SENATE RESOURCES COMMITTEE  September 28, 1999 1:16 p.m. Second Special Session   MEMBERS PRESENT Senator Rick Halford, Chair Senator Robin Taylor, Vice-Chair Senator Lyda Green Senator Sean Parnell Senator Jerry Mackie Senator Pete Kelly Senator Georgianna Lincoln MEMBERS ABSENT None COMMITTEE CALENDAR CS FOR HOUSE JOINT RESOLUTION NO. 202(FIN) am Proposing amendments to the Constitution of the State of Alaska relating to use of renewable resources for subsistence by residents. MOVED CSHJR 202(FIN)am OUT OF COMMITTEE WITH INDIVIDUAL RECOMMENDATIONS PREVIOUS SENATE ACTION CSHJR 202(FIN)am - No previous Senate committee action. WITNESS REGISTER Stephen White Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Supports CSHJR 202. Mary Pete, Director Division of Subsistence Alaska Department of Fish and Game PO Box 25526 Juneau, AK 99802-5526 POSITION STATEMENT: Commented on CSHJR 202. Julie Kitka, President Alaska Federation of Natives 1594 C St. Suite 300 Anchorage, AK 99501 POSITION STATEMENT: Commented on CSHJR 202. Chris McNeil, Legal Counsel Alaska Federation of Natives 1594 C St. Suite 300 Anchorage, AK 99501 POSITION STATEMENT: Commented on CSHJR 202. Carol Daniels, Legal Counsel Alaska Federation of Natives 1594 C St. Suite 300 Anchorage, AK 99501 POSITION STATEMENT: Commented on CSHJR 202. Dick Bishop, Vice President Alaska Outdoor Council P.O. Box 73902 Fairbanks, AK 99707 POSITION STATEMENT: Opposed CSHJR 202. Carl Rosier 8298 Garnet St. Juneau, AK 99801 POSITION STATEMENT: Opposed CSHJR 202. Mary Bishop 1555 Gus's Grind Fairbanks, AK 99709 POSITION STATEMENT: Opposed CSHJR 202. ACTION NARRATIVE  Tape 99-39, SIDE A [THE FOLLOWING IS A VERBATIM TRANSCRIPT.] CHAIRMAN HALFORD: The committee will be hearing CSHJR 202(FIN) amended House. The first testimony will be from the Administration. We will have essentially presentations. We've had dozens of witnesses on this topic in this session, and of course we've gone over it in the past, but we're going to have a presentation from the Administration and a presentation from AFN and supporters and the [Alaska] Outdoor Council and opponents. We will try to keep the testimony to a minimum so that we can be done within a couple of hours and the bill can go on from here. So, the Administration, would you join us at the end of the table and whoever? I think Steve White's going to lead the presentation and whoever you wish to have with you at the table, please join us. We could have the Commissioner of Fish and Game. Is he here? In whatever order you wish to present it, proceed. STEPHEN WHITE, ASSISTANT ATTORNEY GENERAL, ALASKA DEPARTMENT OF LAW: Thank you Mr. Chairman, my name is Steve White, I am the Assistant Attorney General here in Juneau for the Department of Law. First of all I'd like to apologize for the temporary absence of Bruce Botelho. His absence is due to an abscess. He's had tooth problems all week and he scheduled a dental appointment before recognizing when this incident would occur and he is now at the dentist and I am told he'll join us as soon as possible. So, if you have any direct questions for the Attorney General I'm sure that he will be available at some point. In the meantime, I'm here to represent the Department of Law and you can ask me questions and if I can't answer the questions right now I'll attempt to get you answers at a later point. What Mary and I have done for other people, rather than giving introductory comments of any sort, is to just describe the contents of what we call our subsistence handbook which was provided to all legislators. It's just a description of what's in that document, sort of item by item. A lot of it's familiar to you and if you would like for us, we can do that. If you don't feel that's necessary and worth the time then we can dispense with that and I'd be willing to answer any questions on legal issues starting right out. Mary may have some introductory comments but again, what we did in the past was just describe the materials in this book and then opened it up to questions. CHAIRMAN HALFORD: Why don't we, instead of going through the book because we have had the book with regard to the Senate bill which was the Governor's bill, the same in the House and Senate, why don't you give us a description of the bill that the House actually passed and the significance of the provisions of the bill that the House actually passed. ASSISTANT ATTORNEY GENERAL WHITE: Mr. Chair, starting out with Section 1 of the bill, it offered an amendment to existing Section 4, Article VIII of the Constitution which provides for constitutional provisions on the use of natural resources. It's fairly straightforward. It allows the legislature, it does not compel but allows the legislature, consistent with the sustained yield principle which is already provided for in that section, to provide a preference to and among residents to take resources for subsistence uses based upon federal criteria. The criteria are customary and traditional use, direct dependence, the availability of alternative resources, place of residence, or proximity to the resource. The word "or" in there allows the Legislature discretion to take any of those, a combination of any of those, and put whatever priorities on any of them that they wish. That's the section that deals with the users, that is who may enjoy subsistence uses, which residents. The next sentence in subsection (b) deals with uses, and it establishes a priority for subsistence use over other uses -- other uses of course being commercial, sport, personal uses. And that says when a harvestable surplus of the resource is not sufficient to provide for all subsistence -- excuse me, all beneficial uses, other beneficial uses shall be limited to protect subsistence uses. In other words subsistence is the highest priority use. So this section of the bill deals with two things: who is eligible as a user and secondly, which use, in this case subsistence, has a priority over other uses. Section 2 of the bill establishes the effective date of the subsistence amendment and, as you can see, it takes effect immediately upon certification of the election returns if adopted and then passed to the electorate at the 2000 general election, so to speak an effective date provision. Section 3 is the purpose provision and it actually does not go in the Constitution but acts as legislative history for court interpreting. Section -- the words of (b), the new words would actually go in the Constitution. This gives the courts guidance as to why those, that new section, is added and what the purpose is. And again, it's fairly self explanatory. The purpose is to allow for a preference for subsistence uses, to ensure state management of fish and wildlife throughout the state, and particularly to deal with the two cases which the rural and proximity criteria, in which those two criteria were struck down, that is the McDowell case and the Kenaitze case. We believe the purpose clause will help a court to understand why this amendment is being made to the Constitution, helping to interpret any challenge to the amendment. Finally Section 4 just provides that the amendment would be placed before the voters at the next general election. CHAIRMAN HALFORD: For a few introductory questions. On line 9 of page 1 it says the legislature "may" and there was considerable debate in the other body, back and forth between "may" and "shall", and although they brought a bill to the floor that said "shall", they changed it by a floor amendment back to "may." What is the Administration's support in that place - should it be the legislature shall or the legislature may? ASSISTANT ATTORNEY GENERAL WHITE: The Administration is comfortable with allowing the legislature the authority to do this if they so choose and the voters of Alaska authorized it. CHAIRMAN HALFORD: The Administration supports "may" and not "shall" in other words? ASSISTANT ATTORNEY GENERAL WHITE: The Adminis -- in fact the Governor's bill says "may" so I think it's fair to conclude that the Governor was proposing "may." CHAIRMAN HALFORD: Okay. On line 12 in the list of reasons for discrimination it says, it adds place of residence. Does place of residence cover a complete statewide rural priority? ASSISTANT ATTORNEY GENERAL WHITE: It's our interpretation that place of residence would allow for a statute that provides a statewide rural priority. CHAIRMAN HALFORD: So place of residence means authorization for a rural preference. ASSISTANT ATTORNEY GENERAL WHITE: That's our interpretation. CHAIRMAN HALFORD: With regard to the other categories that are added to the Constitution, we're adding other reasons for, essentially reasons for discrimination: one is customary and traditional use, one is direct dependence, and one is availability of alternative resources. Place of residence, or proximity, or whatever the residency related issues have been addressed in Kenaitze and McDowell -- is there any reason that the other three reasons for discrimination are necessary to be added to the Constitution? Have they been ruled on as not being allowable or are they already allowable under the existing Constitution? For example, direct dependence is probably a needs standard and that is clearly a constitutionally permissible reason for discrimination under the existing Constitution, is it not? ASSISTANT ATTORNEY GENERAL WHITE: To answer your question, these other ones have not been challenged and there's been no decision saying that they are not permissible under our existing Constitution. CHAIRMAN HALFORD: So they are not essential to the amendment to comply with ANILCA? ASSISTANT ATTORNEY GENERAL WHITE: You're correct about that. CHAIRMAN HALFORD: Thank you. The third question that I have is on line 14. It says the surplus of the resource is not sufficient to provide for all beneficial uses. One of the questions that the particularly commercial fishing interests have asked is what level of subsistence harvest is protected with a priority and what is the constitutional method of making sure that that level of subsistence harvest doesn't expand to the point where it engulfs other harvests far beyond what it is today, for example? I mean now when your talking about five of 95, five percent of the resource on the personal use subsistence individual side and 95 percent on the commercial side, what's the guarantee that that won't change in an increasing population? ASSISTANT ATTORNEY GENERAL WHITE: Mr. Chair, this statutory amendment does not address that question. That question will be resolved by statute. In past subsistence statutes we have used reasonable opportunity for subsistence uses as the triggering point for beginning to eliminate other users, other uses. CHAIRMAN HALFORD: Would the Administration support putting the words "reasonable opportunity" in this amendment? ASSISTANT ATTORNEY GENERAL WHITE: Again, I believe it's superfluous. It's the same kind of thing that perhaps the other criteria that aren't necessary would be. We're not in favor of putting things that are not necessary in the amendment, and furthermore I believe the Secretary of the Interior remarked on that in their letter looking at an earlier version, saying putting "reasonable opportunity" in there could raise questions of compliance with ANILCA. CHAIRMAN HALFORD: So you're not in favor of things that are unnecessary. Then you'd support taking out the unnecessary provisions, customary and traditional, direct dependence or availability of alternative resources? ASSISTANT ATTORNEY GENERAL WHITE: Well I'm not in a position to say I'm in favor of doing that or not. That's more of a political question. In my opinion those things can already be provided for by the Constitution. Whether they're in there for additional statements is more of a political judgment so I guess I can't say I'm not in -- I'm in favor or not. CHAIRMAN HALFORD: Questions by other members of the committee? Senator Mackie and then Senator Leman and then Senator Taylor. SENATOR MACKIE: Thank you. My question is in regard to the customary and traditional use section. In previous hearings, and for several years now, I've heard legislators talk about and use an example of saying an Alaska Native person that lives in an urban area -- that clearly [indisc.] you know through their family generations have demonstrated a need for a customary and traditional subsistence lifestyle although they live in an urban area. Would the ability for customary and traditional use -- is it your opinion that an Alaska Native person or a non-Native person that can demonstrate a customary and traditional use could be allowed by statute or by regulation by the Board of Fish or Game, by our managers, a preference in the event of a shortage, the same as the other criteria? Is that person in the urban area covered under this should the legislature choose to allow for that opportunity? ASSISTANT ATTORNEY GENERAL WHITE: If the legislature chose to allow an urban person the customary and traditional uses to be a subsistence user that would not be in compliance with ANILCA as it now is. ANILCA says that only rural people have a subsistence priority and then further customary and traditional is being used to identify their uses in the populations that they are eligible to harvest. So if the Legislature did that it would not be in compliance with the existing ANILCA. CHAIRMAN HALFORD: Senator Leman and then Senator Taylor, Senator Lincoln. SENATOR LEMAN: Thank you Mr. Chairman. I have two questions of Mr. White. The first is, if you're looking at, I don't know if I want to call it a minimalist approach, but not putting any language that's superfluous -- is it absolutely necessary that the second sentence of the amendment be in here to comply or is that something that's added beyond what is absolutely necessary? ASSISTANT ATTORNEY GENERAL WHITE: It's not necessary to bring us in compliance with ANILCA establishing a priority amongst uses. In reality we do that by statute. This would just put it in the Constitution but it's not -- that issue was not one of the reasons that we're out of compliance with ANILCA. SENATOR LEMAN: I thought that was the case, Mr. Chairman, and I just wanted to make sure that that's clarified. The second question I have is the last clause under the purpose section states that as the purpose -- with that statement and to bring us into compliance with Title VIII, would that in any way harm the state's case if the state were to challenge the constitutionality of Congress to enact certain provisions in Title VIII? Would a court look at that as saying, well, you intended to bring yourself into compliance and the people voted for this so therefore it must be a constitutional provision or, you know, in some way, provide linkage. Do you think that would in any way harm the state's case? ASSISTANT ATTORNEY GENERAL WHITE: I don't think it would harm the state's case. What we're doing is acknowledging that this is necessary for us to come in compliance with the law. I don't think it diminishes anyone's ability to challenge the constitutionality of that law. Number 259 CHAIRMAN HALFORD: Senator Taylor. SENATOR TAYLOR: I'm sorry that Mr. Botelho was unable to make it today. Can you tell me, Steve, how many provisions of the Alaska Constitution are effectively amended or changed by the adoption of this amendment? How many provisions are in the Constitution? ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the Chair, in my opinion there are four of them that are clearly affected by this. SENATOR TAYLOR: Can you list those for us please? ASSISTANT ATTORNEY GENERAL WHITE: Those are the three in the Title - Article VIII - the common use, the no exclusive right of fisheries clause, the uniform application clause, and I think also Article I, Section 1, general equal protection clause would be affected by .... SENATOR TAYLOR: Did you say equal protection clause? ASSISTANT ATTORNEY GENERAL WHITE: Equal protection clause, Article I, Section 1. Those four I believe would be directly affected by this. SENATOR TAYLOR: Are there others that may also be affected at least in their interpretation as to what they mean tomorrow, should this thing ever be adopted by the people of Alaska? My count - I actually had, I think, ten different provisions within the Constitution. The amendment submitted by the Governor, I believe, changed 13 different provisions within our Constitution. This one I think -- I agree with you that it very definitely amends the equal protection clause, common use clause, exclusivity clause, uniform application clause. I think -- I agree with you completely on that Steve, I just felt there were an additional six that appeared to me to also be affected by this. I don't want to go into each of those, it would take too much time, but assuming that you and I agree that at least no less than four provisions are affected, and then of course you'd have to add to that this provision, the sustained yield provision, because amending it certainly affects that. So we have a minimum that you and I agree on of five provisions. Is that right? ASSISTANT ATTORNEY GENERAL WHITE: I think one of the ones I mentioned already provides for sustained - was one of the ones that provides for sustained yield. I don't think [indisc.] on that. SENATOR TAYLOR: I'm not going to quibble on that, but at least four major provisions within our Constitution would be affected or amended by this. Have you read Bess v. Ulmer and the decision by our Supreme Court on that? And can you tell me whether or not amending four different provisions of the Constitution, as you and I have agreed, or maybe as many as 10 as I believe, does that comply with Bess v. Ulmer and can we do that? ASSISTANT ATTORNEY GENERAL WHITE: It's our opinion that it still is an amendment. It's not a revision because the Supreme Court [indisc.] says -- it looks at two things, whether there is qualitative and or quantitative changes to the Constitution, so it's not just a matter of how many provisions it affects. That's one thing they look at -- qualitatively whether it substantially affects the essence of the Constitution. In my opinion, this does not go over the line of being a revision. SENATOR TAYLOR: Well, having read the same case I thought the Supreme Court, Steve, was very strong in their wording when it came to little things within our Constitution that they seemed really concerned about in that decision, which was the equal protection clause in our Constitution. That one seemed to kind of really ring a bell with them and you've already said that you agree with me that this definitely changes the equal protection clause of our Constitution. Don't you think that's a substantive change that's not even mentioned in this amendment that the Supremes might say, Bess v. Ulmer, and I'm sorry, if you want to do this you have to go to a constitutional convention and thus take it off the ballot? ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I don't believe because it affects equal protection for one particular use of the resource and actually affects a relatively small number of people it's a substantive change to our Constitution an it would become a revision. SENATOR TAYLOR: The numbers of people who would qualify in the State of Alaska is larger than the number of people who would not qualify in the State of Alaska in this definition? I'm surprised to hear you say that because I believe it's over 65, 70 percent of our population would no longer qualify. ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I'm speaking about the actual people, the people in urban areas who are actually under our all Alaskans interpretation or are actually using subsistence resources as a relatively small number. Those people would be disqualified under a rural priority. So I'm looking not only at numbers but the fact that we're talking about one use of a resource, subsistence use, not all the other uses, and I think quantitatively, although subsistence is a very important use, I think quantitatively the effect is not to the degree where it would call for a revision either qualitatively or quantitatively. SENATOR TAYLOR: Okay. If, in fact, your definition of uses -- I'd like to go ahead with that one now as opposed to Bess v. Ulmer. On line 14 this amendment says, "to provide for all beneficial uses, other beneficial uses shall be limited." That sounds to me as though all of those other uses you were talking about, be it Native resources by people living in Anchorage or within my district, Ketchikan, anybody that uses any of those resources for a beneficial purpose, they would no longer qualify as soon as this triggering device takes place. In other words, if all beneficial users of a specific resource can't be satisfied, then this triggers and we must provide a priority only for those people who don't live in Ketchikan, don't live in Anchorage, don't live in Juneau. ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I think we're mixing the uses and users here. The first section deals with users, the second one deals with uses. The second section only says if the resource declines to the point then subsistence is the last remaining use. So, I don't .... SENATOR TAYLOR: And that's the reason I'm asking this question Steve, because you see -- let me give you an example. Let's take the herring sac roe fishery in front of Sitka. Our department uses sustained yield to determine that x number of tons may be taken. That's the total use of that resource. That is now being taken by commercial fishermen. We give up our state's authority to control resources within navigable waters which we got at statehood, and embrace this federal law and begin to enforce it. Under this law it says when the resource is not sufficient to provide for all beneficial uses. Okay, now what we're going to do is add a subsistence use of that resource on top of the existing commercial use of that resource. Obviously, there is not enough resource to supply both. That means that under this - line 14 - when all beneficial uses can't be satisfied, then the priority, the only beneficial use left, shall be limited to protect subsistence use. I want to use that as an example because it clearly fits what you're talking about in the definition between uses, not users, but just uses, and it seems to me that triggers it and you just shut down under our state Constitution the herring sac roe fishery in Sitka. I don't think you can allow it to open unless all beneficial users who would claim a subsistence priority have used theirs. Now maybe you wouldn't totally shut it down, you'd just say well half of it now goes to someone else. ASSISTANT ATTORNEY GENERAL WHITE: Senator, through the Chair, it's important to recognize this does not require a subsistence use be established on every stock and population. Subsistence use does not occur unless there has been a demonstrated customary and traditional use of it. That's what the state .... SENATOR TAYLOR: The people in Sitka have traditionally and customarily utilized the herring roe fishery since time immemorial. Whether or not it is clearly established today - it certainly is established under our state system and we allow the people of that area, through personal use permits, to go out and take that resource. So I don't know what you mean by dodging the question, saying well we wouldn't have to necessarily allow any subsistence use there because we never really had one in the past. I think you have had one in the past. That's why I raised that issue. ASSISTANT ATTORNEY GENERAL WHITE: Senator I was just pointing out that this doesn't require us to find a subsistence use among resources. In reality there is a recognized subsistence on that sac roe fishery. Following through with your example, if the resource declined to the point, under the way we've implemented that priority of uses, to the point where there was not reasonable opportunity for the subsistence use, then the commercial, sport and personal use would qualify and there would only be a subsistence use allowed and indeed, under ANILCA, it would only be available to the rural residents that have customarily and traditionally used that resource. SENATOR TAYLOR: I appreciate your answer to that but also there's Senator Mackie's question when you deferred, as you now have several times, to ANILCA. Because what we're really talking about here is, who is going to enforce the federal law, aren't we? ASSISTANT ATTORNEY GENERAL WHITE: That's an aspect of ANILCA, certainly federal court oversight. SENATOR TAYLOR: The bottom line - it's not the question of who is going to manage Alaska's fish and game, it's a question of who is going to enforce ANILCA. Are we going to enforce the federal law against our people or are the feds going to enforce their federal law against our people? ANILCA doesn't -- as Senator Leman pointed out to me earlier today -- he said my goodness, Robin, there's no linkage here. We always had linkage before -- that we were linked with amendments to ANILCA that we could be assured were going to occur before this law went into effect. So, let me move on. Have you talked with the Secretary of the Interior, or has anybody in the Administration, approving the language that we currently have before us from the House? And do you have anything in writing to tell us because I'd like to see something in writing, and the others would I'm sure, whether or not our great white father, Mr. Babbitt, is now allowing us to move forward in this fashion. ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, Senator Taylor, I believe that the Secretary is looking at this at this very moment. We do not have a response, nor do we have anything in writing but I expect that -- I was told that that will occur this afternoon. CHAIRMAN HALFORD: But your statement in response to my question is that a rural priority fits under the statement "or place of residence." ASSISTANT ATTORNEY GENERAL WHITE: It's my interpretation that it can be implemented under place of residence. That's my interpretation. Obviously the Secretary has to come to that same conclusion. SENATOR TAYLOR: If Mr. Babbitt doesn't approve it, what do we do then? Do we all sit here as little children and wait for him to tell us what he will accept? I mean I want to know why, what difference this Administration is going to take when they called this special session, on whether or not we have his approval to proceed or not. If we don't will you continue to support the bill? If we do, will that make a difference in your position? SENATOR MACKIE: Maybe we ought to wait and see what that position is and where to go if we .... CHAIRMAN HALFORD: Next person was Senator Lincoln. SENATOR LINCOLN: Thank you, Mr. Chair. One of the questions that I was going to ask was also about the Department of Interior, whether they --you have had any inclination from them whether they feel they can certify this? And also, several other questions, but does the Administration feel, in your review of this, that this complies with ANILCA, in your review? ASSISTANT ATTORNEY GENERAL WHITE: In our review we believe it will allow compliance with ANILCA. The answer is yes. SENATOR LINCOLN: And in your response to the Administration feeling comfortable with the word "may", that the Legislature "may' -- isn't that also true that the Governor does not object to the word "shall"? ASSISTANT ATTORNEY GENERAL WHITE: That's correct. It's a matter of choice of words. The reality is that even if you put "may" in there to achieve the purpose of compliance with ANILCA in regaining state management, you're going to have to implement a rural priority, so whether it's "may" or "shall", the results would be the same in order to achieve the purposes of the amendment. SENATOR LINCOLN: I just wanted to make it clear that the Administration does not oppose the word "shall". I need you to go back for a moment, Mr. White. You said, and I'm trying to determine here on Section (b), page 1, you said that this was not essential toward compliance in response to a question about the last sentence, that it wasn't essential. I thought you said something to that effect on the five criteria just above it. Could you clarify what is essential for the Administration in coming into compliance with ANILCA? ASSISTANT ATTORNEY GENERAL WHITE: Senator Lincoln, through the Chair, the reason we're here is the Supreme Court in two decisions said that Alaska -- that we could not come into compliance for two reasons. One, we didn't have the ability under our Constitution to allow for an urban-rural priority, and secondly, in the second case, we could not use proximity to resources as a criteria for saying whether a person could or could not use. So the two essential things that deal with those cases are urban-rural, which we believe you can get to through place of residence and proximity to the resource, which is provided here. Those are the two critical things that are necessary to get it back into compliance. The other provisions are parts of ANILCA. They've been parts of the state law. They have not yet been challenged. No court has found that they are in violation of the state Constitution. SENATOR LINCOLN: Thank you. CHAIRMAN HALFORD: Senator Parnell. SENATOR PARNELL: Thank you, Mr. Chairman. The Chair led you kind of down the path of saying that place of residence means rural preference, as if that's all it could mean and let me just ask a question. Would our courts construe place of residence a little more broadly than that? And I'm not talking about full compliance with ANILCA but just this amendment - place of residence - could be construed more broadly than that, could it not, to apply to different use and users? ASSISTANT ATTORNEY GENERAL WHITE: Place of residence you could, in your statutory -- if you chose, you could choose place of residence to mean urban-rural, or you could use place of residence a lot of different ways, but it's certainly broader than rural. SENATOR PARNELL: And then Senator Mackie talked with you a little bit about customary and traditional use. And I would ask the same question there. It looked to me because of the modifier "or" in there that you could - the legislature, if this passed, if the people voted to pass -- that the legislature could implement a preference on the basis of customary and traditional use, period. It would not comply with ANILCA as you said, but the language is broad enough here that that's allowable. Is that correct? ASSISTANT ATTORNEY GENERAL WHITE: You could do it on that one, any one, or any combination of those five. SENATOR PARNELL: Thank you. CHAIRMAN HALFORD: Are there further questions? Senator Green then Senator Mackie then Senator Taylor. SENATOR GREEN: Thank you. I have a question about -- on line 13 the phrase "harvestable surplus" -- does that have a specific meaning among resource developers or among the state statute because it implies that if the surplus is not sufficient to provide for all beneficial uses. Am I reading that incorrectly or should that be abbreviated -- or when the harvest of the resource is not sufficient to provide? ASSISTANT ATTORNEY GENERAL WHITE: Senator Green, harvestable surplus of course is not defined here or elsewhere in the Constitution. It's what we've used in fish and game management for our statutes to identify that part of any resource that can be harvested without violating sustained yield. In other words when you allow enough of the resource to pass through and replenish, that which is left which can be harvested to provide for conservation we have called in our statutes "harvestable surplus." SENATOR GREEN: Okay, this has to do with sustained yield. ASSISTANT ATTORNEY GENERAL WHITE: Yes. SENATOR GREEN: Okay, thank you, I just wanted to be sure. Then the other question I have -- in the -- I think, perhaps it was in another piece of legislation that I read but the thought came to my mind that is there any way that there's any provisions in this that could be extended to the rural preference, the rural priority, toward minerals, water, oil and gas, or timber, any of those other resources besides fish? CHAIRMAN HALFORD: Water and timber, yes. ASSISTANT ATTORNEY GENERAL WHITE: Again, the term here "wild renewable resources" is not defined. Statutorily you could define it as long as it was in the common meaning of that term. SENATOR GREEN: Then as long as it was what? ASSISTANT ATTORNEY GENERAL WHITE: Well as long as it makes sense under the term of "wild renewable resources." Your statutory definition would have to have some degree of reasonableness in connection to the common meaning. CHAIRMAN HALFORD: That would probably include timber but not minerals? ASSISTANT ATTORNEY GENERAL WHITE: In my mind timber is a wild renewable resource and minerals are not. CHAIRMAN HALFORD: What about water? ASSISTANT ATTORNEY GENERAL WHITE: I can't answer that question. I'm not sure whether water is considered renewable. SENATOR GREEN: Thank you. CHAIRMAN HALFORD: Senator Mackie. Number 486 SENATOR MACKIE: Just to follow Senator Green, the legislature would first have to provide a preference over timber for some reason first, right? I mean it would have to be the .... CHAIRMAN HALFORD: The Constitution provides it. The legislature may provide that preference. SENATOR MACKIE: My question was, and thanks for clarifying Senator Parnell's question. That was the question that I was asking, was could the legislature, under customary and traditional use, provide that opportunity, and originally you said no so maybe I had asked the question wrong. And I wanted to go back to that for just a minute. I know Senator Ward has raised the issue of the Kenaitze Indians, for example, who could clearly demonstrate, you know, a traditional subsistence use -- whether or not we, the legislature, could provide for a preference based on that customary and traditional use, based on that one section of this thing? ASSISTANT ATTORNEY GENERAL WHITE: You certainly could use that as a criteria for subsistence uses. SENATOR MACKIE: Then my second question, Mr. Chairman. In view of the fiscal note that was provided by the Administration, and just for the record, I understand that if the legislature places this question on before the voters by October 1, $10 million then becomes available which has been appropriated by the Congress for our Department of Fish and Game to use for management. Is that correct? ASSISTANT ATTORNEY GENERAL WHITE: That's my understanding, yes. SENATOR MACKIE: Well, it's in the fiscal note