Legislature(2003 - 2004)

03/01/2004 09:05 AM FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 478-COMMERCIAL FISHING INTERIM USE PERMITS                                                                                 
[Contains discussion of HB 415 at the end of the hearing]                                                                       
Number 0041                                                                                                                     
CHAIR SEATON announced  that the only order of  business would be                                                               
HOUSE  BILL  NO.  478,  "An  Act  relating  to  the  issuance  of                                                               
commercial  fishing interim-use  permits;  and  providing for  an                                                               
effective date."                                                                                                                
CHAIR SEATON  asked Mr. Goltz whether  he had anything to  add to                                                               
his e-mail of February 27, 2004.                                                                                                
Number 0088                                                                                                                     
JON   GOLTZ,  Assistant   Attorney  General,   Natural  Resources                                                               
Section, Civil  Division (Anchorage), Department of  Law, said he                                                               
could  add a  little.   Noting that  he'd been  asked to  do some                                                               
analyses  as to  whether  any  amendments to  the  bill would  be                                                               
desirable to address landings from  international waters, he said                                                               
there  is some  uncertainty now  about how  CFEC's laws  apply to                                                               
such  situations.   He opined  that the  bill helps  a little  by                                                               
closing a  potential gap  between when  entry permits  are issued                                                               
and  when [interim-use]  permits  are issued,  and by  clarifying                                                               
CFEC's authority to issue these permits.                                                                                        
MR. GOLTZ  said there still  could be  a question in  some cases,                                                               
however, as  to what CFEC  can designate  as a fishery;  he cited                                                               
the  example  of  a  tuna   fishery  off  the  coast  of  Hawaii.                                                               
Suggesting those might be broader  issues, he said he didn't have                                                               
a  clear picture  about what  could be  changed in  this bill  to                                                               
further  clarify  the  issue of  international  landings  without                                                               
significantly changing the real purpose and focus of the bill.                                                                  
Number 0278                                                                                                                     
MR.  GOLTZ turned  attention to  retroactivity, noting  that he'd                                                               
also been asked  to look into the possibility of  making the bill                                                               
retroactive   to  the   date  of   the  original   limited  entry                                                               
legislation.  Although it raises  some legal issues, he said it's                                                               
uncertain how  those issues  would be  applied to  the particular                                                               
court cases  that are ongoing and  relevant to this issue.   As a                                                               
relatively  minor   first  point,   he  suggested  that   if  the                                                               
legislature intends  to make  this bill  retroactive in  order to                                                               
extinguish current  claims for reimbursement  of past  fees paid,                                                               
then the bill  should expressly say that in order  to comply with                                                               
existing AS 01.10.100.                                                                                                          
MR.   GOLTZ    addressed   the   bigger   issues    relating   to                                                               
constitutionality.   As  the person  charged with  advocating for                                                               
the  state both  in the  [State v.  Dupier Alaska  Supreme Court]                                                             
criminal  case and  the  Sargent and  Dupier  class action  cases                                                           
currently in  court, Mr. Goltz  said he'd  be pleased to  see the                                                               
bill applied  retroactively because it would  give him additional                                                               
arguments  in  those cases,  although  he  wasn't sure  how  such                                                               
arguments  would fare.   Most  important, it  would allow  him to                                                               
show that this legislature  supports CFEC's longstanding practice                                                               
in issuing  permits in  the halibut  fishery and  other fisheries                                                               
that aren't limited.   It would also allow him  to argue that the                                                               
intent and  purpose of the bill  is merely curative, he  said, to                                                               
validate that longstanding practice  of issuing permits under the                                                               
current law,  and to argue  that the practice is  consistent with                                                               
what the intent of the law has been all along.                                                                                  
Number 0473                                                                                                                     
MR.  GOLTZ  acknowledged that  in  making  those arguments,  he'd                                                               
expect  some opposition;  in the  criminal  case, the  opposition                                                               
would  largely   be  the  contention  that   applying  this  bill                                                               
retroactively  would violate  the ex  post facto  prohibitions in                                                               
the federal constitution.  He said  he wasn't sure how that issue                                                               
would play out because the  bill doesn't create a new prohibition                                                               
or penalty  that is applied  retroactively, but  simply clarifies                                                               
the scope of the interim-use permit.   He suggested it's an issue                                                               
that ultimately would best be resolved by a court.                                                                              
Number 0521                                                                                                                     
MR. GOLTZ went on  to say in the civil cases,  it could be argued                                                               
that the  plaintiffs already  have a  right to  reimbursement for                                                               
those  claims   and  that   any  legislation   which  retroactive                                                               
eliminates those claim  would allegedly violate due  process.  He                                                               
said, again, it isn't clear to  him how it would be resolved, but                                                               
he thinks  he could make  a strong argument  that if the  bill is                                                               
applied   retroactively,  it   is  simply   a  clarification   or                                                               
expression of intent  about the scope of the original  law, not a                                                               
retroactive application  of "a  substantive law  ... or  one that                                                               
would violate due process in that case."                                                                                        
Number 0580                                                                                                                     
MR.  GOLTZ   addressed  a  final   possible  issue   relating  to                                                               
separation  of  powers.   He  explained  that  a court  might  be                                                               
concerned that  by clarifying this  law while cases  are ongoing,                                                               
the legislature is stepping into  a judicial role of interpreting                                                               
the law  and how it should  apply to particular cases.   While he                                                               
said there would  be strong arguments against  that, he cautioned                                                               
that it's a  potential issue when talking about  changing the law                                                               
in the  context of cases that  already have had rulings  and that                                                               
