SENATE RESOURCES COMMITTEE Wasilla AK September 25, 1997 2:00 P.M. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Lyda Green, Vice Chairman Senator Georgianna Lincoln Senator Loren Leman Senator Bert Sharp Senator Robin Taylor Senator John Torgerson MEMBERS ABSENT All members present ALSO IN ATTENDANCE Senator Jerry Ward Representative Scott Ogan, Co-Chairman, House Resources Committee Representative Beverly Masek, Vice Chairman, House Resources Committee Representative Reggie Joule Representative Vic Kohring Representative Fred Dyson COMMITTEE CALENDAR Interim Hearing on Subsistence WITNESS REGISTER Mr. Rob Bosworth, Deputy Director Department of Fish and Game P.O.Box 25526 Juneau AK 99802-5526 POSITION STATEMENT: Explained the Task Force proposal. Mr. Tim Schuerch Maniilaq Association P.O. Box 256 Kotzebue AK 99752 POSITION STATEMENT: Commented on subsistence issues. Mr. Warren Olson 5961 Orth Circle Anchorage AK 99516 POSITION STATEMENT: Commented on subsistence issues and opposed constitutional amendment. Mr. Peter Probasco Alaska Outdoor Council P.O. Box 861 Palmer AK 99645 POSITION STATEMENT: Supported Mr. Olson's comments and opposed constitutional amendment. Mr. Harry Wassink 1340 W 23rd #A Anchorage AK 99503 POSITION STATEMENT: Opposed constitutional amendment. Mr. Bruce Knowles P.O.Box 873206 Wasilla AK 99607 POSITION STATEMENT: Opposed constitutional amendment. Mr. Dean Babcock P.O. Box 521491 Big Lake AK 99652 POSITION STATEMENT: Commented on subsistence issues. Ms. Mary Babcock P.O. Box 521491 Big Lake AK 99652 POSITION STATEMENT: Commented on subsistence issues. Mr. Bud Smyth P.O. Box 521362 Big Lake AK 99652 POSITION STATEMENT: Commented on subsistence issues. Ms. Kathleen Harms P.O. Box 521414 Big Lake AK 99652 POSITION STATEMENT: Commented on subsistence issues. MR. Steve Miller 3325 Palmdale Wasilla AK 99654 POSITION STATEMENT: Commented on subsistence issues. Mr. Duane Anderson HC5 - Box 6870 Palmer AK 99645 POSITION STATEMENT: Opposed a constitutional amendment. Mr. Robert Hall Houston Chamber of Commerce P.O. Box 871906 Wasilla AK 99687 POSITION STATEMENT: Commented on subsistence issues. Opposed Task Force. Mr. Gene Straatmeyer, Pastor Wasilla First Presbyterian Church Alaska Christian Conference P.O. Box 976711 Wasilla AK 99687 POSITION STATEMENT: Commented on subsistence issues. Mr. Al Doner 700 Glenwood Dr. Wasilla AK 99687 POSITION STATEMENT: Opposed constitutional amendment. Mr. James Garhart 2480 Green Forest Dr. P.O. Box 982533 Wasilla AK 99687 POSITION STATEMENT: Opposed constitutional amendment. Mr. Rob Holt P.O. Box 489 Talkeetna AK 99676 POSITION STATEMENT: Commented on subsistence issues. Opposed Task Force. Mr. Mark Chryson, Vice Chairman Alaska Independence Party Wasilla AK 99687 POSITION STATEMENT: Opposed the Task Force proposal. Ms. Beverly Cloud Pedro Bay AK 99647 POSITION STATEMENT: Commented on subsistence issues. Mr. Jim Stocker Wasilla AK 99687 POSITION STATEMENT: Supported impeaching Governor Knowles. ACTION NARRATIVE TAPE 97-41, SIDE A CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 2:00 p.m. MR. ROB BOSWORTH, Deputy Director, Department of Fish and Game, said he served as staff to the Task Force. He said he was not present in the room for much of the discussion. The basic package consists of three parts. The goals were to insure effective State authority over fish and game management over all lands and waters of Alaska and to recognize the importance of the subsistence way of life to Alaskans. They believed the best way to develop those goals was to develop a constitutional amendment, changes to ANILCA and State statutes. This is what is referred to as the package. The parts are all linked with each part dependent upon the others for its implementation, so that no part will exist independently. CHAIRMAN HALFORD asked him to detail the linkage as they heard testimony yesterday that there wasn't linkage in every direction. MR. BOSWORTH explained that the linkage might work different under different scenarios. If ANILCA amendments were passed by the U.S. Congress and the State statutes are amended by the legislature, none of them would come into effect until the State constitutional amendment is passed by the voters. The principal of the goal of the group was when Alaskans vote on a constitutional amendment, they would know precisely what they are voting on. He said it seemed obvious to him if ANILCA amendments were not passed by congress or if the legislature had not passed statutory changes at the time of the constitutional amendment, a different linkage arrangement would have to be worked out. He thought that different language would be needed for the different scenarios. Under the proposal the State Constitution would be amended to permit, but not require, the Alaska legislature to grant a subsistence priority based upon place of residence. Simultaneously, State statutes would be amended to create a rural subsistence priority. Those statutes and the ANILCA amendment would not become effective unless the constitutional amendment was passed. In the second part of the package the Alaska fish and game statutes would be amended to grant a subsistence priority to rural residents. Communities outside the current non-subsistence areas will be classified as rural the day the State regains management. The Boards of Fisheries and Game acting jointly through regulations would have the power to change community classifications in the future as the community changes. The State statutes would also be amended to improve the proxy hunting and fishing provisions and to provide for educational hunting and fishing permits, to clarify the definition of rural, customary trade, and customary and traditional. It will make clear that the subsistence priority is a reasonable opportunity to take, but not a guarantee of taking, and to refine subsistence management system including adding a State regional council system. The third part of the package is the amendments to ANILCA which would mirror the definitions put into State statute. This would include a definition of rural which is a community or area substantially dependent on fish and game for nutritional or other subsistence uses. CHAIRMAN HALFORD commented that that was a significant broadening of the language. MR. BOSWORTH said that question has been debated. In the existing law a number of criteria were included for the Board to use in making the call as to whether a community was rural or not. Under the proposal the criteria is similar for the Boards. So the Boards, through the regulatory process, would have to add guidance to that term. In addition customary trade is defined so that subsistence taking of fish and game cannot become a commercial enterprise. CHAIRMAN HALFORD asked if the intent of this section was to actually limit the Peratrovich case. MR. BOSWORTH answered absolutely. He said the intent was to allow the Boards to limit the quantity of product that qualifies as customary trade. SENATOR TAYLOR said he didn't understand what they were trying to accomplish through the definition because they all want to make certain that subsistence will not be abused under barter and trade in a fashion that would turn it into a commercial enterprise only. He said there is apparently a desire to maintain barter and trade for cash purposes at some lower level. He