Panel gives up on ANILCA

Subsistence task force rewrites secondary priority; no consensus on changes to U.S. law

Posted: Monday, December 17, 2001

Collective rights to subsistence hunting and fishing won't be guaranteed in a proposed constitutional amendment establishing a rural priority.

The governor's Subsistence Drafting Committee, meeting Saturday in Juneau, decided on generic language in a section creating the possibility of secondary priorities for traditional but nonlocal subsistence users. Once the constitutional change was made, the Legislature could designate individuals or communities that would qualify for a lower priority.

The committee also included a statement in its report reflecting internal disagreement about whether or not to amend the Alaska National Interest Lands Conservation Act to ensure uniform definitions of such terms as "customary trade."

That 1980 federal law includes a rural priority for subsistence, conflicting with the state constitutional guarantee of equal access to resources. With the Legislature repeatedly failing to put a constitutional amendment for a rural priority on the general election ballot, the U.S. Interior Department has taken over management of subsistence fisheries and hunts on federal lands and navigable waters.

"There are some who believe that the best course is to look at changes to ANILCA itself, in terms of definitions in particular," said Attorney General Bruce Botelho, the chairman of the committee. "Others who take the view that they're not necessary, that those will be accomplished simply by the certification of the secretary of the Interior of compliance by the state with ANILCA.

"I think the important message here is that, despite that difference, we're all committed to moving ahead with the constitutional amendment. We'll be urging the governor to submit legislation to accomplish that result in the upcoming session."

In a 1999 special session called by Gov. Tony Knowles, the House narrowly approved a constitutional amendment but the Senate didn't muster the two-thirds vote necessary.

The voting history on the subject suggests a 10-10 split in the Senate now, leaving an amendment four votes short of approval there. No legislator who has opposed the rural priority has spoken publicly about switching positions. Indeed, many have been emphatic about not giving in to the federal government.

But Botelho isn't conceding that the drafting committee exercise is futile.

"I've had several different legislators in the majority who have expressed intrigue with the approach that we've taken, including members who previously have opposed a constitutional amendment," he said. "I would say there's been guardedly positive reaction, privately, by some."

The committee's innovation has been in proposing a priority, albeit a lower one, that could include urban residents. Under the proposed amendment, when there are sufficient game and fish resources to satisfy subsistence needs in a rural area, a secondary priority could be established for traditional users who live elsewhere, either in another rural area or in urban Alaska. That addresses the issue of "zip code discrimination" that has been raised repeatedly by opponents of the rural priority.

But the committee revised that section of the amendment. Previously, individuals could have qualified for subsistence based on their own past use or as residents of a formerly rural community with a subsistence history. The Native village of Eklutna, which became subsumed within Anchorage, is one such community that some committee members had in mind.

Former Attorney General Charlie Cole said the people who need the secondary priority would qualify as individuals. Giving the priority to an entire community, including those who haven't practiced subsistence, isn't "salable to the public" in a constitutional amendment, Cole said. "It's just a big leap I'm not prepared to take."

The proposed amendment now says the Legislature may establish lower priorities for "residents who demonstrate customary and traditional use" of resources.

Meanwhile, Dave Bedford of the United Fishermen of Alaska argued in vain for including recommended changes to ANILCA that would create common definitions of terms between federal and state law. He said that's necessary to prevent meddling by federal courts, and he dismissed concerns that even mentioning ANILCA would give opponents a reason to stall.

"As far as excuses for inaction, I don't think we need to worry about that," Bedford said, suggesting legislators have shown they can find their own without help.

The final committee report supports common definitions but notes disagreement about how to achieve them.

"I think it's fair to say we'd all be troubled if the constitutional amendment were not dealt with, on the basis that, no, there have to be changes to ANILCA first or that those changes have to be concurrent with the constitutional amendment," Botelho said. "There are only so many moving parts, as we've discovered so often, that can be in play at any time to garner sufficient support."

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