Legislature(1995 - 1996)
04/27/1995 04:15 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 312 - EXTEND CURRENT SUBSISTENCE LAW CO-CHAIRMAN WILLIAMS noted there was a committee substitute for HB 312. REPRESENTATIVE BARNES made a MOTION to ADOPT CSHB 312(RES). CO-CHAIRMAN WILLIAMS asked if there were any objections. Hearing none, the MOTION PASSED. CO-CHAIRMAN WILLIAMS said at the last hearing, the committee learned that the Administration was not in favor of leaving the law open-ended. In discussing this opposition with the sponsor of HB 312, she suggested a one-year extension which is what is contained in the committee substitute. REPRESENTATIVE IRENE NICHOLIA said she did not have a problem with the extension. She asked if Section 9 of the 1992 law is kept and is extended for one more year, will that require Governor Knowles to do the review of the 1992 subsistence law. GERON BRUCE, REPRESENTATIVE, ALASKA DEPARTMENT OF FISH AND GAME (ADF&G), replied yes. He said the Administration has already begun taking steps in that the Governor has asked Lieutenant Governor Ulmer to begin work, which the Governor has described as quiet diplomacy, to bring a group of people together to discuss potential solutions to the subsistence conflict in the state and propose those solutions to the legislature. Number 249 REPRESENTATIVE NICHOLIA wondered if additional funds will be required for HB 312 and the Governor's plan. MR. BRUCE stated the effort will require funds. He added that the effort is being headed up by the Governor and he did not know what funding source had been identified for the effort. He said in regard to the fiscal impact on ADF&G relating to HB 312, he did feel the impact would not be on the department, but rather the Administration. REPRESENTATIVE DAVIES made a MOTION to AMEND CSHB 312(RES) by adding a new Section 2 that would modify the language in Section 9 of the Special Session Law 1992, subsection (d). He stated presently Section 9 reads "(d) No later than September 1, 1994, the governor shall provide a report to the legislature on the results of the review and proposed recommendations for statutory amendments." He moved to change the date to February 1, 1996. REPRESENTATIVE SCOTT OGAN OBJECTED. Number 283 REPRESENTATIVE BARNES said she would oppose the motion because HB 312 simply changes the sunset of the 1992 law. REPRESENTATIVE DAVIES stated the motion is a simple conceptual amendment. He said the reason for the amendment is the intent to leave Section 9 in effect has been acknowledged. He noted the date contained in that Section has gone by. He said his amendment will require the Governor to issue the report by February 1, 1996. Since the sunset provision is October 1, 1996, that would give the legislature a chance to consider the results of his study in a rational way. REPRESENTATIVE BARNES felt the amendment was not necessary KYLE PARKER, LEGISLATIVE ASSISTANT, SPEAKER GAIL PHILLIPS, PRIME SPONSOR, said his understanding of what the Governor is doing with his efforts on the quiet diplomacy go beyond what is in the 1992 law. He stated if the report to be conducted under the 1992 law is of some concern to the committee, instead of extending the time in which that report can be presented, perhaps the committee should eliminate Section 9 altogether. He believed the Governor's review of the subsistence issue is much broader in scope than that envisioned under the 1992 law. Number 324 MR. BRUCE stated the review required in the 1992 Special Session Law indicates a focus on the experience gained in implementing the act and the regulations adopted under the act. He noted the section also mentions the importance of the subject and the vital concern the issue is, so he felt it was unclear how broad of a review is required. He reiterated it is clear that the Administration intends to conduct this type of effort and has placed a lot of importance on it. He thought it might be helpful to have Section 9 extended also, so it is clear the legislature is also supporting the effort to look for advice from the public and all parties on how to address the subsistence issue in the future. CO-CHAIRMAN WILLIAMS reiterated that in talking with the sponsor of HB 312, she agreed to a one-year extension. He stated there is something going to be done on the subsistence issue. MR. PARKER stated ADF&G had testified they would support a one-year extension, which is what the Lieutenant Governor has said as well. REPRESENTATIVE DAVIES said the amendment makes the language consistent with the one-year extension. REPRESENTATIVE OGAN asked Representative Davies to review the amendment again. REPRESENTATIVE DAVIES explained on page 8, line 4 of the 1992 Special Session Law, he proposes changing the date from September 1, 1994, to February 1, 1996. Number 383 REPRESENTATIVE BARNES said the bill would sunset October 1, 1996, and Representative Davies' amendment would require the report February 1, 1996. She said she would not object to the amendment. REPRESENTATIVE OGAN WITHDREW his OBJECTION. CO-CHAIRMAN WILLIAMS asked if there were any objections. Hearing none, the AMENDMENT PASSED. Number 405 JACK POLSTER, HOMER, testified via teleconference and said he sent Speaker Phillips two pages of testimony. He wondered if the committee had received it. CO-CHAIRMAN WILLIAMS said they did not. MR. POLSTER stated government, in allowing action by the residents, should be able to define whether they are allowing a permitted act or protecting a