will have further rulings before they reach a final resolution.                                                                 
MR.  GOLTZ summarized  by saying  it isn't  clear to  him that  a                                                               
retroactive   application   would   solve  the   ongoing   cases.                                                               
Practically speaking,  he suggested it would  probably complicate                                                               
the cases because of raising constitutional issues.  He added:                                                                  
     But speaking  as an  advocate, as I  have been  here, a                                                                    
     retroactive bill  would give  me new arguments  to make                                                                    
     on behalf  of the state's  position, and ...  from that                                                                    
     point of view, I can't see  any harm that would be made                                                                    
     to  the state's  case. ...  In the  event that  a court                                                                    
     found   that   the   law    should   not   be   applied                                                                    
     retroactively,  due   to  constitutional   concerns,  I                                                                    
     believe  the  result would  simply  be  that the  court                                                                    
     would  decline to  apply it  retroactively, and  simply                                                                    
     hold ... that  - in that particular case,  anyway - the                                                                    
     new law has only prospective application.                                                                                  
MR. GOLTZ closed by emphasizing  the difficulty of predicting how                                                               
those issues would be decided.                                                                                                  
Number 0728                                                                                                                     
CHAIR  SEATON asked  whether the  ongoing criminal  case involves                                                               
someone who failed to get a permit.                                                                                             
MR. GOLTZ replied that it  involves three individuals; all caught                                                               
halibut outside  of state waters  and brought the  halibut inside                                                               
of  state waters  for landing.   None  had an  interim-use permit                                                               
from  CFEC,  and  they  were cited  for  not  having  interim-use                                                               
CHAIR   SEATON   asked  whether   it's   a   fair  reading   that                                                               
retroactively allowing CFEC to issue  permits wouldn't impact the                                                               
defendants in this case as to  whether they were required to have                                                               
a permit.                                                                                                                       
MR. GOLTZ said he thinks it's  a fair reading, but isn't the only                                                               
reading.  He explained:                                                                                                         
     The rub comes  in because the way the  court of appeals                                                                    
     decided  those  cases  is  ...  that  those  defendants                                                                    
     couldn't  be  required to  have  a  permit because,  in                                                                    
     fact, the CFEC didn't have  the authority to issue them                                                                    
     one  in that  case.   And  so ...  the reasoning  about                                                                    
     whether or  not they are  going to be ...  convicted on                                                                    
     the  charge  of  not  having a  permit  does  hinge  on                                                                    
     whether  the CFEC  had the  authority to  issue them  a                                                                    
Number 0872                                                                                                                     
CHAIR SEATON asked whether, before  1972, fishermen were required                                                               
to  have  a gear  permit  card  for  any  fishery in  which  they                                                               
MR. GOLTZ said he believed so.  In further response, he said:                                                                   
     My understanding  of the  legislative history  there is                                                                    
     that the  gear card  requirement continued  until 1977.                                                                    
     So for the  period between '73 and  '77, fishermen were                                                                    
     required to  have both a limited  entry ... interim-use                                                                    
     permit  and also  a gear  card for  whatever gear  they                                                                    
     were using.   In '77 the legislature deemed  that to be                                                                    
     an unnecessary,  duplicative licensing  requirement and                                                                    
     dropped the  gear license card statute,  in reliance on                                                                    
     ... the CFEC permits.                                                                                                      
Number 0978                                                                                                                     
MR. GOLTZ,  in further  response to Chair  Seaton, noted  that in                                                               
the  civil [class  action]  cases, the  argument  is specific  to                                                               
halibut, kind  of an  unusual fishery because  federal law,  to a                                                               
large  degree, preempts  state management  of it.   The  argument                                                               
essentially  is that  in light  of  the recent  court of  appeals                                                               
decision - which  held that CFEC doesn't have  authority to issue                                                               
interim-use permits in the halibut  fishery because limited entry                                                               
is  not pending  - the  people who  bought a  halibut interim-use                                                               
permit should be able to get that  money back from the state.  In                                                               
response to  a further  question, he offered  his belief  that in                                                               
both cases, the  class [of plaintiffs] is limited  to persons who                                                               
caught halibut  in the EEZ  [Exclusive Economic Zone]  outside of                                                               
state waters  and brought  them in.   He  said he  isn't entirely                                                               
sure  whether it  (indisc.--coughing) the  case, but  it is  only                                                               
halibut fishermen.                                                                                                              
Number 1135                                                                                                                     
REPRESENTATIVE  GARA  asked whether  there  was  any danger  that                                                               
telling  the  courts  what a  prior  legislature  intended  would                                                               
expose the state to additional liability in any of these cases.                                                                 
MR. GOLTZ  replied that he hadn't  been able to think  of any way                                                               
in   which  that   would  create   additional   liability.     He                                                               
acknowledged  that  he'd  only  been  working  on  the  issue  of                                                               
retroactivity for a few days.  He added:                                                                                        
     What I've been  able to discern from my  reading on the                                                                    
     issue is that to the  extent retroactivity proved to be                                                                    
     a problem in the court's  view, ... it would only speak                                                                    
     to whether  or not the  court would actually  apply the                                                                    
     statute retroactively  in that  particular case.  ... I                                                                    
     am not  aware of  a situation  where this  could create                                                                    
Number 1220                                                                                                                     
REPRESENTATIVE GARA  asked, if the  legislature says  CFEC should                                                               
