Legislature(2003 - 2004)
04/07/2004 04:05 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 318 - CONSUMPTIVE USE OF FISH AND GAME
CHAIR SCOTT OGAN called the Senate Resources Standing Committee
meeting to order at 4:05 p.m. Present were Senators Thomas
Wagoner, Fred Dyson, Ralph Seekins, Kim Elton and Chair Scott
Ogan. Senator Georgianna Lincoln arrived at 4:05 and Senator Ben
Stevens arrived at 6:00. The first order of business to come
before the committee was CSSB 318(RES), version Q.
CHAIR OGAN moved Amendment 1.
23-LS1675\Q.1
Utermohle
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSSB 318( ), Draft Version "Q"
Page 1, line 1:
Delete "the right of Alaska residents in"
Insert "a preference for"
Page 1, line 7:
Delete "important and fundamental right"
Insert "high preference"
SENATOR KIM ELTON objected.
CHAIR OGAN explained that he made the amendment consistent with
constitutional language in Article 8, Section 4, which says the
state shall manage on a sustained yield principle subject to
preferences amongst beneficial uses. He used the word "high"
preference, not "the highest", because he wanted to imply a
preference and because subsistence is already in statute as the
highest preference. He asked Mr. Utermohle to comment about
keeping existing language that makes sustenance a very important
and fundamental right in the statute.
MR. GEORGE UTERMOHLE, Legislative Legal Services, replied that
version Q of SB 318 proposes that the state keeps mindful of the
important fundamental right accruing to the residents of Alaska
in their consumptive use of fish and game for sustenance.
There are significant issues associated with the use
of the term 'fundamental right'. In state and federal
constitutional law, when we've talked about a
fundamental right, we're talking about a very basic
principle incorporated into the Constitution
guaranteeing the people of the United States and the
state certain liberties. Concomitant with the
constitutional protection given to those liberties,
those liberties can only be abridged or interfered
with by the state [if it can] show a compelling state
interest. If the state can manage to overcome that
hurdle, then the state has to show that the method it
is using to abridge that liberty is the least
restrictive of the available options for achieving the
state's goal.
The ambiguity that rises in this legislation is the
fact that there is no such right currently recognized
in the Alaska Constitution or the United States
Constitution for the consumptive use of wild fish and
game. The text of the Constitution does not provide
any discussion of such a right. That doesn't
necessarily preclude the existence of such a right
being found in the Constitution, because the courts
earn their duty by keeping in mind those visions of
the Constitution and to find additional fundamental
rights where it's an inherent part of the language of
the Constitution and is important for maintaining the
constitutional system we've established.
Thus far, the state has found a number of implicit
fundamental rights - the right to control your
personal appearance, the right to reproductive
freedom, the right to privacy in the home. Those are
the kinds of implicit fundamental rights that have
been found to exist in the Constitution. At this
point, we have no court cases dealing with a
fundamental right such as this. So, we don't know if
such a fundamental right would be found to exist in
the Alaska Constitution.
We have language in court cases suggesting that there
is no fundamental right to engage in commercial
fishing in the state. We have cases at the federal
level, under the federal constitution, a finding that
there is no fundamental right to engage in
recreational hunting.
CHAIR OGAN said Article 8, Section 15, says, "No exclusive right
or special privilege of fishery shall be created and the
exception is for limited entry [indisc.]." Statue may imply
there is a fundamental right, but the Constitution, which trumps
the statute, doesn't give one as far as fisheries go. Section 4
gives the Legislature authority to create a preference.
I brought up a couple of different things, but there's
already a ban on exclusive rights in the constitution
to a fishery. There isn't one for game, which implies,
if the bill is left as it is, we would have an
ambiguity there.
MR. UTERMOHLE replied that the "no exclusive right of fisheries"
clause would not necessarily preclude the existence of a
preference or a fundamental right to use of fish and game, but
it is particularly intended to prevent granting of rights to
individuals for exclusive use of a particular resource.
