Legislature(1995 - 1996)

04/27/1995 04:15 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HB 312 - EXTEND CURRENT SUBSISTENCE LAW                                     
 CO-CHAIRMAN WILLIAMS noted there was a committee substitute for HB            
 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.                                 
 (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                
 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                    
 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               
 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              
 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                                                                    
 (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                   
 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                                                                    
 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               
 Number 590                                                                    
 (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               
 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              
 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.                   

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