that says that. I just wanted to get that on the record. So that $10 million would become available, and what are the parameters under which that $10 million could be used? ASSISTANT ATTORNEY GENERAL WHITE: I might need to defer to the Department of Fish and Game because I don't know what is the direction for that money or how it might be used. SENATOR MACKIE: Fair enough. Thank you. CHAIRMAN HALFORD: Senator Kelly. SENATOR PETE KELLY: You had spoken about the broadness of place of residence. I think that's what Senator Parnell was asking about. I'm not clear on it. If we provide -- if the legislature provides a preference based on something other than rural, then we're not in compliance with ANILCA. Then are we back here again because the federal government is threatening a takeover because it no longer complies with ANILCA? ASSISTANT ATTORNEY GENERAL WHITE: That's correct. SENATOR PETE KELLY: Place of residence really doesn't get us anywhere. It means rural so, for all practical purposes, it simply means rural. ASSISTANT ATTORNEY GENERAL WHITE: That's correct. It may mean other things but in order to become in compliance with ANILCA it has to mean rural -- it has to be implemented as rural. CHAIRMAN HALFORD: It's important to note the constitutional change, which is broader than rural, includes rural, so therefore the statute could comply with ANILCA. SENATOR PARNELL: Could but doesn't have to, right? CHAIRMAN HALFORD: It does license the Legislature to provide by statute a rural preference, if you use the word residency. SENATOR PETE KELLY: Correct, but in order to be in compliance with ANILCA it would mean rural, So, essentially what this reads, because you said a lot of this is superfluous, is that the legislature may, consistent with the sustained yield principle, provide a preference to and among residents to take wild renewable resources for subsistence uses, based on place of residence. That's all we're really saying here that isn't already stated in the Constitution, isn't that correct? ASSISTANT ATTORNEY GENERAL WHITE: That's correct. SENATOR PETE KELLY: When you spoke of users versus uses, and I don't know if Senator Taylor clarified this or if you clarified this at the time, but you said there was - that you were making the distinction between users and uses, but I think what Senator Taylor was saying was once the beneficial uses are not sufficient to provide for subsistence, then you'd have included users because you have so many people outside of the constitutional protection or statutory protection than you do inside, and therefore it is a qualitative distinction that is being made. Is that correct? ASSISTANT ATTORNEY GENERAL WHITE: Once I understood his question, yes, once the uses are reduced then you have to look at the users and the users are reduced as well. SENATOR PETE KELLY: Thank you. Thank you Mr. Chairman. CHAIRMAN HALFORD: Senator Taylor. SENATOR TAYLOR: Thank you. Steve, to get back to some of the legal questions I'm concerned about here. I'm assuming you're very familiar with the Dinkum Sands case. Direct action suit -- State of Alaska -- talk about getting some oil revenues -- took a long time -- right? ASSISTANT ATTORNEY GENERAL WHITE: I'm generally familiar with that, yes. SENATOR TAYLOR: Are you familiar with the -- Sandra Day O'Connor wrote the majority opinion for the Court on that. It's a '97 Alaskan case so it's not like it's ancient law that may somehow have been changed by our Supreme Court. In that case, her actual words were that not only does Alaska own its submerged lands and waters, navigable waters, but she also included the phrase "and the fish that swim therein." Do you, or this Administration, have some disagreement with that case, or some different interpretation? ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the Chair. I think she said that ownership of certain submerged lands carries with it the powers to control fishing. Ownership and authority are, in my mind, two different things. SENATOR TAYLOR: Let's clarify that then. Ownership of the land, according to Sandra Day O'Connor, on behalf of all of our Supreme Court in the United States, says that it carries with it the ownership itself, carries with it the right to control the resources within the water, doesn't it? ASSISTANT ATTORNEY GENERAL WHITE: Yes, that's correct. SENATOR TAYLOR: Crab, sea urchins, geoducks. The geoduck would be a real good one to look at, wouldn't it, because he's right down in our land, isn't he? Who does control the geoduck in the State of Alaska today? We do, don't we? Like the [indisc.], we've got a commercial fishery on it. ASSISTANT ATTORNEY GENERAL WHITE: The state manages the resource. I wouldn't say the state owns it. The state manages the resource. SENATOR TAYLOR: Sandra Day O'Connor says we have the right to manage that resource because we own the submerged land, right? ASSISTANT ATTORNEY GENERAL WHITE: That's right. SENATOR TAYLOR: What part of that authority does this Administration wish us -- or would like us to cede to the federal government so that they control who gets to take a geoduck? And, I guess my real question is, by what legal authority does this Administration think they have the right to narrow the sovereignty of this state? Can you cite me any authority? ASSISTANT ATTORNEY GENERAL WHITE: Under the property -- Senator Taylor, through the Chair -- under the property clause the federal government has the constitutional ability to manage affairs on its land and manage its property. SENATOR TAYLOR: [Indisc.] talking about its land, are we? I thought you and I both just agreed that the U.S. Supreme Court in the 1997 case said that that is the land of the State of Alaska. In fact, I don't know of any case by the United States Supreme Court in its history that says that every state does not own its submerged lands. In fact, I could cite you to a whole series of them. We're not talking about lands owned by the federal government. That's the Tongass National Forest. We're talking about our submerged lands in this state. So tell me, by what legal authority do you believe the Governor or this legislature, or the Congress for that matter, has the right to narrow the sovereign domain of the State of Alaska? ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the Chair, ANILCA, amongst other constitutional bases, is based upon the property clause. That's what allows the federal government to say that it manages fish and game resources on federal lands, but give us the opportunity, if we wish, to manage it. So, it's a property clause, constitutional basis. The Ninth Circuit Court of Appeals in Katie John said that the federal government can extend its jurisdiction in the navigable waters for fisheries to serve the federal reserve rights concept - principle. That's why we're here. That's what the federal government is doing to its regulations, is going off federal land, which it has the property right to do, using a federal court concept of reserve water rights to reach into our fisheries. Furthermore, under other U.S. Court decisions, they could even go further to reach extra- territorially into state and privately held lands, migratory birds, migrating fish, and so forth. They haven't done that yet but they have the ability under U.S. Supreme Court decisions to do that. We're not ceding anything, we're recognizing what the federal law says under U.S. Supreme Court decisions. SENATOR TAYLOR: You're just surrendering to it unchallenged I guess. Let me cite you then, Steve, to a 1992 case, New York versus United States, again by our United States Supreme Court, and I'm going to read, just briefly, this language to you. [Senator Taylor reads:] If a power is an attribute of state sovereignty, it is necessarily a power the Constitution has conferred, not the Congress. The constitutional authority of Congress cannot be expanded by the consent of a governmental unit whose domain is thereby narrowed, whether that unit is the executive branch or the states. In other words, we the people of Alaska received 150 million acres of land; 103 million in state land, 45 million Native land, you add to that the University school lands totaling maybe 600,000, 700,000, privately owned lands -- your house here in Juneau, so to speak, ballpark maybe .... TAPE 99-39, SIDE B SENATOR TAYLOR: ... 150 million acres. Are you telling me that today, because of the Katie John case, that you believe that the federal government, and not the State of Alaska, has control over those lands? And if they do, why pass this amendment? They've already got us. ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the Chair, no, I'm merely saying the federal government under the Constitution could manage fish and wildlife on its lands and even off its lands. We have examples of the Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Act, all these things are federal regulations of fish and game on their lands and off their lands. I'm sure they've been challenged in the Constitution and we still have them. SENATOR TAYLOR: In fact they never have been challenged by the State of Alaska on that issue except for the Babbitt case, right? ASSISTANT ATTORNEY GENERAL WHITE: I can't answer that question. I don't know how many times or in what circumstances we've challenged any of those authorities or if we've challenged any of those authorities. SENATOR TAYLOR: Well we have, in fact, challenged several on submerged lands and we've won every one of them. In fact, we're the State of Alaska that took that case to the Supreme Court for the 1997 -- had Sandra Day O'Connor say yes, you own the land and the fish and the resources therein. You have the right to manage it and she said it's an essential aspect of state sovereignty. How many federal, state versus federal, cases have we got going right now any why does this Administration stay all action on those? ASSISTANT ATTORNEY GENERAL WHITE: The cases are set out in here and I haven't counted them. All those that deal with who has jurisdiction over subsistence and subsistence management have been stayed by the federal court itself, stayed pending whether or not the state comes into management. If the state comes into management, the federal court no longer has jurisdiction over those cases. If we don't come into compliance, those cases will proceed through the federal courts but it's been the federal court itself who has stayed action on those cases. SENATOR TAYLOR: We didn't stay action on those? We didn't tell our attorney general's office or you didn't send the word down to any of these people to stay action on those? ASSISTANT ATTORNEY GENERAL WHITE: I believe that the federal court itself recognized why proceed with the case that they wouldn't eventually have jurisdiction, so, as a matter of judicial economy, I believe the federal court itself stayed action pending action this week in Juneau. SENATOR TAYLOR: You know I've questioned the Governor this last spring -- publicly informed the legislature and then publicly announced that he would be suing on behalf of the commercial fishermen in Glacier Bay to protect our rights to manage the crab resource and other resources in those navigable waters and then he went publicly and said he was going to bring suit and sue to the federal government over that. Can you tell us whether that suit has been filed or not? ASSISTANT ATTORNEY GENERAL WHITE: I do not know whether that's been filed or not. Our attorneys in our Anchorage office work on the Glacier Bay -- and I can find out whether they've filed suit. I think I asked them that a few weeks ago and they hadn't, not due to -- I don't know but I can get an answer to that question for you. SENATOR TAYLOR: Would the basis of our suit there be defense of our submerged lands and the water above them and the fish and crab that swim therein, just as Sandra Day O'Connor said? I mean, is that the basis upon which we're suing? ASSISTANT ATTORNEY GENERAL WHITE: I can't answer that question but I'll find out for you. Again I don't the basis. I don't very much about the Glacier Bay lawsuit because that's not in my section here in Juneau but I can find out for you. SENATOR TAYLOR: I should have phrased it another way. Do you know of any other basis upon which we might possibly sue the feds so that we would once again retain and regain management of the Glacier Bay fisheries? You didn't ask on those bases ... ASSISTANT ATTORNEY GENERAL WHITE: I don't know of any basis, either supporting that case or the ones that we couldn't use but again I'll try and find out what the bases are. Number 547 CHAIRMAN HALFORD: Senator Pete Kelly. SENATOR PETE KELLY: I just wanted to make comments on the discussion about giving up portions of state sovereignty unilaterally by public officials, one I think is kind of interesting given that I think in Arizona recently there was a case where they were trying to give up portions of their submerged lands because it was actually to their benefit because of this entanglement of title problems with the federal government, with private ownership, and what not. The legislature actually came up with a bill to give up their title to those submerged lands and the governor wanted no part of it, in fact vetoed it. I thought it was interesting that that governor was Bruce Babbitt who didn't want to give up sovereignty to his state. CHAIRMAN HALFORD: A question with regard to the purposes section. That wasn't in the Administration's bill. That is an addition on the other side. The purposes section, Section 3 of the bill before us on page 2. Does the Administration think that's essential to the bill? ASSISTANT ATTORNEY GENERAL WHITE: Mr. Chairman, the Governor's bill did have a purpose section to it. CHAIRMAN HALFORD: Was it the same language? ASSISTANT ATTORNEY GENERAL WHITE: It wasn't the same language. We did not actually cite the two cases that we wished to address. On reflection we thought it was - would be even stronger and clearer to the courts if we did do that so, on our suggestion, those two cases were added to the purpose clause. CHAIRMAN HALFORD: With regard to both the purposes section and the language itself, the term "wild renewable resources" had some people concerned about a resource conflict with another resource use -- wild renewable resource at least including timber, probably including berries or anything renewable on the surface, maybe including water had, under the federal law and would be allowed under this amendment, a constitutional priority. And there has been a lot of concern about how that would affect a conflicting development use of that property. I think that's what Senator Green was trying to understand and the federal diversions of this constitutional amendment have said fish or game but they haven't said "wild renewable resource" and you've gone back to the broader language. Does that cause you any concern? ASSISTANT ATTORNEY GENERAL WHITE: Through the Chair, I don't think it -- well, it should not be a concern to you because just as you can have the discretion to do anything under here, under this language, you could certainly define -- it says "to take a wild renewable resource". It seems to me in your statutory implementation you could describe which wild renewable resources are subject to subsistence uses. CHAIRMAN HALFORD: Doesn't the federal court have the real control of the definition if we are, in our purposes section and in our Constitution, allowing for whatever they want to expand that definition to include? ASSISTANT ATTORNEY GENERAL WHITE: To be in compliance with ANILCA your definition of that would have to be consistent with what ANILCA provides for subsistence uses. CHAIRMAN HALFORD: That hasn't been litigated in any case that I know of. ASSISTANT ATTORNEY GENERAL WHITE: I'm not aware of it being litigated either. Number 510 CHAIRMAN HALFORD: Senator Leman. SENATOR LEMAN: If I could continue on that. Steve, if we did not provide the priority to rural residents for subsistence harvest of other than fish and wildlife, would it not then mean that the federal government would manage for subsistence on federal land only for those things other than fish and wildlife, perhaps berries, things like that, and wouldn't that be the net result? It wouldn't necessarily mean that they would manage for subsistence for fish and wildlife because we're out of compliance with the other wild renewable resources. Do you understand my question? ASSISTANT ATTORNEY GENERAL WHITE: I understand your question. I've never thought about that but I think that that would be problematic because I think we have to have laws that provide for the preference definition and participation and, if the definition -- in order to regain compliance, the laws have to provide for all three. If we somehow limit the resources and don't provide the same definition of renewable resources in our statutes as in ANILCA, I don't believe that we would regain any management so I think the consistency has to be across the board, but I really haven't -- that's my initial reaction. I'd have to think about that some more. SENATOR LEMAN: Mr. Chairman that would be very interesting if the federal government would take that approach. We all know why we're here but the immediate challenge before us is