The right discussed in the legislation can be a fundamental
right for consumptive use of fish and game to the people of the
state, as a whole, as opposed to the kinds of rights that are
prohibited under the "no exclusive right of fisheries" clause.
It suggests that it is founded upon the preexistence of this
fundamental right to the consumptive use of fish and game. If
this right does exist, then this legislation may be okay, but
until such time as the right is found to exist, it's debatable.
This language would give rise to a certain amount of litigation
- either to determine whether it should exist or whether the
Legislature should determine it is a right and then attempting
to have that right enforced by the courts in litigation.
CHAIR OGAN asked who he thought might have a dog in that fight.
MR. UTERMOHLE replied that the legislation has a presumptive
preference for consumptive use for sustenance. A question would
arise for commercial fisheries that don't use their harvest for
sustenance, but rather for commercial purposes. A personal use,
subsistence or sports fisherman would have conflicts with
commercial fishermen who would attempt to use this language to
leverage their position before the Board of Fisheries.
CHAIR OGAN asked if this would preclude the department from
declaring a tier 2 situation for moose in a certain area that
would close hunting to non-residents, but not to residents.
MR. UTERMOHLE replied that would be the case.
SENATOR ELTON said the problem is they don't know what is a
fundamental right and he suspected that high preference was not
defined in statute.
MR. UTERMOHLE couldn't recall any definition, but subsistence
has preference over other uses in state statute.
SENATOR ELTON said that currently two out of three sport caught
King salmon in Southeast Alaska are caught by non-residents. If
the statute is changed to give Alaskans who define catching a
King salmon as a consumptive activity, that means the ratio for
sport-caught Kings might go to zero for non-residents and up to
three for Alaskans. And for perspective, under the high
preference standard, he asked if he could assume that one out of
three sport-caught Kings would go to non-residents and two out
of three would go to Alaskans.
MR. UTERMOHLE answered:
Assuming that this legislation is correct - that a
fundamental right does exist, then it may very well be
that the taking of the Chinook salmon in Southeast by
non-residents would be entirely precluded until such
time as the taking by residents for consumption is
completely satisfied. But then, examining your
scenario in terms of the language you have before you,
the bill, itself, merely establishes a policy that the
managers are to take existence of that either
fundamental right or in accordance with the amendment,
the high preference, into consideration when they
allocate and manage those resources. As a matter of
policy, then, that would not necessarily preclude an
allocation to non-residents.
The legislation just requires that the state take into
consideration the use of those resources for consumptive use by
residents and not necessarily create a preemptive presumption
that the residents must take those fish.
SENATOR ELTON said if the language remains "fundamental right",
that's a really, really, really scary proposition for all the
sport charter boats and lodges in Southeast Alaska. If "high
preference" is inserted, it's only a really, really scary
scenario that would have to be litigated to figure out what the
manager's responsibility was and the allocation of fish between
Alaskans who eat the fish and non-residents who catch the fish
and ship it and supposedly eat the fish.
CHAIR OGAN thought that was a fair analysis.
SENATOR THOMAS WAGONER asked if the personal use and subsistence
fisheries are basically consumptive uses of our fish.
MR. UTERMOHLE replied that is his understanding.
CHAIR OGAN said it gives him heartburn to see non-residents who
come up and fish and ship caseload after caseload of canned fish
back. "Once it gets Outside, it's legal to sell - and our game.
You can take a moose head down to the Lower 48 and sell it."
SENATOR SEEKINS asked what the difference is between
"fundamental" and "inalienable" in terms of describing rights.
MR. UTERMOHLE replied an inalienable right is one that can't be
taken away. He assumed that fundamental rights are essentially
inalienable.
SENATOR SEEKINS read an excerpt from Justice Matthews' decision
on the McDowell 1 case.