right. He asked if the protection of a right, i.e. subsistence is being dealt with, or is a privilege being extended. CO-CHAIRMAN WILLIAMS said the committee is in the process of extending the effective date of the current subsistence law from October 1, 1995, to October 1, 1996. MR. POLSTER felt a larger issue is being dealt with, that being the issue of subsistence. He thought it would be an opportune time to have his question answered. CO-CHAIRMAN WILLIAMS stated the committee is not dealing with the subsistence issue at the present time. He asked Mr. Polster to repeat his question. MR. POLSTER wondered if there was legal counsel present at the meeting. He asked the committee if subsistence is a right or a privilege. REPRESENTATIVE BARNES stated legislative legal counsel was present. She said under the state's Constitution the resources belong to all the people and she stressed the committee is not debating that question, but rather debating whether or not to extend the present law or revert to the prior law which was on the books while a study comes forth. MR. POLSTER clarified the committee does not know whether it is dealing with a right or a privilege. REPRESENTATIVE BARNES said she does know. MR. POLSTER stressed he would like to have the answer. He said he took time off of work to come to the hearing to get an answer to the question. He assumed subsistence is a right. He stated he had an argument which was part of the two pages of testimony he sent to Speaker Phillips with the suggestion that the legislature's dilemma in regard to the subsistence issue is in part a result of the failure to define if the state is protecting a right or extending a privilege. He stressed when the state is granting action to a citizen, it has to be one or the other and the legislature has to be able to define what its intent is. He felt there is a definite difference between the two. He thought the definition is necessary for the ultimate resolution of the dilemma, which is a result of not defining the purpose of the action. Number 462 MR. BRUCE felt the question would be more appropriately addressed to a legal person, not to an employee of ADF&G. CO-CHAIRMAN WILLIAMS asked Mr. Bruce to explain to Mr. Polster what HB 312 does. MR. BRUCE stated the law enacted in the Special Session in 1992 contained a sunset clause which becomes effective shortly if HB 312 is not enacted. He said what is being proposed is to extend the current law during a period of time which people of goodwill across the state can try to develop a consensus of how to manage fish and wildlife in the state to satisfy subsistence use and other uses. He pointed out HB 312 will provide additional time for people to work on the issue while maintaining the status quo. He felt the question Mr. Polster asked would be appropriately asked of the study group that is looking at the issue and people with a legal background. MR. POLSTER stated he has asked those individuals, agents of the state, and legislators to answer the question without any results. He said he did not come to the meeting naive as he understands the reality of life but on the other hand, this is public testimony and public record and individuals in the state believe they have a common law right to subsist. He pointed out the revolution of the problem in the past has resulted from an equivalent of a jury of 12 individuals, the state, and the federal government recognizing the natural common law right of a particular individual of the state to subsist under Uniform Commercial Code 1-207. Number 508 GEORGE IRWIN, REPRESENTATIVE, ALASKA FEDERATION OF NATIVES, INC. (AFN) testified via teleconference and stated AFN urges the Nineteenth Alaska Legislature not to enact HB 312. He said HB 312 will do nothing to resolve the real issue of subsistence in Alaska, which is the federal/state impasse over the rural preference and the steadily expanding loss of state authority over its own resources. MR. IRWIN pointed out in 1992, the Hickel Administration tried to force on the Native community a new system of subsistence eligibility which, if enacted, would have dismantled village economies and social structures. That plan was firmly rejected, and all the former administration could get was bits and pieces of an anti-subsistence statute. He said the administration got the power to designate huge regions of the state as nonsubsistence use areas in which sport and commercial uses were to be protected from all other competition and no Alaskan, no matter how great his or her need, could hunt or fish for food. That plan also got a definition of customary trade, a definition of customary and traditional uses, and a reasonable opportunity standard of subsistence protections--none of which are adequate to the state's needs or complies with federal law. MR. IRWIN stated nonsubsistence use areas have been struck down as unconstitutional by the superior court. That ruling will likely be upheld by the Alaska Supreme Court, in which case the state government will not enjoy that power regardless of what the legislature does on HB 312. He said the 1992 statute also provided an automatic sunset on October 1, 1995, and required an in-depth analysis of the 1992 law's implementation, including specific policy recommendations, prior to further legislative action. He pointed out no such analysis has ever been conducted, and the legislative leadership's determined neglect of the entire issue has now brought it face to face with its own deadline. He