Legislature(2003 - 2004)

04/30/2003 08:36 AM FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 281-MORATORIUM ON CHARTER VESSEL LICENSES                                                                                  
CHAIR SEATON  announced that the  only order of business  would be                                                              
HOUSE BILL NO. 281,  "An Act relating to a moratorium  on entry of                                                              
vessels  into the  Southeast Alaska  sport  fish charter  fishery;                                                              
and providing for an effective date."                                                                                           
Number 0092                                                                                                                     
REPRESENTATIVE   BRUCE   WEYHRAUCH,  Alaska   State   Legislature,                                                              
sponsor of  HB 281,  said this bill  would establish  a moratorium                                                              
on  vessels  entering  the Southeast  Alaska  sport  fish  charter                                                              
fishery.  He  told the committee that earlier  permutations of the                                                              
bill had  been introduced by legislators  from other parts  of the                                                              
state  and  would have  been  applied  statewide, whereas  HB  281                                                              
reflects  a moratorium  on charter  vessels  in Southeast  Alaska.                                                              
He pointed out that  this is not a limited entry  program and that                                                              
the  purpose of  the  moratorium  is to  "stop  the  music on  new                                                              
entrance  into the  Southeast charter  fishery"  and to  determine                                                              
the number of vessels,  the impact on the overall  harvest of fish                                                              
by different  user groups,  to determine  whether a limited  entry                                                              
program is  desirable, and to  make other policy  issues regarding                                                              
the value attached to a charter permit.                                                                                         
REPRESENTATIVE  WEYHRAUCH  said   that  presently  the  commercial                                                              
salmon  fisheries and  in  fact most  fisheries  in Southeast  are                                                              
limited entry, and  that those permits are fully  transferable and                                                              
can be  sold.  He  mentioned that the  moratorium could  be lifted                                                              
after  the  bill's   sunset  date  in  2007.     Establishing  the                                                              
moratorium would  allow the Commercial Fisheries  Entry Commission                                                              
(CFEC) to determine policy implications for the program.                                                                        
CHAIR SEATON  informed the  committee that  the intention  was not                                                              
to move HB 281 out of committee at this time.                                                                                   
CHAIR  SEATON  inquired  about the  current  status  of  licensing                                                              
vessels   and  asked,   "How  do   we  know   which  vessels   are                                                              
REPRESENTATIVE  WEYHRAUCH  responded   that  after  paying  a  $50                                                              
annual fee  and applying to the  CFEC, one receives  a triangular-                                                              
shaped plaque  and a  charter number  that needs  to be  placed on                                                              
the side of the  boat; this indicates that the  boat is registered                                                              
as a charter vessel.                                                                                                            
CHAIR  SEATON asked  which  vessels would  be  included under  the                                                              
Number 0550                                                                                                                     
REPRESENTATIVE  WEYHRAUCH  replied  that  it  includes  everything                                                              
from a skiff to a 100-foot yacht.                                                                                               
CHAIR SEATON  asked, "Is this  a participation  year ... or  is it                                                              
that you've just had a license in the past?"                                                                                    
REPRESENTATIVE  WEYHRAUCH  replied that  it  would reflect  recent                                                              
participation, rather than just having been licensed.                                                                           
CHAIR SEATON  referred to  the commercial  fisheries' fish  ticket                                                              
information which  demonstrates participation  and asked  if state                                                              
documentation exists to assist in determining participation.                                                                    
REPRESENTATIVE   WEYHRAUCH  replied   that  there   are  ways   to                                                              
determine  who has a  license but  said that  he didn't  know what                                                              
data  was  kept by  the  state  regarding  who participates  as  a                                                              
charter boat operator.                                                                                                          
Number 0680                                                                                                                     
REPRESENTATIVE  OGG  asked  if,  by receiving  a  commercial  tag,                                                              
charter  vessels   were  considered   [part  of]  the   commercial                                                              
REPRESENTATIVE  WEYHRAUCH  responded that  [the  fishery] was  not                                                              
treated  as a  commercial fishery,  however he  mentioned that  an                                                              
allocation  on the  salmon harvest  exists.   He noted that  there                                                              
was  a legal  case on  the type  of  gear and  operations used  by                                                              
charter  fishermen;  it's  handled  different  ways  by  different                                                              
administrative bodies, he said.                                                                                                 
REPRESENTATIVE OGG asked if the tag was a commercial tag.                                                                       
REPRESENTATIVE  WEYHRAUCH  replied  that  it  was  a  charter  tag                                                              
issued by the CFEC.                                                                                                             
REPRESENTATIVE OGG asked if a plastic card was involved.                                                                        
REPRESENTATIVE WEYHRAUCH said, "No, not when they harvest."                                                                     
REPRESENTATIVE OGG  commented that  there was a dramatic  increase                                                              
in the  fishery during 1992-1996,  but recently participation  has                                                              
been leveling  off.  He asked if  the logbook data was  based on a                                                              
voluntary system.                                                                                                               
REPRESENTATIVE  WEYHRAUCH  replied  that  he wasn't  sure  whether                                                              
this was voluntary.                                                                                                             
Number 0824                                                                                                                     
REPRESENTATIVE OGG  explained that the data shows  that perhaps 55                                                              
to  60 percent  of  the  total amount  of  people  who have  these                                                              
licenses, and  who are  registered, are  actually filling  out the                                                              
logbooks.  He asked if the market is currently saturated.                                                                       
REPRESENTATIVE WEYHRAUCH replied that he didn't know.                                                                           
CHAIR  SEATON wondered  whether a  person who  was chartering  for                                                              
rockfish would  also be eligible  to charter for other  species in                                                              
the sport fish charter vessel fishery.                                                                                          
REPRESENTATIVE   WEYHRAUCH  replied,  "I   think  the   intent  is                                                              
Number 0914                                                                                                                     
BLAINE  HOLLIS,  Assistant  Attorney  General,  Natural  Resources                                                              
Section,  Civil   Division  (Juneau),  Department   of  Law  (DOL)                                                              
testified that  he wanted  to discuss  the legal implications  and                                                              
issues involved with  HB 281.  He said he would  primarily confine                                                              
his  comments  to  constitutional   issues,  while  Mary  McDowell                                                              
[CFEC]  would  be  suggesting  amendments   and  making  technical                                                              
Number 1046                                                                                                                     
MR.  HOLLIS said  that  whether or  not this  is  a limited  entry                                                              
system or  a moratorium, it has  the effect of limiting  access to                                                              
these   fisheries.      Therefore,    it   raises   constitutional                                                              
