JOINT MEETING HOUSE JUDICIARY STANDING COMMITTEE HOUSE RESOURCES STANDING COMMITTEE May 28, 1998 2:57 p.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 "Bill" Williams Representative Irene Nicholia Representative Reggie Joule HOUSE RESOURCES MEMBERS ABSENT All members present OTHER HOUSE MEMBERS PRESENT Representative Alan Austerman Representative John Cowdery Representative Gary Davis Representative Terry Martin COMMITTEE CALENDAR HOUSE JOINT RESOLUTION NO. 102 Proposing amendments to the Constitution of the State of Alaska relating to establishing a preference for subsistence uses of fish and wildlife; 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 102 SHORT TITLE: CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE SPONSOR(S): RESOURCES Jrn-Date Jrn-Page Action 5/28/98 (H) JUD AT 2:30 PM HOUSE FINANCE 519 5/28/98 (H) RES AT 2:30 PM HOUSE FINANCE 519 WITNESS REGISTER TED POPELY, Legal Counsel House/Senate Majority Alaska State Legislature Capitol Building Juneau, Alaska 99801-1182 Telephone: (907) 465-3720 GEORGE UTERMOHLE, Attorney Legislative legal and Research Staff Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801 Telephone: (907) 465-2450 KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801-1182 Telephone: (907) 465-4990 ACTION NARRATIVE TAPE 98-97, SIDE A Number 0001 CHAIRMAN JOE GREEN called the joint meeting of the House Judiciary Standing Committee and the House Resources Standing Committee back to order at 2:57 p.m. Present at the call to order from the House Judiciary Committee were Representatives Bunde, Porter, James, Rokeberg, Croft and Green. A quorum was present to conduct business. Number 0035 CO-CHAIRMAN SCOTT OGAN called to House Resources Standing Committee to order. Present at the call to order from the House Resources Committee were Representatives Hudson, Green, Dyson, Barnes and Ogan. A quorum was present to conduct business. HJR 102 - CONST.AM: SUBSIT. PREF.BASED ON RESIDENCE CO-CHAIRMAN OGAN: We have before us House Joint Resolution 102 which was read across the record this morning on the Floor and there is a CS [committee substitute] that is before us we'd like to adopt for purposes of discussion. For that reason, maybe we should gavel out as a joint committee meeting and if we could take action as a Resources Committee to adopt the CS, if the Chairman of Judiciary doesn't have objection to that. CHAIRMAN GREEN: Yeah, I think you're still in - we never went back to joint - oh, we did ... CO-CHAIRMAN OGAN: Yeah, we did go back as joint, so let's gavel out as a joint meeting. EDITORIAL NOTE: CHAIRMAN GREEN reconvened the joint meeting of the House Judiciary and House Resources Committees at 2:59 p.m.] CHAIRMAN GREEN: ... reconvene the joint committees for discussion purposes on CSHJR 102. We have here -- we have been joined by Representative Berkowitz and we have the sponsor for CSHJR 102, Representative Barnes and we have Ted Popely here to answer any legal problems. Representative Barnes. Number 0051 REPRESENTATIVE RAMONA BARNES: Thank you, Mr. Chairman. Mr. Chairman, the work draft that you have before you, Proposing amendments to the Constitution of the State of Alaska relating to a preference for subsistence uses of fish and wildlife; and providing for an effective date and repeal of the subsistence amendments. Mr. Chairman, this resolution first of all in Section 1 is based on the existing constitution sustained yield principles; Article II of Article VIII, Section 4 is the sustained yield provision adding a new subsection to read: "(b) The legislature shall establish, consistent with the sustained yield principle, a preference for subsistence uses of fish and wildlife that takes effect when a fish or wildlife resource is not sufficient to accommodate all beneficial uses of the resource. Notwithstanding any other section of this constitution, the State may in times of shortage of a particular fish or wildlife resource, grant a preference for subsistence uses of that fish or wildlife resource. The preference shall be available to any individual resident who resides within the area that is determined to be customarily and traditionally dependent on the particular fish or wildlife resource or who has demonstrated customary and traditional dependence on that particular fish or wildlife resource. Residents who do not reside within the area that is determined to be customarily and traditionally dependent on the particular fish or wildlife resource are presumably presumed not to qualify for the preference. This presumption shall be fully rebuttable so that a resident may qualify for the preference if customary and traditional dependence on the particular fish or wildlife resource is demonstrated." REPRESENTATIVE BARNES: And then, Mr. Chairman, as you can see it goes on, on line 12, "(c) Except as provided in (b) of this section" and in (b) you again go back to the sustained yield principles and the preference that is there provided. It is what, I believe, in this particular attempt at a constitutional amendment, is a between the two far reaching principles that we have had and it is an attempt to take care of the needs of all the people of the state through both a presumption and a rebuttable presumption to reach a resolution of this problem that exists under Title VIII of ANILCA. I believe this constitutional amendment does that. I would commend that you pass this resolution and that we seek to resolve the differences that we have between the opposing forces in our state and I'm going to ask that you address your questions to Mr. Popely because he's the attorney and I am not. CO-CHAIRMAN BILL HUDSON: Mr. Chairman. CHAIRMAN GREEN: Representative Hudson. I believe the good lady on page 2, line 9, may have for the record, missed the word "rebuttably". REPRESENTATIVE BARNES: I did say rebuttably, I believe. CO-CHAIRMAN HUDSON: I was listening and I didn't hear it ... REPRESENTATIVE BARNES: Well, excuse me ... CO-CHAIRMAN HUDSON: ... I just want to make sure the record indicated that it was there. REPRESENTATIVE BARNES: Well, let me re-read it. "Residents who do not reside within the area that is determined to be customarily and traditionally dependent on the particular fish or wildlife resource are rebuttably presumed not to qualify for the preference. The presumption shall be fully rebuttable so that a resident may qualify for the preference if customary and traditional dependence on the particular fish or wildlife resource is demonstrated." CHAIRMAN GREEN: And there will be a copy of this with the record. CO-CHAIRMAN OGAN: Mr. Chairman. CHAIRMAN GREEN: Representative -- yes. CO-CHAIRMAN OGAN: For the record, the Resources Committee has been joined by Representatives Joule and Nicholia. CHAIRMAN GREEN: And we have Representative ... CO-CHAIRMAN OGAN: Cowdery has ... CHAIRMAN GREEN: ... Cowdery, thank you, has joined us, as well. And we have Representative Berkowitz. CO-CHAIRMAN HUDSON: We have Gary Davis in the audience. Number 0346 REPRESENTATIVE ETHAN BERKOWITZ: Thank you very much. As I understand it, my questions are to be directed to Mr. Popely, or ... REPRESENTATIVE BARNES: I would prefer that Mr. Popely would answer because he is an attorney; although, if I think he said something wrong, I'll whip him. REPRESENTATIVE BERKOWITZ: I'm sure you will. REPRESENTATIVE BARNES: Attorneys do make mistakes sometimes. REPRESENTATIVE BERKOWITZ: So do former speakers. REPRESENTATIVE BARNES: (Indisc.). REPRESENTATIVE BERKOWITZ: Looking at subsection (c) here, it states, "Except as provided in subsection (b), the state may not grant a preference for subsistence uses based exclusively or partly on a resident's place of residence." This, it seems to me, is a tacit acceptance of the idea that you can base a preference on place of residence. Is that a fair assessment? Number 0398 TED POPELY, LEGAL COUNSEL, HOUSE/SENATE MAJORITY, ALASKA STATE LEGISLATURE: Mr. Chairman, Representative Berkowitz. Yeah, my name is Ted Popely for the record - I'm counsel for the Senate and House Majority. Mr. Chairman, Representative Berkowitz, my understanding is that reading of Section (c) does not imply that a residence based criteria are allowed absent this amendment to the constitution under Section (b). REPRESENTATIVE BERKOWITZ: Perhaps I didn't make my question clear. What I'm suggesting is that you are accepting of the idea that there can be a distinction based on place of residence. Number 0435 REPRESENTATIVE BARNES: Mr. Chairman, since that's a policy question perhaps I should ... CHAIRMAN GREEN: Representative Barnes. REPRESENTATIVE BARNES: ... speak to it. What this says, Representative, is that we have a problem in the state and the problem is one with Title VIII of ANILCA. So, we are presuming to fix that problem as best we can under our existing constitution; doing it two ways. First, with the presumption in a time of shortage that people qualify and secondly, that there be a rebuttable presumption for those that live outside of those presumed qualified areas. So, your question then says, we're saying that we admit a fact - I'm answering you in the way I look at it. REPRESENTATIVE BERKOWITZ: Let me ask it again, just because I need ... CHAIRMAN GREEN: And then I'll take a shot at it. Representative Berkowitz. REPRESENTATIVE BERKOWITZ: Representative Barnes, what you are saying is that with the constitutional amendment, it is permissible to make a distinction based on place of residence. CHAIRMAN GREEN: Not exclusively ... REPRESENTATIVE BERKOWITZ: I can ask my own questions ... CHAIRMAN GREEN: And the reason for the that is -- if you'll hear me out -- the reason for that is the rebuttable presumption that you don't have to live within the area that is impacted by the scarcity of game. REPRESENTATIVE BERKOWITZ: Mr. Chair, I appreciate the help you're trying to offer, but the point I would like to make or like to understand, is best answered by Representative Barnes. REPRESENTATIVE BARNES: Would you care to ask it again and once again, I will answer it. REPRESENTATIVE BERKOWITZ: Does Section (b), as acknowledged in Section (c), allow distinctions based on place of residence? REPRESENTATIVE BARNES: It would allow two kinds of distinctions. One, a presumed distinction and the one, a rebuttable distinction. REPRESENTATIVE BERKOWITZ: So, the answer is yes. REPRESENTATIVE BARNES: I am not answering yes; I am answering yes two ways. REPRESENTATIVE BERKOWITZ: So, you're answering yes twice. REPRESENTATIVE BARNES: It would allow a rebuttable and ... CHAIRMAN GREEN: Alright, there is a response - yes. CO-CHAIRMAN OGAN: Mr. Chairman. CHAIRMAN GREEN: Yes. CO-CHAIRMAN OGAN: (Indisc.). CHAIRMAN GREEN: We have other people - okay. Representative Croft. Number 0576 REPRESENTATIVE ERIC CROFT: Representative Barnes, is this a House Rules Committee by request of the Governor or should it have still said by the House Resources Committee? REPRESENTATIVE BARNES: Well, as it exists right now, our CS for House Joint Resolution 101, I think, was introduced by the Governor and so the CS would eventually become CS for House Joint Resolution 101 Resources. REPRESENTATIVE CROFT: I thought we were 102. CHAIRMAN GREEN: We're on 102, I'm sorry. REPRESENTATIVE BARNES: Whatever it is - I've got 101 ... CHAIRMAN GREEN: Yes, it should be 102. REPRESENTATIVE JEANNETTE JAMES: It should be 102 and it should not say ... UNIDENTIFIED SPEAKER: ... by the House (indisc.). REPRESENTATIVE CROFT: If it says 102, then it should be by House Resources, instead of House Rules ... CHAIRMAN GREEN: That's right. REPRESENTATIVE CROFT: Just - we're doing things quickly and I thought that's probably the way it should go. On Section (b), I understand, I think, the distinction that you described and the distinction that I've heard described different ways. One in a conversation with Representative Davies. I worry that the way we're using customary and traditional - ANILCA makes two distinctions; the type of area - subsistence or nonsubsistence area - and then customary and traditional use of the resource - and I'm trying to understand whether we mean to say, if you live in an area that's primarily dependent on fish and game, you have the preference. If you don't, you may based on individual criteria. If we're trying to say that, using the words customary and traditional confuses the issue or may. Let me try it -- on page 2, line 3, the heart of the matter, in my opinion, "the preference shall be available to any individual resident who resides within the area that is determined to be customarily and traditionally dependent on the particular fish or game resource ..." REPRESENTATIVE BARNES: Fish or wildlife resource. REPRESENTATIVE CROFT: ... fish or wildlife, you're quite right. Is Anchorage customarily and traditionally dependent on the Kenai River run or the Ship Creek run? REPRESENTATIVE BARNES: There may be -- Mr. Chairman ... CHAIRMAN GREEN: Representative Barnes. REPRESENTATIVE BARNES: ... there may be some residents, that under customary, traditional uses would be rebuttably presumed to qualify. REPRESENTATIVE CROFT: Okay, but that's the second part of that sentence that goes on to say, "or who has demonstrated customary and traditional dependence" - that's an individual ... REPRESENTATIVE BARNES: That's correct. REPRESENTATIVE CROFT: Is Anchorage, as a community, customarily and traditionally dependent on the Ship Creek or Kenai River runs? REPRESENTATIVE BARNES: No. Number 0749 REPRESENTATIVE CROFT: I mean, it seems to me that they are - that they have -- unless we really mean the concept of - and I think we probably should - are they an area that is dependent on fish and game resources? Those were two steps in ANILCA and we're using a term of art - customary and traditional dependence - that there's just the one. So, that's a concern. Let me address the second part of that sentence where it says, "... or who has demonstrated customary and traditional dependence on that particular fish and wildlife resource." If I tell you, Representative Barnes and you believe me, that my family has gone to Kodiak and hunted deer for 20 years am I customarily and traditionally dependent on Kodiak deer? REPRESENTATIVE BARNES: You would have to show for the Board of Fish and Game eventually, that you were dependent on that resource, so it would be a laid down criteria before the Board of Fish and Game that would establish whether or not you were dependent. REPRESENTATIVE CROFT: And what kind of criteria - would it make a difference whether I was wealthy and had done that for 20 years or poor and had done that for 20 years? REPRESENTATIVE BARNES: Doesn't make any difference. REPRESENTATIVE CROFT: Okay. Would it make any difference whether that was the only game that I ate or I ate a lot of different game? REPRESENTATIVE BARNES: Well first of all, you will have to have enabling legislation to establish this bill and those questions would fall under the enabling legislation. REPRESENTATIVE CROFT: I guess that's my final question until we come back around. Why do we want to put this in the constitution when it seems to me we could take the constitutional amendment we rejected today, "may distinguish based on ..." REPRESENTATIVE BARNES: Mr. Chairman, the constitutional amendment that we rejected today is not before us. CHAIRMAN GREEN: No, but there is a question as to -- I'll accept that. REPRESENTATIVE CROFT: It just goes to why would we want to put this language which seems to me, statutory language -- we could take any number of constitutional amendments, including one very short and specific and then put this in a statute, couldn't we? Number 0874 REPRESENTATIVE BARNES: You could, if you could get the support for it. REPRESENTATIVE BERKOWITZ: On that point ... CHAIRMAN GREEN: Representative Berkowitz. REPRESENTATIVE BERKOWITZ: But wouldn't it be easier to get 21 to support a statute than 27 to support an amendment? CHAIRMAN GREEN: Representative Porter. Number 0889 REPRESENTATIVE BRIAN PORTER: Mr. Chairman, I've been called away, for I hope not too long, and I just wanted to make a point before I left. This constitutional amendment, I believe, presumes that a statutory structure that would implement it will have as its beginning, the establishment of subsistence and nonsubsistence areas basically along the lines that exist today. Consequently, we could go to great lengths in putting all of those kinds of things into the constitutional amendment - I don't think that's advisable. It does refer to that notion pretty graphically in an area that has been determined to have a customary and traditional dependence, but I'll leave it up to the committee on how far they want to go in plodding along that fine definition. But what I think that this does represent is a rural preference plus the ability of some individual who can demonstrate that he/she has relied customarily and traditionally on that resource as the shortage to be able to go into that area of shortage after establishing this long-term customary and traditional ANILCA definition and be able to provide for their families as they had been traditionally and customarily doing - albeit from Fourth and C in Anchorage or downtown Kenai or wherever. So, it is the balance, I think, that works and if we can put it into a little better shape with the committee process - great - but, this is pretty close to being it. Thank you, Mr. Chairman, I'll be back just as soon as I can. REPRESENTATIVE CROFT: On that point and ... CHAIRMAN GREEN: Okay, follow-up. Number 1002 REPRESENTATIVE CROFT: I think it could say that - I just don't believe it says that now and particularly with the use of customary and traditional, I don't think it -- we could take the statutes that describe subsistence and nonsubsistence area, this doesn't reference them and it prohibits any preference based on them. It substitutes another concept which is not co-equal with it - it doesn't mean the same thing as subsistence and nonsubsistence areas and in fact, denies the ability to use those areas in statute. REPRESENTATIVE BARNES: Mr. Chairman, could I ask our attorney to respond to the attorney who has just spoken. UNIDENTIFIED SPEAKER: Actually ... CHAIRMAN GREEN: Mr. Popely. REPRESENTATIVE BERKOWITZ: Point of order - it's the Representative who spoke. REPRESENTATIVE BARNES: Excuse me. REPRESENTATIVE BERKOWITZ: (Indisc.) title so important. UNIDENTIFIED SPEAKER: He doesn't think I'm an attorney. CHAIRMAN GREEN: Mr. Popely. MR. POPELY: Mr. Chairman, Representative Croft, I'd be glad to comment. I understand the distinction you're drawing between customary and traditional as it's been used in ANILCA with regard to individuals versus the way it appears to be depicted here and would be depicted in any enabling legislation in terms of an area, which is a bit of a novel approach. But if you look to the state statutory definition of customary and traditional, I think that the drafter's notion is that it would be reasonable to utilize the same definition and apply it to the area - that would be the boards applying it - in order to determine whether an area or community satisfies the definition. If I could read it briefly - the customary and traditional definition from the state statutes is the noncommercial, long-term, consistent taking of, use of, reliance on fish and wildlife in a specific area - fish and game is what it says - fish and game in a specific area and the patterns of that fish or game that have been established over a reasonable period of time, et cetera. I do understand the distinction you're drawing. Number 1107 REPRESENTATIVE CROFT: Doesn't Anchorage qualify with Ship Creek under that very definition? MR. POPELY: Mr. Chairman, Representative Croft, for one thing, that decision would be up to the boards. Ultimately, all of the decisions on which areas qualify, which areas do not, would be up to the boards - there would be statutory guidelines and my answer to that would be, probably not for several reasons. One, it would still be established in statute nonsubsistence areas - Anchorage would undoubtedly be one of them. Even if it were not, in the determination on whether or not the area was customarily and traditionally dependent on that particular fish stock, I think it unlikely that the Board of Fish would determine that the Anchorage community, as a whole, could qualify for the preference based on a generalized customary and traditional dependence on that resource for food. And that's the standard that will have to be used under this regime. Number 1151 CHAIRMAN GREEN: But residents within Anchorage could qualify. MR. POPELY: Yes, they could, Mr. Chairman, but they would not qualify on the fish stock within Ship Creek. CHAIRMAN GREEN: Would not, if that's a nonsubsistence area, but they could qualify on the rebuttable presumption to another area. MR. POPELY: Mr. Chairman, that's correct. I think what you're facing is the board's going to determine first of all, if the statutory scheme were adopted, the board would determine whether or not the fish stock taken out of Ship Creek has any communities that depend on that for food in a subsistence way. And I think it's likely that the Board of Fish would determine that there are no communities and no individuals who have customarily and traditionally depended on Ship Creek as a subsistence resource. Personal use, sport, a variety of other uses - yes, but the board would probably determine that Ship Creek has not been depended on in a long-term and consistent use pattern for a primary food source by people in Anchorage which would thereby implicate Anchorage as a qualifying community for that particular stock. REPRESENTATIVE CROFT: I keep promising the last one, but we keep leading on to others. If I can, just ... CHAIRMAN GREEN: Representative Croft. REPRESENTATIVE CROFT: Where does it say that the particular fish or game resource has to exist in a subsistence area and can't exist in a nonsubsistence? MR. POPELY: Mr. Chairman, Representative Croft, I agree, it's not written in the constitutional amendment. I think it's inappropriate to have that in here - it probably would be included in the enabling legislation. REPRESENTATIVE CROFT: One more. CHAIRMAN GREEN: Next to last. REPRESENTATIVE CROFT: Right, maybe. And I will cut it off and we can come back around if you want. The customary and traditional that applies to the individual, Representative Barnes says -- you're not an attorney, right? REPRESENTATIVE BARNES: Heavens, no. REPRESENTATIVE CROFT: Then I'll just call you Representative Barnes -- customary and traditional dependency applies - the individual one applies to me who goes to Kodiak and hunts even though I'm not dependent in the sense of have to have it for food. I've been doing it under a sports hunting license forever and ever, so when we use it there it doesn't mean have to have it to live or whatever. But in that same sentence, up above two lines, when we say customary - an area who is customarily and traditionally dependent - now that's supposed to mean dependent in the sense - Anchorage dependent on Ship Creek in the sense of Anchorage wouldn't survive without it? I worry that in the same sentence, the same phrase is given dramatically different meaning and would be more comfortable, if this is our intent, that we say, "a resident who resides in a nonsubsistence area" or I guess it would be "a subsistence area that is determined to be customary and traditional" if that's the irrebuttable part we intend, I think we should say it. And the other part where we say if you're not, "residents who live in a nonsubsistence area" -- (indisc.) that sentence that starts on 7 that I guess means to talk about residents of nonsubsistence areas - what it really says is residents who do not reside within an area that is determined to be customarily and traditionally dependent on the particular fish or wildlife resource. ANILCA -- well, let's leave it at that first one that we're using customary and traditional dependence radically different when we go from an individual to the area and that if we mean subsistence or nonsubsistence area, we ought to say it. REPRESENTATIVE BARNES: You're talking about in time of shortage. CHAIRMAN GREEN: And I think rather than get embroiled now, I think you have a point -- I think there are probably some drafting changes that would be ready through amendments. I think what we want to do is get the overall view first and then probably come back and address changes. Because I know there's some other -- on that point, we have other people. REPRESENTATIVE BARNES: Mr. Popely, that's something you ... MR. POPELY: Mr. Chairman, if I might. Representative Croft, if I could just kind of -- briefly on what you said, I might be able to clear up a little bit. I think your reference on line 7 to residents who do not reside within the area - I don't think the intent of the drafters was that that be only nonsubsistence area residents; rather, since the scheme here is drawing a dependence on a particular fish or game stock by a particular community, that you could still be outside of a nonsubsistence area and still not qualify for that particular stock. You could still live in a very remote Bush area, for example, and not qualify for a particular fish or game stock. It's sort of the local preference idea where you don't qualify everywhere once you qualify in a particular fish or game stock so, you could still not qualify even though you're outside a nonsubsistence area. And I know I'm probably further confusing you because ... REPRESENTATIVE CROFT: No, no, that clarified it pretty well. It doesn't address the line 4, customary and traditional, but it does the line 7 or 8 ... CHAIRMAN GREEN: Representative James. Number 1405 REPRESENTATIVE JAMES: Well, rather than asking a question up front, I want to say what I understand this does and then have anyone correct me if I am wrong. First of all, my reading of this indicates to me that - and I believe I've heard it other places ... CHAIRMAN GREEN: ... you have. REPRESENTATIVE JAMES : ... is that constitutionally, we can identify nonsubsistence and subsistence areas without a constitutional amendment. Is that correct? We can do that? Okay, so now what we have done is we've assumed that we've done that and that we have known areas of nonsubsistence and known areas of where subsistence happens. Then it seems like the next premise is that a preference for the subsistence uses is only in times of shortage because it says, "only happens when the wildlife resource is not sufficient to accommodate all beneficial uses" so, what we end up identifying here is beneficial uses. Am I correct on that assumption? CHAIRMAN GREEN: So far. REPRESENTATIVE JAMES: Moving along then, it seems to me like what this is saying is that - and there is a gap in there because now we're talking about a shortage of a particular fish or wildlife resource and then we go on to talking about areas and