have issued  permits that  it hasn't  been issuing,  whether it's                                                               
possible  someone  could  claim  entitlement  to  a  permit  that                                                               
historically CFEC hasn't  issued and claim damages  for not being                                                               
issued a permit that [CFEC] wasn't issuing.                                                                                     
MR.  GOLTZ  replied  that  he doesn't  see  that  situation  here                                                               
because, as he  sees the bill, it is intended  merely to validate                                                               
and conform the  law to CFEC's actual practice for  30 years, and                                                               
to  interpret  the  statute broadly  to  say,  essentially,  that                                                               
[CFEC]  has  authority  to issue  interim-use  permits  in  every                                                               
fishery that  doesn't have a  maximum number and so  doesn't have                                                               
entry permits issued for it.                                                                                                    
Number 1323                                                                                                                     
REPRESENTATIVE   GARA  expressed   skepticism   that  this   2004                                                               
legislature, by  saying what a  prior legislature  intended, will                                                               
be given  much weight by the  courts in that interpretation.   He                                                               
surmised that the  court would say it could figure  out the prior                                                               
legislature's intention equally  well.  He asked  for Mr. Goltz's                                                               
view on that.                                                                                                                   
MR. GOLTZ agreed that the foregoing  has "a fair bit of weight to                                                               
it" and that the court would  certainly consider that view of the                                                               
case.  He pointed  out that this is a bit  awkward for him, since                                                               
he's  still  in a  position  of  advocating in  these  particular                                                               
MR. GOLTZ,  in reply  to a  question from  Representative Wilson,                                                               
said he  doesn't see  a significant downside  in relation  to the                                                               
cases he's  involved with if  the bill is retroactive.   Although                                                               
it would  allow him to make  some arguments in the  state's favor                                                               
that he otherwise wouldn't be able  to make, it raises issues and                                                               
he isn't sure  the bill would, in fact,  be applied retroactively                                                               
by a court in those particular cases.                                                                                           
Number 1472                                                                                                                     
CHAIR SEATON said he's not  so concerned about the pending cases,                                                               
but  would  be  concerned  about  expanding  that  to  all  other                                                               
nonlimited  fisheries.    He  asked, if  a  retroactive  date  is                                                               
included now, whether  it would have more  influence on potential                                                               
cases that haven't  yet been filed, for all  other fisheries that                                                               
were  interim-use permit  fisheries, regardless  of whether  they                                                               
impact the current cases.                                                                                                       
MR. GOLTZ  said he didn't  have a comprehensive  understanding of                                                               
the answer, but  essentially believes it won't hurt.   If someone                                                               
could  file  a  claim  now  but  hasn't,  he  believes  that's  a                                                               
significant question that would have  to be argued in the context                                                               
of a  particular case before a  court.  He offered  his view that                                                               
the  effect   of  retroactivity  in   [HB  478]  would   be  this                                                               
legislature's  statement  of  intent,   in  as  strong  terms  as                                                               
possible,  that CFEC's  past practice  has  been the  appropriate                                                               
one.  He said he doesn't know that much can be done beyond that.                                                                
CHAIR  SEATON   requested  confirmation  that   this  legislation                                                               
doesn't  affect  any  fishery   that  would  have  been  actively                                                               
undergoing the process of limited entry.                                                                                        
MR. GOLTZ said he believes that's correct.                                                                                      
Number 1659                                                                                                                     
REPRESENTATIVE   GUTTENBERG  asked   whether  the   policies  and                                                               
procedures  for  issuing  these  interim-use  permits  have  been                                                               
consistent, and  whether passage of this  legislation would cover                                                               
all past instances  or if would there be  different categories or                                                               
timelines for regulations.                                                                                                      
MR. GOLTZ said he  thinks the answer is yes.   He noted that CFEC                                                               
has  issued  interim-use  permits   for  different  fisheries  at                                                               
different times, as  they have evolved, and that  the process has                                                               
developed;  he  suggested a  CFEC  commissioner  may be  able  to                                                               
discuss  how that  process has  developed.   Offering his  belief                                                               
that this  bill would  relate to  those all  equally, he  said he                                                               
keeps  coming back  to CFEC's  hope of  conforming the  statutory                                                               
language a little  more clearly to the  actual interpretation and                                                               
practice  all along.    "We're  not, in  the  view  of the  CFEC,                                                               
changing anything  here," he said.   "This  has been the  law the                                                               
entire time.   And we  only need to make  it even more  clear now                                                               
because  of the  decision we  originally  got from  the court  of                                                               
CHAIR  SEATON acknowledged  that Representatives  Heinze and  Ogg                                                               
had arrived shortly after the hearing began.                                                                                    
Number 1847                                                                                                                     
FRANK   M.  HOMAN,   Commissioner,  Commercial   Fisheries  Entry                                                               
Commission, Alaska  Department of Fish &  Game (ADF&G), addressed                                                               
Representative  Guttenberg's   question  by   saying  interim-use                                                               
permits have been  issued from the very beginning,  going back to                                                               
probably 1974.   The  commission has always  issued two  types of                                                               
permits:   the  entry permit  and, for  all those  fisheries that                                                               
were not  limited, the  interim-use permit.   Over the  years, as                                                               
new  fisheries  have been  limited,  CFEC  has switched  from  an                                                               
interim-use permit for that fishery to an entry permit.                                                                         
CHAIR  SEATON  asked  about the  relationship  between  the  gear                                                               
permits that were issued and the interim-use or entry permits.                                                                  
MR. HOMAN answered:                                                                                                             
     I'll  try  to  go  back  that far.  ...  I  think  what                                                                    