implications  under  "the common  use  equal access  no  exclusive                                                              
right of fisheries  clauses" in the constitution,  which generally                                                              
provide  broad access  to  Alaska's fisheries.    The question  of                                                              
whether this is  constitutional under the limited  entry amendment                                                              
is  the crux  of  the constitutional  issue.    Mr. Hollis  asked,                                                              
"Does it  fall within  the ambit of  the limited entry  amendment?                                                              
If  it does,  it's probably  constitutional.   If  it doesn't,  it                                                              
probably isn't."                                                                                                                
MR. HOLLIS  said the first question  would be whether  the limited                                                              
entry   amendment   applies   to   these   types   of   fisheries.                                                              
Historically, the  limited entry  amendment has only  been applied                                                              
in the context of  commercial fisheries.  Enacted in  1972, it was                                                              
primarily intended  to apply to the salmon fishery  and since that                                                              
time has been applied  to other commercial fisheries.   He said he                                                              
is not  aware that  it has been  applied to a  sport fishery  or a                                                              
guided  charter fishery.   He  said  that although  it's far  from                                                              
clear, the  limited entry  amendment is  probably broad  enough in                                                              
scope  to cover  this  because it  doesn't  contain language  that                                                              
limits it to any particular type of fishery.                                                                                    
MR.  HOLLIS  said  the question  then  becomes  whether  the  bill                                                              
comports  with the requirements  of the  amendment itself  because                                                              
the amendment  specifies certain  purposes that must  be achieved.                                                              
Those  purposes are:    resource conservation,  avoiding  economic                                                              
distress  [among fishermen]  and  those dependent  upon  fishermen                                                              
for a  livelihood, and efficient  promotion of aquaculture  in the                                                              
state.   He told  the committee  that those  are the purposes  for                                                              
which  the  legislature  is  permitted   to  limit  entry  into  a                                                              
Number 1196                                                                                                                     
MR. HOLLIS continued  that the Alaska Supreme Court  has stated in                                                              
a number  of cases,  that under the  limited entry amendment,  any                                                              
limited entry  system must impinge  as little as possible  on free                                                              
access.  This  principle of least possible impingement  stands for                                                              
the  proposition   that  access  can  only  be   limited  if  it's                                                              
necessary  to serve  those  purposes, previously  enumerated,  and                                                              
only to the extent  that it is necessary to serve  those purposes.                                                              
He said  that it's  important, whenever  entry  is limited  into a                                                              
fishery,   to  build  a   factual  record   that  supports   those                                                              
conclusions because  if it's challenged,  it will be  necessary to                                                              
demonstrate  to a  court  that there's  a  factual  basis for  the                                                              
action that  was taken.   The factual basis  needs to  support the                                                              
conclusion  that  it  was  necessary  to  limit  entry  into  that                                                              
particular fishery and  that it was necessary to limit  it at "the                                                              
level that  you did"  so that "you're  not being more  restrictive                                                              
than you need  to be, either in  terms of the number  of fisheries                                                              
you're limiting  or the  extent, [or]  the number of  participants                                                              
you're allowing.   You  need to ensure  that, that impingement  is                                                              
as small as possible to achieve the purpose," he said.                                                                          
Number 1288                                                                                                                     
MR. HOLLIS told  the committee that historically,  the decision of                                                              
whether to  limit entry into a fishery  and the job of  building a                                                              
factual  record to  support that  decision  has been  left to  the                                                              
CFEC.   Under the  Limited Entry  Act, the  legislature created  a                                                              
framework for  making those  decisions and  it includes  a record-                                                              
building  and   regulatory  process.     This  legislation   would                                                              
essentially  bypass   CFEC  and  impose  a  system,   and  if  the                                                              
legislature  is going  to  do that,  it's  important that  records                                                              
exist so  that the  DOL can  defend this  decision to  limit entry                                                              
into these  fisheries.   He said, "We're  talking about  all sport                                                              
charter fisheries,  both fin  fish and  shell fish throughout  all                                                              
of Southeast Alaska,"  which is a broad area and  a broad group of                                                              
MR. HOLLIS  said it would also  be helpful to  include legislative                                                              
findings  with the  bill,  such as  projections  of the  fisheries                                                              
becoming a  certain size, or  noting what the anticipated  effects                                                              
would  be  on  conservation,  fish stocks,  or  economics  of  the                                                              
people involved, if the fishery were allowed to expand.                                                                         
Number 1465                                                                                                                     
CHAIR  SEATON   asked  about   the  number   of  charter   vessels                                                              
registered  in Southeast from  1982 to  2002.   He said  there are                                                              
several  different sets  of data,  but the set  from 1998  through                                                              
2002 shows  a consistent  number  of vessels.   He wondered,  with                                                              
the  same number  of  vessels  participating  over the  past  five                                                              
years, what  justification would  be necessary  in order  to limit                                                              
participation in the charter industry.                                                                                          
MR.  HOLLIS replied  that the  data  showing stability  or even  a                                                              
decline  in numbers  creates a  problem  and raises  the issue  of                                                              
whether  this  is,  in  fact,  necessary.    He  said  that  facts                                                              
revealing  that  anticipated  growth  of the  fishery  might  have                                                              
negative consequences  either for the  stocks or the  economics of                                                              
the fisheries could provide a basis.                                                                                            
CHAIR SEATON  questioned how the  moratorium might  effectively be                                                              
constructed  if the  number of  vessels  participating during  the                                                              
past five years had been inconsistent.                                                                                          
MR.  HOLLIS responded  that it  could  be structured  a number  of                                                              
ways,  but  the overall  goal  would  be to  limit  participation,                                                              
either  by the number  of vessels  or  the number  of guides.   He                                                              
said  that the  permits could  be  transferable, or  given to  the                                                              
guides rather  than the  vessels, and that  some of  these methods                                                              
don't raise  constitutional issues.   Once the threshold  has been                                                              
met  that  the  limited  entry  system  is  necessary  for  "these                                                              
purposes"  then there  is some  flexibility  in "how  you want  to                                                              
structure it," he said.                                                                                                         
CHAIR  SEATON re-phrased  his question  and asked,  "if we  have a                                                              
stable  number of  vessels that  were participating,  and even  if                                                              