there's no way to get from the fish and wildlife resource that's short to the area - there's no line to that, but we're saying that anybody who resides within an area that is a subsistence area, whether they be up north or down south or whatever, and there's a shortage of the fish or wildlife in this area - which it doesn't say where these things are - then that if you're living anywhere in a subsistence area, you're presumed to qualify if you were dependent upon that fish or that wildlife and that because you live in one of these subsistence areas, you're rebuttably presumed to qualify or presumed to qualify without rebuttable. UNIDENTIFIED SPEAKER: Presumed. REPRESENTATIVE JAMES: I think it's without rebuttable, is that right? REPRESENTATIVE BARNES: That's correct; you're presumed to qualify. REPRESENTATIVE JAMES: Okay, moving on here so I can understand what this says, then - but if you don't live in a subsistence area, anywhere you don't live there where there's a subsistence area and you've been using that fish or wildlife customarily and traditionally over a period of time and have established or demonstrated that you have this dependence upon it no matter where you live, it's the rebuttable presumption; in other words, you say you're assumed that you're qualified and somebody has to say you aren't. Is that what that means? CHAIRMAN GREEN: No ... REPRESENTATIVE JAMES: ... or do you have to come in and prove that you are? CHAIRMAN GREEN: Yes. REPRESENTATIVE JAMES: Okay, you have to come in and prove that you are. Okay, so this all can happen and then it says, okay, in times of shortage, we are giving a subsistence preference or priority in times of shortage, but it goes on and in (c) it says, "except for that period of time when there's a shortage of fish or wildlife" we cannot base any kind of subsistence preference on partly or -- on exclusively or partly where you live. So that seems to me like that we have a dichotomy there, because first of all it says that you're presume to qualify for subsistence if you live in an area that's been identified a subsistence area and we're talking about you being that, and then it goes on to say, you can't base it on - basically, exclusively or partly on the resident's place of residence. So, it seems like you say you can and then you say you can't. CHAIRMAN GREEN: No, and ... REPRESENTATIVE JAMES: Would you correct me on that one? CHAIRMAN GREEN: Alright, again we're talking about the constitutional amendment here, but there will be in the bill that goes with this, a litany of things that will qualify you as a resident within the area or a rebuttable presumption for you without, but it's not just on residence; it's on your need, it's on your prior experience, it's on a very defined list of things that they will look at. REPRESENTATIVE JAMES: But it says you can't do it on partly. CHAIRMAN GREEN: That's right and we will ... REPRESENTATIVE JAMES: That means you can't do it on residence at all. CHAIRMAN GREEN: We will address that because I have a heartburn with that word "partly" and we'll get to that just as we'll get to these other areas. I object to that same thing. I think it should be you can't rely on it completely. REPRESENTATIVE JAMES: Okay, if I might make one more statement. I think I understand what this is intending to do and that's what I was trying to do in this process. But there's one other thing that I just -- statement that I want to make. From all the testimony that I've heard - and I don't know if there's anybody here that can answer for me on this ... CHAIRMAN GREEN: George Utermohle, I think - yes, is here now. REPRESENTATIVE JAMES: ... is that it seems to me that the voices I'm hearing on the subsistence issue doesn't necessarily recognize an individual's right to subsistence. It seems to me like always the subsistence that I'm hearing about that is customary and traditional is a group right and never an individual right. And if I'm not -- that's not what I've been hearing, I'd like to have other people respond to that because I know a lot of people in my district who are individuals who are living a subsistence lifestyle. And they're living that subsistence lifestyle under sports hunting and fishing regulations, but they are definitely living a subsistence lifestyle. CHAIRMAN GREEN: And - I know George is here, but if they can qualify with these other criteria, they would qualify on a rebuttable presumption where they go if that game is in short supply, they would qualify under the rebuttable presumption. It's not just because they've done that though, there are other things - alternative food (indisc.), those kinds of things. There'll be a list of things that if they use that, they go there under personal use, but they go to the grocery four times a week, they're going to have a hard time rebutting a presumption. REPRESENTATIVE JAMES: If I might, Mr. Chairman, I don't mean to take an awful lot of time here ... CHAIRMAN GREEN: No, I think we need to get this ... REPRESENTATIVE JAMES: ...but going to the grocery store depends on what you go to the grocery store to get. If you're getting your protein from wild fish and game, and you're getting other things from the grocery store, it's not the same thing. CHAIRMAN GREEN: I agree and ... REPRESENTATIVE JAMES: ... and so is that considered? CHAIRMAN GREEN: That will be up to the board to determine whether you are a subsistence lifestyle by going to the grocery store for flour or whether that doesn't really count - we're only talking about meat - with the other abilities to find food that ... REPRESENTATIVE JAMES: Alright. Alright. CHAIRMAN GREEN: George, welcome. Would you identify yourself for the record. Number 1727 GEORGE UTERMOHLE, ATTORNEY, LEGISLATIVE LEGAL AND RESEARCH STAFF, LEGISLATIVE AFFAIRS AGENCY: Good afternoon, Mr. Chair. My name is George Utermohle. I'm legislative counsel with Legislative Affairs Agency. CHAIRMAN GREEN: Have you been here long enough to hear the dialogue with Representative James and some of the questions that she's asked? MR. UTERMOHLE: Mr. Chairman, I have been in the room during part of the conversation, but I didn't get a chance to understand actually the context - I've missed most of your meeting today and I really don't have the context that you've developed in your prior discussions. I'm not even sure which versions of bills or resolutions that ... CHAIRMAN GREEN: We're looking at the K Version ... MR. UTERMOHLE: ... you're considering. CHAIRMAN GREEN: ... your most recent version. Representative Bunde. Number 1756 REPRESENTATIVE CON BUNDE: On another subject if I might, Mr. Chairman. I'll add that I share some concern about - on page 2, line 14 - the partly on residence and expect further discussion there. On page 3, line 5, where it discusses the lawsuit and just a question about policy, I guess. I'd heard discussion previously that this is a particular lawsuit and another election could change whether Leg. Council [Legislative Council] wanted to continue the lawsuit and it may be picked up by another entity of state government or whatever -- my question is, do you intend to single out that specific lawsuit or would it be advisable to be more generic? And that would, I guess, be Mr. Popely. REPRESENTATIVE BARNES: Mr. Chairman, since he asked a question about the lawsuit, could I respond? CHAIRMAN GREEN: Yes. REPRESENTATIVE BARNES: Representative Bunde, the question of the lawsuit is because it had both legislators and the Chair of Leg. Council and Leg. Council members on the lawsuit, the lawsuit would continue because we have a contract that is paid for with the attorney and you would have to withdraw those individual legislators from that lawsuit before you could withdraw the lawsuit. REPRESENTATIVE BUNDE: And so, Mr. Chairman, the short answer is that's not a concern that the committee ... REPRESENTATIVE BARNES: It's not a concern for me. CO-CHAIRMAN OGAN: Mr. Chairman, on the point of the lawsuit. CHAIRMAN GREEN: Yes, Representative Ogan - I'm sorry. CO-CHAIRMAN OGAN: I think this whole issue here the way it's written is kind of a moot point because if the Supreme Court decides that Congress exceeded its constitutional authority, it goes away, anyway. UNIDENTIFIED SPEAKER: No, it doesn't. UNIDENTIFIED SPEAKER: It doesn't affect our constitutional amendment. CO-CHAIRMAN OGAN: But the need for the constitutional amendment goes away because we don't have a rural priority anymore. UNIDENTIFIED SPEAKER: But we already have the lawsuit. CHAIRMAN GREEN: Yeah, it would have to be removed. I think we discussed that this morning. Representative Hudson. Number 1858 CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. Listening to the information the first time around on this particular version, I think that this has been pretty well crafted. I wish Representative Croft was still here because the way I looked at this thing when I looked it over several times, is that for the first time in Section 4, Article VIII, we establish that the legislature shall establish a preference for subsistence - and that's the first time we've done that, so that's an essential element within the constitution and it is also -- they do this -- they shall do this in times of shortage essentially, because it's not available. And then the second thing of it is, is it says that in times of this shortage, that they may - which is the same thing we've done on some of the other resolutions we talked about earlier - grant a preference available to any individual resident on the basis of residency within an area determined to be customary and traditionally dependent. So that's again, sort of the subsistence areas and it's assuming, I guess, that the Boards of Fish and Game can create those or establish those and there's other criteria for that - you don't have to put that in the constitution - and that someone who lives within there is essentially determined to have that preference, but it also says ... UNIDENTIFIED SPEAKER: Qualified. CO-CHAIRMAN HUDSON: Yeah, that's he's qualified; he's pre- qualified, yeah. But it goes further - different than anything else we've seen - by stating that someone who lives outside of this area there, but has demonstrated that dependence shall also have an opportunity to acquire that same preference. I think that's all this really says there, other than some qualifiers. So, it's fair and then I think that Section (c) on line 12 that's been talked about, is again just a matter of strong qualifying language that simply says that unless times of shortage and you meet these other criteria we've established on a constitution, the state may not grant that preference. I think that just simply cuts off a lot of the wishy-washiness. That's what I see it. CHAIRMAN GREEN: The Chair would like to recognize we have been joined by Representatives Masek, Williams, Martin, Cowdery and Austerman. Representative Berkowitz. Number 1968 REPRESENTATIVE BERKOWITZ: Thanks very much. This is for either Mr. Popely or Mr. Utermohle - the scheme that's described in the body of this resolution - if that were a statutory scheme, would that statutory scheme be permissible under today's constitution? MR. POPELY: Mr. Chairman, Representative Berkowitz, in my opinion, no. REPRESENTATIVE BERKOWITZ: Now would that scheme be permissible under the resolution that we rejected this morning in the House? MR. POPELY: Mr. Chairman, Representative Berkowitz, I'm afraid I don't have that in front of me. I can't ... REPRESENTATIVE BERKOWITZ: That allowed for consistent with sustained yield, a subsistence priority based on place of residence. MR. POPELY: Mr. Chairman, Representative Berkowitz, in my opinion, it probably would be permissible under that constitutional amendment, yes. But I think what you're getting at if ... REPRESENTATIVE BERKOWITZ: That's all I asked. The next question that I have has to deal with ANILCA. In your opinion, is Version K consistent with the requirements of ANILCA? MR. POPELY: Mr. Chairman, Representative Berkowitz, no, it clearly is not and it requires that ANILCA be made consistent with this provision. REPRESENTATIVE BERKOWITZ: So, in your opinion, we would fall out of compliance if nothing further were done based on adopting Version K. MR. POPELY: Mr. Chairman, Representative Berkowitz, we would be in compliance if this became effective because it would require ANILCA to be changed to conform to this scheme. REPRESENTATIVE BERKOWITZ: And maybe someone else can answer this - I don't know if you all know, but have you had any indication that the proposed ANILCA changes that are required under this resolution are any where in the offing? MR. POPELY: Mr. Chairman, Representative Berkowitz, it's not my line of work, so no. CO-CHAIRMAN OGAN: Mr. Chairman, on that point. CHAIRMAN GREEN: Representative Ogan on that point; in fact, you're up anyway. Number 2054 CO-CHAIRMAN OGAN: Are you done with your line of questioning? I'll just wait. REPRESENTATIVE BERKOWITZ: Well, I have a third line of questioning. CO-CHAIRMAN OGAN: Okay, I'll just wait. REPRESENTATIVE BERKOWITZ: On page 14 -- or line 14, page 1, we're talking about all beneficial uses - all beneficial uses seems universal, would that mean statewide? MR. POPELY: Representative Berkowitz, I believe so, yes. REPRESENTATIVE BERKOWITZ: On line 12, you talk about - you have the mandatory "shall" instead of the permissive "may". Perhaps I misunderstood some of the arguments that people were raising this