     happened  was, in  the early  years of  the commission,                                                                    
     the  carryover  of  the gear  license  came  from  pre-                                                                    
     limited entry days,  and ... it was always  the type of                                                                    
     permit  that  was  issued ...  for  fishermen.    After                                                                    
     limited  entry, that  continued  to be  issued, but  we                                                                    
     also began  issuing an interim-use permit  and an entry                                                                    
     permit.  ... This  happened for  three  or four  years,                                                                    
     until  1977, when  ... the  situation  arose that  "why                                                                    
     were we issuing these two  types of cards, when ... the                                                                    
     interim-use   permit   or   the  entry   permit   could                                                                    
     substitute for the gear permit."   So ... they switched                                                                    
     at that time  and said ... that  the interim-use permit                                                                    
     and the entry  permit would cover a gear  license.  And                                                                    
     so, I  guess, from 1977  ... the state hasn't  issued a                                                                    
     gear license.                                                                                                              
Number 1991                                                                                                                     
REPRESENTATIVE  WILSON asked  whether a  retroactive date  in the                                                               
bill would be back to 1974 or 1977.                                                                                             
MR.  HOMAN  said he  believed  1974,  when [CFEC]  first  started                                                               
issuing interim-use permits.                                                                                                    
REPRESENTATIVE WILSON asked  how much money is at  stake if there                                                               
is a class  action lawsuit over this, and  whether the department                                                               
had considered this.                                                                                                            
MR. HOMAN  indicated it  hadn't been  considered, but  said there                                                               
are probably thousands of permits.                                                                                              
REPRESENTATIVE WILSON  asked whether  it would  be more  than for                                                               
the Carlson case.                                                                                                             
MR. HOMAN said he couldn't guess, but it would be substantial.                                                                  
Number 2055                                                                                                                     
CHAIR SEATON  offered his  belief that  the criminal  case before                                                               
the court,  which only involves  three people, has nothing  to do                                                               
with  the purpose  of a  retroactivity  clause here.   The  other                                                               
would probably only  apply to halibut when it  went to individual                                                               
fishery  quotas (IFQs),  he suggested,  because  that's when  the                                                               
federal  government  first started  issuing  a  federal card  for                                                               
delivery of fish; before that,  they were delivered under a state                                                               
"gear interim-use  card."  He  mentioned 1996 as a  possible date                                                               
when it became effective, not when it was passed.                                                                               
REPRESENTATIVE OGG  recalled that  previous to that,  the federal                                                               
government issued  permits for halibut, both  sport-charter cards                                                               
and commercial cards.                                                                                                           
CHAIR SEATON  said before  that, delivery was  made on  the state                                                               
card, even though there was a federal fishery permit.                                                                           
Number 2143                                                                                                                     
CHAIR HEINZE asked  how many fisheries aren't  subject to limited                                                               
entry or a moratorium.                                                                                                          
MR. HOMAN  said it's hard  to answer because some  fisheries have                                                               
no  activity,  but [CFEC]  has  limited  approximately 66  or  67                                                               
fisheries, and probably another 125  or more have been identified                                                               
that aren't  limited.  The  majority of the major  fisheries like                                                               
the  salmon  fisheries  are  limited,  but there  are  a  lot  of                                                               
miscellaneous fish and crab that haven't been limited.                                                                          
CHAIR  HEINZE  requested  confirmation that  these  permits  help                                                               
[CFEC] in tracking the healthiness of the fish stocks.                                                                          
MR. HOMAN said absolutely; that's  where all the data comes from.                                                               
Because of  the permit system  and the requirement that  the fish                                                               
tickets contain  the permit  number, how  the resource  is faring                                                               
under the  fishery can be determined.   It's the basic  tool used                                                               
by ADF&G and CFEC to assess the fishery.                                                                                        
Number 2238                                                                                                                     
CHAIR HEINZE  asked whether [CFEC]  is looking at  permitting for                                                               
the 125 or so fisheries that aren't limited now.                                                                                
MR.  HOMAN  answered yes,  saying  it's  through the  interim-use                                                               
permit system for all those  nonlimited fisheries.  The same data                                                               
is collected from the nonlimited fisheries.                                                                                     
CHAIR SEATON requested confirmation  that prior to limited entry,                                                               
gear cards were used to track the fisheries resources.                                                                          
MR. HOMAN said that's correct.                                                                                                  
Number 2291                                                                                                                     
REPRESENTATIVE GARA asked whether CFEC supports HB 478.                                                                         
MR.  HOMAN  answered  that  [CFEC]  definitely  supports  it,  to                                                               
clarify that  its practice for  30 years is what  the legislature                                                               
REPRESENTATIVE  GARA, noting  that he  is an  attorney but  still                                                               
doesn't understand  them fully,  requested an explanation  of the                                                               
class  action claims  that this  bill, if  applied retroactively,                                                               
might impact, and how it would benefit the plaintiffs.                                                                          
MR. HOMAN, noting that he hasn't  gone into the issue a lot, said                                                               
the  claim was  that CFEC  didn't  have authority  to issue  IUPs                                                               
[interim-use permits] that it had  issued in the halibut fishery,                                                               
because  it  didn't  have  the ability  to  limit  that  fishery.                                                               
Surmising that they were seeking  their money back, he said there                                                               
are five fee classes, ranging, to his belief, from $60 to $300.                                                                 
REPRESENTATIVE GARA  asked whether  their position was  that they                                                               
should have been able to engage  in the fishery for free, without                                                               