federal management -- federal day to day management of fisheries in Alaska for subsistence which could have an effect on all management. I don't see people jumping up and down about the impact of federal management of grass or berries on federal land. I guess they do it -- well, timber they do it now on federal lands. ASSISTANT ATTORNEY GENERAL WHITE: Well, by and large all the litigation has been on fish and game resources but what I'm saying is I think the definition, I'd have to look at it in ANILCA, but I think it's broader than just the fish and game. It's not been interpreted as Senator Halford mentioned. CHAIRMAN HALFORD: Further questions? Senator Taylor. SENATOR TAYLOR: On extraterritoriality. Liz Ruskin, in a news article in the Daily News, I think stated it very clearly when she said, if by Friday the Legislature doesn't put a constitutional amendment on the ballot allowing the rural priority, the federal government says it will assume management of subsistence fishing on the two-thirds of Alaska it controls. Do you think that's an accurate statement? They haven't actually taken over fisheries control on their own land yet and you said this was under the property clause. They can do it on their land. I'd debate that with you but what the heck, I'll give you that point. In other words, to take the opposite side of her statement, if we fail to act, other than your theory that they can expand their jurisdiction, their sovereignty under extra- territoriality, expanding beyond the borders of their rights, other than that they have no jurisdiction over our waters or our state lands, or my private land in Wrangell - I mean my property in Wrangell. They don't have that jurisdiction today. Is that correct? I mean did she state it correctly because I think she did. ASSISTANT ATTORNEY GENERAL WHITE: That's correct. They have -- if you look on the map in this thing, they have extended it to the boundaries that the federal land management, including patented but not conveyed lands, -- they cite in their -- they make reference to the Kleppe case which talks about extra- territoriality. In their commentary they say that they have the authority but they're not exercising it at this point. But, you're correct, that's as far as they've chosen to go at this point. They've not used extra-territoriality to go any further. They tend -- the federal government has not yet defined, under the reserved water rights doctrine, how far beyond boundaries they are going to manage our fisheries. We've asked them to do that and they have not done it at this point. So that's an uncertainty. SENATOR TAYLOR: So to the extent that the extra-territorial reach of the federal authority may come into our 150 million acres that we call the State of Alaska, and may come into our waters, as an attorney, isn't the issue of reserve water rights by the federal government -- isn't that a very weak issue when compared with the constitutional authority and stare decisis decisions of our United States Supreme Court on the subject of title to that water column and the resources within it. In other words, aren't we on very strong ground when we defend this state's Constitution and sovereignty under the submerged lands act and the statehood act, and aren't they on very, very weak ground when it comes to reserve water rights. In fact the only extra-territorial case you mentioned to this committee today is Kleppe, which involves the protection under the Endangered Species Act of a bunch of burros. That's the only case anybody can cite to me on federal land where they exercise any jurisdiction over animals. Isn't one a very weak thing, reserve water rights, and the state's position a very strong one? ASSISTANT ATTORNEY GENERAL WHITE: Senator Taylor, through the Chair, I was not involved with the briefing in the Katie John case in which we argued that federal public lands does not include state navigable waters. The District Court found that it did. We appealed to the Ninth Circuit. The Ninth Circuit [indisc.] federal reserve water rights, which allowed the extension. We asked for cert. to the U.S. Supreme Court and it was denied. We litigated it and I'm not sure of the grounds but the result of that was the federal reserve water rights which allows them to extend beyond the exact borders of the federal land units. SENATOR TAYLOR: In conclusion, failing the constitutional amendment or failing the approval by the voters of the State of Alaska to cede their sovereign state to federal enforcement, will this Administration bring suit to defend this Constitution and our sovereign state? ASSISTANT ATTORNEY GENERAL WHITE: I'm not in a position to answer that. SENATOR TAYLOR: It will be a political decision. Thanks. CHAIRMAN HALFORD: Further questions? Nobody has asked anything of Mary Pete and she sat there so patiently. Just as a matter of curiosity, do you think there would be more fish in the Yukon and the Kuskokwim River under federal management than there has been in the last decade under state management? MARY PETE, DIRECTOR OF THE DIVISION OF SUBSISTENCE, ALASKA DEPARTMENT OF FISH AND GAME: I can't answer that. CHAIRMAN HALFORD: Regardless of other implications, I certainly think there would. If there are not further questions we thank you very much for your .... Next, we'll go to AFN - Julie and whoever you wish to have join you today. Number 428 JULIE KITKA, PRESIDENT OF THE ALASKA FEDERATION OF NATIVES: Thank you, Mr. Chairman. I would like it if it's possible to patch in one lawyer by phone, Norman Cohen in Anchorage, if that is possible to do that. CHAIRMAN HALFORD: Well, if you've got somebody here -- what we did is we said listen only, and we had other people that wanted to testify by teleconference. MS. KITKA: He would just be available to answer any questions that you would have, not that he would be testifying. CHAIRMAN HALFORD: Okay, if we have any questions we'll try to go to him but I'd just as soon not change the teleconference in the middle of this. MS. KITKA: Okay. CHAIRMAN HALFORD: If I'd known that I would have tried to deal with it differently. MS. KITKA: Okay. Thank you Mr. Chairman. For the record my name is Julie Kitka and I'm the President of the Alaska Federation of Natives. To my right is attorney Carol Daniels, who I've asked to join me this afternoon. To my left is AFN attorney Chris McNeill. I appreciate the opportunity to testify and we'll keep our comments brief. The House has taken a major step forward last night in passing a constitutional amendment and we would like to thank those legislators who voted to allow the people of the state to have an opportunity to vote on this issue in November of 2000. We know that it was a difficult decision for many of them and we listened to much of the debate and participated in the process as much as we could. It is one step in a many step process. We know that it is pending consideration here in the Senate and, should it pass out of the legislature, it will need to be certified by the Secretary of the Interior, voted by the people in the state as well as further steps in the process of having a state statute and regulations, and so we're looking at it that this is a process that continues and not everything is going to get resolved during this special session. AFN again repeats we support a constitutional amendment that allows the state to come into compliance with ANILCA. We support no amendments to ANILCA. We support no lawsuits, standing or appropriations to overturn the federal policy that's contained in Title VIII of ANILCA because we believe that that is good public policy. AFN, as well as I'm sure many in this room, awaits further information from the Department of Interior on whether or not the House-passed legislation is something that the Department of Interior will certify or not. And so that is of great interest to us as well as I'm sure everybody here. We'd like to also state for the record that we're very pleased that sports fishermen, commercial fishermen, business and community leaders have been standing up, both coming down here to Juneau as well as standing up with us both here in the state as well as across the nation. It is something that is very heartening to us, especially over the long time system going on for almost ten years and so I'd like to, for the record, express appreciation to the other individuals again which have been standing up and conveying to you their wishes to also see this go on the ballot in November and have a resolution to the conflict. I'd like to also say, you know we appreciate that they have recognized the importance of subsistence to the Native people in the state as well as the rural people and we do recognize that it is to some effort that they have come down here or expressing their support and we appreciate that. As I mentioned earlier, we are awaiting further information from the Department. I think one of the key questions that we have testified on the House side is the question in the list of criteria on the question of rural. We have testified that we thought that adding rural in that criteria would strengthen the amendment but we made it crystal clear that we are awaiting the Department of Interior's decision whether or not the amendment, as passed, accomplishes that and, should it be adopted by the people of the state, allow the state to come into compliance with ANILCA. Basically that's our testimony this afternoon and I'd be glad to answer any questions. CHAIRMAN HALFORD: Senator Mackie and then Senator Taylor. SENATOR MACKIE: Thank you. Julie, should the Department of Interior feel that the House-passed version is something they can certify, is AFN willing to support this particular passed version? MS. KITKA: I think that we would like to await -- you know discussions with the Department of Interior if they find that that is acceptable and are willing to certify as well as what happens in the [indisc.] but certainly if the [indisc.] proposal is certified by the Department allows the state to come into compliance with ANILCA we will be supporting it. CHAIRMAN HALFORD: Senator Taylor. SENATOR TAYLOR: Jerry just asked the same question I was. Thank you Julie. CHAIRMAN HALFORD: Senator Leman. SENATOR LEMAN: Mr. Chairman, Julie, you made a similar statement today that you made a few days ago that AFN would support -- I think you said would support no amendments to ANILCA, which I interpreted to mean you wouldn't support amending ANILCA and yet I think it's nearly universal that we can agree that there is vagueness in terms, there are some things that ought to be changed, that ought to give us the authority to define certain things like rural, what's customary trade, reasonable opportunity, and things like that that I believe if we get away from almost adversarial position of dealing with this type of thing, probably even you would agree. [Indisc.] but those are things that need to be defined so we don't argue over what those things mean. I would think that in the interest of bringing this to a resolution, that it would be a more reasonable approach for AFN, and others similarly situated, to support changes like that that that would help bring this thing to Alaska so we can have the solution be actually pulled together within our state, within our family of Alaskans. I suggest that and I don't know if you're posturing to ensure that certain other things stay in or if you really would follow through on that, but it seems to me that it would be an unreasonable position and I would hope that you would reconsider that and maybe look at some reasonable changes to ANILCA that could bring this thing to a conclusion. MS. KITKA: Mr. Chairman, to respond to that, I do not believe it's an unreasonable position and it is our position, but I also testified yesterday the Alaska Federation of Natives and the Native community has never said Title VIII of ANILCA is perfect. We have always been open for discussion about things that improve Title VIII of ANILCA. What we have objected to and are very concerned about is it seems like what always comes back to us on amendments to ANILCA is proposals to overturn court cases that our people have won and our people have seen a situation that they thought was not right and exercised their rights as a citizen and pursued it in the courts and it was successful and it seemed to us that everything that was coming back to us was overturning all of those ones and we just will not support any weakening of Title VIII of ANILCA and we'll -- that's the reasonableness of what our position is. Like I said, we've never said it's perfect. We've never said it cannot be improved but we cannot support any weakening of it. It's the only federal protection that we have and we're going to do everything we can to protect our people's interests including our federal protection. CHAIRMAN HALFORD: Senator Lincoln, then Senator Taylor. SENATOR LINCOLN: Mr. Chairman, somewhat on that same line, Julie could you or how would you respond to the charges that we have heard from various individuals that AFN is not willing to compromise? They're not willing to come to the table to compromise. How do you respond to that? MS. KITKA: Well maybe I'd go ahead and ask Chris McNeill to respond to that as far as ANCSA and the conference report and so forth. Chris? CHRIS MCNEILL, ALASKA FEDERATION OF NATIVES LEGAL COUNSEL: Thank you. In order to review this you do have to look at the origins of the discussion and that those rights were recognized but not fully resolved in ANCSA itself and the legislative history so stated. And because they were not resolved in ANCSA, that's how the progression moved into the discussions in D-2 and ANILCA. And the provision as it stands in ANILCA is a compromise because the Native community definitely wanted a Native preference and what finally came out of it was this provision, which we felt came a long ways towards a compromise and thought it would have been implemented many years ago. CHAIRMAN HALFORD: Senator Taylor? SENATOR TAYLOR: Yes, thank you. Julie, I think we all probably agree, we've certainly heard it for I guess very consistently for about ten years now, that ANILCA will not be changed at the congressional level. Ted tells me that. I hear Bill Clinton say it. Bruce Babbitt. I don't know anybody that has said that it's going to be changed. They tried to, you know, tried to pull some of the commercial fishermen to believe that somehow they were going to get some changes and got some linkage on prior bills but there's certainly no linkage here now so.... I guess my concern is what is AFN's opinion on how will state enforcement with the passage of this law be different or better for AFN than federal enforcement of exactly the same law, rules, and regulations? MS. KITKA: Well, Mr. Chairman, I think that requires an understanding of why AFN for at least the last ten years, through the McDowell decision, has been participating in every regular session and every special session, virtually every committee hearing, is we have been interested in helping the state regain management. We recognize that is important to many people. We do recognize that there's difficulties if you have a dual management system, however we're at the point now that if the state is unwilling to put a constitutional amendment out to the ballot and let the people decide, and unwilling to come into compliance, we are willing to live with and accept the federal implementation of the federal law. But I think that it has been our desire to try to help the state regain management to have a single unitary management -- was why we have participated, but, as I said it has remained our view if the state's unwilling to do that we think that our people's interests can be protected with the federal implementation of the law and so we support that, but we're here hopefully to [indisc.] last minute if that's what it takes to help urge the state along. In fact, we also, in our efforts on the national level on that, have seen quite a bit of interest in what is going on and it is also our desire that the legislature resolve this in a positive manner because there is a lot of interest nationally in what is going on and I would much rather have the pride of knowing that we can solve things here at the legislative level and put it out to the people and allow them to vote on that and see the view that the people nationally get of how we handle things here in the state as opposed to say we failed again in another special session after so many years and the divisiveness continues. I think that that gives the state a very big black eye and, in particular, the legislature -- a very big black eye. SENATOR TAYLOR: I understand those things. My question though, really, was how do you believe federal enforcement or, if you will, how would state enforcement be different than federal enforcement since it's the same law, rules and regulations? I cited a couple of examples in earlier questions to Steve. Is the False Pass fishery going to be left open if state management takes over? Or is the False Pass fishery going to be closed under state management just as it would be closed under federal management because each of those managing entities, and I hate to use the word "management" because