SENATE JUDICIARY COMMITTEE April 25, 1998 5:15 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Johnny Ellis MEMBERS ABSENT Senator Drue Pearce, Vice-Chairman Senator Mike Miller Senator Sean Parnell OTHER MEMBERS PRESENT Senator Jerry Ward Senator John Torgerson Representative Joe Ryan COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 406(FIN) am(efd fld) "An Act authorizing the Board of Fisheries and the Board of Game to identify fish and game that are taken for subsistence and to identify subsistence and nonsubsistence areas; relating to the establishment of preferences for and to regulation of subsistence fishing and hunting; relating to advisory committees." - HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION No previous action to report. WITNESS REGISTER Ms. Mary Nordale 100 Cushman, suite 311 Fairbanks, Ak 99701 POSITION STATEMENT: Commented on HB 406 Mr. Ralph Seekins Alaska Wilderness Conservation Association 11625 Old Steese Hwy. Fairbanks, Ak 99701 POSITION STATEMENT: Commented on HB 406 Mr. Gabe Sam Tanana Chiefs Council 122 First Avenue Fairbanks, Ak 99701 POSITION STATEMENT: Commented on HB 406 Mr. Harold Gillam 104 2nd Avenue Fairbanks, Ak 99701 POSITION STATEMENT: Commented on HB 406 Mr. Jerry Booth 2941 Capstan Drive Fairbanks, Ak 99516 POSITION STATEMENT: Commented on HB 406 Mr. Bob Penney 3620 Penland Parkway Fairbanks, Ak 99508 POSITION STATEMENT: Commented on HB 406 Mr. Charles Derrick 891 Seldom Seen Rd. Fairbanks, Ak 99712 POSITION STATEMENT: Commented on HB 406 Ms. Mary Bishop 1555 Gus's Grind Fairbanks, Ak 99709 POSITION STATEMENT: Commented on HB 406 Mr. Johne Binkley 5325 Chena Small Tracts Road Fairbanks, Ak 99709 POSITION STATEMENT: Commented on HB 406 ACTION NARRATIVE TAPE 98-41, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 5:10 p.m. HB 406 - SUBSISTENCE USES OF FISH AND GAME MARY NORDALE testified to her dismay with HB 406 and said it will not solve our state's problem. MS. NORDALE said on December 1, 1998 Alaska will lose control of fish and game management on federal land and the federal authorities may expand this control to cover habitats, spilling their jurisdiction over onto state and native lands. MS. NORDALE expressed her hope that the Senate will adopt a resolution calling for a constitutional amendment to bring the state into compliance with ANILCA and allow the voters of the state to make the determination if they want the state to return to territorial status or to move forward. A decision must be made by the people. MS. NORDALE suggested the failure to put this question to the vote could wreak havoc on the State and the people should be allowed to decide this issue. She again urged the committee to pass out a resolution for a constitutional amendment in compliance with ANILCA. MS. NORDALE said she does not like HB 406 since it does not meet ANILCA requirements for a rural preference. Though she does not object to the principle of the bill, MS. NORDALE maintained it will not work and would not allow Alaska to retain control of fish and game resources. Number 128 SENATOR LEMAN asked if the law explicitly requires a rural preference or only the acknowledgment of importance of fish and game harvesting to rural residents. MS. NORDALE replied the authority given to the fish and game boards was broad, and it was true that the fish and game board adopted regulations to this effect, making it state law. She said the management scheme at the time ANILCA was adopted granted a rural preference CHAIRMAN TAYLOR announced Senator Lincoln was also on line. Number 167 MR. RALPH SEEKINS, representing the Alaska Wildlife Conservation Association, said subsistence is an important subject which demands the utmost respect and they should ensure that whatever is done regarding this issue is legal. MR. SEEKINS indicated his group has looked at several important documents leading up to the statehood of Alaska, including the Statehood Act, Alaska Omnibus Act and Executive Order #10897 which says federal management of fish and game is terminated. MR. SEEKINS' group also looked at the Equal Footing Doctrine and the Public Trust doctrine as well as the Dinkum Sands case where it was decided submerged land control is essential to sovereignty. In this decision, Justice Sandra O'Connor said Alaska owns its navigable waters and all the resources therein. MR. SEEKINS said they also examined the issue of public trust. He asserted that when the U.S. holds lands, it does so in a trust, and the U.S. Congress is the trustee of that trust for all Americans. MR. SEEKINS explained that a basic principle of a trust