morning, but they seemed to be the more objectionable portions in terms of what ANILCA required. Aren't we just implementing those objectionable portions here by mandating that subsistence "shall" be what we manage for? Isn't that going to interfere with commercial fishing - resource exploitation? MR. POPELY: Mr. Chairman, Representative Berkowitz, I believe lines 12 - 14 merely require a preference for subsistence use in the generalized sense. The "may" language on page 2 refers to this specific scheme for affording a preference. This language that you're referring to that's mandatory doesn't spell out any particular preference scheme and it's something that the state does anyway as far as affording a subsistence preference in times of shortage. REPRESENTATIVE BERKOWITZ: If I might, it says, "the legislature 'shall' establish a preference for subsistence use." MR. POPELY: Yes. REPRESENTATIVE BERKOWITZ: So we have no choice; that is required, which means that we will manage for subsistence. MR. POPELY: Well, it means that we'll afford a preference in times of shortage. That's certainly true under this language. REPRESENTATIVE BERKOWITZ: Has anyone discussed the impact of this requirement vis a vis commercial fishing? MR. POPELY: Mr. Chairman, Representative Berkowitz, that's for you to do here, I assume. REPRESENTATIVE BERKOWITZ: And the impact - for example, regarding the ability to develop upstream resources - anyone to your knowledge had any discussion in that regard? MR. POPELY: Mr. Chairman, Representative Berkowitz, no, not with me, but (indisc.) reply to is that this isn't anything that's new or unique - the state could afford a subsistence preference in times of shortage ... REPRESENTATIVE BERKOWITZ: We could, but there's ... CHAIRMAN GREEN: Excuse me, what is your purpose for this line of questioning, Representative Berkowitz? REPRESENTATIVE BERKOWITZ: I'm just trying to get a better understanding of the language here because it seems to me that what we've done - or I'm not going to include myself in that first person - but what you are attempting to do is require that we manage for subsistence which is the most objectionable portion of ANILCA according to my understanding of the arguments I've been hearing. CHAIRMAN GREEN: No, that's not quite true. REPRESENTATIVE JAMES: You're not listening. REPRESENTATIVE BERKOWITZ: Well, I am listening, Representative James and if I'm not listening, then perhaps this isn't being clearly expressed because the language on lines 12 - 14 says you shall establish a preference for subsistence. CHAIRMAN GREEN: That's right and then it goes on to say how that's going to be done and there will be enabling legislation that says there will be a criterion that has to be determined; there will be subsistence, nonsubsistence areas, and when there's a shortage in a particular area, those residents of that shortage area will ultimately have the preference; those who don't live in that subsistence area or that shortage area, will qualify if, by a rebuttable presumption, they can show a dependent need and a sustained history of use. REPRESENTATIVE BERKOWITZ: I'd like to develop this line of questioning with people who are expert in the impact of mandatorily establishing a subsistence preference. CHAIRMAN GREEN: Okay, so you're going to wait for other testifiers. REPRESENTATIVE BERKOWITZ: I'll wait for other testifiers. CHAIRMAN GREEN: Alright. Representative Ogan. CO-CHAIRMAN OGAN: Thank you, Mr. Chairman. Well, I'm real pleased to see we're having this discussion on Article VIII, Section 4 of the constitution and sustained yield, and the preference that I think we were just discussing. Mr. Utermohle, in that existing section it says that fish, wildlife, forest, grasslands, and other replenishable resources - we can give a preference in times of shortage so under the sustained yield principle which interprets ... TAPE 98-97, SIDE B Number 0001 CO-CHAIRMAN OGAN: ... of fish and game and the use of fish and game can be subsistence. Is that correct - we already have that authority, correct? MR. UTERMOHLE: Mr. Chairman, Representative Ogan, yes, that's true. CO-CHAIRMAN OGAN: So, now when we give a preference of use of fish and game under the existing constitution as it stands today, there is not a problem with inherent rights because we already have the ability to give a preference established in the constitution, is that correct? MR. UTERMOHLE: Mr. Chairman, Representative Ogan, yes, you have the authority to establish preferences among beneficial uses. This provision, as all of the provisions of the constitution, are in tension with each other. ... extent that you provide a preference among beneficial uses that does not impinge upon something prohibited by another provision of the constitution, there's no -- that's within the scope of the legislature. CO-CHAIRMAN OGAN: Does the expansion - if I might just go ahead and continue the line of question ... CHAIRMAN GREEN: Representative Ogan. CO-CHAIRMAN OGAN: ... Mr. Chairman, the expansion of the rebuttable presumption if you live outside of the subsistence use area, does that create any additional problems in the inherent rights section - common use section? MR. UTERMOHLE: Mr. Chairman, Representative Ogan, I don't see it as a problem. It eliminates a large portion of the tension that would exist between such a scheme of presumptions and a number of provisions of the constitution - uniform application section, the common use provisions of the Alaska Constitution, even the equal protection provisions in the Alaska Constitution. Number 0176 CO-CHAIRMAN OGAN: Okay, now currently under our Supreme Court rulings and under our constitution, we can have - and there is currently in statute - subsistence areas and nonsubsistence areas, is that correct? MR. UTERMOHLE: Yes, there are. CO-CHAIRMAN OGAN: As long as there's a rational criteria for that, we can do that, is that correct? MR. UTERMOHLE: That is correct. CO-CHAIRMAN OGAN: And that's been litigated to the Supreme Court in our state. MR. UTERMOHLE: Yes, it has. CO-CHAIRMAN OGAN: Okay. So, we get -- as long as we allow people that have a -- is it customary -- what's the language in here -- customary and traditional dependence on that particular fish and wildlife resource - as long as we establish a rational criteria for that customary and traditional dependence and we give them - if they don't live in the area, we give them a rebuttable presumption to go into the area, that doesn't violate the common use provision of the constitution or inherent rights because we already have that authority, in your opinion? MR. UTERMOHLE: Mr. Chairman, Representative Ogan, this constitutional amendment, if adopted, would provide for such a scheme and would avoid the problems that might otherwise exist with the uniform application clause, common use provisions, or equal protection provisions of the constitution. Number 0285 CO-CHAIRMAN OGAN: Okay, we couldn't give -- in other words, we couldn't give the rebuttable presumption without this constitutional amendment because it would violate the common use clause? MR. UTERMOHLE: Mr. Chairman, Representative Ogan, based on the existing precedence of the Alaska Supreme Court, yes, that is the case - we would not be able to provide for such presumptions. CO-CHAIRMAN OGAN: Okay. There was some discussion earlier - maybe just a comment not a question for the witnesses - of I believe, if I understood correctly, there was a discussion of whether or not the congressional delegation would sign off on this or whatever -- clearly, it's been real clear that if minority and majority agree and the Governor's Office signs off on it, they'll advocate for it and I think it's workable politically if we can get a consensus. That remains to be seen; I don't think that can be answered here. I don't have any other questions at this time. CHAIRMAN GREEN: Representative Austerman. Number 0370 REPRESENTATIVE ALAN AUSTERMAN: Thank you, Mr. Chairman. First off, to Mr. Berkowitz - his question referenced the commercial fishing industry and I think that anybody in the commercial fishing industry has already accepted the fact that during a time of shortage, subsistence will be number one after sustained yield. I don't think that's been a question, never has been a question as far as the subsistence issue is concerned. It doesn't really raise the question .... My other question is more technical and I apologize for being late and maybe you already answered it, but on page 2 in Section (c) when you're talking about the place of residence or partially on a place of residence, seems to conflict a little bit with the lines above when you're talking about time of shortage you're going back to that resident area - you have to be a resident of that area to get -- so, it seems there's a little bit of confliction there. It's probably more of a technical ... REPRESENTATIVE JAMES: I get it - I get it. REPRESENTATIVE AUSTERMAN: Did you already answer that question. REPRESENTATIVE JAMES: In my mind. CHAIRMAN GREEN: That has ... REPRESENTATIVE AUSTERMAN: I think it's more of a technical question as to whether there's a conflict. CHAIRMAN GREEN: That has come up for three people and it might be wise that we do explain that because I have the same problem and I know the attorney for the House Judiciary says no, we probably need that in there with partly. It seems to me like it's a conflict, as well. Number 0469 MR. POPELY: Mr. Chairman, Representative Austerman, Section (c) that you're referring to on line 12, my understanding is that the initial clause "except as provided in sub (b) of this section" - which is the point you're referring to where that may be a factor, so by inserting "except as provided in section (b) of this section" it allows for that and then the following three lines, "the state may not grant a preference for subsistence uses based exclusively or partly on a resident's place of residence" would prevent another, additional or different scheme based on residence or residence criteria. REPRESENTATIVE AUSTERMAN: I didn't read it thoroughly enough. Thank you. CHAIRMAN GREEN: Well, probably though - it still seems to give me a little bit of grief because you say in effect then, they may not grant a preference for wildlife resources based partly on a resident's place of residence. REPRESENTATIVE NORMAN ROKEBERG: Part time - seasonal. MR. POPELY: Mr. Chairman, you may recall the state law that was struck down in the Kenaitze decision, for example, had place of residence as a partial factor in determining whether or not somebody qualified for a subsistence preference and it was found to be invalid under the equal access provisions. This was designed to prevent that sort of a scheme where there would be a number of factors - one of which would be proximity to the resource or locality or something of that nature, would not be allowed to be used. The only scheme based on residence that would be permitted under this section is that contained in sub (b) in pages 1 and 2. Number 0580 CHAIRMAN GREEN: But if the litany of requirements that are going to be in the statute - you go through this various litany and one of those things might be - not exclusively, but one of those things might be residence. You're saying that you can't use that as a partial ... MR. POPELY: No, Mr. Chairman, I'm saying that that is permissible because of the phrase, "except as provided in sub (b) of this section". The statute would be designed to match subsection (b) of this and implement it and would therefore be allowed because under subsection (c) it says, except as provided in (b) you can't use it for partial consideration. CHAIRMAN GREEN: I'll back off - we'll debate that later then when we debate the other amendments. Is that all you had, Representative Austerman? REPRESENTATIVE AUSTERMAN: Yes, thank you. CHAIRMAN GREEN: Representative Rokeberg. Number 0635 REPRESENTATIVE ROKEBERG: Well, thank you, Mr. Chairman. The first question I'd like to direct to Mr. Popely has to do with the state definition of customary and traditional dependency. There was earlier a question that related to whether need could be a criteria as it related to dependency and therefore, that you couldn't set in this because of an existing statutory definition -- you couldn't have like an income level or any kind of need based criterion, is that the way the interpretation of the existing statute is? MR. POPELY: Mr. Chairman, Representative Rokeberg, I don't think anything currently in Alaska law prohibits the use of need in affording a subsistence preference, no. REPRESENTATIVE ROKEBERG: But if we had a need, for example, income level, wouldn't you need a constitutional authority to do that because or would you not? Or is that part of how you define the criteria for determining dependency? MR. POPELY: Mr. Chairman, Representative Rokeberg, there's nothing that I know of that specifically has addressed whether or not you could use criteria like need or dependency or individualized reliance characteristics in affording the preference. The problem comes in when you start looking at place of residence. As far as need and dependence, nothing to my knowledge would prevent that from happening without a constitutional amendment. REPRESENTATIVE ROKEBERG: Well, Mr. Chairman, it just seems to me if you have dependence in the word that need would be a constituent element of trying to define what dependence was. Is that (indisc.) in