it's not a management law, ANILCA was never intended to be a game management law, it's an allocation law but -- I would think that if AFN sees, assuming we pass all of this stuff, AFN sees the State of Alaska continuing to allow the False Pass fishery to occur, then I think you're going to go to federal court and sue and say that's violating our considerations under subsistence for up river uses -- we want that fishery closed. Even though the state's biologists may well like to keep it open, you will not want that, I'm assuming. You'll go to court and a federal court will tell us how to do it. And that's why I'm having a hard time understanding how you think that state management will be any different than federal management. MS. KITKA: Well I think that people will bring petitions to the federal agency in the system if the federal government is implementing the law. Probably one of the positive things that I would see happen if the federal government did implement it -- I think that there would probably be a greater willingness for co- management and cooperative agreements between the federal agencies and the Native communities and therefore that might be some ability to bring people in at the local level in some positive way which, again, we think if the state regained management it could also move in that direction to involve more local decision making and we see that across the Arctic as something that's positive and kind of the natural growth in the management system. I think there's probably a greater interest in the federal agencies in moving along and I wish that there was a greater interest on the state level but the state's not precluded from moving in that direction if they regain management. SENATOR TAYLOR: You know, as you and I have talked with others, I favor a regional management system. I always have as opposed to a statewide. But I think we still need some overall uniform worries about biology but I think regional would be better. You've mentioned now, two or three times, co-management. You talked about co-management in terms of the federal government working with Native communities. I listened to Bill Clinton's comments and I assume, since you were there when he made them, at least on the television thing back in D.C., he also talked about resolving the ANILCA concerns on a government to government basis. What two governments do you believe he was talking about? Do you believe he was talking about the federal government and the State of Alaska or is it the federal government and tribal governments? MS. KITKA: I'd like to ask Chris to respond to that. SENATOR TAYLOR: Whoever. I don't know what he meant by government to government and each time you said co-management you've talked about federal government sitting down with Native governments to talk about management. MR. MCNEILL: The federal government always has a policy of working with all of the states. In context of that statement, he was referring to his own policy, which is, in fact, an executive order, that he'll have a relationship also with tribal governments on certain issues. SENATOR TAYLOR: Okay, that's what I thought he said too, was federal governments, tribal governments, we'll work it out - if the state's hanging around I guess that's fine, but I didn't hear it as a triumvirate agreement and I don't hear co-management being mentioned as involving the State of Alaska either. Maybe I'm not hearing that correctly, and if I'm not, please correct me. MS. KITKA: Well, Mr. Chairman, I think that there is a lot of room for cooperative agreements and co-management agreements to develop and it should be viewed as very positive, constructive development in the management in the state, and so when I look at that and the potential in the state, I view that as the wave of the future, how management should evolve. I don't think we ought to stay in the same system that we've had for years and years and if, like I said, we can get some of these big tier levels resolved maybe we can move forward on some of that. I view it as constructive, not negative. CHAIRMAN HALFORD: Further questions? Senator Mackie. SENATOR MACKIE: Yes, just to go down that road a little further. Julie, isn't it true that AFN is not afraid of federal management, and as a matter of fact, a lot of my constituents and a lot of Native communities that I represent, on the issue of subsistence would welcome federal management. I mean a lot of Native people believe that under a federal management system that the Native people are truly going to be taken care of better than the State of Alaska can. So why wouldn't AFN, and any of the tribal governments, want to pursue a government to government relationship for a co-management system for the benefit of their people? MS. KITKA: I think you're correct. No, we're not afraid of the federal management because all it is is federal implementation of the existing law, and we will work, if the state is unable to resolve this, to try to make that transition as smooth and as fair as possible and try to address the needs that we see that are out there. SENATOR MACKIE: So is it safe to say, through the Chair, that should the legislature not place the question before the voters, and federal management will happen on October 1st, that then the focus of the Native community will be towards how to maximize the opportunities for the Native community in the state under a federal management scheme and do that with open arms if the Legislature chooses to not stop it from happening? MS. KITKA: Yes. CHAIRMAN HALFORD: Senator Lincoln. SENATOR LINCOLN: Mr. Chairman, thank you. Julie, Chris or Carol - this may be the last opportunity that you have to testify on this issue, and hearing the previous testimony that was given by the Administration, and I don't know if there were questions that you might have anticipated that were going to be asked that wasn't, I would just like to ask if there's anything further that you would want to add, because it sounds like there might not be any more questions at this table of you and this might be the last opportunity. For either one of you three, or all of you. MS. KITKA: Well, I guess I'll go ahead and start and then ask if they have any other comments. I think that this committee and this Senate needs to recognize the historic importance of what you are doing and how important it is for you to resolve this, in as far as the future of the state as a whole. I think that the divisiveness that's been generated, the divisiveness that will be generated if you put your head in the sand, so to speak, and not take any action, will just grow. I don't think that is healthy for the state. I think that the people of the state deserve to have the opportunity to vote on this and you should not let your personal views, if you like it or not like it, allow you to block the people from voting. You have the opportunity to pass on an amendment to say, I'll pass on the amendment but I'll work hard against it because I don't believe in it but I believe in the ability of the people to vote on that, and if that's the position that you need to take, again people would understand it. What we would be frustrated with, if it gets continued to be road blocked, again by a small segment in the Senate, and the people are frustrated. Again, I think that this is an historic period of time. I don't think that that window of opportunity just stays open forever and it certainly does affect relationships in the state between Natives and non-Natives, between urban and rural. It affects relationships between the state and people outside of the state, the federal and state governments, so on on that. I just want to let you know that there's a lot at stake riding on you taking action and I really urge you not to say, you know, we're just going to block it and kill this and see where we go because I think that that will lead us down the path that all we'll have is more confrontation, more conflict, and a lot more litigation than trying to resolve problems. And I think a constitutional amendment helps resolve problems, it doesn't resolve everything but it is a step forward. That's all I have to say on that. Carol? That's it. CHAIRMAN HALFORD: If there's no further questions, thank you very much. We will now go to three people from the opposition, Dick Bishop and then Carl Rosier and then Mary Bishop. You can all be there together or you can be one at a time, however you wish to do it. DICK BISHOP, VICE PRESIDENT OF THE ALASKA OUTDOOR COUNCIL: Thank you Mr. Chairman. I guess according to the list that I was shown, I guess I get to go first. My name is Dick Bishop, I'm the Vice President of the Alaska Outdoor Council. The Alaska Outdoor Council is a statewide conservation oriented outdoor users group. It's an umbrella organization for about 45 groups in the state that enjoy Alaska's outdoors and resources and it has a total of about 10,000 members. We appreciate the opportunity to again testify here. I'd like to remind the committee that the Alaska Outdoor Council does support subsistence uses and subsistence lifestyles, and personally that's how I got into this business, for better or worse, 25 years ago - as an advocate of subsistence uses and subsistence lifestyles. There have been days when I wish I'd never heard of it but it's too late to have those kinds of regrets. However, as much as we support those uses and lifestyles, we do, and have, consistently opposed discriminatory priorities with regard to the uses of those resources, Alaska's fish and wildlife and other resources, such as the rural zip code priority that is institutionalized in ANILCA. And we oppose bad conservation laws and ANILCA is demonstrably bad conservation law. I think that the Legislature should take heart in the fact that they owe no one an apology for turning down proposals to institutionalize, in our Constitution, discriminatory priorities or bad conservation law. Contrary to the way the actions of the Legislature have often been characterized publicly, the refusal to institutionalize or propose to institutionalize such provisions as a rural priority or bad conservation law measures, is not a failure to act, but an act to prevent bad misjudgment. It's pretty clear that the dilemma lies in the terms of ANILCA and I've characterized the situation that we all find ourselves in right now as being in a box, a box built of good intentions and bad judgment. Frankly, Mr. Chairman, to adopt a conforming amendment to our Constitution so that the state would not only have the opportunity, but the obligation, to administer federal law according to the dictates of the federal court, would simply nail the lid on that box good and tight, and it could be likened with regard to our civil rights and sound conservation, to nailing the lid on the coffin. Mr. Chairman, with regard to the bill that passed last night in the House, HJR 202 Finance amended, the Alaska Outdoor Council not only opposes that bill but condemns it as irresponsible, misleading, and unAlaskan, and a violation of the civil rights of all Alaskans. It's an Alaskan surrender, not an Alaskan solution. Several issues in the House debate were treated either like the proverbial skeleton in the closet. That treatment is, if you don't open the door, you won't know it's there and you won't have to deal with it, or like such an unpleasant sight that you avert your eyes as you pass by rather than face the unpleasantness of the reality. So the Bess v. Ulmer issue, which I really was pleased to hear substantial discussion of here this morning, relating to the amendment versus revision question, in the House after acknowledging that it was pretty much put back in the closet where a good skeleton belongs. The civil rights issue, on the other hand, got all of the attention of a maggot- ridden moose carcass. When you happen upon one of those in the woods, and I have, most people will walk around it upwind so they don't have to have the full experience of encountering it, or simply hold their nose and plunge ahead to more comfortable surroundings and hope like heck that none of the aroma has clung to your coattails. State management, as another issue, was smothered in any discussions in the House, and the Governor's myth, that if you comply with the federal law you get state management back - an oxymoron that has taken on a life of its own. And the fact that under ANILCA subsistence uses are second best to non-consumptive uses didn't even make ANILCA advocates blink. The final insult in HJR 202 is that the purpose section was put back in it, having previously been there. That provision effectively eliminates any wiggle room Alaska might have negotiated by explicitly stating that the purpose of this proposed amendment is to conform to Title VIII of ANILCA. Well, that may be good enough for the Governor and for those who supported passage of HJR 202 but it's really not good enough for Alaskans. It's not good enough for sound management and it's not good enough for the State of Alaska which should have clearly the responsibility and authority to manage resident fish and wildlife in the state, all of the gray areas and uncertainties with regard to federal law notwithstanding. So, we ask you please do not pass this maggot-ridden imitation of an Alaskan solution as we have often stated a constitutional amendment is not necessary to fairly and adequately provide for subsistence uses. But if the Legislature chooses to propose an amendment to strengthen subsistence provisions, it should do so within the current constitutional bounds which have been elaborated on very well by the Alaska Supreme Court and then ... TAPE 99-40, SIDE A MR. BISHOP: ... so that just about the only effective leverage that the state has, it can use the possibility of, or could use the possibility of, a constitutional amendment to negotiate needed changes in ANILCA and those changes are well documented. Basically what they would do is help put Alaska back on an equal footing with the authorities and responsibilities granted to every other state in the nation and which Alaska, if it conforms to federal law, will be deprived of. In our view ANILCA is the problem. Whatever the Legislature decides is the best course of action however, Title VIII of ANILCA still needs amendment regardless of whether that involves a conforming amendment or not. So I thank you for your time. I'd be happy to try to answer particular questions about the circumstances, call them technical or whatever if you will, but that concludes my remarks unless you have questions. Thank you. CHAIRMAN HALFORD: Senator Parnell. SENATOR PARNELL: Mr. Chairman, can we hear from the whole panel, from Mr. Rosier and .... CHAIRMAN HALFORD: We can ask questions if you want, if you have any specific questions, or we can come back to anyone after. SENATOR PARNELL: I'd like to hear it all before [indisc.]