The only justification for a law regulating and
restricting a common right of individuals to take wild
game and fish is the necessity for protecting the same
from extinction and thus to preserve and perpetuate to
the individual members of the community the
inalienable rights which they have had since time
immemorial. While the state holding the title to the
game and fish, so to speak, in trust for every
individual member of the community may pass laws to
regulate the rights of each individual in the manner
of taking and using the common property. Yet, as we
have already stated, this must be done under the
constitution and the same terms to all people, etc.
SENATOR SEEKINS said he understands that the court can't just go
out and define a fundamental right. A case has to be brought to
it.
MR. UTERMOHLE replied that is correct. The court is not in a
position to legislate an issue. "Until they have an appropriate
case, they are not going to be inclined to find existence of a
fundamental right."
SENATOR SEEKINS said in this case, the State Supreme Court has
found that there is an inalienable right for the individual to
take fish and game for their individual use.
MR. UTERMOHLE responded that there seems to be an element of
that in what they said.
SENATOR SEEKINS said the needs of Alaskans have to be considered
in the planning, management and allocation process. He
determined that those needs were for sustenance. He thought the
McDowell case strongly implied sustenance. He asked how the
state could conform its policy to the findings of the Supreme
Court in McDowell - by establishing a preference or recognizing
the right.
MR. UTERMOHLE replied that the context of this legislation
establishes a policy of the state to recognize the existence of
its peoples' right to access fish and game for purposes of
consumption.
SENATOR SEEKINS said that is what he was trying to do.
I was trying, quite frankly, to avoid setting up a
ladder of preference.... I guess I just wanted to know
if my assumption was correct - that inalienable is
almost substitutable for fundamental - especially when
the court has said you can regulate an inalienable
right as long as you're doing it equitably.... Is that
how you read it, Mr. Utermohle?
MR. UTERMOHLE replied yes.
The focus of the McDowell case was equal access to
resources of the state. Not guaranteeing any
individual of the state a particular resource or a
particular part of any resource, but just that the
citizens of the state have equal opportunity to
participate in the groups that take the resources.
CHAIR OGAN said the McDowell case was about users, not uses.
MR. UTERMOHLE agreed that it was about eligibility to
participate in the subsistence user group.
CHAIR OGAN asked if users don't have inalienable rights.
MR. UTERMOHLE replied that citizens of the state have rights of
many kinds.
SENATOR SEEKINS said he was trying to get at the import of
fundamental right versus preference.
CHAIR OGAN asked if every word of every opinion that a justice
writes on a case becomes case law.
MR. UTERMOHLE replied that the decision of a case sets out the
common law of the state. One would hope that the decision
explains how the court got there.
CHAIR OGAN asked if anyone else had any comments about Amendment
1.
SENATOR ELTON said he wanted to hear from the department that
administers the law.
SENATOR SEEKINS reminded the committee that the issue is about a
function of the Board of Fisheries, not the department's
management process.
CHAIR OGAN reflected that the Legislature sets policy, the
department manages it and the board allocates it and invited
Wayne Regelin to testify.
MR. WAYNE REGELIN, Deputy Commissioner, Alaska Department of
Fish and Game (ADF&G), said he would talk about the game side
first.
The way this is structured, it would affect both the
Board of Fisheries and the Board of Game. We have a
statute already, AS 16.05.258, which we always call
the subsistence statute and that directs the Board of
Game to provide the highest priority for subsistence
use. In addition, another statute, AS 16.05.255(d),
requires that the taking of moose, deer, elk and
caribou by residents for personal or family
consumption has preference over non-residents. So, we
probably wouldn't change anything the Board of Game
does right now, but it's much more complex on the
fishery side, because of the large commercial
fisheries that we have in the areas of Alaska.
We also have personal use fisheries where we don't
have personal use hunts and we have recreational and
subsistence fisheries. The same subsistence statute
directs the Board of Fisheries to provide a priority
for subsistence use of fish, but they don't have any
other statutes that establish priorities amongst the
other user groups. But, they do have a statute, AS
16.05.251, that gives the Board of Fisheries authority
to allocate the fishery resources among the personal
use, sport, guided sport and commercial fisheries.
