Committees stood in recess until 2:57 p.m., May 28, 1998.