SENATE RESOURCES COMMITTEE Soldotna, AK September 26, 1997 1:00 P.M. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Loren Leman Senator Robin Taylor Senator Georgianna Lincoln Senator John Torgerson MEMBERS ABSENT Senator Lyda Green, Vice-Chairman Senator Bert Sharp ALSO IN ATTENDANCE Representative Scott Ogan, Co-Chairman, House Resources Committee Representative Bill Hudson, Co-Chairman, House Resources Committee Representative Beverly Masek, Vice Chairman, House Resources Committee Representative Reggie Joule Representative Bill Williams - Via Teleconference COMMITTEE CALENDAR Interim Hearing on Subsistence WITNESS REGISTER Commissioner Frank Rue Department of Fish and Game P.O. Box 25526 Juneau AK 99802-5526 POSITION STATEMENT: Presented the Governor's Task Force proposal for subsistence. Mr. Bob Penney Cook Inlet Sportfishing Caucus (CISC)20 937 Keystone Soldotna AK 99669 POSITION STATEMENT: Commented on the Task Force proposal. Supported having people vote on constitutional amendment. Mr. Jim Rearden 413 E. Lee Dr. Homer AK 99603 POSITION STATEMENT: Commented on the subsistence issue. Mr. Ronald Patterson Kenaitze Tribe 1003 Crow Ct. Kenai AK 99611 POSITION STATEMENT: Supported parts of the Task Force proposal. Mr. Herman Fandel 702 Lawton Dr. Kenai AK 99611 POSITION STATEMENT: Commented on the subsistence issue. Ms. Becky Hultberg 35561-B Kenai Spur Hwy. Soldotna AK 99669 POSITION STATEMENT: Opposed Task Force proposal. Ms. Mary Ann Mills Soldotna AK POSITION STATEMENT: Commented on subsistence issues. Mr. Dennis Randa P.O. Box 3055 Juneau AK 99669 POSITION STATEMENT: Opposed a constitutional amendment and spoke on citizens' rights. Mr. Don Johnson P.O. Box 876 Soldotna AK 99660 POSITION STATEMENT: Opposed Task Force proposal. Mr. Larry Lewis P.O. Box 403 Kasilof AK 99610 POSITION STATEMENT: Opposed the Task Force proposal. Ms. Mel Krogseng P.O. Box 3913 Soldotna AK 99660 POSITION STATEMENT: Opposed the Task Force proposal. Supported amending ANILCA. Mr. Seymour Marvin Mills P.O. Box 51 Sterling AK 99672 POSITION STATEMENT: Opposed Task Force proposal. Mr. Ron Dolchuk P.O. Box 13 Kenai AK 99611 POSITION STATEMENT: Commented on subsistence issues. Mr. W. T. Maner 322 N. Fireweed Soldotna AK 99660 POSITION STATEMENT: Opposed the Task Force proposal. Ms. Elaina Spraker, Chairman Kenai Peninsula Outdoor Coalition P.O.Box 3336 Soldotna AK 99660 POSITION STATEMENT: Goal is to remove federal subsistence priority from the Kenai Peninsula, except in the villages of Nanwalek and Port Graham. Opposed Task Force proposal. Ms. Pepper Johansen HC 1, Box 1513-10 Kenai AK 99611 POSITION STATEMENT: Commented on the subsistence issue. Mr. Joe Cloud POSITION STATEMENT: Opposed the Task Force proposal. Mr. Ben Ellis, Executive Director Kenai River Sportfishing Assoc. P.O. Box 1228 Soldotna AK 99669 POSITION STATEMENT: Supported certain aspects of the Task Force proposal. Ms. Debra Horne P.O. Box 592 Kasilof AK 99610 POSITION STATEMENT: Opposed Task Force proposal. Mr. Theo Matthews, President United Fishermen of Alaska (UFA) P.O. Box 69 Kasilof AK 99610 POSITION STATEMENT: Supported Task Force proposal as a starting place. Mr. Bob Krogseng P.O. Box 3913 Soldotna AK 99660 POSITION STATEMENT: Opposed Task Force proposal. Ms. Victoria Hermansen HC 3, Box 3151 Soldotna AK 99660 POSITION STATEMENT: Opposed amending the Constitution. Mr. Randy Shumate, President Local Chapter Safari Club International P.O. Box 443 Soldotna AK 99669 POSITION STATEMENT: Supported amending ANILCA. Mr. Jim Ray, Sr. P.O. Box 467 Sterling AK 99672 POSITION STATEMENT: Supported changing ANILCA. Ms. Karen McGahan Route I, Box 767 Kenai AK 99611 POSITION STATEMENT: Opposed Constitutional amendment. Mr. Bob Bird HC-1, Box 3531 Kenai AK 99611 POSITION STATEMENT: Opposed Constitutional amendment. Mr. Karl Kircher, Executive Assistant Kenai Peninsula Fishermen's Association P.O. Box 95 Kasilof AK 99610 POSITION STATEMENT: Supported concept of Task Force proposal. Mr. Sam McDowell 336 E. 23rd Ave. Anchorage AK 99503 POSITION STATEMENT: Opposed Task Force proposal. Mr. Richard McGahn Rt 1, Box 767 Nikiski AK 99635 POSITION STATEMENT: Opposed Task Force proposal. ACTION NARRATIVE TAPE 97-44, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting in Soldotna, Alaska to order at 1:00 p.m. He announced they would begin with a presentation from the administration on the Governor's Task Force proposal. He noted that major amendments had been made on September 23. COMMISSIONER FRANK RUE, Department of Fish and Game, said the primary goals of the proposal are to achieve effective State authority over fish and game management on all lands and waters in Alaska and to recognize the paramount importance of subsistence as a way of life to Alaskans. He said Alaskans may be reluctant to amend the Alaska Constitution without knowing what changes will be made in the Alaska National Interest Lands Conservation Act (ANILCA) and the State fish and game statutes. The solution is a linked package of amendments to ANILCA, the Alaska Constitution, and the Alaska statutes. He emphasized that the effective date of the ANILCA amendments and the State statutory amendments will be the date of the passage of the constitutional amendment. Voters will know exactly what is in the ANILCA amendments and the state statutory amendments when they vote on the constitutional amendment. The package will include a congressional determination that the State, upon passage of the constitution amendment and implementation of the revised statutes, is in compliance with ANILCA and may resume fish and game management statewide. CHAIRMAN HALFORD asked what if the constitutional amendment is proposed and approved by the legislature to go on the ballot and no changes are made to ANILCA or to the other statutes, but the constitutional amendment passes, does the linkage work both ways. COMMISSIONER RUE said it worked in a couple of ways. The voters would go to the polls knowing there were no changes to statutes or ANILCA and they could make their decision on the Constitution based on that. CHAIRMAN HALFORD asked if the Task Force expected him, a legislator, to approve a constitutional amendment based on no linkage guaranteeing change to ANILCA or change to statutes. COMMISSIONER RUE explained that the constitutional amendment is simply permissive; it doesn't require the legislature to do anything. REPRESENTATIVE OGAN said he thought the language was permissive, but everyone knew it wasn't permissive because if they don't manage according to rural priority the federal government will take over. COMMISSIONER RUE agreed with that statement. He commented if you don't amend the Constitution and don't have a rural priority, you'll get dual management. If you amend the Constitution with a permissive language and don't change the statutes, you may still be out of compliance with ANILCA and you may still have federal management. So you could end up with the same results. REPRESENTATIVE OGAN said the permissive language in the constitutional amendment is a smoke screen because, if we don't amend our statutes, we still get federal management. COMMISSIONER RUE explained the key is that they are all linked and that ANILCA needs to be changed for consistency. One of the proposed amendments to ANILCA basically says the State is in compliance and may from the time of this amendment manage the resources on all lands. CHAIRMAN HALFORD asked if we had a linked package, wouldn't the constitutional amendment say that this only takes affect if ANILCA is amended in these specific ways. COMMISSIONER RUE answered that might need exploration in the committee to be absolutely sure. SENATOR TAYLOR said he thought Representative Ogan was trying to ask if we pass all of the package, and the people of Alaska vote to amend their constitution, and at some point after that a federal court judge decides (maybe five-years from now) that we are not in compliance with ANILCA, federal management takes over period; no matter what congress did or we did with our Constitution. Everything we have done is irrelevant and we haven't taken away any federal oversite. COMMISSIONER RUE responded that it may happen that the State will fall out of compliance again, if they don't manage for rural priority. SENATOR TAYLOR said he thought the law would be challenged in the federal courts as we move along as a State. He thought they were assuming we would win on all those challenges in court, but our batting record in federal courts on ANILCA cases is not very good as a State. COMMISSIONER RUE said the package does not remove federal oversite on federal lands and obviously does not get rid of ANILCA. It does define some of the key terms in ANILCA that have caused problems like rural, customary and traditional, and customary trade. It also says the federal courts will give the State managers deference and can only overturn their decisions if they are arbitrary or capricious. It tries to define the federal court's latitude in overturning the decision. This is the intent. COMMISSIONER RUE said simultaneously with the constitutional amendment, State statutes would be amended to create a rural subsistence priority. Those statutes and the ANILCA amendments would become effective only if the constitutional amendment is passed. The proposed State statutory amendments grant the rural priority. Communities outside the current non-subsistence areas, as defined in the State statute, will be defined as rural on the day the state regains management. The Boards of Fisheries and Game acting jointly through regulation will have the power to change community classifications (add or delete) in the future as communities change. The State statutes will also be amended to: a. improve the proxy hunting and fishing provisions; b. provide for educational hunting and fishing permits; c. clarify the definitions of "rural," "customary trade, " and customary and traditional;" d. make clear that the subsistence priority is a reasonable opportunity to take, not a guarantee of taking; and e. refine the subsistence management system, including adding a State Regional Subsistence Council system. COMMISSIONER RUE said the ANILCA amendments fall roughly into four categories focusing on definitions. REPRESENTATIVE HUDSON asked where the definition of rural preference was to satisfy ANILCA. COMMISSIONER RUE responded that the key for the State to get back into compliance on federal lands is to have the word "rural" in our statutes. The constitutional amendment simply authorizes the legislature to use that term in our statutes. Once our statute says that, we will be able to manage on federal lands. REPRESENTATIVE HUDSON said he thought the change to the Constitution was ambiguous. COMMISSIONER RUE answered that he thought it allows the legislature to use the word "rural" or "place of residence" as a way to provide for a subsistence priority. Currently the Constitution distinguishes between uses. He explained that currently our statutes have a subsistence priority, but we have to use a Tier II system with an individual scoring system to provide a priority. This would allow them to use rural