the permits,  and that CFEC,  by charging money for  permits, had                                                               
exceeded its authority.                                                                                                         
MR. HOMAN deferred to Mr. Goltz,  but said he believes that's the                                                               
basic claim.                                                                                                                    
Number 2440                                                                                                                     
MR.  GOLTZ said  he basically  agreed with  Mr. Homan's  answers.                                                               
Noting  the approximately  3,000  halibut permits  in Alaska,  he                                                               
said the alleged class, not  yet certified by the court, consists                                                               
of  persons who  caught fish  only  outside of  state waters  and                                                               
landed  them in  state  waters.   He  explained,  "We don't  know                                                               
exactly how many  people that is, because we  believe most people                                                               
catch halibut both inside and outside  of state waters."  He said                                                               
the claim  is that these  persons complied  with the law  and the                                                               
practice  of purchasing  an interim-use  permit for  halibut from                                                               
CFEC in order  to catch fish in state waters  or to authorize the                                                               
landing and selling of their  fish in state waters, in compliance                                                               
with state statutes.                                                                                                            
MR. GOLTZ  continued, saying [the  plaintiffs'] argument  is that                                                               
they  shouldn't have  had to  comply with  that law,  because the                                                               
court of appeals has now held  that CFEC didn't have authority to                                                               
issue  them   an  interim-use  permit.     Thus  they're  seeking                                                               
reimbursement  of the  money paid,  although to  the best  of his                                                               
knowledge they didn't protest paying it  at the time.  He said he                                                               
believes for most  of the time period  in question, approximately                                                               
1996 through 2003, the fee was  either $50 for a resident or $150                                                               
for a nonresident for an interim-use permit for halibut.                                                                        
Number 2531                                                                                                                     
REPRESENTATIVE  GARA related  his understanding,  then, that  the                                                               
plaintiffs claim, first, that CFEC  had no authority to issue the                                                               
permits, and, second,  that they should have been  able to engage                                                               
in the fishery for free, without a permit.                                                                                      
MR. GOLTZ clarified  that the pleadings don't  allege that second                                                               
part, but  said he thinks  it's an  inherent part of  their claim                                                               
"and is something that we hope to point out in the litigation."                                                                 
REPRESENTATIVE  GARA asked  whether  these claims  just apply  to                                                               
interim-use  permits for  the halibut  fishery beyond  the three-                                                               
mile limit.                                                                                                                     
MR.  GOLTZ  said  he's  almost positive  that's  the  only  thing                                                               
alleged in the  pleadings, but indicated he'd have to  check.  He                                                               
added that  he thinks the people  who are alleging to  be part of                                                               
this class only  allege that they are persons  who have harvested                                                               
halibut  outside of  state waters,  beyond the  three-mile limit,                                                               
but have brought  the halibut into state waters for  landing.  In                                                               
that  circumstance, state  law requires  that the  person have  a                                                               
halibut   interim-use  permit.     One   reason  is   to  promote                                                               
enforcement, he  said, since halibut  obviously are  available in                                                               
state  waters  and  it  wouldn't be  clear  whether  they'd  been                                                               
harvested  inside or  outside  of  state waters.    Thus the  law                                                               
requires  a person  to  have a  permit  anytime he/she  possesses                                                               
halibut  for commercial  purposes inside  of state  waters or  is                                                               
landing, delivering, or selling them.                                                                                           
Number 2640                                                                                                                     
CHAIR SEATON, noting that he  is a halibut fisherman, offered the                                                               
following clarification.  He said  things have gotten complicated                                                               
because of the federal IFQ  program, which issues a federal card.                                                               
When a person delivers halibut,  a machine like an ATM [automated                                                               
teller machine] tells how many  pounds that person has available,                                                               
and there  is a printout of  how many pounds have  been delivered                                                               
and so  forth.  Since halibut  is the only fishery  controlled by                                                               
international treaty,  the state doesn't really  manage it within                                                               
state  waters; the  fishery goes  from the  shoreline out  to 200                                                               
miles, and  the federal government,  through the  halibut treaty,                                                               
manages it.                                                                                                                     
CHAIR SEATON,  emphasizing the duality  of the  system, explained                                                               
that a person also must have  an entry-permit card, which is used                                                               
to stamp  the fish ticket; this  [provides data on] what  size of                                                               
fish were  caught and  so forth.   The biological  information is                                                               
only  recorded on  the  state fish  ticket,  whereas the  federal                                                               
permit records how  many pounds have been delivered  and how many                                                               
remain to  be caught that year.   He suggested that's  the reason                                                               
for the  confusion:   people who  had the  plastic card  from the                                                               
federal government  thought they didn't  need one from  the state                                                               
anymore, and  yet the state card  is needed for a  fish ticket in                                                               
order to deliver fish within the state.  He continued:                                                                          
     That  fishery   alone  is  segregated.     And  as  I'm                                                                    
     understanding  it,  it's  not even  the  IFQ  fisheries                                                                    
     together, because there's  a sablefish [fishery], which                                                                    
     is not  under international treaty.   You still  have a                                                                    
     card, but ... the  state manages sablefish within state                                                                    
     waters. ... It's a very complex situation. ...                                                                             
     The big  thing that  we need  the clarification  for is                                                                    
     that the  state has the authority  to issue interim-use                                                                    
     permits for  fisheries which are not  currently pending                                                                    
     for limited entry.   And that's the  big question here.                                                                    