This statute establishes seven criteria that the board
may use; it doesn't say in statute that they have to
use all seven, but the third one of those criteria
speaks directly to this issue. It says that the board
should consider the importance of each fishery
providing residents the opportunity to obtain fish for
personal and family consumption. So, they say they
must consider that and then the Board of Fisheries has
adopted in regulation these seven criteria. It must
consider them under regulation. They must consider all
seven of them.
CHAIR OGAN said the amendment states a policy of considering
Alaska residents first when it comes to fish and game.
MR. REGELIN replied:
We understand it's totally up to the Legislature to
provide direction to the Board of Fish and Board of
Game, if it wants to. You can say if you want that
higher priority or whatever you want, but I was
thinking, if you were going to do this, to put that
amendment into AS 16.05.251 where it's already
there....
Right now we have a system that has been in place
quite a while. Overall, we think it's working quite
well and we don't see any need to change it. There may
be specific cases of specific fisheries that you would
like some changes...there are ways for you and the
board to consider those - or the Legislature could
take specific action on specific fisheries. But, when
you do it as a general thing, it raises concerns for
us in the department - how that could change some of
the very fundamental things and the way the whole
fisheries are managed....
A lot of our concerns from the legal points of view go
away if you adopt this amendment. It takes away the
words "fundamental right", because we continue to have
real concerns over that - not only the Department of
Law [indisc.]. Also, an attorney, Paul Linzinie, has
given advice that this could cause a lot of mischief,
unintended consequences and jeopardize our ability to
regulate.
Paul Linzinie is an eminent attorney who has worked
for many years for the International Association of
Fish and Wildlife Agencies. He hasn't looked at SB 318
as written, but he did about four or five years ago
when this issue came up. He advised all of the states,
including Alaska, to be very cautious in using those
words and so, to date, no state has done that. We
can't give you case law or predictions on the risk....
In reality, we can't do that, because there is no case
law. No state has been willing to assume the risk to
make this a fundamental right....
CHAIR OGAN asked if he thought Amendment 1 made the bill less
troublesome.
MR. REGELIN replied yes, very much so, but it still has major
allocation implications that he hadn't time to think through.
SENATOR SEEKINS asked if he was saying that the Board of Fish
must consider the seven criteria or that they may.
MR. REGELIN said he was talking about two different things. The
statute, AS 16.05.251, lays out seven criteria the board may
use. The board, on its own, has adopted regulations in 5AAC
39.02.05 that say it will consider these seven criteria.
SENATOR SEEKINS asked if there is a tension between consumptive
and non-consumptive uses for game versus fish.
MR. REGELIN replied that there are occasional tensions in two or
three places around the state, mostly over bear viewing. He said
the same statute, AS 16.05.258, says that the highest priority
for wildlife resources is consumptive use.
SENATOR ELTON asked if he has a grasp of what high preference
is.
MR. REGELIN replied that he thought it means higher than
competing preferences if there are four or five different uses.
It doesn't mean highest, which leaves a lot of discretion to the
Board of Fisheries.
SENATOR ELTON speculated that using "high preference" might be
putting the commissioner in the position of issuing emergency
orders. There are times in Southeast Alaska, during which
management decisions are made in-season because it looks as if
the rate of sport-caught Kings is going to exceed the level that
has been set. An emergency order would preclude non-residents at
lodges or on a charter boat from taking any more fish until
residential preferences have been met. He could see the same
kind of thing happening on the Kenai River.
MR. REGELIN answered that he didn't want to speculate about how
this would play out over time.
SENATOR ELTON asked him if he thought inserting "high
preference" could reduce the catch for non-residents.
MR. REGELIN replied that he thought that was the intent.
SENATOR ELTON said, "That would have fairly devastating impacts
on people who make their livelihood with lodges or guiding sport
fishermen."