instead of a Tier II process to give a priority. SENATOR TAYLOR asked what section of our Constitution is changed or amended by adopting this Constitutional amendment. COMMISSIONER RUE answered Section 1, Article 8. SENATOR TAYLOR stated in fact it is the equal protection clause of our Constitution that gets amended and thought the amendment allows the legislature to discriminate between users. COMMISSIONER RUE said that was correct as he reads it. He said now we discriminate between users through a Tier II system or a drawing permit, etc. SENATOR TAYLOR said the 14th amendment of the U.S. Constitution which was used to approve our Constitution, demands that we treat all people equally. He said there was a lot of confusion about what happens to a person if his house is in the wrong town. COMMISSIONER RUE responded that in the situation in which someone lives in a non-rural area and wants to go to a community that's designated rural, one of the things that could happen would be if there's enough resources for everyone, he could go out and get fish under personal use and the State could establish that as is in Chitna. Under the federal management you wouldn't be allowed to do that because the subsistence "rural" user might have a priority. Under a system where all lands are managed by one entity you may have multiple fisheries going on. SENATOR TAYLOR said the real issue is if the person has a subsistence right under Title 8 of ANILCA. COMMISSIONER RUE agreed that if there's only a subsistence fishery and it's only rural and you don't live in that community, you won't be able to fish or hunt in that area. SENATOR TAYLOR added that you wouldn't be able to either if the State takes over and there are limited resources. Commissioner Rue agreed. SENATOR TORGERSON asked if there was a definition in the proposal of renewable natural resources. COMMISSIONER RUE answered no. It could be any resources the legislature and/or the Boards determine people use. REPRESENTATIVE OGAN said the proposed constitutional amendment expands the definition to not only give a rural priority on fish and wildlife, but also other renewable natural resources. He asked if that was required by ANILCA. He asked where that change came from. COMMISSIONER RUE said he thought it was in ANILCA now as well as in other State law. He added that subsistence users use a lot more than fish and wildlife. CHAIRMAN HALFORD asked if it isn't left up to the discretion of a federal judge. COMMISSIONER RUE said that was correct. CHAIRMAN HALFORD said in every case expansions have been made by the federal judiciary and the legislature has only been able to react to those expansions. COMMISSIONER RUE responded that a number of issues raised by those cases are defined in the proposal. It clearly says that subsistence is subject to bag limits and seasons. CHAIRMAN HALFORD asked if this proposal reverses the Bobby Case. COMMISSIONER RUE replied that the Bobby Case says you can still have bag limits and seasons which we do. CHAIRMAN HALFORD said the federal limit is year-round - 40 moose for a community of less than 40 people. COMMISSIONER RUE said he understood it to be during a season right now. CHAIRMAN HALFORD asked if the intent was to reverse or limit the Bobby Case with regard to reasonable opportunity v. wide-open seasons. COMMISSIONER RUE said it does reverse that. SENATOR LINCOLN said she wanted it on the record that this proposal was signed-off by the Governor, the Lieutenant Governor, the President of the Senate, the Speaker of the House, a former Governor, a former Attorney General, and the Executive Director of the Alaska Permanent Fund. She thought that surely somewhere in all the discussions that have gone on there has to be a discussion of these definitions. COMMISSIONER RUE said he wasn't part of the discussions and didn't know. He thought the definition would allow for kelp and those kinds of specific findings. He noted that the Peratrovich Case set limits for (under federal law) the amount of resource that could be taken - $15,000 per person and $70,000 aggregate for sale on the commercial market. SENATOR TAYLOR said he didn't think that case said it was a limit, but just a floor. It's hard to tell whether there is a right out there for unlimited taking. COMMISSIONER RUE said he thought the definitions of barter and customary trade put definite limits on what qualifies. The intent was not to have it be a commercial activity and focus on quantities. SENATOR TAYLOR said he had been told before that was the intent, but there is no specific language in there. The first draft had terms of values - money and cash. The new words are quantity. He suggested that means in the future having a Board define every single species and subspecies that may possibly be taken and then defining wights and measures of some type that will determine when and if it becomes commercial. ANILCA just says barter and trade. If he were a subsistence user and found his regulations offensive, he would immediately go to a federal court and ask a federal judge if this is what ANILCA meant and then the judge would throw it out. He said there aren't any notes and they didn't know who suggested those words. He rhetorically asked how much a big quantity of bear gall-bladders or horns-in-the-velvet he would have to have to be significant. COMMISSIONER RUE responded that the language says first of all it has to be non-commercial and secondly in limited quantities. He restated that this is only a proposal for them to discuss. One of the reasons for not using cash was because that value can change dramatically whereas they have found from studies done around the State the amounts of berries or fish that are traded between people between communities doesn't change much. They decided to use quantity because it is less volatile and could be tracked better. SENATOR WARD asked who in Kenai, Soldotna, and Nikiski qualifies for subsistence under the rural preference in this proposal. COMMISSIONER RUE replied only people in Port Graham, Nonvalnuk, and Seldovia. SENATOR WARD repeated his question. COMMISSIONER RUE responded that use could be allowed under the educational permit. Right now the Keneitze have a right to take some fish as a passing on of the traditions of their tribe. TAPE 97-44, SIDE B SENATOR WARD said he thought the reason Title 8 was put into ANILCA was to resolve some of the indigenous people's aboriginal rights to subsistence. He said he is Athabascan and now he has a lot of people growing up around him and there are people in the Coast Guard in Kodiak who get to do subsistence, but he doesn't. And neither do any of the Alaska Native Indians who had a community grow up around them. He asked what discussion the committee had on this issue. COMMISSIONER RUE responded that the discussion, as he understands it, is that urban areas like Kenai and Saxman would no longer have a rural priority. It would be up to the joint Boards to decide if a community should have rural priority. Under this proposal rural would be defined. "Rural" in federal law is now defined by a court case which talked about cattle and grazing and didn't really apply to Alaska. So communities on the roads basically would not have a rural priority. They would have to use personal use fisheries like on the Kenai or the educational permit. SENATOR WARD said he saw a press release in which the Lieutenant Governor said that the Alaskan people supported a native preference when it came to ducks and waterfowl before a U.S. congressional committee. He didn't know if she meant native preference or rural preference and asked if he knew. COMMISSIONER RUE replied that the waterfowl treaty amendments that were negotiated between Canada, the U.S, and Mexico talk about indigenous inhabitants. The administration's definition of indigenous residents are natives and can be non-natives as well. The definition is there for those areas where there has been a tradition of spring waterfowl. He explained that the proposal allows for two things basically. If you live in an urban area, you hunt and fish either under commercial/sport/personal use regulations and/or if you are invited back to the community where you have family, you could hunt for your father or your uncle, but the resource would belong to them. SENATOR WARD asked if it had to be a blood relative. COMMISSIONER RUE said he thought the definition was blood relative or live in a household out there. You can't be just visiting someone. SENATOR TAYLOR asked where the current federal regulations that we are going to have imposed upon us come from if there wasn't authorizing language within ANILCA for those things to be done. COMMISSIONER RUE replied there was authorizing language for the Secretary of Interior to establish subsistence rural priority on federal lands. SENATOR TAYLOR responded no there wasn't. He explained that we, as a State, brought a suit against the federal government saying that it wasn't the Babbit Case which was dismissed with prejudice by this administration and following that, we have seen subsistence regulations being proposed by agencies. COMMISSIONER RUE replied that they appealed the question of where federal authority goes under the Babbit Case and the Supreme Court refused to hear it. The question that was not pursued is who qualifies as a subsistence user on federal lands. He said the proxy does talk about a family member. COMMISSIONER RUE reviewed the proposed ANILCA amendments saying that customary and traditional is defined as non-commercial, long- term and consistent taking of, use of, or reliance upon fish or wildlife in a specific area and the patterns of taking that fish or wildlife. CHAIRMAN HALFORD noted that an "and" on the second line of that was changed in this draft to say "or reliance upon fish and wildlife." By changing the "or" at the end of that series from "and" you can meet any one of that list and still be customary and traditional. COMMISSIONER RUE said that was correct. CHAIRMAN HALFORD said that was the kind of significant changes they were just learning about in this report that make a big difference in how the federal law would read. COMMISSIONER RUE said he thought the intent of this one was you may not actually be the taker of the resource, but you are still reliant on the resource. They did not want to exclude people who weren't the actual harvesters. CHAIRMAN HALFORD said one of the other changes was from minimal value to minimal quantity. COMMISSIONER RUE said that was correct and it was under the customary trade definition. He repeated that quantities don't tend to change and can be measured in any one year, but the dollar equivalent may change dramatically. The third definition defines a rural resident. He didn't think the intent changed, but the language was made simpler. It defines a resident rural community or area and defines it as substantially dependent on fish and wildlife for nutritional and other subsistence uses. CHAIRMAN HALFORD said the previous definition in State law was a community in which the principle characteristic of the community is subsistence use. COMMISSIONER RUE agreed. He said then the