the legal sense? MR. POPELY: I believe so, yeah. Number 0749 REPRESENTATIVE ROKEBERG: I'll go on, Mr. Chairman. CHAIRMAN GREEN: Representative Rokeberg. REPRESENTATIVE ROKEBERG: In response to a further inquiry about a question that Representative Berkowitz brought forward regarding the applicability of this particular amendment to whether or not this would conform for ANILCA. If I could pose it to you a hypothetical - if you remove Section 3 for purposes of discussion from this amendment - this is the ANILCA changes and the lawsuit, et cetera -- assuming you remove Section 3, would in fact this language provide that we would be in conformance with the requirements of ANILCA, particularly as they relate to the December 1 conforming date and the needed changes in the state of Alaska's Constitution so this would preclude the entry of federal management for fishery. MR. POPELY: Mr. Chairman, Representative Rokeberg, no, it would not comply with ANILCA without that section. REPRESENTATIVE ROKEBERG: Or even -- Mr. Chairman -- even though you would take out the required changes for ANILCA here, you still would not conform to ... MR. POPELY: It's clearly a different preference scheme. REPRESENTATIVE ROKEBERG: Okay, so because of that this would not necessarily preclude federal takeover, then. Is that your testimony? MR. POPELY: Without that section, it probably would not from what we've been told unless the federal agencies or Congress tell us something different from what we've heard up until now. REPRESENTATIVE ROKEBERG: And if you put that back in, then particularly there would be -- necessary congressional changes would have to take place before this would be effective anyway, is that correct? MR. POPELY: Yes, sir. Number 0865 REPRESENTATIVE ROKEBERG: Okay. And for this question, I see Representative Barnes isn't here, but page 2, subsection (d) regarding the preferences -- will not be diminished for the utilization of forest, grasslands, et cetera - I'm not sure I understand the rationale of why or what the purpose of putting that in here was. Would you expand on that - either you or Mr. Utermohle. MR. POPELY: Mr. Chairman, Representative Rokeberg, I believe the drafters intended that that section be used to stand as a factor to keep subsistence from standing in the way of further use of public lands in Alaska. Subsistence would not -- the preference scheme before the body here would not then, as I say, diminish the utilization of forest, grasslands and other replenishable resources. REPRESENTATIVE ROKEBERG: Mr. Chair, is that because it's in the same Article VIII, Section 4, as it relates to the now sub (a) and the recitation of those particular resources there - is that just a clarification? Clarification to do what you just indicated that it wouldn't preclude further development? MR. POPELY: I think we're on the same track - that's right. It would prevent the subsistence priority from impeding further use of the land. REPRESENTATIVE ROKEBERG: I just wanted to make sure I understood that and then we have it on the record - that's why I asked the question. Mr. Chairman, also Ms. Barnes isn't here - I was going to ask the status of the case recited in the Alaska Legislative Council - the Babbitt case - what the current status of that cause of action is. Are you aware of that? MR. POPELY: Mr. Chairman, Representative Rokeberg, a complaint has been filed in the district court for the District of Columbia and a response has been filed which includes a motion to dismiss on a variety of procedural grounds and I believe an opposition to that motion was recently filed and is now pending. REPRESENTATIVE BILL WILLIAMS: Could you go over that last portion again, there was a car going by. MR. POPELY: Mr. Chairman, Representative Williams, the complaint has been filed in the district court for the D.C. Circuit and opposition has been filed in the form of a motion to dismiss on a number of procedural grounds and I believe an opposition to that motion to dismiss has been filed in the last several days and is now pending. Number 1029 REPRESENTATIVE WILLIAMS: So, the court doesn't want to hear ... REPRESENTATIVE JAMES: No, it's not the court. MR. POPELY: The defendant doesn't want the case heard. REPRESENTATIVE WILLIAMS: What does the court say? MR. POPELY: It's pending; we'll have to wait and see. Number 1041 REPRESENTATIVE ROKEBERG: Mr. Chairman, well to follow up on that - on the Floor this morning we had another amendment that was adopted on the resolution before the body this morning which was a more generic draft - it did not stipulate this particular case - it said any other case that evolved. Is there a particular reason this case was stipulated specifically? MR. POPELY: Mr. Chairman, Representative Rokeberg, you may have to ask Representative Barnes that question, but my understanding is that if you wanted to broaden that, I don't see why it wouldn't achieve the same purpose to add that the Legislative Council v. Babbitt or other litigation or something to that effect that would do one of these two things, would thereby repeal this resolution. CHAIRMAN GREEN: George, as the drafter, is that your feeling that there'd be no reason not to expand it if it was desired? MR. UTERMOHLE: Mr. Chairman, that is correct. There's no reason that this provision cannot be expanded to cover any other litigation before federal courts. REPRESENTATIVE ROKEBERG: And to follow up, Mr. Chairman, on that. On page 3 in the subsection (b) starting on line 4, then the provisions on lines 9 and 11, the sub (1) and sub (2), the syntax there I'm not real comfortable with says either (1) a rural resident preference et cetera or (2) a preemption of authority - these are specific reasons -- I'm not sure I understand why those were stipulated there rather than just a generic exceeding scope or there was a finding by the court that a portion of ANILCA may be unconstitutional -- is there a specific reason these were stipulated or not a more generic approach taken for this paragraph. MR. UTERMOHLE: Mr. Chairman, Representative Rokeberg, those particular issues are addressed and listed in this provision because those are the two issues relating to the constitutionality of ANILCA that are currently before the court in the Alaska Legislative Council case. REPRESENTATIVE ROKEBERG: Mr. Chairman, is it conceivable that another party that might have standing could bring a cause of action on another theory or grounds to try to overcome or challenge some portions of ANILCA that might be applicable to this? MR. UTERMOHLE: Mr. Chairman, Representative Rokeberg, yes, that's within the realm of possibility. REPRESENTATIVE ROKEBERG: So, there's an either or here in terms of the sentence structure in the way this is put together, so it could be either one or the other then, but not a third possibility? MR. UTERMOHLE: Mr. Chairman, Representative Rokeberg, yes, it has to be either one of these events occurring - either one of these being found to exist by the courts that the rural residents' preference is unconstitutional or that the preemption of state management authority on federal public lands is unconstitutional - either of those would cause this constitutional amendment to be repealed. Either one of those findings would have the effect of removing the authority of the federal government to impose the management scheme they currently have in place. Number 1227 CHAIRMAN GREEN: Is there a benefit to enumerating them as opposed to just saying if something is found in that case -- I'm just asking -- is that why they're enumerated and doesn't maybe have a possible third that Representative Rokeberg (indisc.) something else coming up. MR. UTERMOHLE: Mr. Chairman, these issues are listed because they go to crux of the conflict between the state of Alaska and the federal government as to the ability of the state to manage its fish and game resources. CHAIRMAN GREEN: I heard you say that and then the question was though, is there any merit to showing those two as the crux of the thing, but wouldn't if either of those came up, if you just said if there's an issue that comes up in that case, whether it's these two or something else. Or is the purpose just to refer to those two? MR. UTERMOHLE: As to what events would trigger the repeal of these constitutional amendments, is a policy decision that's left up to you. The function of you determining how important a particular issue is that might come before the federal court to determine whether or not our constitution should be amended in response to that. For example, making this contingent upon, say the federal government's authority to manage navigable waters in the state is found to be unconstitutional, that's a very important issue, but it doesn't go to the heart of the ability of the federal government to manage fish and wildlife. It just affects a small portion of their jurisdiction in the state. Number 1317 REPRESENTATIVE ROKEBERG: Well, Mr. Chairman, my last question is to the Chair, is that are we going to have anybody from the Administration or Department of the Interior here to testify? CHAIRMAN GREEN: I don't know that they have been requested. The aide is gone, so I don't know. REPRESENTATIVE WILLIAMS: Well, can we? CHAIRMAN GREEN: Can we? Certainly, if we can ask them. REPRESENTATIVE ROKEBERG: Thank you, Mr. Chairman. CHAIRMAN GREEN: On that point, Representative Porter? Number 1341 REPRESENTATIVE PORTER: Yes. I believe that the Administration's position at this point - and I very cautiously offer it - is that they're looking at this right now and evaluating it and at this point, would not be prepared to testify - whether or when that changes, remains to be seen. CHAIRMAN GREEN: Representative James. REPRESENTATIVE JAMES: Well, I'm back to this -- thank you, Mr. Chairman -- I'm back to page 2, on line 12, (c), and I just need to go over this one more time so that I can understand if I understand it. And so what the attorneys had responded is that what that means, "Except as provided in (b) of this section, the state may not grant a preference for subsistence uses of a fish or wildlife resource based exclusively or partly on a resident's place of residence." To me - and the response that we got had to do with the Kenaitze case where they used part of the reason why the people had a right to take this wildlife was because of where they lived and it's saying that you can't do that. However, it seems to me to read, because (b) only talks about a preference for subsistence uses in the times of shortage - it doesn't say it like that, but that's what it means - so I would read then (c) to mean, except as in times of shortage, the state may not grant a preference for subsistence uses of fish or wildlife based exclusively or partly on the resident's place of residence. It seems to me like what we're saying here is that the subsistence preference or priority is only in times of shortage and no other scheme is allowed. Now if I might just go on from that because then I have a question and that question is, assuming - and there has to be some assumptions with (b) here - it assumes that there is a scheme in statute that identifies nonsubsistence and subsistence use areas and our existing constitution indicates that we can have priority order of beneficial uses based on sustained yield and we have already amended our statutes, but I don't know if it ever went through, that said that subsistence is the highest priority which assumes that we're recognizing that subsistence is a use. But we heard testimony from the attorney generals yesterday is that our constitution allows us to give a priority of uses, but not of users. And so, it seems to me like (b) delineates a scheme which says that we've already identified subsistence use areas and nonsubsistence use areas which means that without doing anything, if anyone lives in a use area, they can do it there and that's the only place they can do it and that that's just automatically okay because we haven't identified the users, we've only identified the use and this is where it's done. And so anybody that's there can do it there. REPRESENTATIVE JAMES: And so then we go on to say that that's the only time that they get an actual preference is when there's a shortage. Have I got that right? So, the rest of the time they're just doing it because they're doing it and it's because it's a preference in beneficial uses. Number 1529 CHAIRMAN GREEN: Not exactly - and that's not a car ad. George, do you want to answer that. MR. UTERMOHLE: Mr. Chairman, I think I agree with Representative James' last statement - you're last sentence, I agreed with. I couldn't necessarily say I followed the discussion up to that, but I think your last statement summing up was an accurate description of the situation that would exist under this language. REPRESENTATIVE JAMES: If I might follow up, Mr. Chairman. I'm struggling with this - you can tell I'm struggling with this because I want to understand it and also I understand the goal and see if I'm correct on this - the goal of this exercise is to try to find something that can get 27 votes on the House floor. (Laughter) Is that correct? CHAIRMAN GREEN: I'm not so ... REPRESENTATIVE BUNDE: Point of order. I think the goal is to find a successful solution to ... CHAIRMAN GREEN: I think so. REPRESENTATIVE BUNDE: ... the subsistence problem. REPRESENTATIVE JAMES: Well, I think that would be a paradox, but in any event that being the