noted HB 312 therefore proposes to renege on the commitments of 1992, to hide from difficult policy choices and continue applying last minute band-aids to every hemorrhage of state sovereignty. MR. IRWIN stressed AFN urges the legislature to reject HB 312 because it is inadequate to the state's needs, because it is anti- subsistence in intent and effect, and because it means this legislature has no intention of taking its responsibilities on the most divisive issue in state politics. REPRESENTATIVE OGAN recalled that Mr. Irwin had said the state created areas that were only for sport hunters and also said those areas were off limits to anyone hunting and fishing for food. He noted for the record he is a sport hunter but he does hunt for food and eats what he kills. Number 554 CALVIN SIMEON, NATURAL RESOURCES DIRECTOR, ASSOCIATION OF VILLAGE COUNCIL PRESIDENTS (AVCP), testified via teleconference and expressed opposition to HB 312. He said the bill restricts subsistence by requiring nonsubsistence use areas. He pointed out that section of the bill is unconstitutional and will be upheld by the Alaska Supreme Court. He told committee members they are about to pass an unconstitutional bill. MR. SIMEON said the Boards of Game and Fisheries have not implemented this law fairly. He pointed out in 1993, the Board of Game declared a large portion of game management unit 19 as a nonsubsistence use area. The unit 19 area is located along the southern base of the Kuskokwim River and supports moose, caribou, sheep and bear. He stressed the area was clearly used for subsistence and was depended on quite heavily by rural residents. MR. SIMEON noted the Board of Game implemented the law on the premise of designating the area as a nonsubsistence use area. The board left it up to the rural community to prove the area was used for subsistence and was not eligible to be designated as a nonsubsistence use area. He explained the burden of proof was put on rural communities and the villages were once again placed in a position of defending its residents way of life. He said this is an example of the board not understanding subsistence but promoting the commercial viability and exploitation by sport hunting. MR. SIMEON stated the AVCP is committed to resolving the subsistence issue and feels the issue will not be resolved by the state attempting to buy time with an unconstitutional bill. He added AVCP feels HB 312 is gutless and of little use. The bill will not buy the state any time because recent court decisions place the federal government in a position of not only managing game resources but also fish resources. He pointed out in the end, the law created more problems than it solved. He felt it would be more fair to call the law the employment act for lawyers. The law resulted in the Boards of Game and Fisheries at the brink of managing the entire fish and game management structure out of a job. Number 590 AL MCKINLEY, REPRESENTATIVE, GRAND CAMP, ALASKA NATIVE BROTHERHOOD (ANB), said ANB encompasses 19 villages and over 20,000 Natives throughout Southeast Alaska. He stated ANB agrees with the comments made by the AFN. He noted the report on the implementation of the 1992 subsistence law prepared by ADF&G was good. However, the law is not in compliance with the Alaska National Interest Land Conservation Act (ANILCA). Therefore, he felt passing HB 312 will not do anything. MR. MCKINLEY stated in 1992, the Native people agreed with the sunset clause because they knew there were major issues needing to be addressed. They gave the state enough latitude to act on the subsistence law but nothing has happened. He felt if a one-year extension is given, nothing much will change. He noted the Katie John case is there and in the meantime, there is no attempt being made to move ahead by the state. He did not feel there should be a one-year extension. MR. MCKINLEY said in 1950 when he was a child working with his dad in Hoonah, the Native people supported the state system of managing the state's resources. In 1978, when the subsistence law came into existence, it went in a different direction and now the state is back at the point where it started. He noted in 1951, his father was involved with subsistence and the fisheries. Traps were eliminated in order to have better management of the resources in the state. He told committee members he has heard legislators say there is no treaty. He disagreed. He stated there is a treaty session which says the civilized tribe shall never be disturbed. MR. MCKINLEY stated ANB would like to work with the legislature and the Governor on the subsistence issue. He said the only solution is to amend the state Constitution to coincide with ANILCA. REPRESENTATIVE DAVIES asked Mr. McKinley if he thinks it is possible to come up with a solution the legislature would agree with and be acceptable to a large number of the people in the state of Alaska by end of the current session. MR. MCKINLEY replied with the Katie John case there is a clear picture as to where the state is headed. REPRESENTATIVE DAVIES stated he appreciates Mr. Mckinley's frustration and agrees with most of what he said--that there has not been a solid effort by the legislature to address the subsistence issue. He asked Mr. McKinley, given the divisiveness of the issue and the polarization which exists currently, is it possible to come up with a consensus solution by the end of the session. MR. MCKINLEY responded the previous governor tried to work out