statute defines rural by those areas that have been determined by the Boards as rural or non-rural. That's the starting point. Then the joint Boards get to decide if folks should be in or out at that point. COMMISSIONER RUE reiterated that the Governor's Task Force did not have the authority to vote on anything; they are simply providing the people of the State a proposal to look at as a starting place. He understood the intent to be for nutritional and other subsistence uses rather than a principal part of the economy. REPRESENTATIVE WILLIAMS said a part of the negotiated settlement in ANCSA of 1971 was the subsistence they are talking about and asked if that was brought up in any of the Task Force discussions. He asked if the proposal expects both the Secretary and the State to take any action necessary to protect the subsistence needs of the Alaskan natives. COMMISSIONER RUE said it was and there was also recognition that ANILCA using the word "rural" as a way to achieve a subsistence priority was a compromise and a way to address this issue. SENATOR TAYLOR asked if he had heard under the Governor's plan that Saxman would be considered a urban community. REPRESENTATIVE WILLIAMS said he had. COMMISSIONER RUE read on page 5, of the ANILCA amendments that said a new paragraph would read the priority granted for this section is for a reasonable opportunity to take fish and wildlife. A reasonable opportunity consists of a customary and traditional use to participate in a subsistence hunt or fishery with a reasonable expectation of success. Reasonable opportunity shall not guarantee taking of fish or wildlife. CHAIRMAN HALFORD asked what that meant. COMMISSIONER RUE said it meant that you don't absolutely guarantee every user that they will get the resource. CHAIRMAN HALFORD asked if a community, like Lime Village, that has had federal management for the last eight years with a year-round season with more moose allowed to be taken than there are people, is taking that many moose as a tradition and is the year-round season what a reasonable opportunity is going to require. COMMISSIONER RUE answered that he didn't agree there was a year- round season on moose; there was on caribou. Assuming there was... CHAIRMAN HALFORD said under federal regulations there is a year- round season on moose; State regulation is five months. COMMISSIONER RUE answered if, for instance, there was a five-month season on moose, the Board would look at if there has been a customary and traditional five-month season for moose and they would expect to continue that. They would also look at how much is reasonably necessary for a community and if there was a sustained yield concern you would restrict the season or close it. CHAIRMAN HALFORD said the whole problem was the court case that this is trying to address which says you have to have eliminate all other uses before you can do any of these. COMMISSIONER RUE added that you have to look at what is traditionally necessary. If there was a tradition of 20 moose over a three-month period there would be no reason to change that. A wide-open season with no bag limit would be a different concern. SENATOR LINCOLN asked what "reasonable opportunity shall not guarantee taking of fish and wildlife" meant. COMMISSIONER RUE answered it means that bag limits and regulations don't have to guarantee that someone will be successful. REPRESENTATIVE OGAN said he had George Utermohle research some court cases on subsistence and in his conclusions he wrote the Board may not consider the availability of a game or fish population as a factor in restricting or reducing the demonstrated customary and traditional uses. It may impose season bag limits on subsistence hunting and fishing since restrictions are consistent with customary and traditional uses. It also says it must first eliminate other consumptive uses before restricting the customary and traditional uses of game for subsistence purposes. COMMISSIONER RUE said the proposal for the State statute talks about what to do when there's enough resources for subsistence and other use and what to do when there's just enough for subsistence in that area for that resource and then what you do when there's less than enough for subsistence. The next change to ANILCA he explained was on page 6, the definition of federal land. The intent is to be explicitly clear that it doesn't include lands that have been titled to the State after December 2, 1980. It does not include native lands, other private lands, or native corporations' State land selections defined in subsections 3a and b below. REPRESENTATIVE JOULE asked if the community had taken their limit yet this year. COMMISSIONER RUE said he would have to check. REPRESENTATIVE JOULE asked if the resource had suffered because of that limit. COMMISSIONER RUE answered that he didn't think it had, at least on State lands. CHAIRMAN HALFORD said that Lime Village is a poor case and he didn't think there was much significance in how many moose that village takes. The question is what happened when it went to federal court and established a precedent that says you have to have eliminated other uses before you can limit that use at all. COMMISSIONER RUE answered that he thought the definition changes and the statutory changes make it clear that subsistence uses are subject to seasons and bag limits and he thought that was important. SENATOR TORGERSON asked in the case of Lime Village would they wait until they got their 40 moose or if they got 20 moose half-way through the season, would their management scheme restrict the resource to the other users until they got their 40 moose and what triggers the subsistence priority in that case. COMMISSIONER RUE explained that the Board of Fisheries would look at what is reasonably necessary for the community, let's say 40. They would look at what the department says in that area, and the area has to be defined. Then find how many moose are available in that area. If 200 moose are available in that area, the Board of Game would say that 40 moose can be taken by Lime Village residents over so many days and it would be either an open hunt or a drawing. Then they would establish a sport season in that area. They would only restrict those sport hunters if the 40 moose is the surplus amount and they are needed for the community. SENATOR TORGERSON asked if the department had made the determination that 40 moose are available in Lime Village or was that settled in federal court. COMMISSIONER RUE said he would have to look at the specific finding. SENATOR TORGERSON said he understood the court settled on 40 moose as customary and traditional and there wasn't anyone out there to actually get a head count. He didn't know how they would restrict the priority use of the users if they did get a nose count. COMMISSIONER RUE said they would have to have a count and would have to say if there are only 20 moose available, they wouldn't guarantee them getting 40 and let the herd be harvested into oblivion. REPRESENTATIVE MASEK said she thought the definitions were the core of where they are at in finding solutions. She asked if the administration had given consideration to where we are as a society today, because she thought they had failed to recognize the levels of cultural changes in the rural areas. She asked if the definitions were relating to the 1920's or to 1997. Also regarding the proxy system, she didn't think it made sense to extend privileges in this matter because most individuals who are not capable of participating on their own are probably living in a cash economy and provided for by social services. TAPE 97-45, SIDE A Number 001 COMMISSIONER RUE responded that they have dealt with her concerns in one way by giving the joint Boards the ability to change a communities' designation as rural or not rural over time. That would be in response to a change in the communities' use patterns in size and growth and dependence on the resource. REPRESENTATIVE MASEK asked if it was traditional for the native people to use today's technology and would that be included in the definition. COMMISSIONER RUE replied yes and that would be taken into consideration. COMMISSIONER RUE commented next on page 10, Section 805 of ANILCA changed the composition of the Subsistence Regional Advisory Councils from the current federal process making the definition the same as it is in State law. CHAIRMAN HALFORD asked if this was an expansion of the federal mandates in Title 8 or a reduction, because he read the existing Title 8 as not requiring all these things in detail. When they are amending a federal law in the area of what it requires the State to do, why would they make Title 8 more controlling of the State. COMMISSIONER RUE answered that the thought was to put definition to the council to understand what they are and how they are composed so there is a dialogue between different user groups. CHAIRMAN HALFORD asked if the councils made recommendations on subsistence issues or on commercial fisheries, etc. COMMISSIONER RUE answered that they make recommendations on subsistence proposals and they could comment on other issues. The difference is that recommendations have a different weight with the Boards and that is spelled out in statutory changes. CHAIRMAN HALFORD asked if that meant you couldn't deny the recommendation unless you find overwhelming evidence. COMMISSIONER RUE said that was correct. There were four ways to overturn regional council recommendations - no substantial evidence, if it's contrary to subsistence or sustained yield; if there's a conflict between two regions and, if it's contrary to an overriding State-wide interest. Commenting doesn't carry the same weight and it doesn't require the Boards to demonstrate anything. SENATOR LEMAN said they were told by Joe Mason, Counsel to the Task Force, that it tried to do a minimal amount to bring the State into practical compliance with ANILCA and yet he thought they went beyond in this area and asked if there were any other considerations involved. COMMISSIONER RUE answered that the attempt was to clarify ANILCA with definitions and also have the two statutes consistent. They did not want an open-ended Regional Subsistence Council in federal law and then one that's defined in State law to have a certain membership and terms. Not to create a conflict between the two was the intent. SENATOR TAYLOR asked relative to council membership, if he had a definition for what a tribal council was. COMMISSIONER RUE answered he would look at federal recognition of tribes and who is recognized there. SENATOR TAYLOR asked if they had to mirror this in State law and how do they do that. COMMISSIONER RUE replied yes and his understanding was that this meant those recognized tribal councils under federal law. SENATOR TAYLOR asked if that was the 226 number he had heard talked about or another number. He asked if it was a racial definition. COMMISSIONER RUE answered that to be a member of a tribe he thought you had to be an Alaskan native. SENATOR WARD asked since Kenai had a traditional tribe and all of them are excluded from subsistence, they would not have an