. CHAIRMAN HALFORD: Okay. Commissioner. CARL ROSIER, ALASKA OUTDOOR COUNCIL AND FORMER COMMISSIONER OF THE ALASKA DEPARTMENT OF FISH AND GAME: Thank you Mr. Chairman and members of the Committee. I appreciate the opportunity to get away from putting away the moose I killed this fall and coming here to testify so.... But anyway it's been my pleasure to have been a resident of this state since the mid '50s and it's truly, truly been a privilege to see the recovery of our resources during that period of time under the state management program. I guess I could truthfully say that I've seen the high points, and now I'm seeing the low points, of history in Alaska. When statehood came, there was a great outpouring of support for statehood, state management of these resources were finally going to have the - we're going to finally have the decision process close to home and where we can, in fact, effectively influence the things that in fact affect our lives here in Alaska. I say this is the low point because it seems to me that, in the case of subsistence, it's really a great, great use of the resources and it's one that I feel has been given great deference under the state system over the years. And for the life of me, as I sit here today, I still have great difficulty understanding why we are going to go back to a system that we saw decimate our resources, go back to a system that is continuing to decimate resources. I believe earlier in this special session I testified about the disaster regarding beluga whales in Cook Inlet. What about sea lions and so forth in the rest of the state - that are now closing down major fisheries around the state because - involving species that the federal government was damn well responsible for managing and yet they didn't manage and they won't manage. They will for the time being, then they'll build their bureaucracies on this. It will be an eight to five job, just like other federal jobs on this and, believe me, your resource will in fact go down the drain. Having worked for the federal government I've seen what happens in terms of the politics of these issues. If you think that you're going to get local management through the federal process here in Alaska, just think again. The politics of the federal government is in Washington, D.C. and that's where you're going to go to get your regulations. That's where you're going to go to get your fisheries policies. That's where you're going to go if you're going to participate in the federal regulatory process. That's where the decisions get made. There are political entities out there that we haven't even - don't even know exist that will be in fact involved in making fisheries and game policy in this state - bodies that were in fact excluded unless they wanted to come to Alaska in recent times. But anyway, that's where we are in my view today. A couple of things that I would like to say about HJR 202 Finance amended. At least the bill, in fact, talks about sustained yield. ANILCA doesn't even speak to sustained yield, so at least that's an improvement in terms of the wording. It's not in compliance with ANILCA so I'm not sure that the feds will in fact accept that. The general wording of the Article VIII, Section 4 provisions goes far beyond fish and wildlife, obviously. It makes the application down to all natural renewable resources in the state. It's not just natural either, it also applies to introduced species as I read the wording here. So, species that have not been customarily and traditionally used, unless yesterday was a customary and traditional use of that resource, are included in the general wording that's included here on this. I do say that there's an improvement in terms of when the harvestable surplus, when there is a harvestable surplus that's provided for here, it seems to me that there are great questions associated with when the shortage occurs. This certainly is an improvement over that particular definition. I think one of the greatest faults of this particular piece of proposed legislation is that there is no tie to ANILCA. I think that's a fatal flaw associated with this particular bill. The state, if it's going to deal on any kind of an equal footing with the federal government, is going to have to have some leverage. If the state is not willing to go after the provisions of ANILCA that in fact give it back, get back the management of these resources, then the federal government is just going to bury us. They will in no way deal with the state on a fair and equitable basis on this, lacking some leverage on the state's part. That leverage, in my mind, has to be a withdrawal of state and private lands from the provisions of this. It has to be -- the state has got to stand up on its hind legs and fight for navigable waters. It just seems to me that lacking this we have totally capitulated state's rights to the federal government and we're essentially back in the same position we were in prior to 1959. I think one of the most misleading statements in this document is to ensure state management of fish and wildlife throughout the state, to address the constitutional issues in the various court decisions and ANILCA. There's just no way that you're talking the state getting back state management. I mean anybody that thinks that has obviously been smoking something that they probably shouldn't be in this day and age. But on the other hand, it's been a statement that has in fact been fed to the public so long, that we're going to get back state management, that as Dickens said, it kind of takes on a life of its own and there's just no way that you're in fact going to get state management back under this. Nobody's really able to answer the question to me, anyway, of how do you get state management back when you have a federal law, you have federal agencies that are overseeing the implementation of that law, and when there's a violation of that law you go to federal court to resolve it. That doesn't seem like state management, at least the kind of state management that I've been used to and aware of for the last 40 years. I think that the final point that I'd like to make is I think under the purpose section here where we talk about to bring the state into compliance with Title VIII, seems to me that this forecloses further legal opportunities for the state down the road on this. For these reasons, Mr. Chairman, I, as a long term manager and having a great love for the resources, fish and game resources of this state, just cannot come down in support in any way of this particular document and I would hope that the Senate finds that same to be the case with the body. Thank you very much. CHAIRMAN HALFORD: Mary? Number 177 MARY BISHOP: My name is Mary Bishop. I live in Fairbanks. I want to reiterate our strong support for subsistence use and continuation of Native cultures and other cultures that make up the great diversity we see in Alaska. We must respect all those cultures and this diversity and I hope others will respect my culture. It holds many aspects of the hunting, gathering culture but it also -- but also aspects of civil and equal rights. Starting with our founding fathers who said no to the mandates of a distant King George and established a nation on principles of equal opportunity and civil rights. It's certainly not perfect - women didn't get to vote until I think it was 1926, but improving, as staunch supporters of those principles, like Rosa Parks, Martin Luther King, Jr., and Elizabeth Peratrovich, who refused to sit at the back of the bus. And they marched for equal rights. All this is part of my culture, equal to and along with my hunting and gathering culture. This is a civil rights issue and my civil rights, my culture, is shown grave disrespect by this federal law. And you, I'm counting on you as elected legislators, as guardians of my civil rights, please do not take that responsibility lightly under the stress of today's situation. Look around the world. Internationally we see what happens when nations put one group over another. Think about our grandkids and our children's children. Think past seven days, past seven years and on to seven generations down the line. Will our grandkids living in Juneau have the respect they should for our children's children in Sitka? Will our grandkids in Nenana respect our grandkids in Fairbanks? What will these funny little lines separating rural from urban do to us in seven generations? In spite of the stress of today, please remember you are the guardians of our civil rights. You understand the issue. You have not been -- as an example, you have learned over the last two days, perhaps longer, that there are myths out there, like the priority is only in times of shortage. The priority -- or we will get back state management. Those myths continue, probably 95 percent of the people believe them, they have never been informed otherwise. You have, you've heard all sides of the story. You are the guardians of my civil rights and I'm sort of counting on that. One of the questions is, Julie Kitka says this is an historic moment. What you do will be of historic importance. Earlier Senator Leman, you asked the AG's office a question with regard to the purpose section. I believe you asked if the purpose section, where it says the purpose is to bring the state into compliance, would affect a challenge through our -- a challenge to the constitutionality of the federal law, and the AG's office replied no, they didn't believe so. On the other hand, think about if the purpose of this section is to bring the state into compliance with federal law. Think about a court challenge to our state regulations or our state statutes - not the constitutionality but a regulation or a statute which anyone in the state can bring whose got the money to do it. Where will the court look for interpretation as to what our Constitution says. Will they look at the words on this side of the page or will they look to the purpose which says we're doing this because we want to bring it into compliance with Title VIII therefore we will look and see what Title VIII says. I don't think, with that language, what you say on this side of the page is going to make a lot of difference because the court is going to say the purpose was to bring you in compliance with Title VIII and therefore we'll look at Title VIII -- the ultimate in federal court oversight using the federal law. In the end I urge you to remember to think about what will happen seven generations down the line. Please be guardians of our civil rights. Thank you. CHAIRMAN HALFORD: Questions? Senator Pete Kelly. SENATOR PETE KELLY: Mr. Bishop, you have said something about the subsistence uses being secondary to non-consumptive uses. Could you point out where that is and kind of explain that to me? MR. BISHOP: Mr. Chairman, Senator Kelly, it is in ANILCA and, let's see, I can look it up here quick. It's on page 66 of the subsistence handbook that I think was provided to all legislators by the Administration. Under Section 802, number 2, of ANILCA it says: [he reads] nonwasteful subsistence uses of fish and wildlife and other renewable resources shall be the priority consumptive uses of all such resources on the public lands of Alaska. And it goes on. So what it -- all that it concedes is that nonwasteful subsistence uses shall be the priority consumptive uses of those resources, leaving a higher priority for non- consumptive uses. SENATOR PETE KELLY: Would you say a higher priority or leaving that question open? MR. BISHOP: I'd say a higher priority. SENATOR PETE KELLY: I don't follow the logic. MR. BISHOP: Well the logic, Mr. Chairman, is that subsistence is limited to being the priority use, consumptive use of different resources. The only other kinds of uses in that sort of breakdown is non-consumptive and so it essentially elevates non- consumptive uses to a higher position. In other words, if the question comes down as to relative importance of consumptive and non-consumptive uses, subsistence -- let me rephrase that, between non-consumptive uses and subsistence uses, the only thing that subsistence has going for it is being the highest priority consumptive use. SENATOR PETE KELLY: I guess I'd probably be more comfortable in saying that it isn't well addressed and that certainly that it could be open to interpretation and could find itself as secondary to non-consumptive use. MR. BISHOP: Mr. Chairman, that's probably a reasonable alternate approach to it. CHAIRMAN HALFORD: Further questions? Senator Taylor. SENATOR TAYLOR: Yes, for Carl. Carl you talked about federal management and what a travesty that had been under the federal government prior to statehood. What is the difference between the viability of species standard used in ANILCA and sustained yield standard which is -- now we're attempting to amend in our Constitution. MR. ROSIER: Well, viability, of course, is a much broader term, at least in my vocabulary. Viability. Conceivably that could be the last male and female of any given species in my estimation. Sustained yield is a much broader term that narrows it down to maintaining populations at a much higher level. SENATOR TAYLOR: And when we were talking in terms of the definition, which nobody seems to have but they tell us we can create this out of whole cloth, wildlife resource or wild resource, I guess the first thing that came to my mind was what about the expansion of an open pit mine, like Fort Knox which is very important to the economy of Fairbanks right now, would that conflict on a subsistence basis with somebody who had traditionally been picking berries in a given area up there? And, under ANILCA, which use would prevail? Would we have the expansion of Fort Knox or would we have a berry picking patch? MR. ROSIER: I don't know but I know within my own back yard when Tlingit and Haida wanted to build houses in a very popular local berry patch back there they built houses in it, so that's, you know, there are human needs here that have to be met and I think the question is an open question, Senator. SENATOR TAYLOR: Thank you. CHAIRMAN HALFORD: Further questions? Senator Mackie. SENATOR MACKIE: Carl, I asked you the other day and we've been friends a long time, [indisc.] associates, swooped down and nailed me with my little net when you were an enforcement officer when I was about ten years old but .... MR. ROSIER: At two o'clock in the morning. SENATOR MACKIE: I thought you were asleep. You've always been truthful and I can respect your opinion a lot. The one thing that we've talked about, both privately and here, is some of the concerns that I have that I'm sure you share, you indicated you did, and that is what happens under a federal management scheme? I mean all the legal jargon aside and everything else, I'm trying to look at it from a realistic standpoint as to realistically what does it mean under a federal management scheme and you have experience both federally and obviously as the head manager for the state. I'm really concerned with that and I have a real hard time getting over that. Assuming the legislature is able to find something that we could place before the voters, that I know there's varying agreement as to what getting back state management actually means and I certainly respect those opinions, what if -- the thing that I keep hearing Mary talk about, and she does a very good job articulating the civil rights issue -- that's -- you can make a very strong case for that. And certainly I understand where people are coming from when they have that position. What if there was a way, and I guess my question is to all three of you, what if there was a way to have something placed before the voters that would allow for some compliance of ANILCA and ultimately allow for state management of our resources which I may [indisc.] to everyone? All my colleagues, everybody that I know of, prefers to have the State of Alaska managing. What if we were able to do that and, in addition, hypothetically, look at a constitutional amendment that would grant standing to the Legislature to, based on the federal constitutionality of ANILCA dealing with your issue -- is there room within the Outdoor Council's position, or you as individuals, to look at something like that where, from my standpoint, somebody who isn't really familiar with all of the legal cases and some of the things that have been articulated here today -- if we could find a way? Number one, ultimately, I believe the people want to see state management in the State of Alaska continue which I believe is an outstanding management program, yet address the issue that Mary has articulated. What if the legislature came down with two constitutional amendments: one to grant a standing which the legislature clearly does not have right now to carry that lawsuit. If the Administration is unwilling to file that lawsuit, as Senator Taylor has requested on numerous occasions, what if the legislature was able to pursue that with proper standing granted by the people of the state which would have to be done through a constitutional amendment? Then, in the event that the lawsuit were to prevail in a federal court, obviously that section of ANILCA goes away. Is there room for those types of discussions to address, which, I believe, are two very legitimate cases that could be made on either side of this issue. I guess I just kind of wanted to get your thoughts about that type of an approach that we can -- that both sides can have their particular, the meat of their argument addressed? MS. BISHOP: There's certainly room from my standpoint and I'm just delighted that you're discussing it. There's certainly room, I think, for us to talk. The problem we had is a constant effort to do nothing but comply with ANILCA which, in my mind, destroys my civil rights and a lot of other peoples'. But if we can approach it some other way, with amendments to ANILCA, with - - and it would require amendments to ANILCA. You see, a lot of times -- I don't know if I can express this correctly-- a lot of times what I'm hearing Representative Williams and the other House speaking, and others who are advocating for Native - or subsistence rights, and they speak about the history of ANILCA and ANCSA as providing subsistence rights. When I read the portions that I have of ANCSA and the legislative history which is a shelf of books this wide, but I can't find anything in there that talks about subsistence rights. It talks about protecting the subsistence needs of Alaska Natives. But we know the [indisc.] doesn't have anything to do in the first cut with needs or with shortage. It has simply to do with these funny little lines that are drawn around communities. For example, in Nenana, if you live in Nenana, which is a little South of Fairbanks, if you live in Nenana you have the priority. But if you live five miles down the Parks Highway or five miles up the Parks Highway out of town you're not rural. If you live in the town you're rural, when you live outside the town you're not rural. It's just this kind of priority that takes away your civil rights, that's not based on need, that has these funny little lines that separate one part of us from another for irrational reasons. It's what's driving me and what's driving many other people. If we could amend ANILCA somehow or other to resolve some of these problems so people wouldn't feel so - that it's so irrational and their rights are gone for no rational reason. SENATOR MACKIE: Thank you Mr. Chairman, or Mr. Vice-Chairman. I guess my - obviously any ANILCA changes would need to come from our delegation. We don't have that