they  weren't  the  same  vessels  in the  last  five  years,  the                                                              
program that  would be structured  would have to, if  we determine                                                              
that it's necessary  to limit the participation  basically to that                                                              
level ...  have some structure in  here that wouldn't  allow those                                                              
permits that  participated three years  ago to come back  in under                                                              
this moratorium and  participate, which would allow  the number to                                                              
MR. HOLLIS  replied that this notion  was implicit in the  idea of                                                              
creating some sort of qualification system.                                                                                     
Number 1790                                                                                                                     
REPRESENTATIVE    GUTTENBERG    questioned,    "Who    owns    the                                                              
constitutional  right?"   He  continued, "If  this  passes, I  can                                                              
still fish, I can  still take my family out fishing.   I can still                                                              
take  my  friends  out  fishing."   He  noted  that  a  commercial                                                              
charter does not actually harvest fish.                                                                                         
MR.  HOLLIS said  complaints  might  come from  fledgling  charter                                                              
operators  who want  to get  into  the business;  the question  is                                                              
whether those  people would  raise the  constitutional issue.   He                                                              
said, "In  our view, they would."   The court has  previously held                                                              
that hunting guides  have standing under the equal  access clauses                                                              
of the constitution  to challenge limitations on  access to guided                                                              
hunting  and  "we  don't  see  any  real  significant  differences                                                              
between that and this."                                                                                                         
Number 1874                                                                                                                     
REPRESENTATIVE   BERKOWITZ  mentioned   that  with  hunting,   the                                                              
distinction was  that the protection  of a resource was  at stake.                                                              
He asked  if sport fishing  was putting  an undue pressure  on the                                                              
resource, separate from other fisheries.                                                                                        
MR. HOLLIS deferred to ADF&G biologists to answer that question.                                                                
REPRESENTATIVE   BERKOWITZ  emphasized   this   as  an   important                                                              
distinction  because the  bill proposes  to circumscribe  economic                                                              
opportunity  for  individuals.    The  compelling  state  interest                                                              
allowing for this  would be protection of the  resource, which was                                                              
the basis for limited entry in the commercial fisheries.                                                                        
CHAIR  SEATON   requested  that   Mr.  Hollis  repeat   the  three                                                              
compelling principles that he alluded to in earlier testimony.                                                                  
Number 1984                                                                                                                     
MR.  HOLLIS  said   that  to  qualify  under  the   limited  entry                                                              
amendment,  any   system  that  limits  entry  must   be  narrowly                                                              
tailored  to  serve  certain purposes,  and  those  purposes  are:                                                              
conserving   stocks,   [preventing]    economic   distress   among                                                              
fishermen  and those  dependent upon  them for  a livelihood,  and                                                              
promoting efficient development of aquaculture in the state.                                                                    
Number 2045                                                                                                                     
REPRESENTATIVE  BERKOWITZ inquired about  evidence of  there being                                                              
current economic  distress, given  the seemingly five-year  stable                                                              
period whereby the  number of vessels has been  maintained, within                                                              
about 5 percent.                                                                                                                
MR.  HOLLIS said  this was  a crucial  question,  but deferred  to                                                              
other witnesses.                                                                                                                
CHAIR  SEATON questioned  the  correlation  between prevention  of                                                              
economic   distress  among   fishermen   and  those   economically                                                              
dependent  upon fishermen,  in light  of  the moratorium  possibly                                                              
being applied  to owners of  vessels "who may  not ever go  on the                                                              
water ... Princess Cruise Lines or something."                                                                                  
MR. HOLLIS  said he didn't know  "if there were any hard  and fast                                                              
rules there."                                                                                                                   
CHAIR  SEATON  asked about  moratorium  rights,  or some  kind  of                                                              
limited   entry  rights   to  vessel   owners  who   may  not   be                                                              
participating as fishermen.                                                                                                     
MR. HOLLIS  said this  area wasn't altogether  clear, but  that if                                                              
the notion was  to give an "economic windfall"  to certain people,                                                              
he wasn't  sure that  this was the  type of  idea embodied  in the                                                              
limited entry  amendment.  The most  often cited idea  for limited                                                              
entry was  that the  fisheries had become  so large,  nobody could                                                              
make a living,  that is to say,  "There's only so many  fish to be                                                              
caught.   If  you've got  too many  people trying  to catch  them,                                                              
nobody can make a living."                                                                                                      
Number 2202                                                                                                                     
REPRESENTATIVE  WEYHRAUCH asked if  a moratorium program,  similar                                                              
to the one established  in this bill, had ever  been challenged in                                                              
MR. HOLLIS said  that there had been a moratorium  for the charter                                                              
fleet on  the Kenai  which recently came  under challenge  and was                                                              
withdrawn.   He said  he was not  aware of  one that had  actually                                                              
gone to court.                                                                                                                  
REPRESENTATIVE  WEYHRAUCH asked  if one has  been challenged  that                                                              
had reached a decision.                                                                                                         
MR. HOLLIS replied, "Not that I know of."                                                                                       
REPRESENTATIVE  WEYHRAUCH asked,  regarding  any cases  discussing                                                              
limited entry, if  any of those cases deal with  a moratorium that                                                              
was imposed prior to the limited entry program in that fishery.                                                                 
MR. HOLLIS replied, "Not that I know of."                                                                                       
REPRESENTATIVE  WEYHRAUCH  said,  "So  there  is  no  case,  as  I                                                              
understand,  that  says  the  legislature  needs  to  establish  a                                                              
record before establishing a moratorium program."                                                                               
MR.  HOLLIS  said he  wasn't  aware  of  a  case that  said  that,                                                              
REPRESENTATIVE  WEYHRAUCH  asked,  "A  limited  entry  program  is                                                              
different from a moratorium program, isn't that correct?"                                                                       
Number 2271                                                                                                                     
MR. HOLLIS responded,  "Not in my view, no."  He  said that in his                                                              
view, any  system that  limits access to  a fishery,  whether it's                                                              
called a  limited entry system or  a moratorium is by  its nature,                                                              
a limited  entry system because  it limits who can  participate to                                                              