TAPE 04-37, SIDE B
SENATOR LINCOLN asked if he could still ask, "What's broken?"
with Amendment 1.
MR. REGELIN replied that he stood by his statement:
The system that we currently have right now doesn't
seem to be broken. It may not be perfect and people
can disagree over individual decisions, but overall
it's very democratic. People have an opportunity to
speak and comment and in most places it's working very
well. I think if you add the words 'high preference',
it will have an effect - exactly how much it's almost
impossible to predict, because I still think those
words provide an opportunity for the Board of
Fisheries to make decisions, given some leeway. But, I
think it would overall be litigated in the long term
and probably have some direction provided by the
courts.
SENATOR LINCOLN said that earlier the difference between the
board and his department as management was noted and asked if he
had a conversation with the chair of the Board of Fisheries or
the Board of Game on this legislation.
MR. REGELIN replied that he hadn't.
The call on allocations is by the board. When we go to
Board of Fisheries meetings, we will talk about the
biology and the total number of fish that can be
harvested and then the board will decide how many go
to different user groups - for different kinds of gear
groups - for personal use - for subsistence use.
Overall, as the fisheries have increased, where
there's personal use fisheries, the amount allowed for
personal use has increased - often times more so at a
higher rate than it has for the commercial users.
CHAIR OGAN said discussion was straying away from the amendment
and that a lot of people want to testify.
SENATOR SEEKINS said he couldn't find any preference in section
258 for consumptive use, although he found a preference for
subsistence use. He didn't disagree with the amendment, but he
thought that consumptive use is an inalienable right and that
the Supreme Court supported it.
CHAIR OGAN called for the question on Amendment 1.
SENATOR ELTON objected to briefly discuss how difficult it is to
vote on speculative testimony. A lot of questions can't be
answered and at a minimum he thought they needed to hear from
the chair of the Board of Fisheries or one of its members to get
feedback from the people who are doing the allocation. He also
pointed out that it's easy to talk about the role of the board
in the allocative process, but if statutory language passed at
either the fundamental or high preference level, it would effect
the behavior of the commissioner who commonly issues emergency
orders.
CHAIR OGAN said he appreciated his concerns, but maintained his
motion. Senators Fred Dyson, Ralph Seekins, Thomas Wagoner,
Chair Scott Ogan voted yea; Senator Georgianna Lincoln voted
nay; and Amendment 1 was adopted.
MR. DON JOHNSTON, Alaska resident, said if the subject was
subsistence, he wondered why the term "consumptive use" was used
and not defined. It seemed like this legislation is assuming the
system is currently broken and the Board of Fish isn't doing its
job. If Senator Seekins wants a person to be able to catch the
fish and take it home and eat it and not do anything else with
it, he should spell it out and, "not just write down eight lines
and say, 'Okay let the lawsuits begin."
SENATOR SEEKINS responded that he inserted the term "consumptive
use" before "sustenance" which is defined.
MR. DAVID BACHRACH, Homer, said he wanted to see things "fleshed
out a little more" so he knows what is being talked about. He
wanted to know if game was even a concern in this amendment and
if management included predator control so there is adequate
moose and caribou for consumptive use.
I feel Alaska's wildlife is a public trust that
belongs to all Alaskans and that the public interest
includes a variety of uses of wildlife including
hunting, fishing, trapping, viewing and photography.
As Alaskans, we should be looking to where we want to
go instead of reacting to where we are and develop
methods of dual management to accommodate both
consumptive and non-consumptive use of wildlife
resources.
MR. PAUL JOSLIN, Alaska Wildlife Alliance, said:
The Alaska Constitution does not grant special
individual rights or a high preference or a holier
than thou standing to hunters over non-hunters.
Therefore, this bill shouldn't, either.
Addressing just the wildlife side of it, because I
understand it is fisheries, as well, I see this
legislation as a form of prejudicial bigotry aimed
against the 75 percent of Alaskans who are non-
hunters. Too much power already is concentrated in the
hands of hunters. All wildlife regulatory decisions on
state land are made by the Board of Game, which is
composed solely of people with a hunting background.