input into the tribal entities that are on the council. COMMISSIONER RUE answered under this proposal that is true. SENATOR WARD asked if the village of Tyonek wasn't getting as many kings as they usually get, under this proposal would they stop commercial fishermen from fishing until they got them. COMMISSIONER RUE answered assuming that Tyonek is in a rural area and they had a traditional use of kings for subsistence under customary and tradition findings, and they could not get a certain number of fish (80), the commercial fishery in this example would probably be closed until they did, if it was intercepting those fish. SENATOR WARD asked if that would affect the personal use and educational permits of the Kenai natives, too. COMMISSIONER RUE answered you would have to look at the situation to see if there is a direct connection. Educational permits do not have a priority. SENATOR LEMAN asked about management on intercepts that are fairly distant and where connection has been shown, like False Pass. How would the Board guarantee some reasonable opportunity in the river system. COMMISSIONER RUE said that was a good point and why they had terms like reasonable opportunity and no guarantee. They were going to have to use their best science to say what effect one particular fishery has on the next fishery and whether a reasonable opportunity could be provided up the line. REPRESENTATIVE MASEK asked where the funding would come from for the proposed regional councils. COMMISSIONER RUE replied that ANILCA talks about up to $5 million to help the State implement subsistence on federal lands. In the past they've given us about $2.5 million. The current federal subsistence council process is costing them a little over $1 million for 10 regional councils. REPRESENTATIVE MASEK asked if the regional councils were only advisory only to the Boards. COMMISSIONER RUE explained that they make recommendations to the Boards and are given deference and can be rejected based on the four criteria he mentioned earlier. REPRESENTATIVE MASEK said she wanted a yes or no answer and asked if they advisory only or are they authorized to make decisions. COMMISSIONER RUE said they are advisory only. CHAIRMAN HALFORD asked if they have any emergency authority at all. COMMISSIONER RUE replied no. REPRESENTATIVE HUDSON said he was concerned with the connection between the advisory mechanism and the final decision making of the Board regarding final allocations, and elimination of intercept fisheries. He thought the current wording was mushy and said they are trying to give more credence to the subsistence advisory mechanism, but they need to make certain that tight control remains in the over-all management of that run and the intercept uses of it as it goes along the line because there are clearly subsistence fish that go through False Pass. COMMISSIONER RUE answered that they had to look at several critical pieces. He thought it important that one Board, not two, address the issue of commercial, sport, and subsistence. If there is a federal board and a State board trying to do subsistence on State waters, plus sport and commercial, it won't work. The point is to have the State Board of Fisheries look at all three to try and make them mesh. He noted that many subsistence users are also commercial users. He said he thought reasonable opportunity not being a guarantee was critical so they didn't have to shut everyone down to provide one fish at the end of the pipe. REPRESENTATIVE HUDSON said that was his biggest concern about the potential loss of management. SENATOR TORGERSON asked if the boundaries were subject to change from administration to administration. COMMISSIONER RUE answered it was subject to change; that six members were needed. He hoped it wouldn't be whimsical, because it wouldn't be a cheap thing to do. SENATOR TORGERSON asked why they didn't put boundaries in statute. COMMISSIONER RUE replied that the idea was that subsistence would change over time and communities may not be rural in 20-years under the definition. SENATOR TORGERSON asked if renewable natural resources were left out of the recommendations possible from the regional councils. COMMISSIONER RUE answered that was probably an oversight. SENATOR TORGERSON asked if the intent was to include renewable natural resources. COMMISSIONER RUE said yes; the issue wasn't debated. SENATOR WARD asked for an example of an overriding State's interest. COMMISSIONER RUE said he wasn't there for that discussion. His impression of that was some fish or game issue. SENATOR WARD said he thought this was very important because he thought that money might be an overriding interest. SENATOR LINCOLN wondered who the regional councils would owe their allegiance to. COMMISSIONER RUE answered that he really didn't want to speculate on that. His reading is that they are supposed to represent those subsistence users in the region and there are several sources for nominations of members so there should be a mix or representation from the region. He thought the resource, the region, and the particular use would be the allegiance. He explained the next ANILCA amendment on page 17 adds two new sections which he read. The point was that the State would not have to litigate their way back into compliance on federal lands; congress would just say we are in compliance if these things are done. He next read Section 807 which makes it clear that the federal courts give State agencies the same weight they give federal agencies which has not always been the case. There were no changes on pages 19 - 24. Page 25 added a sentence saying that the Secretary will not implement regulations on federal lands as long as we are in compliance. SENATOR LINCOLN asked if this meant the Secretary could not override the State. COMMISSIONER RUE said he thought that was the meaning unless the State was found out of compliance. SENATOR TORGERSON asked if less than necessary funding for the program could be construed as out-of-compliance and trigger the Secretary coming in and could he control the budget for Department of Fish and Game that way. COMMISSIONER RUE said he thought they would have to be to the point of being totally unable to deal with subsistence issues or not fund the regional councils. It would have to be a substantial problem. SENATOR TORGERSON said he thought there were a lot of questions about what was substantial. COMMISSIONER RUE noted the section in ANILCA where the term substantial non-compliance was used. SENATOR TORGERSON asked if a court would rule on what was substantial before it. So if a village brought a suit, it could be substantially in non-compliance because of actions in the one management area. COMMISSIONER RUE responded that that was a major point that needs to be looked at. SENATOR LINCOLN pointed out that the Governor's Task Force on Subsistence had seven members including the Speaker of the House, President of the Senate. The Governor did not present this. SENATOR TAYLOR said he was concerned that we are going to have an amendment in State law which mirrors the amendment in ANILCA where tribal councils will be the only nominating authority for four out of the 10 people seated on a regional council making fish and game allocations - and having priority over all other allocations. He thought that was a very significant State recognition and declaration of tribal status. He thought the State was neutral on sovereignty and tribal status and at the same time was asking congress to amend its law, and congress does have the authority to pass laws concerning native peoples, that will discriminate. TAPE 97-45, SIDE B Number 001 COMMISSIONER RUE said the intent was not to change the status through this act. SENATOR TAYLOR said he was concerned that allocation of common property resources as they are now listed in our Constitution having first priority will be by boards that are racially based. If this is the case he is concerned that we are in trouble under Pitman/Roberts and Wallop/Roe funding, because there is a specific declaration that we must abide by the Civil Rights Act of the United States Congress that says we cannot distribute those funds on a racial basis. COMMISSIONER RUE said that is why they are advisory boards, not regulatory. SENATOR TAYLOR said they are calling them advisory, but the type of recommendation they make can only be overturned by four specific categories, for which you have to have specific findings, which means there is a presumption. The presumption is that the recommendation will be followed. It is the exception that the recommendation will be rejected. With the opportunity to run to federal court with these things we are setting ourselves up for the situation where any disgruntled group or village can go to federal court and we'll be found out of compliance. So the Secretary gets to take over or we have to come into compliance in a way that may very well be in violation of about 40% of the funding. COMMISSIONER RUE agreed that the language needs to be very clear and reiterated that the intent is that the councils are only advisory. CHAIRMAN HALFORD said the problem with the precedence for the last 200 years in American Indian law is that entities are determined finally by the U.S. Supreme Court to have or not-have powers based upon how you treat them, not what you say. If you, for the first time add tribal recommendations, even if that may be the logical recommendation, you have guaranteed that Title 8 of ANILCA becomes Indian law - even if you say that you don't intend that. The principal enumerated in case after case in the Supreme Court is that they are what you treat them as. That simple change makes Title 8 into Indian law. COMMISSIONER RUE reiterated that it wasn't the intent to give them any new status. SENATOR WARD said that they are discriminating also against tribes that have populations grow around them. CHAIRMAN HALFORD asked if we put this constitutional amendment on the ballot and congress changes nothing in ANILCA, would the constitutional amendment would still go forward to the voters. COMMISSIONER RUE replied under this proposal, it would still be on the ballot. CHAIRMAN HALFORD said there would be no guaranteed linkage in the proposal as it comes from the Task Force. COMMISSIONER RUE explained that the guaranteed linkage is that the voters would know if congress changed ANILCA. SENATOR LINCOLN said that the linkage is stated to first have a State statute amendment, then have the amendments to ANILCA. Then the voters know whether those two pieces have been passed of the three. COMMISSIONER RUE replied that was correct. CHAIRMAN HALFORD said the point was the legislature would be called upon to put a constitutional amendment on the ballot not knowing whether, in fact, the federal government would change ANILCA or not. He thought the linkage could be completed by saying that unless the changes to ANILCA were made before the vote, it wouldn't even go to the ballot. COMMISSIONER RUE and SENATOR LINCOLN agreed. SENATOR TORGERSON asked if the proposal had been sent to Secretary Babbitt and had they heard back from him. COMMISSIONER RUE said it