was concerned about what objective standards we're going to use to judge whether that has or has not occurred. MR. BOSWORTH responded that the standards in the definition are not as definitive as he is asking for. Under the proposal customary trade means the limited, non-commercial exchange for cash of fish or wildlife or their parts in minimal quantities as restricted by the appropriate Board. The terms of this paragraph do not restrict money sales of furs and fur-bearers. He said he wasn't party to the minimal quantity discussion and didn't know why the group decided to change it. He thought the operative word was minimal. SENATOR TAYLOR said he thought the answer to Chairman Halford's question was that this provision was intended to reverse or take care of the Peratrovich case and asked if he thought those words actually did that. MR. BOSWORTH replied in his view the Board of Fisheries did an excellent job in addressing the use of roe on kelp which is the same product that was operative in the Peratrovich case. This language does allow the Board of Fisheries to narrowly define the limits on customary trade. In the case of herring roe on kelp they used 138 lbs. per household or 50 lbs. per individual as the limit that could be traded for cash. That's on the books now. He thought this was a reverse of the Peratrovich decision. CHAIRMAN HALFORD inserted that the problem is that it was a federal court that decided the Peratrovich case and if that case stands, why should anyone be involved in a limited entry permit or anything else. MR. BOSWORTH said he didn't disagree, but his understanding is if the Federal Subsistence Board were to manage fisheries they would interpret customary trade along the lines of the Peratrovich decision. Another assumption he is making is if the State were to manage under this proposal, the State Boards would be able to narrowly limit customary trade as they have done in the case of herring roe and kelp. CHAIRMAN HALFORD asked if that was a federal law change in that case. MR. BOSWORTH replied that he doubted that fish as customary trade would be included as one of the ANILCA amendments. CHAIRMAN HALFORD said otherwise it would be a federal judge making the decision no matter what the State does. SENATOR TAYLOR said he thought that this was different from what Mr. Julian Mason told the committee yesterday. MR. BOSWORTH reiterated that the intent was to take the definitions in State statute and have them inserted in ANILCA as well. SENATOR TAYLOR asked if it was the intent of the Task Force that a cash utilization of subsistence caught resources will continue. MR. BOSWORTH replied yes, at a minimal and non-commercial level, as defined by the Boards. SENATOR WARD asked if the federal government was imposing a rural preference, would that need to be part of the Canadian Treaty that is currently being negotiated. He asked if the group discussed any kind of definition of native subsistence and could he have a copy of that discussion if they did. MR. BOSWORTH responded that they did not discuss any sort of a native preference. SENATOR WARD said it would be helpful to this committee if there was a definition of native subsistence mentioned by the Lieutenant Governor in a speech to congress and he assumed there was one somewhere because he didn't think you could just say something like that to congress and not have a definition. MR. BOSWORTH said he would be happy to provide the committee with the text of the discussion on this topic. SENATOR WARD said if the Lieutenant Governor mis-spoke and meant to say rural subsistence, he wanted him to present to the committee that language. MR. BOSWORTH said they ended up with customary trade being the definition that would be in the ANILCA amendments. Customary and traditional is an operative, but undefined term in ANILCA. Finally, he said, the concept of reasonable opportunity will be defined to make clear that the priority is a reasonable opportunity to take, not a guarantee of taking, and the Boards must consider customary and traditional uses. Regarding court oversight, section 807 will be amended to set the standard of review for actions of the Fish and Game Boards to require the federal courts to give Board decisions the same deference that would be given to a federal agency decision. Adding these standards does not seem to change current federal law, but the standards are not explicit in Title 8. CHAIRMAN HALFORD asked if he thought it was the intent of the group, in defining reasonably opportunity, to reverse the other case that stands out. The Bobby case. MR. BOSWORTH said he wasn't part of discussions on that issue. CHAIRMAN HALFORD informed them that the Bobby case says basically that you have to have eliminated all other uses before you can, in any way, set a season, bag limit, or any kind of a regulation on subsistence. MR. BOSWORTH responded that he thought it was a very important case, but he wasn't part of the discussions concerning it. SENATOR LEMAN asked if he recalled any conversations on whether or not there was recognition of other customary and traditional use patterns, not necessarily subsistence and how that might integrate into an interpretation of what customary and traditional might be. He said he could think of customary use patterns other than subsistence activities in some areas. He asked if it was the thought of the Task Force that they didn't want to upset those other patterns with a preference for subsistence. MR. BOSWORTH replied that he didn't know if that was discussed, but it wasn't discussed in his presence. He knew it was one of the guiding principles of the group that they would make only the changes that were minimally necessary to come into compliance with federal law. SENATOR TAYLOR asked him to clarify if they wanted to minimally change Alaska law to bring them into compliance with the confines of ANILCA. MR. BOSWORTH said that was one of the principles that was articulated early in the process. SENATOR TAYLOR asked if he knew where that principle came from. MR. BOSWORTH said he couldn't answer that, but it was adopted by the group. SENATOR TAYLOR said he understood that they had at least two teleconferences with Secretary Babbit with one sit-down meeting in which he told them the administration would tolerate no changes significant or substantive to ANILCA and, in fact, threatened veto by the President, if that was attempted by our congressional delegation. So this was the group's idea of the least possible changes that could be made to ANILCA that would pass muster with Secretary Babbitt. In this case, he thought they were trying to please the powers in Washington D.C. at the administrative level as opposed to resolving this concern for Alaskans. MR. BOSWORTH said that he agreed that they need an Alaskan solution developed by Alaskans. REPRESENTATIVE MASEK questioned, dealing with section 7, the two new sentences. MR. BOSWORTH said he didn't know the answer, but would find out for her. REPRESENTATIVE MASEK said she thought that section would be basically enforcing a federal mandate providing a priority for rural Alaskan with federal court oversight - that the State would be implementing a federal law under this section. MR. BOSWORTH said this is unfamiliar ground for him. It is his understanding that the group of seven determined that it was not