relationship is that a trustee cannot discriminate against one trustee for another. Applying this same doctrine to the state level, MR. SEEKINS makes legislators the trustees for the land and resources and concludes they cannot discriminate against one class of Alaskans over another. He argued that no matter what comes forward, we will come under scrutiny of the court. MR. SEEKINS declared that ANILCA violates the U.S. Constitution and indicated the bill needs more work and should go to the Supreme Court, otherwise the issue will continue being litigated in the courts for years to come. MR. SEEKINS suggested all legislators as well as the Governor and the Congressional Delegation should sign onto the Legislative Council's lawsuit and ask the court for injunctive relief in order for this to come to adjudication as soon as possible. CHAIRMAN TAYLOR asked if MR. SEEKINS had lawyers review this position and MR. SEEKINS said he had. He cited a similar case, the Kleppe case, involving wild burros in the Southwest. MR. SEEKINS said the case decided the U.S. Congress could enact laws to protect and regulate protected animals. However, the Kleppe case also concluded, "unquestionably, the states have broad trustee and police power over wild animals within their jurisdictions. No doubt it is true but as between the state and its inhabitants the state may regulate the killing of wildlife," and the allocation demanded by ANILCA is an intrusion into state's rights. CHAIRMAN TAYLOR asked if MR. SEEKINS had found any case in which the state had given up sovereignty so the federal government could come up with an allocation. MR. SEEKINS said every case makes allocation the state's responsibility. MR. SEEKINS remarked it seems like there are two constitutions - one that applies to federal land and one that applies to non-federal land. MR. SEEKINS said this is not actually the case and the property clause has never allowed allocation to be in the hands of the people of the state. He said regulation powers are reserved for the states even on federal lands. MR. SEEKINS continued, saying the property clause could not override the trustee relationship no matter what. He said when Alaska became a state, all resources became a state trust as an essential element of sovereignty and as demanded by the U.S. Constitution. MR. SEEKINS suggested ANILCA may have no teeth and may not even be a rightful exercise of power by the U.S. Congress. MR. SEEKINS thinks Congress may be constrained when it comes to the application of the property clause in this case and quoted Thomas Paine to illustrate his point. MR. SEEKINS continued, saying the Supreme Court ruled Congress is only the trustee for the United States and may not appropriate anything for one person to the exclusion of any other. MR. SEEKINS said the property clause must not create a privilege for one class over another, and he repeated that he thinks is it important to adjudicate this issue for a final resolution. CHAIRMAN TAYLOR said people are desperate to resolve this issue and since the Administration has done nothing to protect the state's rights, CHAIRMAN TAYLOR asked what we can do to reassure people they have these rights and they are worth fighting for. MR. SEEKINS said the Dinkum Sands case decided that the State of Alaska controls fishing in state waters, and MR. SEEKINS maintained we should be asserting this right now. He remarked that there are three ways to appeal an issue, through the administration, through the legislature, or through the courts. MR. SEEKINS said it is right for the legislature to pursue their lawsuit as the trustees for the state. MR. SEEKINS clarified that he is neither a lawyer nor a judge, but he thinks that the Administration has done a grave disservice by not bringing the Dinkum Sands decision up in this case. Conversely, he believes the Legislature is on the right track, as trustees of Alaska's land, and urged them to try to get the Congressional delegation and the full House and the Senate to seek injunctive relief until this issue can be brought to the court. MR. SEEKINS concluded that his research is solid and we should consider amending the U.S. Constitution before we work to change ours. SENATOR LEMAN asked MR. SEEKINS his feelings on the bill and MR. SEEKINS encouraged him to look at the idea that the Legislature will be subject to a breach of trust lawsuit for allowing benefits to one class of person over another. He stressed the need for the abundance of fish and game, especially game, and said this would provide a solution to the problem. MR. SEEKINS again concluded that the