a certain specified group.                                                                                                      
REPRESENTATIVE  WEYHRAUCH  asked   if  there  were  any  state  or                                                              
federal cases that support Mr. Hollis's view.                                                                                   
MR. HOLLIS responded, "Not that I know of."                                                                                     
MR.  WEYHRAUCH asked  if the  phrase "limited  entry" appeared  in                                                              
the bill.                                                                                                                       
[Mr. Hollis's reply was indiscernible.]                                                                                         
MR. WEYHRAUCH said, "It does not appear."                                                                                       
MR. HOLLIS replied, "Not that I've seen."                                                                                       
Number 2303                                                                                                                     
MR. WEYHRAUCH  said, "It's  not a  limited entry  bill; this  is a                                                              
moratorium bill, isn't that right?"                                                                                             
MR. HOLLIS replied, "That is the way it is denominated."                                                                        
MR. WEYHRAUCH said he wanted that clear on the record.                                                                          
Number 2319                                                                                                                     
REPRESENTATIVE OGG  said he wanted  to explore the  constitutional                                                              
issue   regarding  economic   distress  to   fishermen  or   those                                                              
dependent on fishermen.   He said, "We're dealing  with people who                                                              
can say  that they're  not fishermen  because they don't  actually                                                              
fish.  The  sport charter guy provides  a platform."   He asked if                                                              
a moratorium  or limited  entry  had ever been  applied to  people                                                              
who don't actually fish.                                                                                                        
MR. HOLLIS replied  that this is the only instance  he's aware of,                                                              
other than the instance  in the Kenai, where there  was an attempt                                                              
to limit  entry into the  charter sport  fishery.  He  referred to                                                              
the   instance    made   to   limit   hunting    guides,   whereby                                                              
constitutional issues came into play.                                                                                           
REPRESENTATIVE  OGG commented  that the  Limited Entry  Commission                                                              
has established  a system  that deals with  these sorts  of issues                                                              
and takes care  of gathering records and factual  information.  He                                                              
mentioned that if  the legislature were to do this,  it might take                                                              
a long time.                                                                                                                    
MR. HOLLIS  noted that  records  could be put  together after  the                                                              
fact,  but  it would  be  best  if it  was  done  as part  of  the                                                              
process.     He  reiterated  that   it  would  also  be   best  if                                                              
legislative findings  could be included  in the bill  because that                                                              
would make HB 281 much more defensible.                                                                                         
Number 2449                                                                                                                     
REPRESENTATIVE  OGG said  he didn't  really want  to go down  that                                                              
road, and asked  if a simpler avenue might be for  the legislature                                                              
to make a  definitional statement that "sport  charter vessels are                                                              
a commercial  fishery."   He wondered  if that  route were  taken,                                                              
whether  everything else  could be  decided through  the Board  of                                                              
Fisheries and  the Limited Entry  Commission, because  then, those                                                              
issues would be taken up by the experts.                                                                                        
MR.  HOLLIS  replied  that  moving  this  issue  to  CFEC  was  an                                                              
alternative  approach.  A  definitional change  might work  but he                                                              
said he would need to review the statutes.                                                                                      
REPRESENTATIVE  OGG suggested  that  further analysis  be done  on                                                              
making a definitional change or on authorizing CFEC.                                                                            
CHAIR  SEATON clarified  that  previous legislation  allowed,  for                                                              
the  first time,  for  limited entry  permits  to  be assigned  to                                                              
vessels;  these two cases  involved the  Weathervane Scallops  and                                                              
Korean Hair Crab fisheries.                                                                                                     
Number 2594                                                                                                                     
REPRESENTATIVE  SAMUELS  asked if,  during  the moratorium,  ADF&G                                                              
would evaluate whether there was a shortage of the resource.                                                                    
REPRESENTATIVE WEYHRAUCH  replied that  research would have  to be                                                              
conducted, and that  even though there was an  automatic effective                                                              
date, the  prelude to  this was,  "again, to  stop the  music, see                                                              
where this  is, see what  the impacts of  this charter  fishery is                                                              
on the  resource and  on those  fishing," and  this would  involve                                                              
collection of that data.                                                                                                        
REPRESENTATIVE   SAMUELS   asked  if   there   were  examples   of                                                              
moratoriums, other than the Kenai River.                                                                                        
MR.   HOLLIS  said   he   wasn't  aware   of   any,  but   perhaps                                                              
Representative Weyhrauch was aware of others.                                                                                   
REPRESENTATIVE  BERKOWITZ  asked  if  there  was  a  corresponding                                                              
federal fisheries issue that involved stellar sea lions.                                                                        
REPRESENTATIVE   WEYHRAUCH  answered   that  there   had  been   a                                                              
moratorium on  fisheries in the  Bering Sea that was  overtaken by                                                              
other  programs.  The  state imposed  a moratorium  on vessels  in                                                              
the Bering Sea  crab fishery, in particular, the  Korean Hair Crab                                                              
and the  Weathervane Scallops  fisheries.   He told the  committee                                                              
that   bills  had   previously   been  introduced   to   establish                                                              
moratoriums  on charter  vessels, statewide,  perhaps by  [former]                                                              
Representative [Alan]  Austerman.  There was also  a discussion of                                                              
a  moratorium or  limited  entry  on vessels  in  the Kenai  area,                                                              
involving a dispute over fresh water with DNR.                                                                                  
CHAIR  SEATON pointed  out that  distinctions needed  to be  drawn                                                              
between  federal  fisheries  management   that  doesn't  have  the                                                              
constraint  of Alaska's  constitution,  and  state management  and                                                              
state waters  which are  constrained by  equal access  and limited                                                              
Number 2736                                                                                                                     
MARY   McDOWELL,   Commissioner,    Commercial   Fisheries   Entry                                                              
Commission  (CFEC),  Alaska Department  of  Fish  & Game  (ADF&G),                                                              
testified that the  concern which generated interest  in this bill                                                              
and the desire for  tools to control charter growth  in some areas                                                              
in  Alaska, if  and when  it's needed,  was  understandable.   She                                                              
mentioned that CFEC  had not been consulted in the  drafting of HB
281 and  neither were ADF&G  or DOL, to  her knowledge.   She said                                                              
that  over the  past 10  years, attempts  at developing  effective                                                              
tools  have been  made and  have included  mandatory reporting  of                                                              