possible to completely eliminate federal court oversight, that congress would simply not permit it. REPRESENTATIVE MASEK said that instead it looks like the proposal is asking us to change our State Constitution to allow for a rural preference, but then the State court won't have the authority to enforce statutes and provisions. Instead we would be enforcing a federal mandate again. She asked if that was correct. MR. BOSWORTH answered that he wasn't qualified to speak to the details of how the courts would interact on this. But it is his understanding that it was determined that is would not be possible to completely remove the oversight of the federal courts. CHAIRMAN HALFORD said the amendments to 807 basically say that the federal court has to treat State agencies in the same way with the same deference they treat federal agencies, but that's all we get. It's still a federal judge in a federal court that is still accountable to the Ninth Circuit, the most overturned circuit in the country. It's not federal management by federal wildlife biologists; it's federal management by federal judges in San Francisco. SENATOR TAYLOR said this subject has obviously been discussed that has a been a problem. The big key words have been we are going to get back management. Well, we're not going to get it back if we still have federal oversight. He asked who said we couldn't have management over our fish and game. He asked if it was the administration through Secretary Babbitt and was that the threat where we surrendered. MR. BOSWORTH responded that he wasn't party to those discussions although he knows they did take place. There were many conversations that the staff was not involved with. SENATOR TAYLOR said he wanted to be absolutely certain that this proposal does not return fish and game management to the State of Alaska free of federal oversight. MR. BOSWORTH responded that federal oversight is not fully eliminated with this proposal. He said the next category of amendments pertain to State management. Title 8 would be amended to make it clear that the State manages subsistence on all lands and waters whether federal, State, or private. Section 814 would be amended so that the Secretary of Interior cannot interfere with State regulations. The definition of federal public lands will be clarified to be sure and exclude all private and State lands. The collective purpose of these amendments is to make perfectly clear that the State has full management authority while the State is in compliance with ANILCA. SENATOR TAYLOR asked if the definition of federal lands included waters, because the question of navigable waters and the regulation of fisheries through the subsistence panels is unclear. MR. BOSWORTH said this was not an area where he was an expert, but he read from the ANILCA land definitions on pages six and seven. The term land means lands, waters, and interests therein. That is not affected by the amendments. SENATOR TAYLOR said that he understood the short answer to be that nothing in the proposal changes the definition in ANILCA of waters subject to subsistence priority. MR. BOSWORTH said the last category of ANILCA amendments speaks to the congressional seal of approval of non-compliance and neutrality on Indian Country. Section 805 will be amended to declare the State in compliance and to make future non-compliance a determination of the courts rather than the Secretary of Interior. SENATOR TAYLOR commented again that even after this passes we would be in front of the same federal judge. MR. BOSWORTH replied yes and said that concluded his overview. REPRESENTATIVE OGAN asked him to clarify the language on the first page regarding the constitutional amendment. He asked what other natural resources meant and asked him to explain the ramifications of the word "sold." MR. BOSWORTH said he thought that language applied not only to fish and wildlife, but also to plants including aquatic plants which are clearly managed for subsistence, but don't fall in the fish and wildlife category. If the legislature chose not to pass a law that provided a priority for subsistence taking based on the place of residence, he thought other parts of the package would not come into effect and we would be back where we are today, basically. REPRESENTATIVE OGAN said he understood it to mean that if the legislature decided not give a rural priority, they would be back with a federal take-over. MR. BOSWORTH replied yes. SENATOR SHARP said he thought the wording would be misunderstood by the general public, because it doesn't say that 85% of Alaskan residents would not be able to qualify for a priority preference. So he thought the language needed cleaning-up. CHAIRMAN HALFORD asked if this proposal applies only in times of scarcity or does it apply all the time. MR. BOSWORTH said it is meant that the Boards must provide regulations that provide a reasonable opportunity for subsistence use, first and foremost. All other uses are secondary to that. CHAIRMAN HALFORD said that sometimes people misunderstand that because they perceive that this happens in times of shortage, but in fact, it happens all the time, but sometimes it has no impact because there's adequate opportunity for everyone and there's no shortage at all. MR. BOSWORTH said he thought that was an accurate characterization. SENATOR TAYLOR asked if the term renewable natural resources included timber. MR. BOSWORTH answered that he had never heard a discussion of that by the group of seven. Personally, he thought it did. It's been acknowledged that trees used for log construction were considered a subsistence use. SENATOR TAYLOR asked why the group wanted to expand the resource category in areas where they had never really contemplated subsistence - like timber. TAPE 97-41, SIDE B MR. BOSWORTH replied that issue wasn't discussed in his presence. REPRESENTATIVE OGAN said it seemed to him that with the expanded version that any number of lawyers could argue that there's a subsistence use of virtually any renewable natural resource beyond fish and game and this really concerns him. CHAIRMAN HALFORD asked if there was a definition anywhere for renewable natural resource. MR. BOSWORTH answered that he would have to check to see if there was a definition already in statute. REPRESENTATIVE MASEK asked where the funding would come from to, under the State statutory amendments, section (e) refine the subsistence management system including adding a State regional subsistence council. She asked if the regional councils would have any decision-making authority. MR. BOSWORTH replied that somewhere in the amendments there is a statement saying the councils will be adequately funded which, he realizes, is intent language. Beyond that there is talk of ANILCA being a funded federal mandate because it contains language providing for up to $5 million to the State to be used for implementation. Prior to 1990 the Department of Fish and Game did received $900,000 out of the $5 million that was split in numerous ways. Regarding the regional councils, they are advisory and that role does carry over into State statute. There is language saying that an official recommendation of a regional council must be adopted by the Board unless certain other conditions are met. Those conditions are on page 39 and say unless it violates the sustained yield