Legislature might be guilty of violating the trustee relationship if they establish a rural preference. SENATOR LINCOLN asked MR. SEEKINS what made him think that this Legislature is different from others. She said they have been told to deal with it for more than twenty years and the topic is not new to the Legislature nor the Administration. She asked if he would object to a vote on a constitutional amendment. MR. SEEKINS replied that two recent Supreme Court cases have changed things and served as a wake up call. He thinks ANILCA has always been a slap in the face to the sovereignty of the State of Alaska and whatever happens now must be done with a valid legal basis and not out of fear that, "the feds are coming." MR. SEEKINS thinks it is impossible to legally amend our constitution as it would result in one beneficiary being given rights over another, violating the trustee relationship and resulting in breach of trust and fraud. MR. SEEKINS said the Alaskan people will share with one another, but the trustees cannot give one person's share to another. MR. SEEKINS also said that not all the beneficiaries (i.e., those under 18, those not yet born) can vote on this and this would present another legal problem. Number 564 MR. GABE SAM, representing Tanana Chiefs Conference, reported that the people in his organization do not support HB 406, as it does not comply with ANILCA nor establish a rural preference. MR. SAM thinks the federal government is moving in for a takeover as was warned by Interior Secretary Bruce Babbitt. MR. SAM illustrated the fact that subsistence hunting in rural Alaska is expensive and does not always result in a kill. TAPE 98-41, Side B Number 590 MR. SAM indicated a rural preference is necessary and this has never been a native vs. non native issue. He called for the inclusion of a constitutional amendment establishing a rural preference on the November ballot. MR. SAM commented that this and other anti-rural legislation coming out of this legislature is divisive, and he stressed the idea that rural Alaska is not an urban playground. CHAIRMAN TAYLOR asked where exactly ANILCA says it provides for rural preference in times of shortage. GABE SAM did not know exactly where it appeared but said "it's in there." CHAIRMAN TAYLOR asked MR. SAM if he was referring to SB 36 when he mentioned anti-rural legislation. MR. SAM replied yes, and said this was only one of many bills targeted toward rural Alaska. MR. SAM asked how people will get an education without the necessary resources or supplies. Number 669 REPRESENTATIVE VEZEY asked how "shortage" would be defined. MR. SAM replied controlled use areas are a good tool to manage predator population and he doesn't want to see this tool taken away. He thinks this would result in many problems, including poaching. CHAIRMAN TAYLOR commented that four more years of Tony hugging wolves will not help, the only wolves that will die will be those that die on the operating table while getting neutered. CHAIRMAN TAYLOR asked if MR. SAM thought a game management system allowing more local control would be preferable. MR. SAM agreed it would. Number 740 MR. HAROLD GILLAM testified that parts of HB 406 are good and parts are bad but he wanted to speak on the general issue of subsistence. MR. GILLAM said subsistence is a phony issue. He said ANILCA does not ensure rural preference only during times of shortage. He said in managing game, it is ridiculous to try and control only one of the involved species - man. He said the whole thing is a management problem, but he agrees with MR. SEEKINS that ANILCA is an unconstitutional act and the only way to resolve this question will be in court. MR. GILLAM said the State of Alaska and its constitution opposes discrimination. He recalled that after statehood, you no longer saw signs that said, 'no natives'. MR. GILLAM suggested this was because Alaska drafted a very strong anti-discrimination clause into its constitution, and he would hate to see that changed. CHAIRMAN TAYLOR said it was fascinating that all racial discrimination incorporated into the laws in this state took place under territorial rule. MR. GILLAM agreed and noted the U.S. Supreme Court no longer tolerates anything done on a racial basis. He added that the U.S. Fish and Wildlife service has mismanaged Alaska resources before and history tends to repeat itself. MR. JERRY BOOTH, a mining specialist from Anchorage, testified that with the help of the legislature, there has recently been a major escalation of mining which he has not seen under federal control and he appreciates it. MR. BOOTH