charter   activity,    legislation   to   establish    a   charter                                                              
occupational   licensing  system,   and  proposed   constitutional                                                              
MS.  McDOWELL  reported that  although  none  of those  pieces  of                                                              
legislation  have  made it  very  far,  there  is merit  in  these                                                              
approaches being taken  as a first step because  of providing data                                                              
upon which to formulate  a program in the future.   She said while                                                              
HB 281  is well intentioned,  "if we try  to leap-frog  over those                                                              
initial  steps,  ...  any  efforts  at doing  a  moratorium  or  a                                                              
limitation  will  be risky  and  subject  to challenge  and  could                                                              
unintentionally actually  do harm to  the charter fishery  and the                                                              
development of fisheries statewide."                                                                                            
Number 2837                                                                                                                     
MS. McDOWELL  continued that  while this  is called a  moratorium,                                                              
for  all practical  purposes it  creates a  limited entry  system,                                                              
with transferable  permits for  value.  Although  it has  a sunset                                                              
provision,  once  these  privileges   are  granted  and  start  to                                                              
transfer among  people, this creates  a constituency to  extend or                                                              
repeal  that sunset  date  or to  create  some  kind of  permanent                                                              
limitation to  ensure continued use  privileges for those  who get                                                              
in under  the moratorium.   She  explained that  this goes  beyond                                                              
the scope  of any moratorium  in commercial  fisheries.   She said                                                              
that  language  in  the  bill indicates  that  the  tabs  are  not                                                              
transferable for  value, but other language in  the bill indicates                                                              
that  a  vessel  with  a use  privilege  attached  to  it  has  an                                                              
increased  value, which  seems to  value  the tab  in a  transfer.                                                              
She said,  as indicated  by DOL,  the practical application  would                                                              
be  similar to  a  limited  entry program  and  would  need to  be                                                              
administered along those lines.                                                                                                 
Number 2896                                                                                                                     
MS.  McDOWELL continued  that  one general  concern  was that  the                                                              
bill itself could  generate a rush into the charter  industry.  Up                                                              
until  the effective  date of  the bill,  any participation  would                                                              
count towards  being grandfathered into  these permits.   She said                                                              
that  even  if  the  bill never  passes,  any  indication  of  its                                                              
movement is a little  bit risky in terms of encouraging  an influx                                                              
of  new vessels,  which  could harm  the  very  industry which  is                                                              
seeking protection.                                                                                                             
MS. McDOWELL  said that even  if the bill  passes, it  allows tabs                                                              
to  be transferred  to  different  vessels during  the  moratorium                                                              
without any  size restrictions.   She explained that one  could be                                                              
grandfathered in with  a 16-foot skiff and transfer  this to a 50-                                                              
foot vessel.  She  pointed out that in Southeast,  there is a six-                                                              
line limit  on charter  fisheries;  one can't  have more than  six                                                              
lines in  the water  at a  time.  That  provides some  constraint,                                                              
but of  course, the bigger the  vessel, the better  the capability                                                              
to take all six  passengers and to fish in rough  weather as well.                                                              
The  fact that  there  are  no vessel  capacity  restrictions  for                                                              
these  transfers indicates  that  you couldn't  fully contain  the                                                              
size and fishing power of the fleet through these measures.                                                                     
Number 2958                                                                                                                     
MS.  McDOWELL said  that  DOL did  a good  job  of explaining  the                                                              
legal and  constitutional  issues.  From  a practical  standpoint,                                                              
HB  281  would  involve  an  enormous  amount  of  monitoring  and                                                              
implementation by CFEC.                                                                                                         
TAPE 03-27, SIDE B                                                                                                            
Number 2963                                                                                                                     
MS. McDOWELL  continued that the  goal [of a moratorium]  would be                                                              
to "get a  lid on" and to  maintain the current numbers,  but with                                                              
the current open  access system, ADF&G figures  that participation                                                              
levels have  been stable or  have slightly declined  in Southeast.                                                              
She  said that  within  those numbers  there  is  a high  turnover                                                              
rate; people  are "coming and going."   Given that  situation, the                                                              
effect  of implementing  a  moratorium or  a  limitation would  be                                                              
like  a freeze,  and would  thereby be  "stopping the  music in  a                                                              
game of musical chairs," she said.                                                                                              
MS.  McDOWELL pointed  out that  if the  legislature decides  that                                                              
restricting  access   is  necessary  and  is  justified   for  the                                                              
Southeast  charter fishery,  the "least  impingement" issue  would                                                              
still need  to be addressed,  as it is  not only a  constitutional                                                              
issue  but is  also a  socioeconomic  issue because  HB 281  would                                                              
freeze areas  in all of Southeast,  not just in  significant areas                                                              
of growth where public concern has been identified.                                                                             
MS.  McDOWELL told  the committee  that CFEC  has experience  with                                                              
legal  pitfalls and  logistical issues,  since it  has limited  66                                                              
commercial  fisheries  over  the  last  30 years.    Ms.  McDowell                                                              
referred to  the overview  of the limited  entry program  that she                                                              
presented  to the House  Special Committee  on Fisheries  [meeting                                                              
of  January 29,  2003].   She  said that  a  legal framework,  the                                                              
Limited  Entry  Act,  was  established,   and  the  Limited  Entry                                                              
Commission  is  the administrative  agency  that  reviews  certain                                                              
fisheries  and areas  and decides  if limited  entry is  justified                                                              
and  legally  defensible, and  if  so,  proposes a  limited  entry                                                              
system  for  that  particular fishery  in  that  particular  area.                                                              
This is followed by the public hearing process.                                                                                 
Number 2798                                                                                                                     
MS. McDOWELL  said that  HB 281 proposes  a different  approach to                                                              
this generic  framework.  She  referred to fundamental  principles                                                              
that   were  built   into  the   limited  entry   system  by   the                                                              
legislature, for  commercial fisheries.   One is that  the permits                                                              
are issued  to the skippers, not  to the vessels'  owners; permits                                                              
go to  individuals,  not to entities  or corporations.   She  said                                                              
that there  is one exception, which  is the bill that  passed last                                                              
year for  the Bering  Sea fisheries,  which are  very small.   The                                                              
