Legislature(1993 - 1994)
04/16/1994 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
Number 485 SB 316 - FISHING VIOLATIONS/FINES, BURDEN OF PROOF JIM BECKER, a Bristol Bay fisherman, expressed his concerns that the line in Bristol Bay is too restrictive, and the LORAN management of that line is unpredictable. He said he has no problem with those people in extreme violation who are blatantly over the line, being heavily fined or having their boats taken away; but the unclear line gets in the way of the average fisherman just trying to make a living, as does a fine for setting nets a couple of minutes early. A couple of those small violations should not result in someone losing their privilege to fish. Number 530 CHAIRMAN PORTER asked DAVE THOMPSON from Senator Halford's office to describe the bill. Number 531 DAVE THOMPSON, Aide, Senator Rick Halford, Prime Sponsor of SB 316, explained the bill, saying that it amends an escalating schedule for suspension and for eventual forfeiture of commercial fishing privileges, as well as the license itself. It amends 16.05.722 which doubles the potential maximum allowable fines. It amends the elementary burden commercial fishermen must satisfy in order to rebut the presumption that fish found on board in the fishing vessel have been taken illegally. Burden of proof has been increased from the preponderance of evidence to clear and convincing standard. He said he finds the declining fine amounts for the 90 repeat offenders disturbing. Mr. Thompson then proceeded to explain the difference between "preponderance of evidence" and "clear and convincing." Number 643 REP. PHILLIPS had concerns over the fluctuation of accuracy in the technological measuring devices. Number 660 MR. THOMPSON agreed that the LORAN equipment does have calibration problems and is not always accurate. Number 681 REP. JAMES suggested charging repeat offenders a double fine, and discussed other types of fines and their affects on fishermen with MR. THOMPSON, and REP. PHILLIPS. She expressed the need to come up with a fair compromise that would not deplete the livelihood of such an offender. CHAIRMAN PORTER then accepted oral testimony via teleconference, beginning with Anchorage. Number 690 SAM DANIEL, an Anchorage commercial fisherman, opposed SB 316. He blamed the problem on the repeat offenders. He urged lawmakers to consider some other means of enforcement rather than taking away fishing licenses, which results in the fishermen losing their operations if they are to be out of business for a year. He felt the bill is not an effective management tool. Number 804 JACK FOSTER from Sand Point strongly opposed the bill. Number 836 DAVID WHITMIRE, a fisherman from Homer, strongly opposed the bill, informing listeners that those 90 violations received by repeat offenders was a small amount, considering the number of permits that were issued (2850), and also considering the number of opportunities each permit holder has to commit such violations. TAPE 94-59, SIDE B Number 000 REP. JAMES commented that this was not a black and white situation. Number 012 GIOVANNI TALLINO, President, Kodiak Island Sport Association, which has over 400 members, urged the committee to let the people vote on SJR 39 (wrong bill). Number 060 WILLIAM WOOD, Palmer, strongly supported SB 316. Number 092 DAN HASTINGS, a commercial fisherman in Kenai, opposed the bill, feeling that the penalties would be too stiff for the offense. Number 155 [INAUDIBLE NAME], a 20 year Bristol Bay fisherman, believed the bill to condemn people to being guilty until proven innocent, and also has the potential of taking away the livelihood of fishermen. Number 200 KONRAD SCHAAD, Homer fisherman, spoke in opposition to the bill he described as being short-sided, specifically with the use of the LORAN, a unit which is supposed to be accurate (or inaccurate) up to 200 meters, depending upon the weather. He claimed that there is a gray zone in which fishing violations are issued. Mr. Schaad strongly believed that the real problem was lack of boundary definition and suggested creating a line made up of physical buoys. Number 277 REP. PHILLIPS acknowledged KONRAD SCHAAD'S line suggestion as being a reasonable solution. Number 296 ROSELEEN (SNOOKS) MOORE, Homer, said she has fished commercially for 34 years and expressed concerns about the militaristic attitude of the Fish & Game officers, and also about the fact that fishermen sometimes feel compelled to take action that may jeopardize their lives, just to avoid a fine. Number 343 INGRID JACOBSEN, Sand Point commercial fisherman of 15 years, opposed the bill