principle, is not supported by substantial evidence, is detrimental to subsistence users, or involves an unresolved State- wide inter-regional subsistence management issue, or is contrary to an overriding State-wide fish or wildlife management interest. The last two conditions are new; the others are in ANILCA. REPRESENTATIVE MASEK said she hoped the funding for the councils would not come out of fish and game funds or Pitman/Roberts dollars because she hoped money from the hunters and fishers of the State would be used for management of the resources. CHAIRMAN HALFORD asked if these councils make recommendations on subsistence seasons and bag limits or do they make recommendations on commercial fisheries, sport fish, etc. Is there any limitation on what they can make recommendations on, he asked. MR. BOSWORTH answered there was language specifically inserted to make it clear that the recommendations only apply to subsistence proposals. CHAIRMAN HALFORD asked what the current federal law says. MR. BOSWORTH said he thought that prior to 1990 interpretation of the federal law was an issue of considerable debate among the regional councils. They interpreted their mandate as extending beyond subsistence uses and the State did not agree. He said he would research that for him. SENATOR GREEN asked regarding page 40, line 10 why that was amended to subsistence users. The implication is that the subsistence user is the only voice that will be listened to. MR. BOSWORTH said he thought the reason it speaks to subsistence is because it is a subsistence statute. In the discussions he was in there was never a suggestion that that would be the only information that would be useful to the Boards and councils. He said there are two places that he recalled with language specific to that issue. One is on page 37, line 6. SENATOR TAYLOR asked if they used the terms recommendation and proposal interchangeably. MR. BOSWORTH said no and explained that a proposal is used to refer to the types of proposals that go before the Board and, hearing those, this language requires that any subsistence proposal from anyone and an advisory committee must go to the regional council. Some of those would advance to the Board simply as proposals, some would advance as proposals with comments by the regional council, and some of them would be recommendations. It's only when they are recommendations do they carry the special weight and ANILCA. He directed them to page 39, line 7 where it says the appropriate Boards shall consider the reports and recommendations of the regional subsistence councils and shall give deference to their subsistence recommendations. MR. BOSWORTH said there was some lack of clarity yesterday regarding whether the Department of Fish and Game supports this package and he stated that they do. They think it's a workable and balanced approach. CHAIRMAN HALFORD noted that the feds had already taken over management on game in 1989 - 90 and asked if they are really talking of the fisheries in the current perceived crisis. MR. BOSWORTH replied that we certainly are and the immediate issue is federal intervention in subsistence fisheries on federal lands and reserve waters. CHAIRMAN HALFORD again said that the feds had taken over management of game years ago and Mr. Bosworth added that things are getting even worse since it's taken a while for the federal program to get rolling. SENATOR LINCOLN said from a trip through eleven communities she found that it was possible they were dividing this State with all the subsistence discussion along racial lines and stated that was a concern. Yet, when she talks to people off the road they say they need to work together as a whole State, that we are talking about times of shortage and no one wants to see our fish and game come to that point. She visited a group of four communities where a lot of non-Alaskan hunters took 100,000 lbs of game out by one airline. The airline people told her there was spoiled meat and that there were not enough people to monitor whether or not our resources were being abused. She said she did not feel assured that the resources would be there for her great-grandchildren. She thought we had done a poor job of managing our fish and game in many areas. She supports State management, but asked if ADF&G supports this proposal, how can he say that so soon since the proposal just came out. She asked if the Department actually went through the whole package and were there areas in it that needed red flagging. MR. BOSWORTH explained that the original draft came out in July. There are some recommended changes that have already been incorporated in this draft. They didn't hear from anyone who was comfortable with the awkward position the State was in having to comply with federal law that didn't meet all of our needs. The Department feels it's absolutely imperative that the State get back to the point where it could manage on all lands and waters in the State. Dual management for their staff has been extraordinarily stressful. It has led to some people feeling their jobs are redundant because Board decisions are being second-guessed by federal managers. They often attend a federal subsistence meeting with the intention of providing information that will clarify a resource issue and find their comments and data to be absolutely ignored. He said it's repetitive, duplicative, costly, wasteful of time and effort, confusing to the public, and results in risk to the resources. In some cases the federal boards allocate a certain portion with the State having already fully allocated that portion of a population. In these cases our Board has to go back and change the regulation to avoid a resource problem. REPRESENTATIVE DYSON said he had a conversation with the Department of Interior and asked if the feds did take over, would they subcontract most of the hands-on management to the Alaska Department of Fish and Game. And she said they would be delighted to use them in any way they could. He asked if there any preliminary discussions in that regard. MR. BOSWORTH replied there had been no communication to that effect and quite the contrary he was contacted last week by one of the federal subsistence board members who represents the Forest Service and he described the federal board's intention to proceed with the draft regulations on or about October 1, followed by a public process of hearings, with the final regulations coming out March 1 that would implement federal management of subsistence fisheries on federal reserve waters. There was no suggestion whatsoever that the State would have any unusual role. He thought part of the problem was that the necessary discussions hadn't taken place yet; and he wasn't saying that wouldn't happen. SENATOR SHARP said he didn't know if the feds could do a worse job than the Division of Commercial Fisheries has done on escapement up the Copper River for personal and subsistence use. He explained that last year was the biggest run of reds ever and they shut it down to a two-day season. The same happened this year. SENATOR TAYLOR said ADF&G decided there weren't enough moose in his area of the Stikine River for anyone to hunt and shut the area down, but the federal subsistence board opened it up and allowed one moose. So there was a time when you could not hunt on State land, but you could hunt