moratoriums  in those  fisheries  amount to  twelve  boats in  one                                                              
fishery and twenty-five  boats in the other.   A permit limitation                                                              
has been proposed but hasn't yet been done.                                                                                     
MS.  McDOWELL  continued by  saying  that  HB  281 is  a  dramatic                                                              
departure  from  the  principle  that's  been applied  to  the  66                                                              
fisheries that have  been limited, to date.   The privileges would                                                              
go to  the owners of  the vessels, whether  or not they  run those                                                              
vessels and whether  or not those owners are  companies or people.                                                              
She   said  that   in  commercial   fisheries,   a  person   could                                                              
grandfather  into no  more than  one  permit in  a given  fishery,                                                              
whereas under  this bill,  a given  entity could grandfather  into                                                              
many  permits which  would then  be transferable.   She  continued                                                              
that  under  commercial  limited  entry, even  after  the  initial                                                              
limitation,  a  person could  only  hold  one  permit in  a  given                                                              
fishery.    The  legislature  made an  exception  so  that  salmon                                                              
fishermen  could hold  a second  permit  for the  purpose, not  of                                                              
use, but  of consolidation.   This  difference of approach  allows                                                              
for an  entity being grandfathered  in, buying other  permits, and                                                              
potentially  controlling the charter  fishery in  an area  if that                                                              
was desired and affordable.                                                                                                     
MS. McDOWELL  said that even as  a moratorium, this  establishes a                                                              
pattern  of  granting  use  privileges  that  would  be  tough  to                                                              
reconstruct  after  four  years.    She said  it  allows  for  new                                                              
participants,  both humans and  vessels, to  get into  the fishery                                                              
over the  course of the  moratorium, and it  would be tough  to go                                                              
back  and  create  another structure;  flexibility  to  use  other                                                              
structures at a later date could be lost.                                                                                       
Number 2650                                                                                                                     
MS. McDOWELL  continued that from  the agency's standpoint,  there                                                              
was  concern over  the large  amount  of CFEC  time and  resources                                                              
that  would be  necessary for  implementation.   Over 650  vessels                                                              
were participating  last year in  the first of the  two qualifying                                                              
years,  so this  limitation action  would  be one  of the  largest                                                              
that CFEC  has undertaken  in 25  years - to  look at  one fishery                                                              
and deal  with that number of  applicants.  A new  computer system                                                              
would  need to be  set up  to track  vessel ownership,  transfers,                                                              
and  so   forth,  because  a   framework  has  not   already  been                                                              
established to run the program.                                                                                                 
Number 2585                                                                                                                     
MS. McDOWELL  said that in  commercial fishery limitations,  about                                                              
10 to 50  percent of all applicants  raise claims that  require an                                                              
appeals  process.    In commercial  fisheries,  fish  tickets  are                                                              
filled  out,  and  a  disinterested   third  party  reviews  state                                                              
records  to determine  who  had actual  participation.   In  these                                                              
fisheries,  the operators  fill out logbooks;  having never  dealt                                                              
with  this form  of data,  it's not  known whether  there will  be                                                              
inconsistencies  or problems  with  that data,  or  at what  point                                                              
this will  require an  appeals process.   Spelling out  an appeals                                                              
process is  something that  needs to  be added to  the bill.   She                                                              
said  that if  state records  don't  show adequate  participation,                                                              
people  have the  right to  be granted  an appeals  process.   She                                                              
commented  that  CFEC doesn't  know  what  the burden  of  appeals                                                              
would be.                                                                                                                       
MS.  McDOWELL said  that since  the  1980s, 25  percent of  CFEC's                                                              
staff has been lost  due to budget cuts.  A small  fiscal note was                                                              
submitted  but  it doesn't  really  address  the impacts  on  CFEC                                                              
because most  of the  impact will be  on the agency's  experienced                                                              
staff such as those involved with licensing or adjudication.                                                                    
Number 2478                                                                                                                     
MS.  McDOWELL concluded  by saying  that while  CFEC has  concerns                                                              
regarding administering  the program, and believes  that there are                                                              
other  more   effective  and  legally  defensible   approaches  to                                                              
dealing with  the growth in the  charter fishery.   The commission                                                              
takes  direction from  the legislature  and  will do  its best  to                                                              
implement whatever  is decided upon.   If HB 281 is pursued  as an                                                              
approach,  some aspects  need to  be clarified.   She referred  to                                                              
the  committee  packet  containing  notes  on  specific  amendment                                                              
areas  in   the  bill.     She  also   mentioned  setting   up  an                                                              
adjudicatory  process and  addressing the  question of having  the                                                              
authority to charge fees for annual renewals.                                                                                   
Number 2388                                                                                                                     
CHAIR  SEATON  asked if  the  mandatory  logbooks applied  to  all                                                              
charter fisheries in Southeast or just to the salmon fishery.                                                                   
MS.  McDOWELL indicated  that  this  was applicable  to  saltwater                                                              
CHAIR SEATON asked if this also applied to shellfish.                                                                           
MS. McDOWELL replied  that the logbooks don't have  a category for                                                              
shellfish, but  deferred to the  Division of Sport Fish  to better                                                              
answer the question.                                                                                                            
CHAIR  SEATON asked  if  CFEC could  generate  the turnover  rates                                                              
from the last five years.                                                                                                       
MS.  McDOWELL  replied  that  the Division  of  Sport  Fish  could                                                              
provide  that information.    She  clarified that  the  commercial                                                              
vessel licenses issued  by CFEC are done on behalf  of ADF&G.  The                                                              
ADF&G requires a  commercial vessel license if one  is involved in                                                              
the   charter  fishery,   similar   to  CFEC's   requirement   for                                                              
commercial  fisheries.   Since CFEC  is already  set up for  this,                                                              
the commission  administers the program  for ADF&G.   People apply                                                              
for  a charter  vessel license  and are  issued the  same kind  of                                                              
license  that  a  commercial  vessel  gets.   At  that  point,  to                                                              
operate in  the charter fisheries,  the applicant must  go through                                                              
ADF&G to register  as a charter operator.  Part of  the problem of                                                              
administering this  requires that tabs be issued to  the owners of                                                              
vessels,  yet "we  don't  actually record  who  owns the  vessel."                                                              