which appears to presume offenders guilty until proven innocent. Ms. Jacobsen objected, specifically, to the language "clear and convincing burden of proof." Number 388 DAN HENNICK, Homer, a 38 year commercial fisherman, suggested giving Public Safety more funding to better enforce existing laws. He objected to increasing fines and believed most violations to be unintentional, not deliberate. Number 450 ALVIN OSTERBACK, Mayor of the City of Sand Point, viewed the bill as being backwards regarding "innocent until proven guilty." Number 515 GERALD McCUNE, Juneau, testified on behalf of the United Fishermen of Alaska in opposition to SB 316. He gave examples where "preponderance of evidence" was used to issue violations against fishermen while he believed "clear and convincing evidence" would have been a more fair scale of judgement. He suggested the committee consider an interim task force. Number 572 HUGH MALONE, Lobbyist, testified on behalf of the Kenai Peninsula Fishermen's Association, who oppose SB 316. Number 598 LOUIS MENENDEZ, Assistant District Attorney in Juneau, stated that he has quite a bit of experience in Kenai and Anchorage prosecuting fish and game cases, and working with fish and game protection officers. He suggested that perhaps a better way to deal with this problem would be to increase enforcement, not fines. He believed this complex issue requires more evaluation before passing the bill. Number 693 REP. PHILLIPS, REP. JAMES and MR. MENENDEZ discussed the need for either more enforcement officers on the line, or the establishment of a physical boundary line. Mr. Menendez displayed lack of faith in the idea of increasing the fines. Number 799 CHAIRMAN PORTER and MR. MENENDEZ discussed the legal definition of acting "negligently." Number 828 REP. JAMES expressed distress over the feeling that any amount of enforcement would not stop the fishermen from violating the regulations. TAPE 94-60, SIDE A Number 000 COLONEL BILL VALENTINE, Director, Division of Fish and Wildlife Protection, Department of Public Safety, agreed with Mr. Menendez that it would be nice to have a protection officer behind every bush out at Bristol Bay, but he believed it was not meant to be. He said that Fish & Game supports the bill. He believed that whatever they do will not provide a deterrent. The fishermen violate regulations right in front of the Fish & Game officers while they are working on other cases. The officers cannot keep up, no matter how many people they put on the line. He explained that this bill allows for a judge to take action to suspend a permit after the second offense, which may deter some from deliberate violations. Number 031 CHAIRMAN PORTER agreed that SB 316 not only raises the fine to add a deterrent, but at the same time changes the standards of proof on these presumptive areas from preponderance of the evidence to clear and convincing. Number 107 COLONEL VALENTINE made comments about a great deal of testimony being made regarding the doubling of fines. He said the only place that a maximum penalty case occurs is in Bristol Bay, which costs $3,000 on the first offense. Places like Southeastern and the YK-Delta charges run from $100 to $1,000, depending upon the magistrate, the judge, or the recommendation of the Department of Law. Maximum penalties for violations are not currently requested from the court by the Department of Public Safety. Number 139 REP. PHILLIPS spoke about the fact that it is probably physically possible to mark the line and requested an opinion of COLONEL VALENTINE. Number 147 COLONEL VALENTINE replied that after having spent 23 years as a "fish cop" and having spent one year as a commercial fisherman, he thinks that a physical line would be the best solution; especially in a fishery as intense and short served as Bristol Bay is. If the line were to move around a little, so be it, the line would be defined where it is marked, and would not be subject to the jitter of the LORAN, nor sun spots. Number 150 REP. PHILLIPS spoke in favor of clearly marking the line. Number 155 CHAIRMAN PORTER concluded the discussion of SB 316, followed by a short break. Number 200 REP. PHILLIPS requested that the Department of Law be present for comment and question when the bill was brought back up on Monday; and she also requested that the hearing be heard via teleconference. CHAIRMAN PORTER concurred. Number 210 DAVID OSTERBACK from Sand Point was not in favor of the bill, as he said it threatens the livelihood of many fishermen. CHAIRMAN PORTER reminded meeting attenders that SB 316 would be heard again on Monday. He then continued on to SJR 39.