on federal land and you were checked almost daily if you were camped up the River by a U.S. Forest Service person. To get a permit for the feds, he explained, you have to take a test and watch a video. He thought that the State would do just about anything to get rid of dual management. He asked if the Forest Service is going ahead with navigable waters regulations, that would mean there would be fish traps in his area. If the Bobby Case means anything, he didn't know of a single restriction they could impose on the taking of those fish and still be in compliance with that federal law. He asked if Mr. Bosworth did. MR. BOSWORTH replied that he didn't know enough about the Bobby Case to be able to comment. He thought the point needed to be clarified, however. SENATOR LEMAN said that Statehood did not come about to abolish fish traps. The timing of the two happened to coincide. The primary public reason for abolishing fish traps was not because the traps were taking too much fish and outside ownership of them, but the issue of the State managing its own resources. CHAIRMAN HALFORD announced a 15-minute break. When they reconvened he announced that public testimony would begin. MR. TIM SCHUERCH, Maniilaq Association, said this region is known as the Nana Region and is about as big as Oregon. He said 90% of the 7,000 people in his region are Inupiat Eskimo. Almost everyone hunts and fishes to feed their families. Traditionally and modernly all their subsistence foods on the coast and inland are shared among all Inupiats of both groups. They prefer a native or rural preference rather than a local or community preference. The latter option has too much potential for disrupting their tradition of sharing their food with each other. He said subsistence is a primary means of support for all of them; it is how they define themselves as individuals, as a community and a society, and as a part of the great cycles of nature and part of a greater spiritual reality. Just as important as any economic or social cost would be the moral harm that would befall families in the bush. Hunting and butchering game is a way for families to teach their children wilderness skills, the value of hard work, the value of team work, and the importance of sharing one's abundance with those in need. Rural subsistence helps families in the bush to feed themselves. It imposes little or no burden on urban Alaska. A well-established rural subsistence priority would be a major step in preserving Alaska's traditional bush culture, including native culture in the face of an ever-expanding urban population. A rural subsistence priority is in the best interests of all Alaskans. TAPE 97-42, SIDE A CHAIRMAN HALFORD asked him what would happen with federal management of fish in his area. MR. SCHUERCH answered the impact on the small commercial chum fishery would be minimal. SENATOR TAYLOR asked him to explain what subsistence rights he thought would be diminished if the legislature would adopt the Task Force proposal. MR. SCHUERCH replied that he hadn't had time to review it. After the McDowell decision subsistence rights were diminished because large amounts of people including those in urban areas currently have a right to subsistence hunt and fish. They are afraid too many people will be able to go in and take fish and game from their area. SENATOR TAYLOR asked for the population of Kotzebue. MR. SCHUERCH answered a little over 3,000 people. SENATOR TAYLOR commented that under federal law he could live in Wrangel and go to Kotzebue and take a bunch of caribou and this is the law we are all trying to comply with. MR. WARREN OLSON urged them to watch his video on the Public Trust Doctrine narrated by Mr. Joseph L. Sax who was legal aide to Secretary of Interior Babbitt. It is about individual rights above subsistence. He also suggested they read "Putting The Public Trust Doctrine to Work" which was created by 29 coastal states, including Alaska. It explains fundamental rights about subsistence rights. He also brought an AOC resolution, the Public Trust Doctrine in Alaska by Gregory Cook, and a statement from the Colorado Supreme Court stating that life, liberty and property are not [indisc] items. MR. OLSON quoted from a pamphlet written in 1977 by former Secretary of Interior Udall about Alaska native and their subsistence rights. It states that it is not surprising that the Alaska legislature dealt gingerly with the native subsistence issue and made no effort to deal with the rights of the Alaska native as a special class of citizen. Under its constitution the State cannot single-out its natives or any other distinct class of citizens and grant them special rights. This is particularly true with respect to fishing in Article 8, Section 15. The Alaska State Constitution stopped the mark-up of ANILCA in its tracks at that time and the players were aware of it. A subsistence bill was passed by the Alaska legislature in 1978 which created a privilege among users. At this moment the Alaska legislators damaged the Constitution forever by weakening its regulatory powers of public trust and public trust doctrine. The intent of passing the State subsistence law in 1978 was not protection of certain users as the bill stated, but to damage the management and regulatory responsibility of the State - the public trust pertaining to uplands and public trust doctrine pertaining to waters. This allows the federal government to assume regulatory powers held by the State on federal lands and waters. Legally, in all other states, the federal government can designate use on federal properties, but cannot manage users. With the Alaska Constitution damaged by the Alaska legislators, ANILCA was passed by congress in 1980 with management of users on federal lands and waters assumed by the federal government. Alaska's Supreme Court has strengthened Alaska's Constitution, Article 8, by acting favorably on numerous cases on resource use and users since 1958. He said research would show that before and after statehood many cases saying no to allocating privileges and creating preferences. The Alaska legislature continues to have a foot on both sides of the stream. The State of Alaska in recent regular and even special sessions of the legislature, have given active consideration to what the subsistence law of Alaska should be. They have neither amended the current Alaska subsistence law, nor proposed a constitutional amendment. They have deliberately taken a position on subsistence contrary to plaintiffs in McDowell II. In conclusion he said the Alaska Supreme Court is doing its job on public trust and public trust doctrine in regards to use and users, but the legislature is going to have to look at the law and say that any law creating a preference is going to have to be removed. He said he is weakened as a plaintiff before Judge Holland in the McDowell II case by their position. MR. OLSON said the State was not being represented very well by the Attorney General's office. MR. PETER PROBASCO, Alaska Outdoor Council, said they had appointed Mr. Dick Bishop as their spokesman on subsistence and he had testified yesterday. Mr. Probasco said he supported that testimony fully and agreed that subsistence is a basic human right which doesn't allow for discrimination between individuals. They also believe in the Alaska Constitution