ability today and certainly not before the first of October. You know I listen with interest about the issue of civil rights and obviously I support allowing the people to vote on a rural preference but I do listen and I understand where people are coming from when they talk about that particular issue of civil rights. My understanding is that the biggest heartburn people have with ANILCA with that section is that they believe it violates the federal constitution -- ANILCA itself -- you know being able to manage within the state like that and that would be the subject of a challenge. Now, in order to show some -- you know you hear the words compromise or some movement -- those kinds of things. If that particular issue was able to be addressed through a lawsuit with proper standing and proper funding where the issue of civil rights was being addressed under the -- in the federal court, you know, challenging under the federal constitution, is that something that would go a long ways to address your concern and still have the people of the State of Alaska be able to try to resolve whether or not we want to be able to allow the Legislature to grant a preference as well and so you kind of have both sides of the issue being addressed at the same time. To me -- you know I see -- I'm not advocating for any one way or another but it seems to me if there were some way to look at how those two very important things can be addressed that we might be able to move forward. So that was kind of the jist of what I was wondering your individual thoughts on. VICE-CHAIR TAYLOR: Go right ahead. MR. ROSIER: Yes, I think that's one issue but it still comes down, to my way of thinking, that the key to this is putting the State of Alaska on the same footing as every other state when it comes to managing fish and game resources, Senator. I see no reason for Alaska to be a second class state as related to fish and game management. Yet that seems to be the path that we're moving down. I think the civil rights thing is very important and I have right from the very beginning. It has certainly been part of the driving force that I've been faced with. Beneath that is still the need to make Alaska a first class state as far as fish and game management is concerned. It's one of those things that statehood was all about. It was one of those things that the people of this state coalesced around in the statehood battle and it was a good feeling to feel that with the populace of this state, prior to statehood -- man, we're finally going to get this back. I have records that go back to pre-statehood hearings in which the issue was traps. It was interesting because when the feds would come around, their comment at the beginning of the public is, we're not here to talk about traps, we're here to talk about fishing regulations and the subject was a closed book. Jerry, I know -- or Senator, I know that you, in fact, support state management and I guess my -- again I would point to the very methodical thoughtful way that previous legislatures have in fact dealt with subsistence. When you look at the benefits that are there currently in terms of state law, what are we talking about here? I mean I just find it very, very difficult to understand why we might be in a position -- or beating the drum so to speak for any federal involvement here. Why are we not gathering around the problem that's presented to us by ANILCA? I mean -- and I'm sorry. I just have great difficulty understanding that. The system has worked, it's worked well. No one has gone hungry in this state. No one has gone without resources in this state. The legislature has dealt with individual problems as they have arisen on this. The proxy taking that you were so instrumental in putting together, and we supported you on this -- such things as that. That's the way to deal with this. But this going all out for a priority that steps on people's civil rights and so forth makes people unequal, so to speak, within the state. It's -- surely we've learning something from history, that this system will not work over time and it just continues to pit one Alaskan against another. Number 475 SENATOR MACKIE: Mr. Chairman, what I guess my -- my question is a hard one to answer so I'll ask you a different one. Under federal management is it safe to say that you would believe the commercial fishing industry would be a disaster under a federal management system? MR. ROSIER: Mr. Chairman, I would say this, that the feds will only have one priority. Their priority will be subsistence. Anything that impinges upon that will in fact be imposed on the other user groups. SENATOR MACKIE: It potentially could be a disaster for the commercial fishing industry? MR. ROSIER: It very well could be. Such things as -- everybody uses False Pass as the example here on this and you know, I mean that's been a sore that's been boiling for a long time and it's almost a religion in certain parts of the state in opposition to that particular fishery. The feds cannot, in fact, respond the same way, and as I say, we're not going to have federal agents like, say, the area management biologists of the Department of Fish and Game that can set somewhere on a boat and write a regulation, for God's sake, called an emergency order on the spot closing a season and this type of thing. The federal system just can't work that way. We tried this under the North Pacific Council doing joint management on the tanner crab fisheries. The feds were ten days behind us, for God's sakes, in promulgating regulations to close a fishery in the Bering Sea. Not a very efficient system. SENATOR MACKIE: Thank you. CHAIRMAN HALFORD: Senator Taylor. SENATOR TAYLOR: On the same subject that it's disconcerting to continue the talk about federal management or state management when neither entity would have, with the passage of this amendment, any management authority, they only retain enforcement authority. Enforcement by the feds is no different than enforcement by the state when they're both enforcing the same law. The 55 mile speed limitation placed on all 50 states by Congress had to be enforced by the state or you didn't get your federal highways money. That was state enforcement of a federal mandate. What's happening here today is we're being asked by the Administration and other advocates to embrace a federal mandate and then to go out and enforce the federal law. I believe that - I'd like you to elaborate further on Senator Mackie's question because it seems to me that if the underlying law is the same for both federal and state administrative agencies, and if the underlying regulations are the same, how in the world can my fish and game officers do any different thing on management, or enforcement I should say, of this law than a federal agency can? Very same question I've asked about three other people. Is it more pleasant to be arrested by an Alaska State Trooper than a U.S. Forest Service employee? Is that -- or will it feel better because the local guy threw us in jail? I don't understand that distinction and that's what Liz Ruskin said in her article and I think she said it correctly. They've got you on two-thirds of the state. We still owe them 150 million acres and the navigable waters. Now if you want to surrender it, maybe you ought to take a look at your oath of office before you do that. How is it different Carl, one from the other? Because there's an illusion around here. There's a whole bunch of advocates running around saying, oh state management's going to be so wonderful because we can do it different. Every time I ask them where can you do it different - well, we don't know but we'll try. Tell me where they can do it different Carl. MR. ROSIER: Mr. Chairman, if I might. No, initially, as we've said before, initially the feds will in fact adopt the fisheries regulations pretty much the same as we've got on the books right at the present time under state management on this. But, as each issue is raised before the federal subsistence board and the regional councils, you'll see the federal regs begin to in fact diverge. It's exactly what we saw with the -- and then Senator Taylor's comment is quite correct because once they diverge from the state's regulations on this thing, that becomes the responsibility of the state to in fact enforce that if we're in fact -- you know been patted on the back and told, you know, you now can act as federal agents to in fact enforce the state -- or the federal regulations on this. So I would see no difference but believe me, they're going to continue to be sore spots as they divert. I mean everytime, you know I mean it's just like the deer situation in your own district down there. I mean Ketchikan nearly had a revolution when that deer season was at stake down there on this. We had great problems with the moose season on the Kenai Peninsula when the subsistence issue was tackled down there, and a priority was in fact given. You can anticipate those kind of things occurring on an annual basis because the federal system will in fact be king and the state will be required to in fact modify its seasons and bag limits and whatever according to whatever the federal government says it has to do to protect the subsistence priority. SENATOR TAYLOR: If I could follow up. That is -- the Prince of Wales question is the reason I was asking this. Right now I can kill under state law four deer male bucks on Prince of Wales -- today I can go do that. My fish and game department told the federal subsistence panel they did not want a doe season out there. But today I can also kill one deer of any sex under subsistence law on Prince of Wales, and I can use any method or means of taking by the way, so pit lighting has become common. I find that very frustrating as far as the management of a game species, that that quote dual management system would be going on. And that's why I asked the question. Under this constitutional amendment and us embracing this law and now we're going to enforce it -- how does the subsistence panel, the very same panel that decided you could shoot the doe on Prince of Wales, how do they decide the issue? Do they continue to shoot does? I think they do. Now let's decide, let's say -- oh no, they've decided they are going to listen to the Department of Fish and Game, they're not going to shoot does anymore. Guess what? A group of subsistence users on Prince of Wales files suit in the federal court and a black robed judge in San Francisco says, no, you don't manage fish and game on Prince of Wales anymore. You are under ANILCA. ANILCA says the panel gets to say and this panel just said start shooting does on Prince of Wales. And the additional one on that that caused the revolution -- the very same panel was the panel that suggested in a proposed regulation that no person living in Ketchikan could any longer hunt deer on Prince of Wales, that it would be their exclusive hunting zone for just people who lived on Prince of Wales. I saw a thousand signatures on a petition within a week. That's what we're talking about. Now tell me how it's going to be different under the state embracing it or only under the feds enforcing it, because I believe it's the same. And if I'm wrong I want to be told where you can point me to that shows that I'm wrong. MR. BISHOP: Mr. Chairman. Carl has a wealth of experience on which to base his projections of what is liable to happen, both with state and federal agencies and the management. To carry that further or to illustrate it further, during the period 1986 to 1989, Alaska had a rural priority in state law and was in conformity with federal law and it gave us the opportunity to have a very good experience with that situation that is now being entertained again. And the progression of regulations that had to conform with the federal law is exactly what happened during that period of time, during those three years. And also during that time, it demonstrated quite clearly another provision of the federal law, and that is the federal court enforcement because there are literally dozens of cases that were filed in court, some of them in state court admittedly, but a number of them, many of them, and the most important ones were filed in federal court because the federal law provides the opportunity for an aggreived subsistence user to take a complaint about a regulation, be it federal or state, to the federal district courts. As a result of that three year experience and a number of those cases going to federal court, we got one case that was most complete in explaining how the federal law would be and had been interpreted by the federal court. That was the Bobby case that involved taking a moose out of season near Lime Village and it very clearly showed that if the state was in compliance with federal law, the state would be obligated to regulate subsistence uses to the satisfaction of the federal judge. And, if it was not satisfactory, then they were to go back to the drawing board, redraw the regulations, bring them back to the judge, and if he approved then they could implement them. So it was quite illustrative and it's worth taking a look at how it all works because that's the very same prospect that we're looking at at this moment. Thank you. CHAIRMAN HALFORD: Just to amplify this a little bit further. All of these provisions apply to subsistence management. When we have the discussion about management of fisheries, does the federal judge, or has any federal judge yet gone as far, or can he -- does he have any basis to go as far as saying that he -- he obviously controls the subsistence opportunities and he may, through the state process, go to the state and enforce the closure of a commercial season or a non-subsistence use. Can he ever open a commercial fishery season? Can he ever set a commercial fisheries regulation or bag limit? Can he set a sport fish season, an opener? It looks to me like all they have is conflict closure authority and no opening authority for any piece of their management structure, and I wonder if I'm mistaken. MR. BISHOP: Mr. Chairman, I think you're right. I think that under the federal law the authority that is extended to the federal government in this case is to provide for subsistence uses under the terms of the law. It does not address -- I'm trying to recall now and could look it up but -- either specifically or in general terms, to the best of my recollection. TAPE 99-40, SIDE B MR. BISHOP: ... empowerment for regulating, that is, opening other fisheries or doing anything other than regulating them so that subsistence use is not impaired. That is, I think Carl said it before, that is their sole responsibility in that regard. CHAIRMAN HALFORD: So it's an incomplete ability to even manage. Senator Mackie did you have further questions? SENATOR MACKIE: Yes. You know I'd asked the question and I didn't get an answer for it out of all three of them. I think it's safe to say that, you know, Carl your experience and Senator Taylor described the Prince of Wales situation -- I mean under a federal management system we have a lot to be worried about. We have a public policy nightmare to worry about. We've got all kinds of things to be really worried about. And I have --some of my friends say don't pass a constitutional amendment, just sue them. Some of my friends say don't sue them, just pass a constitutional amendment. Why don't we do both? UNIDENTIFIED SPEAKER: You agree with your friends, right? SENATOR MACKIE: I mean that's really a legitimate question. CHAIRMAN HALFORD: I don't think you can get the votes on both sides of this question. SENATOR MACKIE: You know clearly where I stand but I mean it's - - I'm trying to -- as a state how do we come together and try to give people what they deeply feel strongly about, their day in court for one side and state management on the other? MS. BISHOP: But it's refreshing that you're at least thinking of a different solution. I really appreciate that. SENATOR MACKIE: I'd appreciate it if you'd give that some thought [indisc.]