a solution in June 1994 by calling a special session but no action was taken by the legislature. He felt ample time has been given. He stated the solution is to have everyone get together in a room and not come out until a solution is reached. REPRESENTATIVE DAVIES agreed. He added he is supporting the one- year extension for the same reason he voted against HJR 33. He believes the legislature should not take any substantive action that moves the debate from one direction to the other, absent a consensus position. He sees the extension as preserving the status quo so the quiet diplomacy the Governor has initiated can proceed. He hoped by the time the legislature meets next year and perhaps even sooner, a consensus position will be reached. TAPE 95-58, SIDE B Number 000 MR. MCKINLEY reiterated the Native people concurred with the sunset but no action has been taken. He noted many of his constituents have not received the committee substitute. He felt there had been enough time to act on the legislation. Number 050 REPRESENTATIVE BARNES said she had spent a lot of time over the past 18 years dealing with this issue. She agreed it has been an issue debated and contested on all sides. She talked to Lieutenant Governor Ulmer and others who believe they need a chance to sit down and work with all sides to determine if a resolution can be reached. She did not feel HB 312 does anything more than that--it does not affect subsistence any more than what is already on the books. HB 312 simply allows the status quo to be left on the books for one year. REPRESENTATIVE BARNES expressed support for HB 312. She felt time is needed for the review and for the Governor to work on the issue. She stated she has given names of people on the opposite side to the Lieutenant Governor who are willing to discuss the issue. She thought it might be possible to get a group of people together to reach a resolution to one of the most divisive issues in the 17 years she has been a legislator. MR. MCKINLEY noted he has worked with Representative Barnes and others for a long time on this issue. He said a system was worked out but it was shot down by the Alaska State Supreme Court. REPRESENTATIVE OGAN recalled Mr. McKinley had mentioned a treaty session and wondered what that was. MR. MCKINLEY replied that was when the United States purchased Alaska from Russia. He said there is a provision in the treaty session which refers to Natives as a civilized tribe. There is a section in the treaty session which says Natives shall not be disturbed. He stated it is not possible to annul that section unless the entire treaty is annulled and Alaska is given back to Russia. REPRESENTATIVE OGAN clarified the Alaska Native Claims Settlement Act (ANCSA) is a compact between Alaska Natives and the U.S. government, in which the Alaska Natives agreed to an exchange of 40 million acres and $1 billion to extinguish all aboriginal hunting and fishing rights. MR. MCKINLEY replied that is not true. He said the authority was given to the Secretary of Interior to make his decision including Alaska, but the Secretary did not do what he was supposed to do. Therefore, that is when ANILCA came into being. He stated the records at Congress stipulate that Alaska Natives will have protection and priority in rural communities. He noted subsistence has nothing to do with the land. Number 133 REPRESENTATIVE OGAN clarified Alaska Natives were paid close to $1 billion and 44 million acres of land in the exchange. MR. MCKINLEY responded they were not. He said a land transaction has nothing to do with subsistence. REPRESENTATIVE BARNES stated the correct figures are $976 million, 44 million acres of land, and $500 million from the state. She said the phrase Representative Ogan is referring to says that in describing all the sections of ANILCA it says in the preamble that all aboriginal hunting and fishing rights are extinguished under this section. She pointed out there are some Native communities in Alaska that did not participate in ANILCA. Those that did not participate feel they did not extinguish anything. Some of those who did participate do not believe that there was any extinguishing of rights either. REPRESENTATIVE OGAN said it was ANCSA not ANILCA. REPRESENTATIVE BARNES made a MOTION to MOVE HB 312, as amended, out of committee with individual recommendations. REPRESENTATIVE NICHOLIA OBJECTED. REPRESENTATIVE NICHOLIA stated she will not support HB 312 based on the fact that the Boards of Fisheries and Game have proven to be a disaster to the rural residents in Alaska. She noted Governor Hickel did not do the review as agreed on. Number 190 REPRESENTATIVE BARNES said during the entire time Governor Hickel was in office, there was a lot of work done on the subsistence issue. She stated perhaps there was not a formal review done but the Administration was constantly in debate over the issue. CO-CHAIRMAN GREEN made a MOTION to AMEND HB 312 to change the date contained in Special Session Law 1992 on page 7, line 26 from June 1, 1994, to February 1, 1996, and asked for unanimous consent. CO-CHAIRMAN WILLIAMS asked if there were any objections. Hearing none, the MOTION PASSED. CO-CHAIRMAN WILLIAMS asked for a roll call vote. Voting in favor of the motion to move HB 312, as amended, out of committee were Representatives Austerman, Barnes, Davies, Kott, Ogan, Green, and Williams. Voting against the motion was Representative Nicholia. CO-CHAIRMAN WILLIAMS passed the gavel to CO-CHAIRMAN GREEN.