Non-hunters need not apply. When it comes to the
management or our wildlife, hunters and non-hunters
should be working together as equals. The Alaska
Constitution states that wildlife is intended for the
common use of all Alaskans.... I would recommend that
the Senate Resources Committee reject SB 318 as
discriminatory and prejudicial and consider, instead,
SB 343, the bill that would create a Board of
Wildlife....
MR. KEN DUCKETT, Executive Director, United Southeast Alaska
Gillnetters Association (USAGA), said the concept of how much
potential change is possible with this legislation is a real
concern to his organization. Sixty-five percent of his
commercial fishermen are Alaskan residents and most of them live
in the coastal communities where the economy has been struggling
to stay viable. Shifting the priority has boundless
implications. He has heard a lot of discussion about allocation
between gear groups, but hasn't heard anyone complain
extensively about not being able to get enough fish under
current personal use regulations. He doubted that the system was
broken and felt on the contrary, that it has been successfully
developed over a long period of time.
SENATOR LINCOLN said he represented a fairly large group of
fishermen and asked what his concern is about the following
sentence:
It is the policy of the state that the consumptive
uses of wild fish and game resources by Alaska
residents for their sustenance is a very high
preference when considering the management and
allocation of those resources.
MR. DUCKETT replied:
If I understood what that language would change in the
current system, I think maybe I could tell you what my
concerns were.
MR. BRUCE KNOWLES, Wasilla, said he is on the Mat-Su Advisory
Committee that has sent a letter in support of SB 318. He
personally supports the bill because the people in the Mat-Su
Borough have got the short end of the stick. Their subsistence
fishery has been taken away; their personal use fishery has been
closed for six years and the Coho run has been cut back to two a
day. "Up here there has been a distinct loss of opportunity and
I think this bill will give it back to us."
MR. CURT HIERSCHLIB, Cordova District Fishermen United, strongly
opposed SB 318.
The goals of the bill are still unclear even after
listening to this for over an hour. Many of the
definitions within remain unclear. As near as I can
tell, it's potentially devastating to the commercial
fishing industry, which is in turn devastating to our
coastal communities. Our coastal communities are on
the ropes as evidenced by the fact that the state
formed the revitalization task force last year.
If the goal of this bill is to insure access to fish
and game for all Alaskans, then the best thing that
comes to mind is sound management and I think we have
the best in the world here. I think the system is
working. It's not broken; so don't fix it....
MR. SCOTT MCCALLISTER said he has fished all the seine areas in
the state except Cook Inlet and Prince William Sound where he
fished other types of gear. He has also fished the Kenai and
Chitna Rivers and understands the rural versus urban conflicts
with salmon allocations, in particular. He knows what sustenance
means to him - putting shoes on his family's feet, food on the
table and a roof over their heads.
So far, I'm not seeing what this bill does to enhance
or detract from the current system that has provided
myself the resource, and my peers, to make a living
and sustain our families in the coastal communities of
Alaska. The system is working very well....
SENATOR ELTON asked if this statute is changed to provide for a
high preference, did he see that rolling down to the commercial
fishing industry.
MR. MCCALLISTER replied that he does see that happening.
I don't see that it technically sets a precedent that
would accomplish the agenda of someone 100 miles up
the Copper River or somebody such as Bruce Knowles who
is in the urban area of Anchorage and is the last user
in a long line of users. What it will do is
tremendously complicate everybody's interpretation of
what the charge of the Board of Fish is....
SENATOR LINCOLN asked how he interpreted high preference.
MR. MCCALLISTER replied:
I personally would interpret it that, if I was in a
position of sustaining my family under the bill as
it's written, I have a high preference. I have a
preference of standing equal to anybody else. If I was
getting rich in the business...yes, there would be
sustenance preferences beyond mine. But right now, I
see myself having absolutely equal standing in a
sustenance preference with every other user in the
state. I think it's that way now with [how] the Board
of Fish currently conducts the business of allocating
and managing the fish and game in the state.