     And I don't  really see it as a question  because I see                                                                    
     the interim-use  card as the  replacement for  the gear                                                                    
     card  to give  us tracking  of fish  and our  fisheries                                                                    
     resource.   And  if we  didn't have  that, we  would be                                                                    
     sitting  out here  managing fisheries  without ...  any                                                                    
     data or information.                                                                                                       
MR. HOMAN, in response to  Chair Seaton, indicated he had nothing                                                               
to add and commended him for the foregoing explanation.                                                                         
Number 2804                                                                                                                     
REPRESENTATIVE OGG told Mr. Goltz  he appreciated the clarity and                                                               
research.   He asked what  the ballpark  figure is for  the total                                                               
liability in the civil [class action suits].                                                                                    
MR.  GOLTZ replied  that it  isn't  known yet,  because it  isn't                                                               
known how big that class is.   "If the cases do go forward, we're                                                               
going to have  to do some discovery  to find out who  needs to be                                                               
in  that class,"  he  added.   With regard  to  the Carlson  case                                                             
mentioned  earlier, he  said he  didn't believe  it was  close to                                                               
that,  but reiterated  that it's  undetermined  yet.   Expressing                                                               
hope that that  the cases wouldn't go forward,  he explained, "If                                                               
we  can prevail  in  the  supreme court  on  the criminal  action                                                               
that's  currently pending,  I think  ...  that the  wind will  be                                                               
taken  out of  the  sails  eventually ...  of  the civil  claims,                                                               
because they won't  have that court of appeals ruling  to rely on                                                               
CHAIR  SEATON  reiterated  that the  halibut-related  claims  are                                                               
probably fairly  limited because most  people fish in  both state                                                               
and federal  [waters].  He  said the  bigger question is  that if                                                               
CFEC  doesn't  have authority  to  issue  these [permits]  unless                                                               
there is a pending limited entry  in a fishery, there'd be no way                                                               
to  track  biological data  and  wouldn't  be any  fish  tickets;                                                               
something like a  gear card would have to be  instituted again in                                                               
order to have a fish-ticket tracking system.                                                                                    
Number 2904                                                                                                                     
CHAIR SEATON closed the public hearing.                                                                                         
REPRESENTATIVE OGG said  he'd been weighing the  testimony to see                                                               
whether  retroactivity would  do more  or less  harm, and  thinks                                                               
there'd be less harm because of "what could be out there."                                                                      
Number 2922                                                                                                                     
REPRESENTATIVE OGG  moved to  adopt [Amendment 1],  to add  a new                                                               
Section 2  after  line 12  that  makes  the bill  retroactive  to                                                               
January 1,  1974.  A  newly renumbered  Section 3 would  say that                                                               
the Act takes effect immediately.                                                                                               
Number 2987                                                                                                                     
REPRESENTATIVE  GARA announced  that he  opposed making  the bill                                                               
retroactive  for  two  reasons,  although he  clarified  that  it                                                               
wasn't  the  most important  thing  in  the  world  to him.    He                                                               
suggested the need  to get out of the habit  of having bills that                                                               
affect pending litigation be made retroactive.                                                                                  
TAPE 04-13, SIDE B                                                                                                            
Number 2998                                                                                                                     
REPRESENTATIVE   GARA  explained   that  he   isn't  particularly                                                               
sympathetic  to  the  class  action   claims,  and  even  if  the                                                               
committee does nothing about retroactivity,  he suspects that the                                                               
courts might  be skeptical  also.   He said  he doesn't  like the                                                               
idea  of   the  [legislature's]  taking   sides,  even   if  well                                                               
motivated, but  also doesn't  think it  will amount  to anything,                                                               
since  it is  the court's  duty  to decide  what the  legislature                                                               
intended by the 1974 law.   He surmised that the court would give                                                               
no  weight to  what a  legislature says  30 years  later about  a                                                               
previous legislature's intent.   He suggested the better argument                                                               
is the  one he's heard that  the state will take  in these cases,                                                               
but  reiterated that  the courts  are  there to  make that  call.                                                               
Saying it  looks unseemly  and won't  amount to  a hill  of beans                                                               
anyway, he spoke against adopting  a retroactivity provision, and                                                               
for just letting these cases proceed.                                                                                           
Number 2886                                                                                                                     
REPRESENTATIVE  GUTTENBERG agreed  with  both Representative  Ogg                                                               
and  Representative  Gara.   He  said  although this  appears  to                                                               
validate what  has been done  for 30  years, he doesn't  know the                                                               
1974 legislature's intent.   He said it seems the  state also has                                                               
an inherent  interest in  collecting biological  information, and                                                               
if the federal government doesn't do  it, it seems there would be                                                               
a  constitutional   requirement  to   manage  the   fisheries  by                                                               
collecting that data.                                                                                                           
REPRESENTATIVE  WILSON   said  she,  too,  was   pulled  in  both                                                               
directions, but would ask the department what it wanted.                                                                        
REPRESENTATIVE HEINZE  said she  feels the  same way,  but unlike                                                               
Representative  Gara, doesn't  see  this  as [the  legislature's]                                                               
taking  sides.   She sees  this as  clarification, she  said, but                                                               
acknowledged  the argument  against the  ability to  clarify what                                                               
happened 30 years  ago.  She expressed the need  for direction on                                                               
Amendment 1.                                                                                                                    
Number 2780                                                                                                                     
CHAIR   SEATON  remarked   that  he   is  generally   opposed  to                                                               
retroactive clauses  when changing  the law, but  doesn't believe                                                               
that's  what is  being done  here, since  it says  that what  the                                                               