had been sent to him and they hadn't heard back, yet. REPRESENTATIVE OGAN asked if his department supported the Task Force proposal. COMMISSIONER RUE replied that he supported the package in concept and with this language. REPRESENTATIVE OGAN asked if the Governor had a lot of input into his decision to drop the Babbitt suit with prejudice that compromised our right to manage fish and game which is guaranteed on the Statehood Compact. COMMISSIONER RUE said he did not review that decision throughout the Department. He clarified that they dropped the question who qualifies under federal law in the Babbitt suit, but they did not drop the question of where. They took that to the Supreme Court and they rejected it. Most people understood we were to lose on the other issue as well. SENATOR WARD had concerns with trees and moss coming under the regional councils' purview. COMMISSIONER RUE said the proposal only allows for them to deal with things used for subsistence. SENATOR TAYLOR said the number one goal of the Task Force was to ensure the effective State authority over fish and game management on all lands and waters of Alaska. He asked these same questions about federal oversight and whether or not we end up in federal court to each of his predecessors and they all answered that federal oversight was not being removed. He noted that there is a certain group of people who want federal oversight. He thought the proposal was a complete misstatement that the people of Alaska were now going to receive even a semblance of control over our fish and game with its passage. COMMISSIONER RUE responded to that saying that the options are to get rid of the federal law, get rid of ANILCA or get rid of various designations. The proposal says that they are not going to get rid of the federal law or ANILCA; they are going to try to confine courts by clarifying definitions to refine their jurisdiction and be clear where it has jurisdiction. CHAIRMAN HALFORD said there appears to be about 100 million acres under federal court jurisdiction when we are out of compliance, but State and private land comes out of that and we aren't under federal jurisdiction. However, once we comply the decisions on all of Alaska on all State lands and all private lands go back to a federal judge. He asked if he was wrong. COMMISSIONER RUE said they needed to look at where federal jurisdiction is going to go with federal lands. Their jurisdiction is everywhere, but it is under terms that the State has defined. That is the trade-off. REPRESENTATIVE HUDSON asked if a court would actually adhere to the three levels of arbitrary and capricious if congress puts it in a law or is it still subjected to their own interpretation. SENATOR TAYLOR replied they would find that throughout administrative law both on the federal and State level there is a standard that is commonly used. The courts are supposed to limit their discretion in making decisions and give due deference to the agency or the lower court, whoever made the other decision. Within that wording, however, there are sufficient escape opportunities for a member of the bench, if they wish to, to exercise a lack of judicial restraint and move forward on the subject themselves. They have done this on all kinds of issues across the states, like busing. He reiterated that this proposal does not keep anything out of federal court. COMMISSIONER RUE clarified that they did not say it removed federal oversight; it makes definitions so the court won't define them. REPRESENTATIVE OGAN asked if he knew of any other state in the union that has had this level of federal take-over of fish and game management and does he think it exceeded the authority delegated by the states to the federal government under the 10th amendment of the U.S. Constitution. COMMISSIONER RUE said he thought the Bolt decision in Washington was a huge federal intervention and that gives 50% of the fish to the tribes. Here we are dealing with tribes through ANCSA and ANILCA. We don't have reservations. He couldn't give him an opinion on whether it violates the Constitution or not. SENATOR TAYLOR asked why the Governor had never filed a suit to test that in court so we could find out if we have to comply with this law or if it is unconstitutional. COMMISSIONER RUE said the reason he, personally, wouldn't do it is because that would take years and years of litigation while the issue festers and we get federal management. He didn't know what reasons the Governor had. MR. BOB PENNEY, Cook Inlet Sportfishing Caucus, said he voted for Statehood specifically because he wanted the State to maintain control of fish and game. He wants his grandchildren to enjoy them as much as he has been able to. He remembers what it was like before statehood in 1958 and has been told that under subsistence there will be winter fishing for rainbow trout and char again. He had talked with Senator Stevens who said we would have federal management. Since then he has talked to a lot of people from a lay persons viewpoint and has discussed what would happen if this proposal would be put into effect. He had a statement from Dan Coffey, Board of Fish, addressing that issue saying, in essence, that nothing would happen. Fishing would be managed the same way it is now if the proposal passed tomorrow. After talking with many other people they have come up with this conclusion. If we replace today's law relating to sportfishing with the revised proposal, the result would be neutral to neutral- positive Statewide. He thought they would hear from commercial fishermen and sport hunters that they would be affected the same way. MR. PENNEY said he didn't understand what would change. If you accept the fact that you have to have rural preference, you have to ask yourself if you want State or federal control. Our congressional delegation has told him that we have to amend our Constitution. They cannot get rid of ANILCA. He thought the constitutional amendment needed to be put on the ballot and to delay doing that would be playing poker with his grandkids with a losing hand, because the feds have all the chips stacked against them. He implored the legislature to get this "popped out" by the first of November, to get rid of the politics and who did what to whom. He urged them to think of all of everyone and come to some conclusion so we could stop the feds from getting too powerful. He concluded by asking them to please get on with the process and let the public vote on the issue. SENATOR LINCOLN said she appreciated his testimony. She appreciated his comments about his grandchildren. She thought the false division of Alaskans that was being put forward was ludicrous. She asked if he saw part of the resolution was that we manage those resources so we're not in a predicament. MR. PENNEY said he didn't know anyone who didn't feel this way. In a time of shortage when the people are using it for food, the people should have a right to that. The bottom line has to be the continuation of the resource. Specifically, he asked on page 33 if they could change line 13 and delete "the Board has made a finding that." This allows sportfishing for catch and release across the entire State of Alaska, even in subsistence areas. The way it's written means the Board has to find every stream or creek. MR. JIM REARDON said their discussion and conversation today reminded him of the four years he was on the Board trying to understand subsistence. He was concerned that the subsistence issue has destroyed a once-fine game management program. Subsistence laws have made it impossible to implement regulations based strictly on biology and the realistic needs of residents. Two decades of coping with the demands of subsistence laws has stolen from the Board of Game most of its time and effort it should have spent in the scientific management and establishment of policies for which the board was originally established. TAPE 97-46, SIDE A Number 001 MR. REARDON said any review of hunting regulations from the 40's - 1978 when the State subsistence law was enacted shows that the rural regions of Alaska enjoyed far longer big game hunting season and often considerably larger bag limits than the game management units that are most hunted by so-called urban hunters. That continues today and the reason is simple. Before statehood, and after, the Board had no problem in providing long seasons and expanded bag limits for vast areas of low human population and healthy game numbers. Rural Alaska has always enjoyed an automatic rural priority. Further, the Boards have always been aware of the dependence of rural Alaskans on fish and game and the regulations have long reflected this awareness. He said that a law for rural priority is unnecessary and was unnecessary to begin with. Federal management of Alaska's big game, which would include the rural priority would bring only worse mismanagement than we now have. In the territorial days, federal mismanagement destroyed our salmon fishery. The answer to our subsistence dilemma is not to change our Constitution which would reenforce the mismanagement policy we have followed for the past 19 years. The answer is for Alaskans to demand that congress rescind the federal rural priority requirement so Alaska can get back to common sense and proper management of her most valuable resource. If managed properly our wildlife can be an important part of the lives of Alaskans for centuries to come including his grandchildren, 12 of whom are Alaska natives. MR. RON PETTERSON, Kenaitze Tribal Chairperson, said he was concerned that if this proposal passed, they wouldn't have a say in subsistence. They have submitted a resolution (9724) which he read for the record in strong support of a subsistence priority for all Alaska natives. SENATOR WARD asked him if he thought a family that wasn't native whose members had walked across Canada two generations ago should also have a subsistence priority. He asked if that should be a high priority for all Alaskans coming before those who take fish and game for profit. MR. PETTERSON said that would be fine; that they are not against sharing. They have always shared. REPRESENTATIVE HUDSON asked if local native use should be expanded so that his people could hunt in Bristol Bay, for example. MR. PATTERSON replied not if it was going to take away from that area. He thought they should stay within their establish boundaries. REPRESENTATIVE MASEK asked him for a definition of customary and traditional culture as far as his inherent right. MR. PATTERSON said his ancestors had been here for a minimum of 1200 years and they have talked about harvesting the land and the water - medicinal plants and edible foods. There are elders who still harvest the land today. REPRESENTATIVE MASEK asked him to explain what gives him the right to ask for priority over everyone else because he's part of a tribe. MR. PATTERSON responded that to preserve their tribal entity they need to stay connected with the land by using and respecting it. REPRESENTATIVE MASEK asked him how he makes his living. MR. PATTERSON replied that he was a professional substance abuse counselor. He also