MR. BOB THORSTENSON, President, United Fishermen of Alaska
(UFA), vigorously opposed SB 318 and noted a UFA letter of
opposition that defined sustenance as, "that which is used for
personal and family consumption as food or nourishment or to
sustain life."
MR. THORSTENSON said:
Most of my constituents, by and large - the ones that
are actually making it and haven't gone bankrupt yet -
are attempting to sustain life by providing basic food
and shelter needs and health care for their families.
I have a quick question, Mr. Chairman, my
interpretation of the amendment is it would strike
'very important and fundamental right'. Does it not
strike the 'very'? Is this a very high preference or
just a high preference?
SENATOR LINCOLN replied that "very" remains in the amendment.
MR. THORSTENSON commented that that would be very, very scary.
He thought it could have incredible unintended consequences in
the lodge and charter industry in Southeast Alaska. Other
consequences that haven't been addressed yet are spring
steelhead, which is catch and release or trophy fishing in small
areas of the state. Introducing the consumptive use into those
systems would cause some serious problems. He noted that
steelhead fishing is not impacted by commercial fishing
activity.
SENATOR LINCOLN asked if he vigorously opposed SB 318 in any
form.
MR. THORSTENSON replied:
Absolutely! Right now, the way the system has been
working, there has already been approximately 600
percent increase in the past decade on personal use
harvest in the largest and major rivers in Central
Alaska and we feel that the current system has worked
very well. There are balances to be made.... In
certain parts of the state you have a much larger
population. You have a much larger need to establish
different types of fishing - sport fishing, guided
fishing. Commercial fishing obviously becomes a
smaller part of the overall economy in some places....
TAPE 04-38, SIDE A
5:40 p.m.
CHAIR OGAN said he didn't share Mr. Thorstenson's paranoia that
there is enough latitude in the language to give the Board of
Fish a lot of discretion.
SENATOR ELTON called a point of personal privilege saying, "I
think characterizing the previous testimony as paranoid is
inappropriate."
CHAIR OGAN said he didn't want to get into a debate about it.
SENATOR ELTON asked if Mr. Mecum, ADF&G, could testify.
CHAIR OGAN said he would do that after getting testimony from
Mr. Andy Craig.
SENATOR LINCOLN said she had no objection to that, but she
wanted to hear from the Fish Czar, Alan Austerman, and Mary
Pete, Division of Subsistence.
MR. ANDY CRAIG opposed SB 318.
It's a question of what particularly is this bill
trying to fix. It seems like it's kind of doing an end
run around the subsistence preference that has already
been established....
MR. DOUG MECUM, Director, Division of Commercial Fisheries,
Alaska Department of Fish and Game (ADF&G), testified if the
intent of the bill is to provide a higher priority for personal
consumption in allocation decisions, he wasn't sure why the term
"management" was used, because it implicates the department and
the commissioner in the allocation of resources. "I think that
is a concern."
CHAIR OGAN said he interpreted that to mean that management is
already defined in the constitution in Article 8, Section 4, as
managed on a sustained yield basis subject to preferences
amongst beneficial uses. "This language simply clarifies that
constitutional mandate you already have.... I think it's a good
thing personally.... It's an Alaskans first bill."
SENATOR SEEKINS concurred with his position.
SENATOR ELTON went a step further in characterizing the bill.
It sets one class of Alaskans higher than another and
we have heard testimony previously about what they
think sustenance is - shoes on feet, food on the table
- roof over the head. But when you look at the way it
is defined, sustenance means that which is used for
personal and family consumption. That precludes, it
seems to me, the definition of sustenance as roof over
head, shoes on feet and so this is not simply putting
Alaska residents first. This is putting some Alaska
residents ahead of other Alaska residents.
CHAIR OGAN disagreed.