case then - and I think we heard testimony on the House floor today that the subsistence priority only takes place in times of shortage - it's the only time it affects it and Senator Stevens has said that over, over and over again, so does this meet the criteria that is intended in ANILCA? Number 1590 CHAIRMAN GREEN: I believe yes, we're working in that direction, but (indisc.) a little bit earlier is as we move down from the horn of plenty to that veneer of resource that can be harvested just above the sustained yield, there will be other uses that are taken out first while the subsistence portion continues. REPRESENTATIVE JAMES: I understand that. CHAIRMAN GREEN: Okay. Representative Joule. Number 1614 REPRESENTATIVE REGGIE JOULE: With an earlier line of questioning, I just wanted to take this scenario out if certain things occurred for the purposes of discussion. If there are 27 votes here and 14 votes in the other side - it makes it that far ... CHAIRMAN GREEN: I'm sorry, there are 27 and 14? REPRESENTATIVE JOULE: Twenty seven ... CHAIRMAN GREEN: We got a problem. UNIDENTIFIED SPEAKER: Why? Forty-one. CHAIRMAN GREEN: Oh, alright - on the other side. REPRESENTATIVE JOULE: On the other side. CHAIRMAN GREEN: Sorry. REPRESENTATIVE JOULE: Okay. What I'm saying is if this passes both Houses with the required margin for a constitutional amendment - it doesn't comply with ANILCA and for argument purposes, the Administration doesn't back it - of course, it goes to the vote of the people regardless of whether they support it or not. And I think Mr. Popely said earlier that there were no assurances that our congressional delegation would introduce legislation to make the necessary changes for this to work; i.e., ANILCA. And all of this plays out to that point where we do not get the backing of the delegation, then where are we? Are we at the point of - because we're not in compliance because this doesn't get it - we may have something on the books that maybe passes by the voters, but at the national level we can't get the changes to Title VIII of ANILCA that we would like to see - what happens? Are we then - do we then come under federal management and then where we have this in our constitution, but can't do anything? I'm just trying to take this out that far - I don't know. CHAIRMAN GREEN: Currently, that would happen. There is going to probably be an amendment to suggest that if - say there are four items that are required and we only get three of them - that the amendment would say that substantially gets what we were asking for in changes from ANILCA. Now what I think you're saying is what if none of those come about - then the constitutional amendment would become null and void. If that's the case, then the subsequent to that would be, we haven't done anything to prevent federal takeover. REPRESENTATIVE JOULE: I was just trying to play this out. Thank you. CHAIRMAN GREEN: Representative Porter. Number 1767 REPRESENTATIVE PORTER: Thank you, Mr. Chairman. Again, I apologize for being gone and if I say something that's already been covered - fine, then I apologize. Representative Joule's question is very well taken - it certainly begs the entire policy question on where do we go from here - obviously we have to get it out of committee, but this kind of a special session with abbreviated time to work - the overall picture is no secret and how it's going to work is certainly shouldn't be a secret. I don't think anybody sitting at this table doesn't recognize that our congressional delegation has indicated that they want an Alaskan solution. The Alaskan solution should be the legislature and the Governor saying this is our best effort and the people to say we agree with their best effort and if that requires ANILCA amendments, they say they'll go for it - whether they'll get them or not, we don't know. REPRESENTATIVE JOULE: I understand that. I was just looking -- thank you though, but I do understand that. Number 1818 REPRESENTATIVE PORTER: To the specific question that came up on Section (d) on page 2 - I'm sorry - Section (c) on page 2, I don't think anything that has been said is incorrect - I would just kind of codify it or synthesize it by saying to me what that does is say, this constitutional amendment supports one singular approach to this solution ... REPRESENTATIVE JAMES: That's the way I understood it. REPRESENTATIVE PORTER: ... that solution being (b). It is not intended to provide a flexible constitutional amendment that subsequently another legislature can come in and drop something different into it. That's what that intent is. The definitions that come into play within this are - it's my understanding and please correct me if I'm wrong - but it's my understanding that what we're also trying to do is to stay in compliance with ANILCA as much as possible and that when we say customary and traditional we mean by ANILCA definition. And when we say a subsistence area, we're saying by ANILCA definition. For the discussion on dependence and reliance and that, it's my understanding that a subsistence area is an area that has a reliance - or a dependence on that resource for subsistence and that a customary and traditional user is someone who has a customary and traditional use or reliance on that resource. For what it's worth, those are the definitions of ANILCA and I think those are the definitions that this constitutional amendment is aimed at being consistent with. REPRESENTATIVE BARNES: Mr. Chairman ... CHAIRMAN GREEN: I think some of the dialogue was on an "or" in there - that conjunction "or partly" that's caused some grief, but we'll probably address things as we get into amendments. REPRESENTATIVE BARNES: Mr. Chairman ... CHAIRMAN GREEN: Well, there have been several questions about that. Representative Barnes. Number 1928 REPRESENTATIVE BARNES: On the point that was raised by Representative Porter. While he was out of the room, Mr. Popely did read the definition of customary and traditional use out of the book that you have got there and I thought it was pretty clear on its face what that meant. And he did explain that section relating to partially and our attorneys had clarified exactly what that meant and the necessity for keeping it in there. CHAIRMAN GREEN: Representative Croft. Number 1952 REPRESENTATIVE CROFT: Thank you, Mr. Chairman. On page 2, lines 27 - 28, where we require that this constitutional amendment doesn't come into effect until the Governor certifies that these can happen and number two is that the federal law now waives federal jurisdiction over state and private lands and waters in the state. (Indisc.) feds have clean air jurisdiction - clean water, they have criminal jurisdiction - I don't read any of the qualifiers that were in other parts of this about fish and game, subsistence, wildlife management in general - this seems to require that the feds waive their jurisdiction over anything that happens on private lands all the way down to criminal ATF [alcohol, tobacco and firearms] gun possession. Is that how you read it? MR. POPELY: Mr. Chairman, Representative Croft, I see no reason why you couldn't clarify that. I think the intent of the drafters was to limit this section to explicitly fish and wildlife jurisdiction. REPRESENTATIVE CROFT: A couple other questions if I may, Mr. Chairman. CHAIRMAN GREEN: Just a moment. I think that Representative Rokeberg had a point on your point. REPRESENTATIVE ROKEBERG: Right. Just to - despite what was said on the floor this morning, the state does not have primacy over water in this state; the federal government does. UNIDENTIFIED SPEAKER: He's been smarting over that for some time. CHAIRMAN GREEN: He has, definitely. REPRESENTATIVE BARNES: Mr. Chairman. CHAIRMAN GREEN: Yes, Representative Barnes. REPRESENTATIVE BARNES: On the point that was raised on the water - obviously if you read starting on lines 21, you know that all of those (indisc.) subsections under the effective date and repeal of subsistence amendments, that you're talking about Title VIII of ANILCA. And I don't think in any way you cannot say that these particular statements in here clearly go to Title VIII of ANILCA not any other section of law. Number 2075 REPRESENTATIVE CROFT: Mr. Chairman, I can move on, but the number 3 says, repeals the jurisdiction of the federal courts to hear cases arising under and goes on to the wildlife. I mean, if it feels it has to be clear there - and I think it should - if it just said repeals the jurisdiction of the federal courts over state land, I think it would be too broad. So, I don't see any reason not to clarify it there. Back on ... CHAIRMAN GREEN: And are you satisfied -- I think that Mr. Popely indicated that that can be clarified even though the intent is there and if clarification is necessary, no problem. REPRESENTATIVE CROFT: Sure, if Mr. Popely says it can be clarified, it can. The first sentence of (b) - so starting on page 1, in its entirety, "The legislature shall establish, consistent with the sustained yield principle, a preference for subsistence uses of fish and wildlife that takes effect when a fish or wildlife resource is not sufficient to accommodate all beneficial uses of the resource." That is not limited to subsistence or nonsubsistence areas, right? That's a blanket statewide urban or rural requirement. REPRESENTATIVE BARNES: Mr. Utermohle is trying to answer. CHAIRMAN GREEN: I'm sorry. MR. UTERMOHLE: Mr. Chairman ... CHAIRMAN GREEN: Go ahead, George. I'm sorry. MR. UTERMOHLE: Representative Croft, yes, this provision is applicable statewide. REPRESENTATIVE CROFT: In fact, I went over and over it before - when Representative Porter said the definitions of subsistence and nonsubsistence area in this that ought to be the same as ANILCA, I don't see where we use the words "subsistence or nonsubsistence area". Do we in this three pages? MR. UTERMOHLE: Representative Croft, no, this constitutional amendment does not use that language. REPRESENTATIVE CROFT: And when we use the term "customarily and traditionally dependent" or "customary and traditional dependency" - either one - I see here an ANILCA definition of "customary and traditional" - I don't see a definition of the word "dependency" and that goes to a question I think you were asking before how that modifies it - to the extent that dependency doesn't alter it significantly - that it really just means customary and traditional as we have in state statute - that means on the page that Ted Popely was reading from -- "customary and traditional means the noncommercial, long term and consistent taking of, use of or reliance upon". So, when we were talking about these Anchorage -- does Anchorage have a customary and traditional use of Kenai or Ship Creek or any other creek that runs through there, it would seem to me to have some noncommercial, long term, consistent taking of at least, use of - probably - reliance would be questionable, but it's an "or". CHAIRMAN GREEN: That's true and the areas that you're talking about will fall in what is currently a nonsubsistence area. REPRESENTATIVE CROFT: Okay, but as it's written, there's no nonsubsistence (indisc.). CHAIRMAN GREEN: That's right. REPRESENTATIVE CROFT: So, it'd have to be amended if we're going to do that intent. So, that covers the customary and traditional part. I guess I worry, as Representative Rokeberg does, that when we add the idea of dependency, it's not going to be us defining that - I mean, we're putting this in the constitution - don't you think it's going to be a court telling us what dependent means there? What customary and traditional dependency means, but in particular whether dependency means what Representative Rokeberg and I think or something else. Number 2212 REPRESENTATIVE PORTER: To that point, Mr. Chairman. CHAIRMAN GREEN: To that point. REPRESENTATIVE PORTER: .... looking for in ANILCA ... UNIDENTIFIED SPEAKER: Oh, it's five. REPRESENTATIVE PORTER: Five? Yeah, okay. As to the area being a subsistence area or nonsubsistence area - that the wording that you just read really on page 2, line 3, "the preference shall be available to any individual resident who resides within" - I would prefer "an area" as opposed to "the area" but nitpicky - "that is determined to be customarily and traditionally dependent" - that is an ANILCA definition of an area. The definition being ... UNIDENTIFIED SPEAKER: 804. REPRESENTATIVE PORTER: 804? CHAIRMAN GREEN: While you're looking that up - did you have a response to that, Mr. Popely? MR. POPELY: Mr. Chairman, Representative Croft, I think just for clarification - what I happened to be reading from - which is on the bottom - yeah, the subtitle - that's part of the task force proposed language - I believe that subject -- checking the statute, I don't have it in front of me -- but I believe the actual wording in today's state statute as it exists is "and" and that the task force had proposed to make it "or". REPRESENTATIVE CROFT: The task force shows where its changing here and it changes "game" to "wildlife" and puts a new "of taking or use", but it doesn't show the old - but we can find that out. REPRESENTATIVE BERKOWITZ: It just on that ... CHAIRMAN GREEN: On that point, Representative Berkowitz. REPRESENTATIVE BERKOWITZ: In the ANILCA amendments, it's "or". REPRESENTATIVE CROFT: Right. In Section 803 of ANILCA (a)(3) - or just 803(3), customary and traditional uses - there they use "uses" instead of dependency and that's the