and don't think an amendment should be proposed. The federal government should not be dictating to us what we need to do to our Constitution. Amendments need to be made to ANILCA and he asked the legislature to follow that path. SENATOR TAYLOR asked if he thought the State should bring a direct- action suit in the United States Supreme Court and challenge the very constitutionality of ANILCA. MR. PROBASCO answered that Alaska is the only state in the union that is being treated in this manner in regards to dictation on our constitution. If it was before the U.S. Supreme Court and executed in a fine manner he thought we would prevail. MR. HARRY WASSINK said he had been following this issue for the last 25 years or so. He thought the most effective way to solve the dilemma would be to first change Section 807 of ANILCA, although the Secretary of Interior doesn't like that idea, and then see what other actions were needed. He wanted to know what would happen if an agreement wasn't reached immediately by October 1. CHAIRMAN HALFORD responded that nothing was going to happen legislatively, but they would take testimony. The seasons that are really in question probably don't come into conflict until next April, May, or June. The federal deadline has to do with adopting regulations. He personally believes that ANILCA, when applied to fisheries, can't possibly work because it's been modified, extended and defined by cases like the Bobby Case and the Peratrovich Case. His opinion is if the legislature does absolutely nothing, congress would change at least those two cases before they ever get it applied to commercial fisheries, because those two provisions are absolutely disastrous to commercial fisheries. MR. BRUCE KNOWLES said he had a career in the military and had lost a lot of friends. He would not sell their lives cheaply. As an American he has certain rights. When a foreign national is sworn into American citizenship, she or he has those same rights. He will not give up his rights for a few fish or a few moose, he said. That's what the federal government wants us to do. MR. KNOWLES said there is a shortage of fish and game in many areas and that is why we are here today. MR. DEAN BABCOCK, Ojibwa Indian, said he was in favor of all peoples sovereign right to subsistence, but he wanted to help them understand the native way-of-life. He said that natives who live in a town can't go to the store and buy their native food like a Spanish, Japanese, or Greek person. People come in from the villages to Anchorage, bring in traditional foods, and share it with other natives. So it's not a preference, it's a sovereign, traditional way-of-life. He didn't think any native wanted preference, but they do want their way-of-life. SENATOR TAYLOR asked him if he had a chance to read the Task Force proposal. MR. BABCOCK said he just saw it three hours ago. He said he hadn't seen a draft yet that he would vote for, however. He thought the State should stand up for itself and when it comes down to management of fish and game, the traditional people of Alaska did very well. SENATOR LINCOLN asked what he thought native people would do in times of shortage to have subsistence food. MR. BABCOCK said he thought it came down to a simple matter of genocide, because it hasn't been too many years that it was totally traditional. He explained that the Lieutenant Governor had been in the villages and said that 60% was on an economy basis and 40% was subsistence. If you took the 60% away, the 40% would become 100%, but if you took the 40% away, people would die. REPRESENTATIVE OGAN asked if he honestly thought people would die. MR. BABCOCK replied yes. REPRESENTATIVE OGAN asked if he perceived the Alaska legislature was trying to commit genocide. MR. BABCOCK said he didn't see that, but he thought they needed to take a hard look at his people. REPRESENTATIVE MASEK said she grew up in Anvik on the Yukon River and chose to leave about 10-years ago. She has heard the culture is diminishing, but that there are people in the public and private sector who are trying really hard to protect and enhance health and to continue on with the traditional life-style. But, she asked, what kind of culture is there left when there is so much alcoholism. She said we can't go back into the past; we have to move forward and what the federal government is doing to people in rural areas is a disgrace. If people back there want to be proud, they can't have all these handouts and the benefits they are getting and still want more and more and more. She said there's more to it than just subsisting and having a traditional and cultural life-style. She said it's o.k. to help out people, but there has to be a check system along the way for all the benefits that are going out there. Currently, it's the saddest state since ANCSA and ANILCA came about. In the late 60's when she was growing up they didn't have food stamps and welfare. No one was fighting about fishing and hunting; they had to work to survive. Today that life-style is totally changed. No one wants to take away the tradition and life-style, but the question goes way beyond their right to hunt and fish. It goes to the future and where do we want to go as a State. What is rural Alaska going to in 20-years when there's no fish or caribou because there is no State management to protect the resource for the future of all Alaskan people. MR. BABCOCK responded that he thought there needed to be co- management. Our children is our most precious resource. Tradition carries the values and morals forward with it. REPRESENTATIVE MASEK said yes we can look at everything in the past, but we have to move forward. In this society today we are all Alaskans and U.S. citizens even though our skins may be a different color. We are all here as humans and we have to be treated equally. She said we have to work together. MS. MARY BABCOCK, Yupik native, said that there are people in villages who don't have translators to tell them what is going on. She came from a very well-to-do family and she is very proud of her culture. They had their own doctors, psychologists, and dentists. They didn't need certificates. She said she would like to eat her native food, but she can't. She said she would like her grandchildren to have what she has. SENATOR LINCOLN thanked her for speaking and for bringing her daughter. She said she thought that both sides, if there were sides, would have to give a little bit. She asked what was her greatest worry for her child and her grandchildren if subsistence is no longer available as she knew it. MS. BABCOCK said there are those that go around and kill, but don't need it. People that don't care and don't use the animals. She said her family does not waste anything. She grew up using moose and caribou. TAPE 97-42, SIDE B SENATOR TAYLOR said there is a lot of misinformation. The federal government in 1980 passed a law saying if you live in a city that is too large, you do not qualify for subsistence and this is the law that we are fighting. Alaska should have a solution that will take care of all people. SENATOR LINCOLN said she took exception to Senator Taylor's comments about the federal government. She didn't want anyone leaving this room thinking it's just the federal government because we, the State government, have some ills. We make laws and can