SENATOR ELTON reasoned then that "consumption" should be deleted
on line 10.
SENATOR LINCOLN commented that Mr. Mecum was concerned that the
term "management" referred to the department.
MR. MECUM pointed out:
The current statutory framework that the legislature
has adopted for the Board of Fisheries - speaks to
providing a preference for personal family
consumption. It may not be strong enough in some
people's view.... I've been working with the Board of
Fisheries for the past 15 years and in each and every
instance that I'm aware of that the board has
addressed personal use fisheries, in particular, they
have provided for liberal opportunities for those
fisheries.
To back up his point, he referred the committee members to
department statistics in their packets.
SENATOR LINCOLN asked him to interpret statistics regarding the
Chitna dip net and the Copper River sockeye fisheries and how
this piece of legislation might impact them.
MR. MECUM replied that it's really difficult to predict what
might happen and the courts would end up sorting it out over
time. He intended the information to show the committee how the
board has taken the need for Alaskans to harvest fish for their
personal consumption very seriously and provided liberal
opportunities for that to happen.
SENATOR LINCOLN asked the Department of Law if deleting "the
right of Alaska residents in" and replacing it with "a
preference for" and deleting "important and fundamental right"
and replacing it with "high preference" was clear to the
Department of Law.
MR. LANCE NELSON, Department of Law (DOL), responded that some
of their concerns were addressed with deleting "fundamental
right", but current language saying "very high preference" makes
the meaning ambiguous. He thought it might encourage the board
to prefer those uses as a matter of law over those that are non-
preferred. He couldn't speculate on the consequences that would
have on management.
SENATOR ELTON asked what Mr. Nelson, as a leading attorney in
this area, what he thought "sustenance" meant on lines 9 and 10
and if he believed the accommodations made to the family of a
commercial fisherman - whether its buying clothes or shoes or
repairing a roof - is covered under its definition in this bill.
MR. NELSON replied that it's probably unlikely that the court
would decide that uses of fish by commercial fishermen are
covered by this bill.
CHAIR OGAN added, "Unless they are an Alaska resident and
feeding their family."
MR. NELSON replied that he is only talking about harvest in the
commercial fisheries.
SENATOR SEEKINS wanted to make it clear for the record that he
is not trying to take food off of children's tables or clothes
off their backs. He just wants to make sure that people who have
to feed their families also have high priority.
SENATOR LINCOLN noted the last four words, were "or to sustain
life" and asked what that meant.
MR. NELSON replied that he wasn't the one to answer that and
couldn't speculate.
SENATOR LINCOLN said she just wanted to know what the
department's interpretation was of that language. She requested
Alan Austerman to come forward.
MR. AUSTERMAN, Office of the Governor, said he did not have any
ready comments.
SENATOR LINCOLN asked if he was intending to look at this bill
and come back to the committee with recommendations.
MR. AUSTERMAN replied that he had no intention of coming back to
testify. He assumed that ADF&G and DOL would testify after they
had digested it.
SENATOR LINCOLN requested Mary Pete to step forward and asked
her if she thought this legislation would have any impact on her
division.
MS. MARY PETE, Director, Division of Subsistence, replied:
"Subsistence has the highest priority and this really says high
preference. I don't see any impact on subsistence."
6:07 - 6:08 - at ease
SENATOR FRED DYSON moved to pass CSSB 318(RES) from committee
with attached fiscal notes and individual recommendations.
SENATORS ELTON and LINCOLN objected.
SENATOR LINCOLN noted that of the nine people representing a
broad base of groups that testified at today's meeting, eight
opposed it and one supported it. Department of Law also said it
was ambiguous; also neither the DOL nor ADF&G had adequate time
to review the CS.
CHAIR OGAN asked for the roll. Senators Ben Stevens, Fred Dyson,
Ralph Seekins, Thomas Wagoner and Chair Scott Ogan voted yea;
Senators Lincoln and Elton vote nay; and CSSB 318(RES) moved
from committee.
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