subsists off the land. REPRESENTATIVE MASEK asked what he thought would have to change in order to protect his culture. She asked him if he supported the Governor's proposal. MR. PATTERSON said he didn't support the whole of it. REPRESENTATIVE MASEK asked if he supported discrimination saying he has that privilege while other older Alaskan pioneers can't. MR. PATTERSON said he didn't see it as discrimination. He said his tribe wanted him to ask the legislature to maintain their connection to the land without having to ask permission to use it. SENATOR LINCOLN pointed out again that this was not the Governor's plan. This is a Task Force on which House Speaker Gail Phillips and Senate President Mike Miller participated. REPRESENTATIVE JOULE pointed out that yesterday limited entry was used as an example of creating different classes of people. He thought that creating a different class of people for subsistence would give control to people with interests outside of the State. He also said that mostly he is quiet because he wants to hear other people's opinions. MR. HERMAN FANDEL said he owns two family businesses and thought it was a shame when people have to resort to voter initiatives and possible federal take-over to get some of the things we rightfully should have. His family opposed amending the Alaska Constitution partly because they felt it would make second class citizens out of a lot of people in towns like Soldotna and Kenai. He also opposed federal takeover, but he didn't think they could do a worse job of mismanagement in the area that he is acquainted with of Cook Inlet and the Kenai River. MS. BECKY HULTBERG said she appreciated the complexities of the issue and wanted to speak regarding the constitutional issues because their policy decisions will affect future generations as well as our own. She did not support the Task Force proposal and said we would be loosing a battle of principle. We would lose the moral authority to assert our State's rights in future situations. Article 10 of the Bill of Rights states that the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the states respectively. And the last time she checked fish and game management was definitely not delegated to the U.S. federal government. It was never the intention of this document that federal legislation would take precedence over a state constitution. She said their duty as legislators is to govern Alaska wisely and well and to uphold the State Constitution. Allowing the feds to take over fish and game management might hurt some people, but in the long run our refusal to compromise and our defense of our Constitution may give us back the self determination we have built our State on. Finally, she said the Constitution is a living document, but it was not meant to be changed by the force of threat. She urged them to challenge the federal mandate, not because it's easy, but because it's the right policy decision for Alaska. MS. MARY ANN MILLS, Aleut from the Kenai Peninsula, said this issue should be solved by basing our resolve in honesty and truth. She said that Alaska natives have been good hosts and hostesses to most guests who have come into their land. It is their nature to care and share with others and to respect everyone and everything in their existence. They believe the creator made them caretakers of their land before the United States and before the State of Alaska. She said they were not prepared for greed, disrespect and lies. Today indigenous people of Alaska are in a crisis of genocidal proportions. The biggest deception of the United States government is when they announced to the American people that they purchased Alaska from Russia. It is well documented that Russian never claimed ownership of Alaska, but just the right to trade. She said that ANCSA was never ratified by indigenous peoples of Alaska; it is an act of termination, an act of apartheid, and an act of genocide. It is not a jurisdiction or a treaty; therefore our inherent rights are intact. MS. MILLS said the AFN is misrepresenting themselves; they do not represent the indigenous people. They represent the corporations. We would not expect K-Mart to represent the American people, just as we should not expect AFN to represent them. It is an insult to have Byron Mallott on the Governor's Subsistence panel of seven, because it was he along with the AFN who illegally implemented rural preference for the subsistence rights in ANILCA. This was accomplished without the knowledge or consent of her people and is considered an act of treason and genocide on their part by many of them. She believes subsistence is a human right given to all of us by our creator. She agrees with Senator Halford when he said subsistence is an inalienable right. She concluded by saying that basic sacred fundamental human rights are not negotiable. MR. DENNIS RANDA, representing his family, said he had lived here for 24 years and had some hard times, but never had to sign up for welfare because he was able to sustain himself with the resources. He fears that people may not be able to do this in the future. He asked the legislators to not give up his rights of access to State land. If he had to be a second class citizen on federal lands, so be it, he said. MR. RANDA asked if the federal government has a mandate of managing for sustained yield or managing resources similar to what the Alaska Constitution states for the agencies. TAPE 97-46, SIDE B Number 001 MR. DON JOHNSON opposed the Task Force proposal. He thought it cut off all our roads to exit this situation. He thought it would cost more than $5 million to administer. He didn't think the Governor should have dismissed the lawsuit; he would like to sue the federal government himself. He didn't think the feds knew what the Alaska Constitution said or they didn't care. CHAIRMAN HALFORD read a section from the original ANILCA because it provides that nothing in this Act is intended to be construed as granting and then applies it to a lot of phrases. That's section 815 of the committee report of the bill they passed, he said. They were lying to themselves at the same time they were lying to us. MR. LARRY LEWIS opposed the Task Force proposal. He was opposed to the sport hunting designation because most people who hunt or fish feed their families with whatever they get. He thought this was basically a racial issue and this proposal does nothing but open up another can of worms. It amounts to State management with federal oversight and he would have very limited representation on any of the boards or committees. He said he was a white guy who didn't have any special federal protection and he felt really put-upon. MS. MEL KROGSENG, representing herself and the Alaska Sportfish Recovery Association, read the statement that she passed to the committee members opposing a constitutional amendment. A subsistence preference for an exclusive group of people will further divide the people of Alaska. He supported the common use clause of the Constitution. She suggested that the subsistence problem may stem from incomplete implementation of the limited entry amendment which granted limited special access privileges for some people. She explained that exclusive hunting rights have been pursued by hunting guides and commercial fishermen to the point of restricting resource use by the public, thus, in part, creating the subsistence problem. The result has been over-harvest of the fisheries resources which has exacerbated the subsistence lifestyle of all Alaskans residents, rural and urban. ANILCA must be amended so as not to conflict with Alaska's Constitution. It should have been written to survive within our Constitution, not the other way around. There is nothing wrong with giving all of Alaska's people a subsistence priority over other uses, but the privilege must survive within our current Constitution. She suggested that the legislature pass a resolution urging congress to immediately amend ANILCA to be consistent with our Constitution. Our legislature should ask other state legislatures to join us in this endeavor. This is a state's rights issue and other states should be sympathetic. She suggested amending the limited entry statutes as indicated in her written testimony. She agreed with Senator Halford about the linkage in the proposal. The wording that has been added is extremely deceptive and is the same type of language that was put before the people in the early 80's. She thought it was hard to believe Senator Stevens could not get an amendment to ANILCA through, under the circumstances, and with the power he holds. She thought they should mount a massive states' rights campaign encouraging other states to join with us. REPRESENTATIVE OGAN told her that last year at the Western States Coalition he got a resolution unanimously passed opposing any state amending their constitution to conform with federal law. They are aware of it and he has asked for their help. SENATOR TAYLOR said he thought the conditions of the buy-back provision had been amply met; and that it's time to take a hard look at the buy-back program to begin implementation of that. MS. KROGSENG said they would help in any way they could. MR. SEYMOUR MARVIN MILLS asked if ANILCA was a treaty or was it based on a treaty. CHAIRMAN HALFORD answered no to both questions. MR. MILLS said that Fish and Game gets all of its authority from treaties starting with the Migratory Bird Treaty of 1909. He said under the Equal Footing Doctrine of 1787 and several other things along those same lines seemed to be being used to supersede the Constitution. Common sense has to tell us that the intent can't be to do that, because if that's the case, why do we bother with constitutions. He thought the Statehood Compact was very deceptive and he pointed out a number of clauses that he questioned. He said he wasn't interested in amendments to anything, but that we go to court whatever the cost and find out if we are a State or not. If we aren't, then we better become one on equal footing with the originals in all respects and stop all this nonsense. MR. RON DOLCHUK, Kenai, said ANCSA happened for the non-native benefit and stripped him of his cultural background. He said they had nothing to do with it. He accused Senator Stevens of working with a judge advocate's office circumventing territorial laws having to do with voting. He asked why the Attorney General couldn't check into what we could do in an admiralty court. He said so many things happened in the last 20 years, it should be looked at. REPRESENTATIVE SCOTT OGAN chaired the meeting at this point. MR. W. T. MANER said he thought this was a done deal; that either the federal government was going to take over management of Alaska or we were going to do what the federal government wants us to do. He said his family on his mother's side had been here 300 years and he didn't know how long he had to be here to become a citizen. TAPE 97-47, SIDE A Number 001 He said he defended the United States in a number of wars and isn't afraid of the federal government. He thought that white people were blamed for just about everything and noted