problem we discussed - means the noncommercial, long term and consistent taking of, use of "or" reliance upon. So, when we use that to describe an area, it's long-term use of and if you've got a city that lives by a stream, there's going to be long-term use of it, long-term taking of it, maybe not long-term reliance on it, but under both state statute and ANILCA, I believe every city is going to be a subsistence area, basically. CHAIRMAN GREEN: Well, I think it would be if you didn't make it dependent, because if you left it just to long-term use, I can qualify in a lot of areas because of a long-term use just from a personal use standpoint. And I'm not dependent, but I certainly have a history of use. And so I think that's the idea is to make it a dependent, which then further narrows the band down to those who need it most. REPRESENTATIVE CROFT: Well, Mr. Chairman, it does narrow the band, but to an extent that we can't predict here that some court is going to tell us and I'd be much more comfortable telling them what we mean - what criteria ... CHAIRMAN GREEN: Agreed. Agreed. Number 2349 REPRESENTATIVE CROFT: On that issue, Mr. Popely, the way it reads now, if Kodiak were -- just to use that example -- if I've established my customary and traditional dependence on that particular wildlife resource - my family and I go to Kodiak for the last 20 years and sport hunt deer - and somebody else has - say Representative Austerman lives in an area that is customarily and traditionally dependent on that deer resource - he lives in a village that has always hunted that - in times of plenty, we both go as subsistence users, is that correct? If there is a shortage, who drops off first - Representative Austerman who lives next to it or me who has got a remote customary and traditional urban-sort-of subsistence? CHAIRMAN GREEN: Mr. Popely. MR. POPELY: Mr. Chairman, Representative Croft, that certainly hasn't been contemplated by this resolution and would be a subject for statutory .... TAPE 98-98, SIDE A Number 0001 MR. POPELY: ... to discern who, in fact, should be the priority user and they've narrowed it down and narrowed it down and racheted it by a point system, as one example for you and I can't say exactly how that would be done, but I think that's a proper subject for statutes and for board regulations. CHAIRMAN GREEN: Excuse me, we do have members of Fish and Game here so that question may be more appropriately answered by them. Excuse me, just one more point that there is established a racheting down and holding true subsistence users whole and moving other areas - personal use, sports fishing - begin to drop off. REPRESENTATIVE CROFT: This prohibits a racheting and that's why I asked that very question. REPRESENTATIVE AUSTERMAN: That doesn't matter. CHAIRMAN GREEN: Representative Austerman. REPRESENTATIVE AUSTERMAN: The words in the rest of that sentence where it speaks of residents who reside in the area, so you and I would not even qualify if there's a time of shortage in that area, if I read this correctly .... Number 0088 REPRESENTATIVE PORTER: Mr. Chairman, I found ... CHAIRMAN GREEN: Okay, on that point -- okay, I'm sorry. Representative Porter. REPRESENTATIVE PORTER: Thank you. I don't know how many folks have got this thing out, but 803 on page 6, number 5 at the bottom of the page describes the last sentence, "a rural community or area means a community or area substantially dependent on fish and wildlife for nutrition" and it goes on. More specifically, 804(a) -- I'm extrapolating, but it basically says to the point, whenever it is necessary to restrict the taking of populations of fish and wildlife - which is what this whole scheme does; it only kicks in in the time of a shortage - the priority shall be implemented through application of limitations based on the following: (1) customary and direct dependence upon the population, local residency and availability. REPRESENTATIVE CROFT: So in response to that, this never uses the ANILCA term "rural community or area" - we discussed that - and that's really the dichotomy that ANILCA has between establishing an area first and then a use - a customary, traditional use and the two terms are not synonymous; they serve a different function. I think that (indisc.) serve the function of the other here and in that way confusing the matter. On the point that Representative Austerman made, the sentence says that preference shall be available to the individual resident who 1) resides within the area that is determined to be customarily and traditionally dependent on the particular fish or the resource - that's you, if you live next door to it, Alan - or who has demonstrated customary and traditional dependence on that particular fish or game resource - and that's me. But the sentence is both of us and it doesn't describe any racheting down - we both have that right. And in fact if they tried to say as ANILCA would, we're going to do this when - we've got a severe shortage, we're going to do it first on customary dependency, next on local residency, this would step in and say you can't do that. My right under this to a preference - the preference shall be available to somebody who has that traditional dependency - that's me. It cannot prefer the local residents - Alan - over me. They can't under this; they could under ANILCA. CHAIRMAN GREEN: Since we're hung up on this - before we're getting to the amendment portion - let's take about a five minute break and I think that I've been advised that a couple of attorneys can get together and can probably resolve this language very quickly. So, we'll take a five minute at-ease. Number 0301 CHAIRMAN GREEN: ... House Judiciary and Resources Committees. It is my understanding that during the break, there was some language developed that would resolve one of the issues that we were hung up on. Number 0342 KEVIN JARDELL, LEGISLATIVE ADMINISTRATIVE ASSISTANT TO REPRESENTATIVE JOE GREEN, ALASKA STATE LEGISLATURE: Mr. Chairman, that is correct. CHAIRMAN GREEN: Would you identify yourself for the record, please. MR. JARDELL: Kevin Jardell, staff attorney to the Judiciary Committee. During the break, we drafted a proposal for some language that we believe will fix the issue that was raised by Representative Croft and others. Whatever the Chair would like to do - I know it's a joint committee and ... CHAIRMAN GREEN: What I would think is, can you read us what you were going to do and then we will deliver that to the Resources Committee for implementation. MR. JARDELL: If everybody will turn to page 1, line 12, we'll insert "Except in areas designated by the legislature as nonsubsistence areas". IDENTIFIED SPEAKER: Where? CHAIRMAN GREEN: Where do you put that? MR. JARDELL: At the beginning of the sentence. CHAIRMAN GREEN: After (b) you put in ... MR. JARDELL: After (b). CO-CHAIRMAN HUDSON: Say it again, please. MR. JARDELL: Except in areas designated by the legislature as nonsubsistence areas. CHAIRMAN GREEN: And then go along with the legislature shall? MR. JARDELL: Correct. CHAIRMAN GREEN: Okay. Have we talked with the Department of Fish & Game on this since that normally is a function of Fish & Game? MR. JARDELL: Through the Chair, no, we've not discussed the proposed language with Fish & Game. The idea that we were working off of is the constitutional amendment didn't speak to nonsubsistence areas - that it could be interpreted to apply to all areas of the state - that nonsubsistence areas have been used in the past - it's appropriate as it is already for the legislature to designate those areas and that would basically just set up exactly what we have today. CHAIRMAN GREEN: Representative Porter. Number 0470 REPRESENTATIVE PORTER: Mr. Chairman, if I may ask. Would that language presume the legislature's ability to designate an agency to make those kinds of determinations by statute? MR. JARDELL: Through the Chair, Representative Porter, after speaking with Mr. Utermohle, Mr. Popely and myself, I believe that is correct - the legislature would designate the criteria and could .... UNIDENTIFIED SPEAKER: Good idea. CHAIRMAN GREEN: Representative Rokeberg. Number 0503 REPRESENTATIVE ROKEBERG: Mr. Chairman, just for clarity purposes - are nonsubsistence areas and subsistence areas defined in statute currently? MR. JARDELL: Currently they are .... REPRESENTATIVE ROKEBERG: It is already, so we don't have to worry about .... Okay. CHAIRMAN GREEN: In fact, we have them. REPRESENTATIVE FRED DYSON: I'm sorry, I didn't hear that response. MR. JARDELL: Through the Chair, Representative Dyson, currently subsistence areas and nonsubsistence areas are defined in present law. REPRESENTATIVE DYSON: State law? MR. JARDELL: State law. CHAIRMAN GREEN: We actually have them. MR. JARDELL: Mr. Chair. CHAIRMAN GREEN: Kevin. MR. JARDELL: The second amendment would be on page 2, line 4, after the word "resides", we would insert "within an area outside a nonsubsistence area as designated by the legislature and" ... CHAIRMAN GREEN: Wait a minute. REPRESENTATIVE CROFT: And Kevin, why not just use a subsistence area as the opposite of a nonsubsistence area? MR. JARDELL: Through the Chair. CHAIRMAN GREEN: Yes, Kevin. MR. JARDELL: Through the Chair, Representative Croft, it's consistent with present state law; that's the way it has been done. CHAIRMAN GREEN: ... and outside a nonsubsistence area and what? REPRESENTATIVE ROKEBERG: Would you repeat it, please. MR. JARDELL: Sure. After ... REPRESENTATIVE JAMES: And tell me again where it goes. MR. JARDELL: After "resides", we'd insert "within an area outside a nonsubsistence area as designated ... CO-CHAIRMAN HUDSON: Go a little slower. Within an area ... MR. JARDELL: Within an area outside a nonsubsistence area as designated by the legislature and. UNIDENTIFIED SPEAKER: ... is determined? CHAIRMAN GREEN: Representative Croft? Number 0663 REPRESENTATIVE CROFT: Kevin gave me the classic Republican answer - he's doing it that way because it's always been done that way. We don't in statute define subsistence and nonsubsistence areas? We find nonsubsistence in the opposite? MR. JARDELL: Through the Chair, Representative Croft, if I understand you correctly, that's correct. The manner by which - and if Mr. Popely could correct me if I'm wrong - the manner by which nonsubsistence and subsistence areas have been defined in the past in the state is for the Board of Game and Fish, jointly, to identify nonsubsistence areas, thereby everything else being a subsistence area. If we have to go in and do subsistence areas, then it just creates more work. CHAIRMAN GREEN: That was established by the Democrats, by the way. Representative Dyson. REPRESENTATIVE DYSON: Thank you. Kevin - through the Chair - Kevin, would you read this as it would read as you amended it starting with "Notwithstanding" at the beginning of that sentence. MR. JARDELL: Certainly. Through the Chair, "Notwithstanding any other section of this constitution, the state may, in times of shortage of a particular fish or wildlife resource, grant a preference for subsistence uses of that fish or wildlife resource. The preference shall be available to any individual resident who resides within an area outside a nonsubsistence area, as designated by the legislature and within the area that is determined to be customarily and traditionally dependent on the particular fish or wildlife resource or who has demonstrated customary and traditional dependence on that particular fish or wildlife resource." It basically sets up the idea that the automatic preference only goes to those individuals who reside outside of a nonsubsistence area and thus in a subsistence area and reside within the local dependent population of that particular stock. So you have the local criteria, but it's only within subsistence areas. That's to prevent the possibility of an area - maybe within Anchorage - getting an automatic presumption because they have used a particular fish stock ... CHAIRMAN GREEN: No, this does not though preclude the resident from Anchorage who can demonstrate - the rebuttable presumption - that they would be justified. MR. JARDELL: Through the Chair, that is correct. The rebuttable presumption would apply to all residents of the state of Alaska notwithstanding where they reside - the automatic presumption would only apply to those people who reside within subsistence areas and within the local area that's found to be dependent on the particular fish stock or population. CHAIRMAN GREEN: Representative Hudson. CO-CHAIRMAN HUDSON: Since we're on that ... CHAIRMAN GREEN: Oh, I'm sorry. Did you have a follow-up, Representative Dyson? Number 0859 REPRESENTATIVE DYSON: It's on this very section, but not this wording. Would you prefer I wait? CHAIRMAN GREEN: No, go ahead. REPRESENTATIVE DYSON: Maybe Ted's a better one to answer. Does what you all have put together here presume that a group of people might be able to apply for the rebuttable presumption or is it only individuals? MR. POPELY: Mr. Chairman, Representative Dyson, my understanding is that it's just for individuals. REPRESENTATIVE DYSON: I'm sorry. MR. POPELY: It would only be for an individual. You would apply as an individual and qualify as an individual if you did not meet the presumptive portion ... REPRESENTATIVE DYSON: So a whole family couldn't, for instance - so, you know, mom and dad couldn't - and the kids or ... MR. POPELY: Representative Dyson, no, but I imagine the data would be