believes that increasing federal rule is unwise. However, he indicated this process is dividing the state and he asked why we could not provide a constitutional amendment that allocates locally in times of shortage. MR. BOOTH said unless this legislature wants to take responsibility for the federal takeover they should allow the people to vote. His group, Alaskans Together, wants to avoid a federal takeover at any cost and believes people should vote on a constitutional amendment. He urged the committee to provide legislation that would allow this. CHAIRMAN TAYLOR asked what the difference between the federal and the state law is and MR. BOOTH replied he is only asking for a constitutional amendment to bring state law into compliance with the existing federal law. CHAIRMAN TAYLOR said only Congress can change the federal law, and asked if MR. BOOTH wants Alaska to go along with the federal law at any cost. MR. BOOTH replied the Secretary of the Interior and our Congressional Delegation has told us that we have until Dec. 1 to do this. CHAIRMAN TAYLOR again asked what we would be allowed to do differently from federal law after surrendering to it. CHAIRMAN TAYLOR remarked he has been told that some modifications and changes could be made to ANILCA and then later Secretary Babbitt said it would not be changed. CHAIRMAN TAYLOR asked if anyone at the federal level had assured MR. BOOTH that Alaska would be able to make any changes, ever-so-subtle, to ANILCA. MR. BOOTH said he has not asked that question but Senator Murkowski said if this was done in a timely manner, they would work on it. Number 669 REPRESENTATIVE VEZEY asked what the difference between a federal program administered by the federal government and a federal program administered by the state would be. MR. BOOTH said he'd much rather deal with state officials than federal officials. CHAIRMAN TAYLOR commented that the relationship between EPA and DEC would be a good analogy, and pointed out that DEC elevates standards for water quality higher than those required by the EPA. MR. BOOTH said if the feds are going to control all submerged lands, he, and all other resource-based industries are out of business. CHAIRMAN TAYLOR asked if MR. BOOTH really believed that the state could enforce subsistence any differently than the basic structure set up by ANILCA. REPRESENTATIVE VEZEY restated his question about which would be preferable: the state administering a federal program or the feds doing it themselves. MR. BOOTH replied it is better for the state to administer the allocation of fish and game resources. CHAIRMAN TAYLOR said the state can never change ANILCA, only carry out federal orders. REPRESENTATIVE VEZEY commented we are only talking about the difference in how we manage our fish as the federal government already controls game; he asked how we can have a commercial fishing industry. MR. BOOTH had no answer to this question. MR. BOB PENNEY, co-chairman of Alaskans Together, said he would like everyone to enjoy abundant resources. MR. PENNEY said according to every poll their organization has conducted, people want to vote on this amendment. MR. PENNEY said our Congressional delegation, the Governor, the Attorney General and a former Attorney General all have said we must vote on this issue. He indicated the number of people wanting to vote on this is enormous and a rural preference has always been the favored solution. MR. PENNEY said, according to another poll conducted by Alaskans Together, if the federal government took over fish and game management 73 percent of Alaskans would feel angry at and betrayed by their legislators. He said this will be the most innocuous amendment to our Constitution yet, a Constitution which has already been amended 26 times. MR. PENNEY said rural Alaskans now already have a preference for resources under state regulation and, according to six people he talked to in the Department of Fish and Game (including the Commissioner), if a rural preference is passed, things will be very much the same. MR. PENNEY said he understands the legislative process and respects the legislators who serve but he cannot believe that the wishes of the public have been ignored for so long. CHAIRMAN TAYLOR was fascinated by the Commissioner saying there would be practically no change in fishing under a management system complying with ANILCA. He asked why federal management would, under the same law, be so different from state management. BOB PENNEY replied that the feds are only required to manage for subsistence, not for sport or commercial purposes, while the state has