that his grandmother was a Cherokee Indian. SENATOR WARD said this committee had no intention of trampling on his rights. SENATOR LINCOLN said she was disturbed that she heard the division of color in his testimony and she hoped our State wouldn't get into that. She thinks it has gotten better and she has a lot of hopes for the future generations. She asked Mr. Maner what rural priority meant to him. MR. MANER said it means to him what the federal government has laid it out to be and since he lives in Soldotna, rural doesn't include him. He noted that he had been here 22 years and not one time had heard of anyone starving to death because they didn't have enough sense to go shoot a moose if they needed to eat. He said he was part Cherokee and didn't sit around and whine about things that were taken from him. He goes to work every day and is taxed 33% by the federal government that turns around and screws him. MS. ELAINA SPRAKER, KPOC, said their goal is to remove the rural subsistence priority from the Kenai Peninsula except in the remote villages of Nanwalek and Port Graham. They are not against consumptive use of fish and wildlife; most of them are highly dependent upon it. The very reasons they live in Alaska center on their ability to harvest fish and wildlife. She said they have accepted that ANILCA is here to stay and recognize that rural preference has a place in remote parts of Alaska and acknowledge the two communities. MS. SPRAKER said that we have in a small way already voted away our equal access clause with limited entry, Tier I and Tier II permits. If we remain status quo and choose not to come up with some solution, federal authority will be expanded. She thought whatever the solution was, that it would be argued in federal court and thought the best course was to give them as little room for interpretation as possible. She supported the Task Force proposal as a good place to start, but not as it was written. She asked the legislature to look at the Kenai Peninsula as an example of dysfunctional federal laws of Title 8. Because it isn't defined, it became a classic example of rural gone wrong. The feds created the haves and have-nots and created subsistence councils that did not represent the views of their community. The councils were given the power to make up the rules as they went along. They suggest the following changes: 1. The definition of rural should be defined where subsistence is a principle characteristic of the economy which would ensure communities such as Ninilchik, Sitka, and Kodiak that do not represent a subsistence lifestyle be granted a rural preference. 2. The power given to the regional subsistence councils must be diminished because giving them substantial deference will hold the Boards of Fisheries and Game hostage which will break down the regulatory process. In addition, sound fish and wildlife management would be threatened with a lack of consideration the councils would have given on a biological basis. She asked the legislature to move forward to solve the subsistence dilemma. SENATOR TAYLOR said his concern was that there is the pervasive idea that you just can't change ANILCA. He asked her what basis she used for that belief. MS. SPRAKER replied that, first, she has gone through federal subsistence abuse like no one had. She has been figuratively beaten-up by the councils because whether or not we want to acknowledge it this is a native/non-native issue, it is. She has seen the federal interagency staff in action and the muscle they have. Another thing is that Senator Stevens won't amend ANILCA because it's his baby. It's not that he can't amend it. She said they look at this as a cancer that has to have treatment administered to it before it kills them. SENATOR TAYLOR stated for the record that he had talked to former Alaska Attorney General Charlie Cole in Fairbanks in August and asked if the direct action lawsuit through the Supreme Court was a possibility and one that might be viable. He answered that of course it would be. He also asked if an injunction would have a good chance of prevailing and he answered yes. He said, however in a joking manner, how are you going to convince this Governor to do it. Senator Taylor said he has not heard anyone say it's a bad idea. MS. SPRAKER said if the legislature would put a proposal on the table, they would study it and make recommendations on it, too. The point is that they want to move forward because they have seen what federal subsistence management can do to a community and they are scared to death. SENATOR TAYLOR asked her to present the lawsuit scenario to her organization. MS. SPRAKER said they thought a problem was in 1995 - 96 when the federal subsistence board gave customary and traditional use to Nanwalek and Port Graham communities that showed no evidence of harvesting in unit 15-A. Her coalition went forward and put a reconsideration before the Board which would have been a good time to initiate a lawsuit. She has talked with the Governor about it. She thought if he couldn't implement a small lawsuit, she didn't think he would initiate a lawsuit for a larger issue. SENATOR TORGERSON thanked her for her time and asked her what powers of the Board she would suggest limiting. MS. SPRAKER answered that whatever plan goes forward, it is important that the regional subsistence councils do not have substantial deference or the regulatory process will be broken. From the point of view of a fish and game biologist, she thought it was important that they had created another layer of bureaucracy, people who don't appreciate conservation. She did not believe the councils would be merely advisory. REPRESENTATIVE WILLIAMS thanked her for all her work on this issue and asked if she had read the conference report that went with the Alaska Native Land Claims Settlement Act. MS. SPRAKER said she hadn't. REPRESENTATIVE WILLIAMS asked her if she would. He said the conference committee expects both the Secretary and the State to take any action necessary to protect the subsistence of the natives. Under ANILCA a matter of equity is necessary for congress to invoke its constitutional authority over native affairs and its authority under the property clause of the Commerce clause to protect and provide the opportunity for continued subsistence use on public lands of natives, non-natives and rural residents. He asked her or anyone to contact him on where he is wrong so they can take care of the subsistence issue. REPRESENTATIVE OGAN asked if that was really adopted. REPRESENTATIVE WILLIAMS said it was on December 13, 1971. REPRESENTATIVE OGAN pointed out that it wasn't part of the bill and that he had that question addressed by their legal counsel. SENATOR WARD asked Ms. Spraker if they supported the Task Force proposal. MS. SPRAKER said they didn't as it was written. SENATOR WARD asked if they wanted to change the equal opportunity clause in our State Constitution. MS. SPRAKER said they would be willing to change the Constitution if the amendments to ANILCA are significant and if it will resolve the subsistence dilemma. SENATOR LINCOLN said they have tried to get a vote to the people on rural preference and that has been held up by the majority in the legislature. She asked if they supported going to the people and if there wasn't that fear of the federal government coming in, what would their solution be. MS. SPRAKER said her organization thought that the real sore here was ANILCA - that the intent was good, but it's poorly written and attorneys and judges have twisted it. She said they might go down a different road if the facts were different, but they aren't. She highly recommended putting a vote to the people if there's a viable solution that's really going to fix the subsistence dilemma. She is afraid if it is voted on, that the majority of Alaskans will not know exactly what it is they are voting for. MS. PEPPER JOHANSEN said she was born and raised in Kenai and thought this was so confusing, she didn't know how voters could possibly figure it out, but she thought this was a start. She was afraid that the feds were going to take over, because her family commercial fished and they starved when the feds were managing the resources. She didn't want to divide this into a native or non- native issue; she thought it was rural or non-rural and it needed to be defined. TAPE 97-47, SIDE B Number 001 She said when she was young, her family was basically starving eating beans and beaver and no one gave them moose meat. When they moved to Alexander Creek, a white person came up and gave them a quarter of moose saying it was their custom to share the first moose. She believed a basic consideration for rural preference should be the concept of whether you live on the road or not. She didn't think "hard-lining it as a states rights thing" would work. She thought the feds would take over and we would all be hurt for it. MR. JOE CLOUD said he was born in Alaska and claimed it's his birth right that he is a native Alaskan even though he is caucasian. When he was born there were about 7,000 other people born, too. They are also natives; it doesn't matter what color their skin is. He can remember 1954 when we worked to get rid of the feds by becoming a State. He was always told in school that the Alaska Constitution was not just a good constitution, but the best. He still believes that to this day and is opposed to any changes to it. He said people in Washington D.C. don't have any idea of what is going on up here and Alaska was once actually considered foreign duty up here. He said it looks like the federal government is trying to divide this along racial lines and he thought that was totally wrong. He suggested if they have to allocate, maybe they should let people get their tags January 1 - 30. He didn't think too many people would travel to Lime Village at that time of the year to get a subsistence permit. MR. BEN ELLIS, Executive Director, Kenai River Sport Fishing Association, said they had already received copies of their written testimony. They support the following points: 1. the retention of State control over our fish and game, 2. the granting of a subsistence priority in times of shortages is acceptable as long as it pertains to all people regardless of race or creed who reside in areas of the State where subsistence is the principal characteristic of the economy, and 3. the changes required of the Constitution for the linkage. He hoped they could build on the proposal before them. SENATOR TAYLOR noted that he hadn't ever heard of one person being denied any subsistence. One of the first territorial laws ever passed said that any person would have a right to take birds or game for food if they needed it. MR. ELLIS said the concern is what Ms. Spraker expressed. He didn't think anyone wanted to turn neighbor against neighbor. MS. DEBRA HORNE supported equal opportunity and equal access to our resources. She was not in favor of federal take over of management of fish and game. Anything like that happening would be clearly interpreted as exceeding federal authority as stated in the 10th Amendment of our U.S. Constitution. She