Data on  ownership is  not solid  because often  the user  of that                                                              
vessel is the one who does the licensing.                                                                                       
CHAIR  SEATON  asked if  ADF&G  would  have  "a better  handle  on                                                              
MS. McDOWELL confirmed  that ADF&G could address  comments related                                                              
to the logbooks.                                                                                                                
Number 2271                                                                                                                     
REPRESENTATIVE  SAMUELS  asked  if  a  moratorium  had  been  done                                                              
regarding a dive fishery.                                                                                                       
MS.  McDOWELL  answered  yes,  that   the  legislature  enacted  a                                                              
moratorium in  the commercial dive  fishery in Southeast  in 1996.                                                              
It was  a four-year  moratorium  and the CFEC  subsequently  did a                                                              
limited entry program in each of the dive fisheries.                                                                            
REPRESENTATIVE  SAMUELS  asked  if  evidence of  pressure  on  the                                                              
resource had led to the moratorium.                                                                                             
MS. McDOWELL  replied, "yes, and  I believe the  legislature built                                                              
a  record."    She  said  the  numbers  in  those  fisheries  were                                                              
Number 2230                                                                                                                     
REPRESENTATIVE OGG  questioned what prohibits CFEC  from receiving                                                              
an  inquiry from  people  currently in  the  industry, asking  the                                                              
commission to  go through the analysis  and adopt a  limited entry                                                              
fishery program.                                                                                                                
MS.  McDOWELL said  that the  first  few sections  of the  Limited                                                              
Entry Act refer  to the purposes  of the commission.   It would be                                                              
the  prerogative   of  the   legislature   to  create  a   similar                                                              
structure, either  by amending CFEC's statutes so  that CFEC would                                                              
do  this in  commercial  and charter  fisheries,  or  to create  a                                                              
separate limited  entry for charter fisheries.   Currently, CFEC's                                                              
statute is specific.                                                                                                            
CHAIR SEATON  wondered if  there was a  problem involved  with the                                                              
idea  of charter  operators  not being  the  actual fishermen  and                                                              
asked how this "fell within the regulations."                                                                                   
MS. McDOWELL  replied that  this was a  legal issue that  might be                                                              
raised in  a challenge.   Regarding  the constitutional  amendment                                                              
referring  to   economic  distress  among  fishermen,   under  the                                                              
constitution,   the  people  doing   the  charter  operation   are                                                              
fishermen.  The  DOL's analysis has recently been that  as long as                                                              
the limitation  met all  of the requirements,  you "might  be able                                                              
to make  that fit."   In the past,  the legislature's  own counsel                                                              
has been  that "it  would get  struck down"  if the limited  entry                                                              
constitutional amendment was applied to charter fisheries.                                                                      
CHAIR  SEATON said  his concern  was  that the  number of  vessels                                                              
would be  limited although there would  be no limit on  the number                                                              
of people  being taken out  on the boats:   Therefore,  "We're not                                                              
really  limiting  the number  of  fishermen  on the  grounds,"  he                                                              
MS.  McDOWELL  replied  that  there  would  be  a  six-line  limit                                                              
imposed by the Board of Fisheries.                                                                                              
Number 2066                                                                                                                     
ROB  BENTZ,  Deputy  Director,  Division  of  Sport  Fish,  Alaska                                                              
Department  of  Fish  &  Game  (ADF&G),   testified  that  he  was                                                              
speaking for  the department  as well as  the division, as  HB 281                                                              
had been  discussed  with the commissioner.    He said, "We  agree                                                              
with  and   support  the   concerns  and  recommendations   voiced                                                              
previously  by DOL  and CFEC;"  this bill  was not  a response  to                                                              
providing  for "the  protection  of the  resource."   He said  [HB
281]  was  seen as  a  result  of competition  for  the  resource,                                                              
noting  that there  have  been  allocation conflicts  between  the                                                              
charter  groups and  commercial  groups, and  more recently  there                                                              
have been  conflicts between  the charter  groups and  non-charter                                                              
anglers.  The level of conflict varies between ports, he said.                                                                  
MR. BENTZ  continued  that there  are only two  species of  marine                                                              
fish at  this time  in Southeast  with allocations assigned:  king                                                              
salmon  and  lingcod.    The Board  of  Fisheries  has  adopted  a                                                              
region-wide  king salmon  management plan  and in  most cases  the                                                              
various user  groups stay  within that  allocation.  Lingcod  have                                                              
been  allocated  between the  sport  and commercial  user  groups,                                                              
with a management  system devised by the department.   He said the                                                              
department  views  this  issue  as an  allocation  rather  than  a                                                              
conservation issue.                                                                                                             
NUMBER 1868                                                                                                                     
MR. BENTZ said  that regarding the issue of economic  distress and                                                              
turnover,  "I can't answer  whether there's  economic distress  or                                                              
not; I don't  know the criteria."   But, he said he  did know that                                                              
there is  a large amount  of turnover which  varies by  port, with                                                              
the  larger ports  having higher  turnover  rates.   He said  that                                                              
regarding  the  charter  vessel  logbook,  a  mandatory  statewide                                                              
program went into  effect in 1998, and the charter  business owner                                                              
is required to  register.  Operators of the vessels,  if different                                                              
from the  owners, are  required  to register  on an annual  basis.                                                              
Logbooks are  required for each  charter vessel in  saltwater, not                                                              
in  fresh   water,  and  not   for  vessels-for-hire   without  an                                                              
operator, he explained.                                                                                                         
REPRESENTATIVE   WEYHRAUCH  asked   if  charter   boat  data   was                                                              
collected from the owner and the operator of the vessel.                                                                        
MR. BENTZ replied  that the owner or agent of the  owner "comes in                                                              
and gets the logbooks," not the operators.                                                                                      
REPRESENTATIVE  WEYHRAUCH  asked if  the  owner and  the  operator                                                              
were treated differently.                                                                                                       
MR. BENTZ confirmed this to be the case.                                                                                        
REPRESENTATIVE  WEYHRAUCH  said that  CFEC  had expressed  concern                                                              
that it's  "the skipper that mattered,"  and he asked if  this was                                                              
Number 1696                                                                                                                     
MR.  BENTZ  replied  that  there  is  no  standard  pattern.    He                                                              
explained that in  some cases, the owner will pick  up 10 logbooks                                                              