to manage for all four uses. MR. PENNEY said CHAIRMAN TAYLOR has never seen a conflict like he would see under dual state and federal management. He said the federal government has rights surpassing the state's, like it or not, and fish and game on federal land falls under federal purview and we Alaskans can only manage it while they allow it. CHAIRMAN TAYLOR said he hears MR. PENNEY saying the federal government has the right to take back their fish and their game. MR. PENNEY responded, saying they can take back fish management as they already have with game. CHAIRMAN TAYLOR asked if he thought the legislature should first determine if the law is how SEEKINS says it is or how MR. PENNEY sees it. MR. PENNEY remarked the legislature should have made that argument years ago and after waiting 18 years it is now too late. TAPE 98-42, Side A Number 001 CHAIRMAN TAYLOR asked if the legislature should have taken a vote on the question of Venetie. MR. PENNEY replied he did not particularly like the Governor's plan, but the feds will take over control if we do not reach a compromise and the task force plan is a compromise. CHAIRMAN TAYLOR noted that even with all the changes to the Constitution, the equal protection clause has never been amended. CHAIRMAN TAYLOR asked if MR. PENNEY had ever worked as a trustee, and said some of the legislators believe they are the trustees of this land and he does not believe the feds can give the state land and then take it back at will. CHAIRMAN TAYLOR also said he has not wasted time, he blamed the Governor and the fact that he dropped the Babbitt suit. CHAIRMAN TAYLOR indicated he would like to know whose interpretation of the law is correct, and not just turn the decision over to the mob. CHAIRMAN TAYLOR asked if he has any power to shape the language of the proposition that will appear on the ballot. MR. PENNEY believed he did. CHAIRMAN TAYLOR asked if an elected sheriff should follow the instructions of a mob because they are the electorate. MR. PENNEY said there are 28 days left to enact this plan and they are running out of time. He said Senator Murkowski has said he would explore some changes in ANILCA but MR. PENNEY does not think he'd be so willing to do so now. CHAIRMAN TAYLOR said it is difficult to create a bill that will pass both the Legislature and the Governor, especially the Governor, who for political reasons dismissed the Babbitt suit, according to CHAIRMAN TAYLOR. MR. PENNEY asked why the Republican leadership had not worked on their own proposal. CHAIRMAN TAYLOR said they had and they got scads of testimony against a vote for a rural preference. SENATOR LINCOLN interjected that none of these hearings (except one) were held in rural areas. SENATOR LINCOLN also said she does not view her constituents as a mob and would like to see them able to vote on this issue. She commented she did not know how the issue would turn out. CHAIRMAN TAYLOR said he was specifically talking about the testimony from Soldotna where he remembered the vast majority of people were against the ballot measure. CHAIRMAN TAYLOR remarked he could not imagine a ballot initiative that would mandate discrimination against people in certain areas of the state, in fact, he did not think the legislature could legally enact such a measure. CHAIRMAN TAYLOR asked how the equal protection clause of the Alaska constitution could be amended without violating the 14th amendment of the federal constitution. BOB PENNEY replied, "do what you want to . . . just keep management . . . out of the hands of the feds." MR. CHARLES DERRICK, from Fairbanks, commented that the initiative should read 'state management under federal judicial review', as the federal courts have the final say anyway. He said the people of Alaska do not have all the facts and hunters will not be able to compete with the Native Corporations who will throw millions of dollars at this issue in order to see it resolved it in their favor. MR. DERRICK said he would like to see commercial fishing addressed along with this issue and ANILCA dictates to us and gives us no opportunity for compromise. MR. DERRICK indicated this plan will not only apply to fish and game but all renewable resources. He declared he would like to see the state wait for the Legislative Council lawsuit to be decided and he does not think the feds have the authority to take over management. He stated that ANILCA is what is preventing a compromise MR. DERRICK additionally commented that the Administration not only dropped the Babbitt case, but also forced Alaska citizens to document their RS 2477s before the