state has  been doing in  managing the fisheries,  collecting the                                                               
biological data, and requiring this card  in place of a gear card                                                               
is the logical  extension of what needs to be  done to manage the                                                               
fisheries.   He  surmised that  what  is done  here won't  impact                                                               
either  of the  court cases,  which are  specific:   one involves                                                               
people  who failed  to  get  a permit,  which  this bill  doesn't                                                               
cover, and the  other relates to a specific  federal fishery that                                                               
has a dual-management scheme.                                                                                                   
CHAIR  SEATON  said  he  does  see a  problem,  however,  if  the                                                               
question arises about whether the  state has the ability to issue                                                               
any  permit for  a  fishery that's  not limited  or  that has  an                                                               
application [pending] for limitation;  that has huge consequences                                                               
with  regard to  the  state's ability  to  manage the  fisheries,                                                               
because there  is no  system or  permitting availability.   Chair                                                               
Seaton said he  is leaning towards the  retroactive clause, which                                                               
will establish "not only that we  want to go forward, but that we                                                               
agree  that  collecting  our biological  data  and  managing  our                                                               
fisheries  as we  do,  with a  limited  entry interim-use  permit                                                               
system, is the right and proper thing  that we need to do for our                                                               
fisheries."  He specified that  he'd support Amendment 1 for that                                                               
reason, not for anything to do  with the pending court cases, and                                                               
agreed with Representative Gara  that the courts wouldn't listen,                                                               
or at least listen very hard, in those cases.                                                                                   
Number 2660                                                                                                                     
REPRESENTATIVE WILSON  concurred.   She estimated that  under the                                                               
class action  suit, the most  any fisherman  could get back  - if                                                               
$150 had been paid for seven years  - would be a little more than                                                               
$1,000.  She suggested the  attorneys and not the fishermen would                                                               
benefit from  that.  She proposed  the need to look  at this with                                                               
regard to the  best way to clarify this and  to possibly help [in                                                               
the pending court  cases], as Mr. Goltz had said.   She concluded                                                               
that she would vote for Amendment 1.                                                                                            
Number 2607                                                                                                                     
REPRESENTATIVE GARA pointed out that  passage of the bill without                                                               
a  retroactivity provision  gives  CFEC the  power  to issue  the                                                               
necessary permits,  and it  can use all  the fisheries  data from                                                               
the  past.   The only  question in  deciding whether  to make  it                                                               
retroactive is whether  to have the chance to  impact the pending                                                               
litigation, he said, reiterating that  he doesn't believe it will                                                               
have any impact or should do so.                                                                                                
CHAIR  SEATON   clarified  that  his  point   isn't  the  pending                                                               
litigation  with  regard to  halibut,  but  the possibility  that                                                               
reimbursement will be  sought as well from  [participants] in all                                                               
other fisheries across  the state that had  an interim-use permit                                                               
that wasn't  associated with pending  limited entry;  those cases                                                               
aren't currently before the court in any way.                                                                                   
REPRESENTATIVE  HEINZE said  she  was trying  to  figure out  the                                                               
reason  for  going  ahead  with the  bill  without  an  amendment                                                               
providing retroactivity.                                                                                                        
MR.  HOMAN agreed  this clarifies  that this  upholds a  practice                                                               
that CFEC  has been  using for  30 years.   If  it stands  as the                                                               
court  of appeals  has read  the statute,  [CFEC] couldn't  issue                                                               
IUPs to  any fishery it  didn't limit.   He concurred  with Chair                                                               
Seaton that  the potential  would exist  for all  those fisheries                                                               
that [CFEC] hasn't limited, or may never limit, to have a claim.                                                                
CHAIR HEINZE said she'd support [Amendment 1].                                                                                  
[Chair Seaton  explained Amendment  1 to  Representative Samuels,                                                               
who had just returned.]                                                                                                         
Number 2428                                                                                                                     
CHAIR  SEATON referred  to  comments made  earlier  by Mr.  Goltz                                                               
about   possible  additional   language.      He  asked   whether                                                               
Representative  Ogg   just  wanted   Amendment  1  to   say  it's                                                               
retroactive to that date or to include other language.                                                                          
REPRESENTATIVE OGG  offered his impression that  Mr. Goltz wasn't                                                               
asking for  additional language, but that  the retroactive clause                                                               
would allow him to argue  those points.  Representative Ogg added                                                               
that he'd hesitate  to say what the supreme court  would rule; he                                                               
noted that  Mr. Goltz had  indicated he didn't know,  either, but                                                               
had said this wouldn't hurt his argument and [may] help.                                                                        
REPRESENTATIVE OGG went on to say  he thinks it is a proper power                                                               
of the  legislature - although it  should be used sparingly  - to                                                               
make  a decision  in these  matters  when it  finds something  is                                                               
unclear, and will  write a statute [counter to] a  ruling made by                                                               
a court  that the legislature  finds abhorrent, for example.   He                                                               
suggested this  is a sparing  use, to  ensure that what  has been                                                               
done over many years is proper.                                                                                                 
Number 2291                                                                                                                     
MR. GOLTZ,  in reply  to a  question from  Chair Seaton,  said he                                                               
doesn't  think additional  language  is necessary,  and that  the                                                               
retroactive date  is sufficient and would  go a long way  to make                                                               
the  point  that  the  intention   of  the  amendment  is  to  be                                                               
consistent with the way the law has been intended all along.                                                                    
Number 2221                                                                                                                     
REPRESENTATIVE  OGG requested  that the  foregoing statements  by                                                               