change some of those rules. She said this body could have put the question of rural preference before the people, but they chose not to. MR. BUD SMYTH said he had spent some time on a reservation and it was a pretty good place for those who could hunt there. He didn't believe, necessarily, in that kind of privilege. Subsistence is a life which is pretty hard to take away from everybody. The issue will shape all of Alaska's future. He thought they needed to put some choice before the people to a vote on, but he didn't know if they wanted to vote on the Task Force proposal or any question that smacks of any politician questionnaire. If there is a preference they should name it for what it is. He said the natives who testified didn't testify for subsistence; it was for sovereignty and autonomy - to have a voice in what happened in their own backyard. He said they feel powerless and are threatened by some of the ways and postures that the legislators, in particular, put out. Former Governor Jay Hammond said something about local subsistence which he didn't think was a bad idea. He didn't think anyone wanted someone else running over their backyard. He said there is obviously less game around Anchorage, but if we manage our game properly we can tell the people in Anchorage where to go. There is no need for a preference, if there's no shortage, if everyone has a reasonable chance of getting it. He didn't think we had to amend the Constitution which is pretty fair, but it could be one of the choices to vote on. He concluded saying that he believes in state's rights, but mostly he believes in individual rights. MS. KATHLEEN HARMS said she thought we are failing to address the real matter and how it affects our future as Alaskans. The depth and significance of the real matter at stake has rendered Alaskans afraid of any ordinary resolutions; it is the reason we fight so ferociously and intransigently for our side of the argument. She said she is very proud that we are struggling. She said there can be no balance struck between identical forces. The truth is that the earth is our mother; her gifts are our lifeline; we human beings must not and cannot be turned away from her by law, alienation, misbegotten altruism or self regard. The fighters for subsistence all believe in and love the same truth. The real conflict she sees is the way of the past and the necessities of the future and these are sucking the energy out of our ability to visualize a future and to give our children a reformed and regenerated culture through which to live. She said we must ask the real questions which are: Who do we as Alaskan people want to be? Do we wish to be many, several - one? How do we want to become? What kind of culture do we want to be? She said it is their duty to bring this matter to an election that has not one yes or no choice, but several choices that represent different directions our people may envision for us. MR. STEVE MILLER said he felt this matter is a bitter pill that is being shoved down Alaska's throat and is a wedge for demagogues to use to try and divide the people of Alaska and conquer. MR. MILLER said he has great respect for people in the bush. They have many problems, but they have many assets. He said that subsistence is a way of life for his family, too. He told the committee that this issue has to be dealt with now rather than later. MR. DUANE ANDERSON said he had taught in the bush and knows that they primarily have a system of welfare and subsistence with exceptions for certain communities. He urged the committee to resolve the issue and to read an article that he wrote for the Anchorage Daily news on Friday. He said he knew of no Alaskan who would vote to convict another Alaskan of a federal fish or wildlife subsistence charge. He related how in 1964 he visited Arctic Village and found the inhabitants had a dollar economy, but went out to the huge caribou herd that came by and slaughtered them only to use a quarter of the meat. He strongly supported Representative Masek's words that life in the villages is a dead-end and urged villagers to face that fact and create a new future. In conclusion he said he would never vote to sacrifice Alaskan people on the block of the federal government just as much as those fifty-five who said, "Give me liberty or give me death." He implored them to find the difficult answers. MR. ROBERT HALL, Houston Chamber of Commerce, said fishing king, red, and silver salmon on the Little Su has been a popular major local activity for many years. Before the Parks Highway came through in the late 60's, local residents fed their families throughout the winter on salmon they caught in the Little Su and many of them still live there today. However, they are limited to the few salmon they are allowed to harvest pursuant to sportfishing regulations. For many of them fishing is a way of life, but unfortunately the opportunity to harvest all salmon of all species has been decimated. He asked the committee to use the subsistence issue as a way of retaining control of fish and game, but also to review and make major positive changes in the way we manage fish and game in Alaska. He asked them to consider aspects of the modified Hammond proposal that was just distributed to them which defines all of Alaska as a subsistence area and all Alaskans as subsistence users and grant subsistence users are priority in the game management area they reside. This proposal has received wide support. SENATOR LINCOLN asked if in listening to Mr. Mallott's rationale of locking the members of the Task Force together to work on a solution, would he have conducted the resolution of this matter any differently than what is being done now. MR. HALL answered that he hoped the proposal was just a springboard for discussion. TAPE 97-43, SIDE A He thought this whole crisis was being driven by the fear of reallocation from commercial fishermen. He said he appreciated the opportunity to testify. MR. GENE STRAATMEYER, Pastor, Wasilla First Presbyterian Church, said they have a long relationship with RuralCap which sponsored a subsistence round-table that drafted a proclamation. They encouraged Alaska native and their efforts to maintain their culture, their subsistence, their way of life, and exercise stronger control over their own communities as the Alaska Native Review Commission has recommended. The churches of Alaska believe this is a moral issue and believe that subsistence and sovereignty are understood. SENATOR LEMAN said he was trying to figure out how his position was consistent with the AFN and the Task Force proposal. He asked what he wanted Alaskans to vote on. MR. STRAATMEYER replied to amend the Constitution to allow a rural preference on subsistence. SENATOR LEMAN said he also got into other issues like co-management and wondered if he really understood what he was asking for. MR. STRAATMEYER responded that their position is that whatever position keeps subsistence for native people gets their support. Including rural subsistence would be appropriate. SENATOR LEMAN asked if he sensed there was any organized effort by the legislature to deny that. MR. STRAATMEYER answered that he feels that. SENATOR LEMAN asked him explain the moral issue. MR. STRAATMEYER said a vote would allow them to vote on an amendment that would keep a rural preference for the