for a lodge and  issue those to 10 operators.   The operators fill                                                              
out the  logbook because  the information needs  to be  filled out                                                              
before  the fish  are offloaded.    In some  cases, the  operators                                                              
sign the bottom of  the logbook form on a weekly  basis.  In other                                                              
cases, the owner signs all 10.                                                                                                  
REPRESENTATIVE  WEYHRAUCH   surmised,  "It's  different   in  this                                                              
fishery ...  where you're dealing  with owners and  operators, not                                                              
just a skipper of the vessel".                                                                                                  
MR.  BENTZ  indicated agreement  with  Representative  Weyhrauch's                                                              
REPRESENTATIVE   WEYHRAUCH   continued,   "So  we   have   already                                                              
established ...  that there is a  difference, and you do  know the                                                              
operators and owners  sometimes are different than  in the regular                                                              
limited  entry  programs  for  commercial   fisheries.    Is  that                                                              
MR.  BENTZ  concluded  by  saying   that  a  myriad  of  different                                                              
situations  occur.   For  example, some  operators  who have  more                                                              
clients than  expected may  lease boats, or  may lease a  boat and                                                              
lease a skipper with it.                                                                                                        
CHAIR SEATON  interjected  and announced  that testimony  would be                                                              
taken from  people who would  not be able  to testify at  the next                                                              
House Special Committee on Fisheries meeting.                                                                                   
Number 1519                                                                                                                     
DON  JOHNSON, representing  himself,  testified that  pre-existing                                                              
law affects  this bill.  He  referred to the Alaska  Supreme Court                                                              
case, Rutter  v. Alaska Board of  Fisheries, August 7, 1998.   Mr.                                                            
Johnson cited Sec. 16.05.940(29) which reads in part:                                                                           
     "sport fishing"  means the taking  or attempting to  take for                                                              
     personal use,  and not for  sale or barter, any  fresh water,                                                              
     marine,  or anadromous  fish  by hook  and line  held in  the                                                              
     hand,  or by  hook and  line with  the line  attached to  the                                                              
     pole or rod,  which is held in the hand  or closely attended,                                                              
     or by other means defined by the Board of Fisheries.                                                                       
MR. JOHNSON  continued, saying  although charter vessel  operators                                                              
may  be engaged  in  commercial activity,  that  of guiding  sport                                                              
fishing, the fish  are taken for personal use and  not for sale or                                                              
barter.    As  the  law  now  stands  in  Alaska,  charter  vessel                                                              
operators acting  as guides  for sport fishers  are involved  in a                                                              
sport,  not  a   commercial  taking  of  fish.     Therefore,  the                                                              
provisions of  Sec. 16.43.140  and the Limited  Entry Act  are not                                                              
Number 1377                                                                                                                     
MR.  JOHNSON summarized  that what's  being said  is, "These  guys                                                              
are not  commercial fishermen;  therefore,  the Limited Entry  Act                                                              
doesn't  come into  play."   He  said he  agrees with  DOL that  a                                                              
moratorium and  limited entry are  the same, whether it  lasts for                                                              
10  minutes or  10  years.   He  said  the designation  of  [sport                                                              
fishermen]  as commercial  fishermen  and grafting  them into  the                                                              
Limited Entry  Act would  be similar to  when the state  attempted                                                              
to define hunting  guides as limited entry participants;  this was                                                              
found to be unconstitutional.   He said what was  called for was a                                                              
vote  of the  public.   He  agreed that  addressing  HB 281  would                                                              
encourage   people  to   "jump   into  this   industry,"   thereby                                                              
exasperating the problem.                                                                                                       
Number 1254                                                                                                                     
CAROL DOOLEY, Owner,  Ketchikan Sport Fishing, testified  that her                                                              
business serves  the cruise line  industry by providing  four-hour                                                              
charters.   She said in 2003 the  fleet will consist of  23 boats,                                                              
which predominately  fish the Terminal  Hatchery area  at Mountain                                                              
Point, south  of Ketchikan.  She  said her company brings  in over                                                              
$1 million  annually  to the local  economy and  provides  over 25                                                              
full-time  jobs.   Clients spend  thousands of  dollars on  custom                                                              
processing  services  as well.    She said  that  even with  these                                                              
sizable  contributions, the  charter fishing  business has  always                                                              
been  a "break-even  business  for  her  family and  charter  boat                                                              
owners."   She  said  the cruise  line  industry  is planning  for                                                              
continued  growth in  Alaska, and  she has been  planning  to grow                                                              
along with  them.  She  reported that a  30-slip marina  was being                                                              
built for her  company's use and  that in the next five  years the                                                              
plan is to expand  to a 30-boat fleet.  She pointed  out that with                                                              
a moratorium,  those  plans for  expansion to  which the  business                                                              
has already committed will not be able to happen.                                                                               
Number 1163                                                                                                                     
MS. DOOLEY  said that HB 281  would likely devastate  her company,                                                              
a company  built  by her  parents years  ago; this  was the  first                                                              
company to  offer charter  fishing to  the cruise line  companies,                                                              
and is  not a  new operation  "just setting  up shop."   She  said                                                              
that  other  companies,   similar  to  hers,  would   be  unfairly                                                              
affected by this  bill.  She said that she knows  of two companies                                                              
in Ketchikan,  one in  Sitka, one  in Skagway,  and one  in Juneau                                                              
that  provide charters  to  the cruise  line  industries and  that                                                              
will  most   certainly  lose  millions   of  dollars   that  would                                                              
otherwise go to support the local Southeast economy.                                                                            
MS. DOOLEY  asked,  "Can we really  afford, at  times of  economic                                                              
losses  in  the  timber  and  commercial  fishing  industries,  to                                                              
stagnate  ourselves  in  the  only  growth  sector  we  have,  the                                                              
tourism  charter fishing  industry?"   She  continued, "Our  money                                                              
fish is  humpies and  there is  certainly no  shortage of  humpies                                                              
around  here!    We  catch  a  handful  of  kings  each  year  ...                                                              
companies  like mine  who  are harvesting  predominately  humpies,                                                              
bring  in millions  ... to local  Southeast economies  and  we are                                                              
not  impacting areas  with a  high  abundance of  treaty fish  ...                                                              
this  bill encompasses  innocent  Alaskan  businesses and  charter                                                              
boat  operators  who  are  not  adversely  impacting  the  fishery                                                              
CHAIR SEATON indicated HB 281 would be held over.                                                                               

Document Name Date/Time Subjects