Updated: Panel looks at 2nd priority for urban subsistence users

Group aims to draft constitutional amendment acceptable to various users

Posted: Thursday, October 11, 2001

Attorney General Bruce Botelho said today that a new rough draft of a constitutional amendment to provide a rural subsistence priority could break a longstanding stalemate in the Legislature and end federal management of fish and game resources.

Botelho, chairman of Gov. Tony Knowles' Subsistence Drafting Committee, said a mandatory rural priority, with the possibility of a secondary priority for subsistence users who reside in urban Alaska, could win the two-thirds majority necessary in the Legislature to go on the 2002 general election ballot.

"I think it can pass," Botelho said following more than nine hours of deliberations in Juneau that started Wednesday and finished this morning.

But former Attorney General Charlie Cole of Fairbanks, a member of the committee, said the rural priority would have to be permissive, rather than mandatory, to pass the Legislature. That's because saying the Legislature "shall" enact a rural priority would be seen by some lawmakers as giving in to a controversial federal law from 1980, the Alaska National Interest Lands Conservation Act.

"I don't want to enshrine ANILCA in our constitution," Cole said in an interview. He would prefer the constitutional amendment to say the Legislature "may" enact the rural priority, preserving the possibility that state law could change if ANILCA is amended in the future.

That's a position likely to face fierce opposition from the Alaska Federation of Natives.

Now, ANILCA's rural priority for subsistence conflicts with the state constitutional guarantee of equal access to resources.

Attempts to get the Legislature to agree to a constitutional change have been stymied by lawmakers who oppose what they see as a discriminatory federal law that infringes upon states' rights. During a special session in 1999, the House passed a proposed amendment to allow a rural preference, but the Senate fell two votes short.

Due to that impasse, the federal government is now managing subsistence fisheries on navigable waters running through or adjacent to federal land. That's a sore spot for people on both sides of the debate, although committee member Byron Mallott of Yakutat, a longtime Native leader, said: "I don't mind the state having its nose rubbed in it a little bit longer."

Despite a "subsistence leadership summit" called by Knowles in August, no lawmakers who have opposed a rural priority have switched positions publicly. The governor nevertheless raised the possibility of a special session this fall as he put the drafting committee together.

Botelho said he believes the committee "finessed" the shall-or-may issue by allowing for a secondary priority for non-local residents, including urban residents, who have a history of subsistence use in a rural area.

"That's probably the single most significant departure from the more traditional formulations," he said. "What we're doing here is saying that while subsistence would have the highest priority, there would be sub-categories of that priority."

Dick Bishop of Fairbanks, vice president of the Alaska Outdoors Council, a 12,000-member organization, hailed Wednesday's committee discussions as a breakthrough. But he said it still isn't enough to garner a two-thirds vote of the Legislature.

"It's a step in the right direction," said Bishop, who is not a member of the committee. "(But) you're still talking about different standards for different Alaskans. ... I think they have breached a serious philosophical barrier, that being consideration of urban interests in a subsistence lifestyle. It may not get it resolved unless additional work is done to flesh it out."

The wording of the draft amendment was changed continuously during the committee's two-day meeting and is still tentative. Another work session of the committee has been scheduled for Oct. 20 in Anchorage.

For now, the amendment reads: "When, under the sustained yield principle, it is necessary to restrict the taking of fish, game, or other renewable resources, customary and traditional subsistence uses of those resources by residents of a rural area shall be accorded a priority over other consumptive uses in that area.

"Additional priorities for subsistence uses may be granted to other residents who demonstrate a long-term, consistent pattern of non-commercial taking, use, and reliance on the fish, game, or other renewable resources in a rural area and to communities that demonstrate a customary and traditional use of resources in a rural area. These priorities may be granted when the harvestable portion of the resource in a rural area is more than sufficient to provide for the subsistence uses of the residents of that area."

The four groups being targeted by the secondary or "rural-plus" priorities, Botelho said, are Natives who have moved from villages to urban Alaska or who live in areas that have become urbanized over time, residents of adjacent rural areas and urban non-Natives with a history of subsistence.

Still to come are attempts at defining key terms such as "rural" and "customary and traditional" and developing proposed state statutes and ANILCA amendments around those common definitions in order to avert further litigation and misinterpretations by courts.

Even more important, Botelho said, is developing a subsistence management structure that gives Natives a formal role.

"Of particular concern to the Native community generally has been what role will villages, tribes have in formulation of that policy," Botelho said. Among the possibilities, he said, are regional councils whose recommendations could be rejected by the boards of fish and game only under limited circumstances, and a Native subsistence commission that would provide information to the regional panels separately from the Department of Fish and Game.

So far, the committee hasn't discussed those options at length, but it's a "linchpin" issue in winning Native support for the constitutional amendment, Botelho said. "All of us have made a commitment to look at co-management issues."

Meanwhile, Cole said he'd also like to examine the question of what limits can be placed on subsistence. He questioned, for example, whether a subsistence user should have an entire year to shoot a moose, suggesting the person "must be diligent in his efforts to satisfy his subsistence needs."

"The definition (of the subsistence priority) should be 'shop 'til you drop,' " Mallott quipped in response.

Committee member David Bedford of the United Fishermen of Alaska said he wanted to see a discussion of "customary trade," under which subsistence takings can be sold for cash. He noted a "scary" court decision that permitted the $15,000 sale of subsistence-harvested herring roe and kelp.

Botelho said the drafting committee process has been a positive experience.

"There is a surprising degree of consensus about the importance of the role that subsistence plays in the lives of Alaskans," he said. "We're surprisingly close together on most issues. The debates have been very constructive."

Botelho also welcomed news that the U.S. Supreme Court rejected an attempt by the Legislature to appeal a circuit court ruling in the subsistence-related Katie John case. Knowles was sharply criticized by members of the Republican majority in the Legislature for dropping the case, which established federal authority to manage subsistence fisheries on navigable waters running through or adjacent to federal land. The case is named for an Athabascan elder who was denied a fishing camp on the Copper River.

"The law is quite plain that the chief executive of a state has the right to make decisions on litigation, on what will and will not go to the United States Supreme Court," Botelho said. "Katie John is decided; it's over with. It's time to move on."

Bill McAllister can be reached at billm@juneauempire.com.

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