State and which he personally favors. SENATOR LINCOLN asked if he believed if it were rural preference that the sharing and caring with friends and relatives in urban Alaska would be forgotten. MR. STRAATMEYER answered that he didn't think they would be forgotten. MR. AL DONER said as a taxpayer and a citizen of Alaska and the United States, the only thing that's important is for both constitutions to not be trashed. Any proposal to amend the Constitution is a step backwards. He thought we are all equal under our Constitution and we have to keep that in there. He thought we should use our time and energy to enhance our resources rather than try to deal with this issue. He supported Representative Masek's remarks and thought the rural provision was terrible. MR. JAMES GARHART said he wanted to remain a sovereign State. If we compromise our rights, we've just kind of given up. Harvesting a resource for non-commercial life-sustaining personal use is subsistence. Denying subsistence is not management, it's genocide. It has to be based on need. MR. DON CHRYSON said he disagreed with the overall plan and with our State coming under the federal rule as far as subsistence is concerned. On pages 10 and 19 sport hunters are to be on advisory boards and regional boards. In most cases the number of sport hunters are so miner or they don't exist at all. There is no reference to sport hunters being on any of the park committees. He suggested adding a section that would take care of unit 13 moose and caribou subsistence hunters, the Kenai moose hunters at Tustamena, the Lake Clark/St. Elias sheep hunters, and the Round Island walrus hunters all of whom are trophy hunters. He suggested that subsistence hunting in general have the trophy value of their game destroyed. This would not interfere with their food, but would reduce the problem of people coming into reserves for trophies. MR. ROB HOLT, professional hunter, said he thought the issue was the eastern environmental establishment and their ability to control whatever happens on federal public land. The native people who live in the villages and live the subsistence lifestyle will not go hungry. He said that federal regulations don't enter into their lives; however, they can regulate guiding away. They could use the rural priority without going through the federal subsistence board to deny a permit. He thought everyone needed to get together to do whatever we can to get rid of Title 8. MR. HOLT thought the fact was that the native people who truly live that lifestyle will continue to live it no matter what happens, and that's fine with him. The only way they could get rid of Title 8 was to offer some serious concessions to the organized native community. He informed them that subsistence precludes natives from becoming professional guides and entering into another lifestyle because no one can hunt professionally on their land. SENATOR TAYLOR thanked him for his comments and said there is another alternative which is to bring a direct action suit against the United States Supreme Court challenging ANILCA, Title 8. SENATOR LINCOLN also thanked him for his comments, but said in her district it's not that simple to go out and get a moose or caribou whenever you want. Some people do poach, but that isn't a recognized practice. She also wanted to clarify that there were many people who are rural who are also non-native. There is another alternative which is to let people vote on rural preference. MR. HOLT responded that when he travels to villages, the people he sees are hunters. However, there are a lot of people who don't hunt. He was not suggesting that they poach, he was suggesting that the federal government will not regulate subsistence. They might like to think they will regulate that lifestyle, but they will not. TAPE 97-43, SIDE B He reiterated that in the long run, if there were concessions made to natives to get this behind us, it would be o.k. MR. MARK CHRYSON, Vice Chairman, Alaska Independence Party, agreed with the gentleman from Houston in that all Alaskans are subsistence users. He did not think that taking of food to feed people would stop just because someone doesn't live in what is designated as a rural community. Regarding the Task Force proposal he thought its acceptance would be submission to blackmail. He thought we need to challenge Title 8 in the Supreme Court because it is unconstitutional. It denies Alaskans, regardless of their color, the ability to feed themselves. MR. CHRYSON said they, as legislators, should stand up for Alaska and quit cow-towing to the federal government. REPRESENTATIVE OGAN commented that they have attempted to stand up for Alaska with the Babbitt suit that was dropped. Unfortunately, the Constitution does not allow the legislature to litigate; that comes from the Governor's office. MR. CHRYSON responded that the legislature has only been in power for a few years and his point is that we have to do something now. SENATOR LEMAN asked him how he thought they were trying to shove this plan down their throats. MR. CHRYSON said he just wanted them to understand that he did not want the Task Force proposal. MS. BEVERLY CLOUD said she serves on the Board of Directors for the Pedro Bay Village Corporation since 1989. She goes there to subsistence fish. She said it is very important for these activities to continue especially for the people who live in the cities, because they go back to the villages to hunt and fish. She didn't really care who was in charge of subsistence, the State or the federal government. She just wanted to continue to do what she had been doing as her grandmother had and her grandmother before her. She opposed tying income to subsistence. SENATOR TAYLOR asked who or what was threatening her subsistence lifestyle right now. MS. CLOUD replied if it was suddenly illegal for her to live here and travel to her tribal lands and fish. SENATOR TAYLOR explained that today that is illegal under ANILCA because she lives in a large community, but they have chose to not yet to enforce that law. He said the threat is that they are going to start enforcing it. MS. CLOUD stated that she is for a rural preference and thought that was the only way to have co-management. She said that people in Pedro Bay know what the conditions are when the fish come in. SENATOR TAYLOR explained that a rural preference would exclude 60% of the native people who qualify now in the State of Alaska. REPRESENTATIVE JOULE commented that the State suggested using the term "rural" in ANILCA. CHAIRMAN HALFORD said that it was suggested by the Department of Law saying it would not be enforceable otherwise and the Governor who didn't think it was fair back in 1980. MS. CLOUD said without apology that because of her history she feels she does have a right whether it's the federal government or the State of Alaska that grants it. MR. JIM STOCKER, 23-year Alaskan resident, said we could argue subsistence until the cows come home and not get anywhere. He is wondering why no one has begun to impeachment Governor Knowles because he took the Babbitt case away. He thought that was an act of treason against the State of Alaska and the people. As long as the federal government is involved, management is only going to get worse. CHAIRMAN HALFORD thanked everyone for their participation and adjourned the meeting.