exactly the same for each member as it would be with, say a permanent fund application or something that each member would have to fill out .... REPRESENTATIVE DYSON: Thank you. That was a little off the subject, but thank you. CHAIRMAN GREEN: Representative Hudson. CO-CHAIRMAN HUDSON: Thank you, Mr. Chairman. On this particular area, the words at the very beginning on line 1, page 2, "Notwithstanding any other section of this constitution" - do we need that? CHAIRMAN GREEN: Kevin. MR. JARDELL: Through the Chair, I'm going to start off by saying that I'm not here representing the sponsor - you're asking for my legal opinion. I think - let me answer you this way - it would make this amendment a very superior amendment unlike anything else we have in the constitution. I read that language to say that possibility due process, equal protection, no other protection afforded in our constitution would apply under this section. That is quite a deviation from the norm - you would still have the federal constitution minimums that you cannot go below, but any constitutional protections that are afforded to residents of this state under the state constitution may not be read to apply to actions within this section. CO-CHAIRMAN HUDSON: With the words that are in here. REPRESENTATIVE CROFT: What section was that that does that? CHAIRMAN GREEN: We're talking of line 1, page 2. But Kevin, the problem is that we're amending Article IV which does not get into equal protection, but if what this says do we have a possible conflict then if we say "Not withstanding"? Really though we're not addressing that section. MR. JARDELL: Let me see if I understand your question, here. Let me maybe assert again the way I read this - or the way I think it could be read - "Notwithstanding any other section of this constitution" - the courts would attempt to read that for exactly what it says and not apply any other provision outside of this section of our constitution to this provision. Typically, ... CHAIRMAN GREEN: Oh, okay. MR. JARDELL: ... all sections of the constitution are read to give meaning to each other and read within a unit of the document. This could have the effect - and I would say without knowing what a court would do - certainly could have the effect of taking any additional protections that the Alaska Constitution affords outside of the realm of this section. CHAIRMAN GREEN: I'm not so ... UNIDENTIFIED SPEAKER: Mr. Chairman. CHAIRMAN GREEN: Excuse me, just one minute. So, if I understand what you just said, that even though we're not amending Section 3 that it could be interpreted by a court that we, in effect, with this "Notwithstanding" do influence if not actually overrule the equal protection portion. Or is it only as that may affect this Article IV? MR. JARDELL: Through the Chair, I think the latter part of your statement would be the more correct answer. Those parts of the constitution wouldn't necessarily have the effect on actions arising under this section as they would without that language. UNIDENTIFIED SPEAKER: And what does Mr. Popely think? CHAIRMAN GREEN: Representative Hudson and I are focused on the issue - and I hope you understand where we're coming from - and are we getting ourselves into a problem here? MR. POPELY: Mr. Chairman, to some extent you're correct - the phrase "Notwithstanding any other section of this constitution" could subjugate the provisions contained here such that the other protections provided in the constitution may not be deemed to apply if there are regulations or a particular statute that were passed under this scheme - the "Notwithstanding" language subjugates those provisions to this provision in the constitution. CHAIRMAN GREEN: But it (indisc.) work the other way? MR. POPELY: No. CHAIRMAN GREEN: This would not adversely affect the other portions of the constitution. MR. POPELY: What this language could do, Mr. Chairman, is to eliminate the applicability of those other provisions to the statutes and regulations applied under this section of the constitution. "Notwithstanding other provisions of the constitution"; in other words, nothing else in the constitution would be read to prevent ... CO-CHAIRMAN HUDSON: ... stand alone. MR. POPELY: ... would be read to prevent statutes or regulations under this section. CHAIRMAN GREEN: Does not adversely affect it. That's what you were going to say - okay. Thank you. Any other questions, Representative Hudson? CO-CHAIRMAN HUDSON: ... Mr. Bishop's question to me, I want to make sure that he understands what has been said here. At some point in time, we don't need it ... CHAIRMAN GREEN: You may want to review that when you get into Resources. Alright. Are there -- we lost most of our folks, but are there any other questions of the sponsor or any more dialogue necessary .... Yes -- oh, I'm sorry, we've got other people. Representative Bunde. Number 1207 REPRESENTATIVE BUNDE: I was on the list there, but it was so long ago, I ... CHAIRMAN GREEN: I apologize. REPRESENTATIVE BUNDE: Well, I'll add it just because it was pertinent at the time. Representative Joule had some questions about what would happen in the future with other people and obviously, we don't have any guarantees about that and I would just like to state for the record, from my point of view, that if the legislature, the Administration and the people of Alaska speak in concert on this issue, I think it's fair to assume that our congressional delegation would take note of that and attempt to do the will of the people. Nothing we do, however, as been often stated - can predict, influence or determine what the federal government is going to do. We've had some tacit agreement from the Secretary of Interior at this point, but at any time there's a change of administration or the Secretary wants to say "I'm going back to regulating Indian gambling" or something else that he's an expert at and say, "King's X" - we can't determine that. We can't have any control over that so we've just got to do the best we can within our realm. CHAIRMAN GREEN: Thank you. REPRESENTATIVE BUNDE: Satire aside. CHAIRMAN GREEN: And next was Representative Ogan who is not here - oh, the Chair would recognize we have been visited by Representative Kelly. We have Representative James next. Pass? And Representative Hudson? CO-CHAIRMAN HUDSON: I think I'm done. CHAIRMAN GREEN: Representative Rokeberg. Number 1289 REPRESENTATIVE ROKEBERG: Mr. Chairman, earlier today we talked about on page 2, line 27, in particular, about the need for some clarity in language. Representative Barnes said that because of the language above - I'm not sure I entirely agree with that because there was a recitation of - in subsection (3) under Section 29 about repealing jurisdiction of federal courts under Title VIII, and then there's a reference above that regarding subsistence uses of fish and game. It seems to me that because this is a constitutional amendment that the drafting and clarity of the language needs to be appropriate here. I don't know if we can get any suggestions on that. I believe the Chair indicated you recognized that and wanted to pass it along for clarification if necessary, but I wanted to bring that up. CHAIRMAN GREEN: Do you have any suggested language or concepts? Representative Porter. Number 1345 REPRESENTATIVE PORTER: Well, recognizing that the Resources Committee would have to do that ... CHAIRMAN GREEN: Exactly. REPRESENTATIVE PORTER: ... if we can ever get them back here - my suggestion would be on line 27, waives federal jurisdiction over, and insert, "management of fish and wildlife on" state and private lands and waters in the state". CHAIRMAN GREEN: Has everybody got that? CO-CHAIRMAN HUDSON: I think we need this repeated just one more time (indisc.), Mr. Chairman. CHAIRMAN GREEN: Over management - between over and state - management of fish and wildlife on ... REPRESENTATIVE BUNDE: ... state and private lands. REPRESENTATIVE PORTER: And then it'd go on with ... CHAIRMAN GREEN: Yeah, that's already in there, though. Number 1389 REPRESENTATIVE ROKEBERG: I think that's a good suggestion and Mr. Chairman, I have another follow-up when you're done. CHAIRMAN GREEN: Follow-up, Representative Rokeberg. REPRESENTATIVE ROKEBERG: I also brought up to Mr. Utermohle when he was here - I don't know if he ever picked up on it - the syntax on page 3 of subsection (b) which related to the -- I don't know, it just doesn't read well to me -- read the whole thing as one sentence and then it says "either" (1) or (2) down there -- I don't know, it's like it doesn't read quite right to me. Maybe it's just me, but. UNIDENTIFIED SPEAKER: Reads alright to me. CHAIRMAN GREEN: I don't understand your concern. REPRESENTATIVE ROKEBERG: Well, it says, "subsection regarding ..." REPRESENTATIVE JAMES: ... either/or, I think. CHAIRMAN GREEN: ... if either of those things happen. REPRESENTATIVE ROKEBERG: Okay. Maybe that's what threw me off because -- the way it's structured there. So they're going to be repealed if either (1) or (2), is that ... REPRESENTATIVE JAMES: That's it. CHAIRMAN GREEN: Yes. UNIDENTIFIED SPEAKER: Didn't you see the "or" in there? REPRESENTATIVE ROKEBERG: I see it, but ... REPRESENTATIVE JAMES: It's sitting over there all by itself. CHAIRMAN GREEN: It does look strange, but. REPRESENTATIVE ROKEBERG: I just brought this up because it is a concern to me that when we do this - because it is a constitutional amendment and will appear in its entirety on the ballot, I believe. Is that correct - it would be the whole ... CHAIRMAN GREEN: That is unfortunately the case and it would be perhaps very difficult for some people to follow all of this. It would take some good publicity. REPRESENTATIVE JAMES: If the "or" was in the middle, it would be ... REPRESENTATIVE BUNDE: On that point. CHAIRMAN GREEN: On that point, Representative Bunde. REPRESENTATIVE BUNDE: Well, there will be a number of explanations and one of my concerns - and I'd like to state it for the record and for the Gavel to Gavel - is that as I've said before on constitutional amendments, the public is inundated with a great deal of information, not all of which is accurate. In today's paper, there's a very shiny, attractive, well-done insert discussing subsistence from the AFN [Alaska Federation of Natives] and it has a chart that would, I think, confuse people or be, at least it is inaccurate, but in an attempt to over-simplify, inaccuracies like this show up - it says, "Annual harvest of fish and game in Alaska" and it shows a pie-chart and it says 97 percent of the harvest of fish and game in Alaska is commercial. There is no commercial game harvest in Alaska; it is against the law - market hunting has been against the law before I was a hunter and I've been a hunter all my life. What they're telling about is commercial fish, of course, but this kind of information - intentional or unintentional - over-simplification, dramatization of the issues are why we have to make sure that we have a constitutional amendment that is as clear as possible and achieves the ends we want to achieve for the good of the state. CHAIRMAN GREEN: Does that by chance have a series of figures of .... Remember that thing that came out last week? REPRESENTATIVE JAMES: You'll need a separate pie for fish and a separate pie for game. REPRESENTATIVE BUNDE: It doesn't say anything about Communists in it though, so maybe it's a little better than previous .... CHAIRMAN GREEN: Representative Rokeberg. REPRESENTATIVE ROKEBERG: Mr. Chairman, maybe we can ask the drafter - if he can deviate from the drafting manual, just even the "either" "or" and the way it's set up in there, but it reads more clearly .... REPRESENTATIVE JAMES: What will happen is this is -- there's not room for the "or" over there on the end of the sentence - that's the problem. REPRESENTATIVE ROKEBERG: Well, that's because they're following the drafting manual - that's why. REPRESENTATIVE JAMES: Well, no it should be part of the sentence. REPRESENTATIVE ROKEBERG: I know. CHAIRMAN GREEN: Are you suggesting that maybe that's too long of a sentence - that is should be broken and then ... REPRESENTATIVE ROKEBERG: No, just the way it's structured. I mean, people don't read ... REPRESENTATIVE JAMES: Well, and there's no way -- on the ballot measure, there's no way of telling that it's going to come out way. There may be room on the line for the "or" at the end of number 1, which there isn't on the way this is typed up. CHAIRMAN GREEN: I guess we could shove (1) back a little. REPRESENTATIVE PORTER: It isn't after "either"; it's after "wildlife". UNIDENTIFIED SPEAKER: It's between (1) and (2). CHAIRMAN GREEN: Yes. REPRESENTATIVE JAMES: That's my point and that's where it should be, is right here. CHAIRMAN GREEN: Would that read clearer to you, Representative Rokeberg, if the drafting would move those (1) and (2) to the left a little bit and have "or" on the same line ... REPRESENTATIVE ROKEBERG: It might help people read it better. It could be just a format and that's when I first read it. REPRESENTATIVE JAMES: It is a format. REPRESENTATIVE ROKEBERG: Yeah .... CHAIRMAN GREEN: Representative Ogan's still out. Are there other questions or comments? Hearing none, I am going to recess the Joint Committee to the call of the Chair and turn this document over to the Resources Committee. [EDITORIAL NOTE: Chairman Green recessed the joint meeting of the House Judiciary and Resources Committees at 6:41 p.m.