Mr. Goltz be  included in the  record to support why  Amendment 1                                                               
is being  added.   He emphasized Mr.  Goltz's statement  that the                                                               
intention  isn't to  change  the  law, but  to  clarify what  was                                                               
always there.                                                                                                                   
REPRESENTATIVE GARA maintained his objection to Amendment 1.                                                                    
A roll  call vote  was taken.   Representatives  Heinze, Samuels,                                                               
Ogg,   Guttenberg,  Wilson,   and  Seaton   voted  in   favor  of                                                               
Amendment 1.   Representative Gara voted against  it.  Therefore,                                                               
Amendment 1 was adopted by a vote of 6-1.                                                                                       
Number 2151                                                                                                                     
REPRESENTATIVE  GUTTENBERG asked  whether  there  is an  inherent                                                               
problem  in using  the word  "interim", since  the state  has the                                                               
ability to issue a permit in any fishery.                                                                                       
MR.  HOMAN  replied  that  he   doesn't  see  it  as  a  problem.                                                               
Initially, when  the permits were  established, the  entry permit                                                               
was for  those that  were limited,  and the  [interim-use permit]                                                               
was  for those  that weren't;  over  the years,  that's been  the                                                               
pattern.  He said  he supposed it could be read  as being "on the                                                               
way to  do something else," but  it has always been  the practice                                                               
that "interim" covered everything other than the entry permit.                                                                  
REPRESENTATIVE GUTTENBERG  said he  wondered whether  the pending                                                               
lawsuits are because  people thought this was an  interim use for                                                               
something  that  hadn't  happened.    Remarking  that  the  state                                                               
certainly  has a  right and  an  obligation to  have permits,  he                                                               
suggested perhaps Mr. Goltz could address that better.                                                                          
CHAIR  SEATON  pointed  out  that in  this  case  it's  different                                                               
because  of   the  dual-permitting   system  for  halibut.     He                                                               
      That's specifically what this is addressing, ... not                                                                      
      an interim nature.  Interim-use permits are used in                                                                       
     two ways.   One is if  you have a limited  entry system                                                                    
     and  people  are qualifying  by  number  of points  and                                                                    
     there's  appeals;   they're  given   those  interim-use                                                                    
     [permits]  until there's  a final  determination as  to                                                                    
     whether they qualified for ...  a limited entry permit.                                                                    
     And then they're also used  for all other fisheries for                                                                    
     which  there has  not been  the  determination ...  for                                                                    
     going to  a limited  entry system.   So  ... I  can see                                                                    
     there's a little confusion, but  they've been used this                                                                    
     way all along.                                                                                                             
Number 2013                                                                                                                     
MR. HOMAN added:                                                                                                                
     We always have looked at  the interim-use permit as the                                                                    
     permit  that  was  issued before  you  decided  whether                                                                    
     there  was   going  to  be   a  limitation  or   not  a                                                                    
     limitation.   So  ...  it  could be  used  for quite  a                                                                    
     number of  years because  ... you  may never  make that                                                                    
     decision; ... if  a fishery doesn't look  like it needs                                                                    
     to  be limited,  then  ... the  interim-use permit  ...                                                                    
     will stay out  there. ... You could read it  to be that                                                                    
     way, as  well, that  ... interim-use permits  are there                                                                    
     because no decision has been  made on that fishery; ...                                                                    
     it remains  open until  you limit  it.   So ...  if you                                                                    
     never limit it, then  the interim-use designation stays                                                                    
CHAIR SEATON requested confirmation  of his understanding that in                                                               
CFEC's  view, these  other fisheries  are all  really pending  as                                                               
being  available  for  limited  entry,  even  though  there's  no                                                               
application  for limited  entry;  thus it's  under  that kind  of                                                               
jurisdiction that the interim-use permit is being offered.                                                                      
MR. HOMAN replied that the  commission has the authority to limit                                                               
any  fishery if  the conditions  warrant  it.   But without  that                                                               
limitation,  that   designation  stays  on  those   fisheries  as                                                               
"interim use."                                                                                                                  
Number 1890                                                                                                                     
REPRESENTATIVE OGG  moved to  report HB 478,  as amended,  out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
zero fiscal  note.  There  being no objection, CSHB  478(FSH) was                                                               
reported from the House Special Committee on Fisheries.                                                                         
Number 1852                                                                                                                     
CHAIR SEATON  briefly turned  attention to HB  415.   He reported                                                               
that he'd  contacted the  chair of the  Board of  Fisheries about                                                               
the timeframe  for addressing the  issues in HB 415, either  on a                                                               
regional or  statewide basis;  he indicated  the board  would get                                                               
back with  the committee this week  on that.  He  also noted that                                                               
[Stephen  White of  the Department  of Law]  will be  providing a                                                               
legal opinion this week.                                                                                                        
Number 1803                                                                                                                     
REPRESENTATIVE GARA  asked Mr. Goltz  to provide his  office with                                                               
the supreme court opinion, if  one is issued ultimately, relating                                                               
to the legislature's  statement of intent [in HB 478]  as to what                                                               
the 1974  legislature meant.   He suggested  it would be  good to                                                               
start  developing  data  on the  impact  of  these  retroactivity                                                               
clauses and how the supreme court views them.                                                                                   
MR. GOLTZ agreed to do that.                                                                                                    
CHAIR SEATON  asked that the  information be provided to  all the                                                               
committee members.  [CSHB 478(FSH) was reported from committee.]                                                                

Document Name Date/Time Subjects