criticized the Governor's decision to drop the Babbitt suit. She thought our congressional delegation could have done more on this issue long ago. She thought Alaskans should somehow require our representatives in Washington D.C. to make changes to ANILCA. She opposed amending the Constitution, because it would lead to further damage of social unity that we have in Alaska today. She asked them to preserve optimum equality of opportunity in Alaska. MR.THEO MATTHEWS, President, UFA, said he is also Executive Director of the United Cook Inlet Drift Association. He pointed out that federal law has a priority for subsistence in some areas and not others and we have a State law under the State Constitution that requires a subsistence priority in some areas and not others. The essential idea they have come up with is to take the best of State law and work with the federal government to accept that by amending ANILCA. He noted that there was a rural preference before a lawsuit overturned it, not an upheaval in Alaska. He said a constitutional amendment by itself would be an absolute disaster and did not think congress would give up federal court oversight. So he thought that was why they emphasized ANILCA amendments. He told them that every year after 1992 they had been told by two different sides that they would not get ANILCA amendments. He said whether we like it or not these are federal lands. He supported the Task Force's efforts and urged the legislature to take the opportunity to leverage congress to amend ANILCA in such a way that it would essentially give us the same results as our current State law has with the exception of having to put in rural preference. SENATOR LINCOLN asked where he saw the greater equality for Alaskans might lie. MR. MATTHEWS said a constitutional amendment would not resolve this issue. Alaska was accepting a rural priority and no one was being systematically denied their access to resources until 1989 with the Keneitze decision which said our definition of rural wasn't good enough. He said their position has consistently been that they can't either amend ANILCA or the Constitution. He said there is nothing equal about the State subsistence statute. If we go out to Tok enmass, we kick in the priority which limits the options for those communities. They would lose their guiding business, their tourism business, and their commercial fishing business. SENATOR WARD asked if he thought the people who live off the land should have a right to fish and game before those who commercially harvest it. MR. MATTHEWS replied yes. SENATOR WARD said he meant all Alaskans regardless of where they lived. MR. MATTHEWS replied no. REPRESENTATIVE OGAN asked if he understood that if a constitutional amendment changed, there was no automatic linkage that forces the change to ANILCA. MR. MATTHEWS replied that he understood that and his point is that the proposal is not perfect, but it's the only one that's going to work in reality and they want to work with the legislature to improve it. REPRESENTATIVE OGAN asked if he would back a lawsuit as suggested by Senator Taylor. MR. MATTHEWS answered he thought so under one caveat. We are not prepared to play chicken with the federal government for 15 years. They are concerned with the feds getting a foothold. He would consider it. MR. BOB KROGSENG said over the years he has observed if you start out with a faulty idea or premise, you just dig yourself deeper if you try to justify the faulty logic. He said there is nothing wrong with our Constitution. If it's not broken, don't fix it. The problem happened when the federal government tried to put in a racial preference which was illegal. He implored them to not tamper with our Constitution. If the feds take over management of our fish and game, it won't last for ever. They won't want to spend the $40 million per year and we'll get at least one chance or more a year to change things or get it back. REPRESENTATAIVE OGAN noted for the record that his constituent, Alex Arnegost, wanted the dictionary definition of subsistence to be read. Subsistence is defined as a minimum of food or shelter necessary to support life, a source or means of obtaining the necessities of life. MS. VICTORIA HERMANSEN said she was speaking on behalf of herself, Bill Whitney, and their four children. She supported comments by Herman Fandel, Don Johnson, Mel Krogseng, and others like them in the audience. She said she is raising her family in this bountiful land where they subsistence fish and hunt. It teaches her family to be independent and respectful of what god has given them. She supported upholding the Constitution for ourselves and future generations. MR. RANDY SHUMATE, President, Local Chapter, Safari Club International, said there is not a lot of information on what is happening to hunting opportunities on a national level as well as local. TAPE 97-48, SIDE A Number 001 He didn't see why we couldn't just change ANILCA, although he didn't think we would be able to until we got cooperation from our congressmen. SENATOR TAYLOR asked him if it seemed strange that the same congressional delegation that has refused to offer even one amendment to ANILCA on this issue since 1980 has participated in and been involved in the amending of ANILCA 19 times. He asked how they could believe that the amendments in the proposal would necessarily pass. MR. SHUMATE said he didn't understand either. Another point he wanted to make clear is that there are powerful hunting lobbying groups that have recognized what's happening and they are not opposed to subsistence and not necessarily opposed to ANILCA in its intent. What's happened over the years is that it's been reinterpreted so many times that it's no longer serving its own purpose. They advocate equal access and are not opposed to subsistence priority as long as it's proper and considers the resource first. MR. JIM RAY, SR., opposed changing the Constitution. He didn't think we could have two classes of people. He said we should be able to hunt equally. MS. KAREN MCGAHAN said she has spent the last three days canning moose and putting up berries which she has customarily and traditionally done for 33 years. She said she had never seen any Alaskan hunter kill a moose and stuff it in their living room. They all hunted for the meat to eat. She said they don't want to be outlaws. She explained that there were more people of native blood than caucasian blood when she first came to the Kenai area and now the native issue has become a very divisive thing. Some of her children have married people with native blood. So this would allow some of them to hunt and others not to. The definition of rural is an impossible situation. She thought we all need equal opportunity to our fish and game as is guaranteed by the Constitution which is a right principal and correct. She thought there would be a lawsuit one way or the other and doesn't want to see it happen. MR. BOB BIRD said he lived here for 20 years and taught constitutional government. The argument that tells us we have to amend our State Constitution in order to avoid federal control is oxymoronic. We already have federal control if it's telling us to do that. He said that Senator Stevens has refused to admit he made a mistake with the subsistence amendment in ANILCA and refuses to consider amending it to give Alaska back its sovereignty. He thought the legislators have the ability to do something because the congressmen have to pay attention to them. He said they wouldn't find allies unless they decided to fight and he strongly urged them to do so. MR. KARL KIRCHER, Administrative Assistant, Kenai Peninsula Fishermen's Association, supported the concept of the Governor's Task Force proposal. The definition needs tweaking and we definitely need linkage because we can't just throw our constitutional amendment out there and hope something is going to come back the other way. He agreed that subsistence is a universal right and if people are doing it, they are probably living in rural Alaska. However, he didn't think amending our equal access clause necessarily meant we are tossing it out. Maybe it means by working on it we can make it better. He didn't think the amendment was suggesting a division along racial lines. It says anyone can move to rural Alaska and have an equal opportunity to have a subsistence preference. He encouraged them to take the basic concepts in the proposal and turn them to their liking and use it. SENATOR WARD asked if his group supported the right for people to live off the land before those who take fish and game for commercial interests. MR. KIRCHER replied that relative to the proposal before them if they are doing it in rural Alaska, not Kenai or Anchorage, they supported it. SENATOR WARD asked if he thought the rest of Alaska had the right to live off of fish before a commercial harvest. MR. KIRCHER replied that he thought that was a question for fish and game to answer. SENATOR TAYLOR noted that the commercial fishermen weren't really interested in the subsistence issue until it began to affect them. MR. KIRCHER responded that his wallet and his ability to catch fish is his subsistence and it affects him now. SENATOR TAYLOR explained that the point he is making is that now there is an alignment among commercial fishermen who want him to solve the subsistence issue at any expense, just so they don't have to be impacted. MR. KIRCHER responded that in 1992 UFA had this identical position. MR. SAM MCDOWELL said he did not support the Task Force proposal. He said he resigned his position as president of the local chapter of the Isaac Walton League so he could join other people to fight for their constitutional rights. The first thing they did in 1986- 87 was form the Public Waters Defense Fund and went to the U.S. Supreme Court to protect the navigable waters of this State. He said he is the McDowell in the McDowell decision that won in State court in 1989. He said under Article 14 of the U.S. Constitution you can't take a vote on this issue. He wanted the committee to be sure to read the comments from Dale Bondurant on this particular issue. MR. MCDOWELL does not believe in a rural priority at all. He said you can allocate any fish and game to any area of this State that can't be legally challenged with methods and means and open and closed seasons. To a person who asked him how he would limit the guides who come into his area to shoot moose, he answered that he wouldn't open the season until all bulls dropped their horns and he would also do away with all mechanized conveyances. He urged them to do what is legally right and what they pledged to do: uphold the Constitution, and file a suit against the federal government based on Article 14. REPRESENTATIVE OGAN thanked him for his efforts on behalf of the State of Alaska. MR. RICHARD MCGAHN reminded them that they took an oath of office to uphold the Constitution of the State of Alaska and the United States and said if we do that, we would get over this hurdle real quick. REPRESENTATIVE OGAN thanked everyone for their patience and participation. He then adjourned the meeting.