moratorium. MS. MARY BISHOP suggested subsistence has become a native and non native issue and what she sees happening is similar to other areas of the world in which different ethnic groups are tearing each other apart. She said governments must treat all people equally. MS. BISHOP also advised the committee that this decision will affect all renewable resources in the state, not just fish and game. MS. BISHOP said the initial bill that gave subsistence priority to all Alaskans was changed by Senator Stevens to apply to all renewable resources. She said we are now drawing circles around people and deciding what they can do. This had never been done until it was forced by a court case in 1982. In 1989, Alaska was handed down a ruling in the Bobby case that said customary and traditional use, not need, was the standard the boards of fish and game would have to use. The result was virtually year round hunting of moose and caribou. MS. BISHOP said this is what we have with ANILCA, opportunistic hunting by some all the time and leftovers (if there are any) for others. MS. BISHOP said there is a new effort going on to have ANILCA become Indian Law and we are leaving ourselves open to one lawsuit after another. CHAIRMAN TAYLOR asked where "in times of shortage" appears in ANILCA. MS. BISHOP replied she remembers meeting with Congressman Don Young who said this applied only in times of shortage, but could not find the language in ANILCA. CHAIRMAN TAYLOR challenged anyone who could find that wording in ANILCA to please bring it to him. He does not believe this applies only in times of shortage and MS. BISHOP agreed. CHAIRMAN TAYLOR announced that SENATOR HALFORD had joined the meeting some time ago. MR. JOHNE BINKLEY thanked the committee for allowing him to testify and said he believed that prior to the McDowell decision there was a management scheme in place which was acceptable to most Alaskans. MR. BINKLEY thinks if this measure is voted on it will pass and we will return to a management scheme acceptable to most Alaskans. MR. BINKLEY agrees there will be court decisions shaping this management but he thinks overall it will be better for Alaskans. CHAIRMAN TAYLOR asked if MR. BINKLEY agreed that the court will have to define the amendment. MR. BINKLEY believed there would be many lawsuits filed either way. CHAIRMAN TAYLOR replied that the only way this could be avoided would be through the Legislature's suit. If it prevails, CHAIRMAN TAYLOR said we'd be back to true state management. JOHN BINKLEY said we have had 18 years to go down that road and suggested we could put something into the amendment that said it wouldn't go into effect if the Legislative Council prevailed in the court suit. CHAIRMAN TAYLOR said this would happen anyway, since a decision in the court case would preempt a constitutional amendment. MR. BINKLEY said this may take five years and it would be best to retain state management in the meantime. MR. BINKLEY maintained the prudent course is to allow the people to vote and to try to prevent federal management. Number 632 SENATOR HALFORD asked MR. BINKLEY how he understood federal management. MR. BINKLEY said he had a concept of a federally appointed board acting in the place of our state board. He supposed the Department of the Interior would write regulations for subsistence and, beyond that, commercial resource uses. SENATOR HALFORD said the feds would have the authority only to manage for subsistence and nothing else. He said the federal authorities would be precluded from management of any other uses without a change to federal law. SENATOR HALFORD said it is important that people understand exactly what federal management would mean. MR. BINKLEY commented that he is certain there would be much litigation defining this. He also said without a constitutional amendment the development of other resources would be negatively impacted. MR. BINKLEY concluded it's such a gamble, it's just not worth the risk. SENATOR HALFORD said subsistence is a fundamental human right and we cannot discriminate on the basis of race regarding this issue. SENATOR WARD asked MR. BINKLEY what we should do if we put this on the ballot and it fails. MR. BINKLEY said he guessed we could then attempt to get other changes to ANILCA knowing we tried. SENATOR WARD said if this happened we'd just be back to HB 406, and we should just stick to talking about it, as it is a reasonable position that we might arrive back at later. Having failed to achieve a quorum, CHAIRMAN TAYLOR called this meeting a work session, thanked everyone for coming and adjourned at 7:52.