. CHAIRMAN HALFORD: Senator Parnell. SENATOR PARNELL: Thank you. We've had a lot of talk today about why the proposed amendment is bad or poor and that to me goes to the merits of the amendment and why people should vote no on it. What are the arguments that say, in your mind, what are the arguments against even letting the voters have a say on this amendment? Are they the same, are they different? MS. BISHOP: I have, and I don't know if I speak for all three, I have been so distressed for so long about this myth that the priority is only in times of shortage, and I speak to my friends and they all are astounded when they realize that maybe that isn't the truth. Practically everybody in this state thinks the priority is only at times of shortage and it relates to Natives. And neither one has any bearing on when you get a priority. This is what the people have been led to believe. So, until the people are as well educated as you, and are we going to do that with 30 second sound bytes paid for by whoever's got the most money, no truth in advertising required? I don't think it's going to happen. That's why I don't want to vote. You people have been educated. You are the guardians of our civil rights. You're supposed to know what's going on. I'm afraid the people of Alaska won't until they get the same education that you have. SENATOR PARNELL: So, the people won't understand, they won't be able to vote intelligently on it. What other reasons are there why we shouldn't put forth a constitutional amendment? MR. BISHOP: Mr. Chairman, Senator Parnell. I think another reason is, and it's related I think to what Mary has said, is that the way the Constitution frames the opportunity for constitutional amendments, gives the responsibility for deciding what amendments should be put before the people to the legislature. And implicitly, at least, it says then that the legislature has the responsibility for deciding what are legitimate questions to be put on the ballot for public vote as a function of representative government in contrast to mob rule where you simply put any question up for public vote and a decision is made by popular vote and that's it, willy nilly, whether people are well informed, whether a rational proposition, a lawful proposition or whatever. So, there is a process there. There's a reason for the process being there. It's important for that process to function. Things like initiatives, for example, which this is kind of the same thing, tend to make an end run on the rational processes and the systematic processes that are in place under the Constitution and the laws of the State of Alaska. And I don't think that despite the popular appeal of having a public vote on an issue, I think we ought to resist the temptation to believe that the appropriate way to address especially such a fundamental issue as this is to simply put a question on the ballot and let people vote. Then if you take into account the circumstances under which they are going to be voting, that is, being subject to, as Mary said, a barrage of 30 second sound bytes and whoever has the most money to buy those, it has a very good chance to win. Senator Lincoln on ... CHAIRMAN HALFORD: Except back in September. MR. BISHOP: Senator Lincoln brought that up the last time we spoke and questioned my statement along that line because the vote went the opposite way of where the most money was spent. SENATOR PARNELL: Dick, what's troubling me is what is my criteria? What is our criteria as legislators for deciding whether we're going to be in that two-thirds or one-third or 50- 50 -- no, and all I've heard so far is that this issue is pretty confusing and people won't understand it the way they should. I thought you were going to go to talk about discriminatory treatment, equal footing -- going back to those arguments because those are what have troubled me for years. Those arguments have. And I guess my question is how do you get to -- what's the forum for those issues? UNIDENTIFIED SPEAKER: ANILCA. SENATOR PARNELL: Just let me go here please. It's the court, that's what I think anyway, to resolve those issues. My next question is, what Alaskan citizen today, after nine years of federal management on game on lands, do we have a lawsuit going now on those two issues, either equal footing or discrimination? MR. ROSIER: I'm sorry I ... SENATOR PARNELL: Do we have a lawsuit right now, ongoing, challenging -- does a private citizen have a lawsuit now challenging the constitutionality of ANILCA and how it's impacted them on federal lands? MR. BISHOP: Mr. Chairman, Senator Parnell, to the best of my knowledge there is no lawsuit presently active addressing that question, either by the state or by a private citizen. To make a long story real short and oversimplified, it hasn't been possible to get there for technical reasons in court so the issue has never been actually fully addressed in court. There have been various reasons and one of the reasons, as came out the other day in the House discussion of this, I was asked, well, you know, you have a whole bunch of members and so on, why don't you have a case in court challenging whatever you want to challenge about this issue? Money. We don't have corporate sponsors. We don't have government subsidies. Most of our members are working people or business people who have limited means. We don't have a war chest to challenge the federal government. I was speaking with a friend who acted as a consultant to a rancher in Wyoming recently on a case involving wolves on a ranch next to Yellowstone, where wolves have been reintroduced. I don't know that much about the case except he decided to challenge the federal government, I think, or maybe he decided simply to defend himself. At any rate they're in court and it looks like he has prevailed but it cost him $2 million. CHAIRMAN HALFORD: There was a case that was withdrawn when the state case was [indisc.] and I understood they were refiling that case but they have not yet done so. Is that correct? MR. BISHOP: Mr. Chairman that is correct and I don't know for sure what the considerations are about refiling that. My understanding of it is that it may be best to wait until things have developed a little further because like the Leg Council lawsuit, you know, one of the questions was ripeness, other questions were standing. From past experience in lawsuits that the Alaska Outdoor Council has been involved in, standing and, well ripeness, I guess, was a problem. In a case we were associated with the federal court threw it out because we had filed nine days too early. So as the safe suspended over our head -- the safe being the federal regulations -- until somebody snipped the rope and it squashed us we didn't have any grounds for complaint so it was dismissed. Number 477 SENATOR PARNELL: It seems to me Dick, that - I mean I've given some thought to the proposal here that Senator Mackie just threw on the table, and it seems to me that if you can have an Alaska solution where the people who have strongly supported conforming to ANILCA and a rural preference, if as our Chairman has indicated, that very important issue to them is resolved in place of residence, and if we can give the Legislature some standing, if possible, on key issues which you've set forth here today, mainly discriminatory treatment or the rural preference, could that not be a win-win for all Alaskans? MS. BISHOP: You know what I wish I had right now? I wish we had some attorneys. You've got three biologists here. SENATOR PARNELL: This is probably not the place where we're going to be able to hammer something out but that's - I think that those are important considerations here. MR. BISHOP: Mr. Chairman, I'm not sure I can fully address that question. All I would say is that I think that it would be extremely dangerous, both from the standpoint of the interests of Alaskans with regard to their opportunities for the use of public resources and with regard to their civil rights, as well as for the interests of the State of Alaska to bet on the [indisc.]. By that I mean to assume, to go ahead -- and I maybe misconstruing your question so correct me if I'm wrong, but to go ahead and adopt or propose to adopt, an amendment that would conform state law to the federal rural priority law and bet on the possibility that the legislature, number one, will legally have that standing, and number two, could succeed in a court case challenging whatever needed to be challenged. I guess I've been in this issue a little too long to be willing to take a great deal on good faith. SENATOR PARNELL: And that's where the other side is at this point too. And that's what we're trying to do here is work on bringing us all together. Thank you. CHAIRMAN HALFORD: Just as a matter of -- Senator you asked a lot of questions about what standard. SENATOR PARNELL: I didn't get quite as much time as Senator Taylor did in a previous .... CHAIRMAN HALFORD: I would say that I'm not willing to put on the ballot any of the major civil rights, whether they're freedom of press, freedom of religion, right to keep and bear arms, in the sense of any limitations on any of those, any large categorical way. I don't think they belong on the ballot but that's -- you know the Bill of Rights - they're all alike -- the state declaration - that's the standard that I .... SENATOR PARNELL: You mean those amendments that were ratified by public vote? SENATOR TAYLOR: Yes. Do you really believe we can put up before a vote the equal protection clause? Is that what .... SENATOR PARNELL: No because I don't think that's the issue. SENATOR TAYLOR: Well I was told by Steve that if the equal protection clause of our Constitution will be amended by this -- which rights are we going to put up, the civil rights of various people in the state and say, well if you live in the right zip code you get to keep having rights, if you don't, you don't, and we're going to do that by plebiscite? Would you really support that Sean? CHAIRMAN HALFORD: Let's come back to these witnesses. I started that and I apologize. Senator Lincoln. SENATOR LINCOLN: Mr. Chairman, I have to go back because I was a bit bothered by Mary's response and I appreciate your point of view and you haven't varied on it, of not coming into compliance with ANILCA in this manner. I guess I'm a bit bothered by saying that the general public is unaware or not as informed as we are therefore cannot make the proper choice. This is not a new issue. It has been out there for 16 years, I guess, and this is the fifth special session. I don't know if you saw some of the polls that just recently went out and people were asked do you understand what is being asked here. That it's a rural preference. Do you understand that. I think it was high 70s, low 80 percent that said yes, responded yes. I think that these were mostly super voters, if not all super voters, that have been here a long, long time. Do you agree with a rural preference, and the vast majority again, yes. So I don't know if I really can buy into that, that the general public is so naive that they could not decide on an issue as important as this. I believe that all sides will get out with the information and let the general public know those areas that we feel they need to have further education on. But I really can't believe, after all of these years, that we can still say that the general public truly doesn't understand the issue. MS. BISHOP: Senator Lincoln, I did a little survey in Fairbanks. I wrote out, maybe I have it here, on a pink sheet of paper, and I wrote a number of questions out about the specifics of the law. Such things -- some simple questions like, is this a priority for Native people, is the priority in times of shortage, will the priority give people in Nenana a priority over people in the Fairbanks North Star Borough, do the people South of Nenana ten miles have a priority over the people in Nenana, some stuff about Kodiak, just, you know some basics. People looked at that and they said, they couldn't answer it and these are people who have been involved in politics -- I mean I gave this to people who were involved in politics. And then I go around to my friends and I ask them about in times of shortage and will we get management of fish and game back. I've actually done some surveys. People don't understand the issue. CHAIRMAN HALFORD: Go ahead and then Senator Kelly will ask the last question. The list just got closed. You guys answer and then Senator Kelly's question, Senator Pete Kelly's question. MR. ROSIER: Thank you Mr. Chairman. I've gone through kind of the same thing here locally. I'm a member of the Juneau Yacht Club which includes quite a few highly educated people, people that are active in politics in the state on this and when you ask them the question of the rural subsistence priority, that's okay. But then you begin to talk about what are the ramifications to state management under this system, they have no idea what you're even talking about. They haven't the slightest idea what you're talking about. Yes, well the paper says .... Well the paper continues to put forth the falacies that Mary has enumerated here in terms of state management, in terms of only in times of shortage, and those types of things. So there's a great amount of confusion out there in the public about nobody is arguing with subsistence but they certainly, when you get down to telling them about what the ramifications of that priority is under federal, it becomes a totally different question. MR. BISHOP: Mr. Chairman, I'd just like to give one example of the extent to which the public is not well informed or is misinformed or something. I think it was probably now close to three weeks ago that there was the Alaska Public Radio Network program called Talk of Alaska where there were three guests on the program: former Governor Hammond, former Senator Clem Tillion, and a lady named, I believe her name was Helen MacLean, who I think formerly lived here or at least Southeastern and now lives in Anchorage. The introduction to the program by Steven Heimel (ph), the moderator, was very interesting because it went a little like this: We're going to talk about subsistence today and try to answer the question why are people trying to eliminate the subsistence way of life. That was one of his opening statements. What is wrong with a subsistence priority when there is a shortage of game? That was another one. And it went downhill from there. The introduction given by a member of the media, introducing to a statewide audience, call-in show as well as a talk show, almost completely misrepresented the issue at the outset. The public that was listening to that got a darn good dose of misinformation and thank goodness former Governor Hammond and McKie Campbell from Juneau straightened out a lot of those misconceptions before they got too far along. In fact I think Jay did a little bit too good of a job because it seemed like after awhile he didn't get a chance to say anything any more. But that is an example of not only why, but how, and to what extent the public is misinformed. I happen to know that Mr. Heimel (ph) has received the correct information because quite frequently the issue of shortage comes up and I don't know how many times we've called them and said look, that's not a criterion of the federal law, and yet it keeps reappearing and reappearing and reappearing in stories in the media. I must give credit to many of the reporters on the various papers. They have, finally, honed through the old files and sorted a lot of that out. CHAIRMAN HALFORD: Senator Pete Kelly's last question. SENATOR PETE KELLY: It isn't really a question, I just think we wandered away from what was really the topic here, and it isn't about whether people understand what's on the ballot or not, it's what's on the ballot. We're all -- I, unlike most of the people who vote for a rural preference, have probably voted for a lot more options than those who support a rural preference. We've had a lot of things that have been set out there that have been summarily rejected by Babbitt and a lot of other parties involved that I think had no business being involved. There's been a lot of people voting for a lot of things to go on the ballot so that we could decide this. The fact is in all of these five special sessions it's basically been the same thing: rural preference, period, take it or leave it, under every Administration that has been here. So we have had a lot of things that we have put forward and we have been willing to put something on the ballot, assuming people will understand it, however, the line is drawn on those things that are simply not appropriate to put on the ballot. We said it last week when we were talking on I think this exact same subject, is that you didn't put on the ballot in 1955 whether Rosa Parks should sit on the back of the bus or not. The fact is everybody in Alabama would have understood that very well. [Indisc.] put it on the ballot. They would have understood very well what it meant to whether the University of Alabama should have been segregated or not in 1963. They all would have understood that. That wasn't the question whether they understood it or not. It simply was not appropriate to put on the ballot. CHAIRMAN HALFORD: Thank you for your testimony. MR. ROSIER: Thank you Mr. Chairman. MR. BISHOP: Thank you. CHAIRMAN HALFORD: Back to committee discussion. Senator Mackie? SENATOR MACKIE: I was going to point out that there's 80 percent of the people living in urban areas. It's not like the deck is stacked but I won't say that, I'll just wait until another time. CHAIRMAN HALFORD: With that we conclude the public hearing portion. The legislation is before us. What is the will of the committee? SENATOR MACKIE: Mr. Chairman, I'd like to move the bill from committee with individual recommendations. CHAIRMAN HALFORD: There's a motion to move the bill from committee with individual recommendations. I do not intend to object although I do not support the legislation. I think in a special session the issue will be decided on the floor. Is there objection to the motion to move the bill? Senator Taylor. SENATOR TAYLOR: I do object for the record but withdraw it for the same reasons you have stated. CHAIRMAN HALFORD: Without objection the bill moves from committee with individual recommendations and the accompanying fiscal note. With that, the committee is adjourned [4:05 p.m.].