Legislature(1993 - 1994)
04/18/1994 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 316 - FISHING VIOLATIONS Number 675 CHAIRMAN PORTER announced that the next bill for consideration was SB 316. He said that this was a bill that had extensive testimony here in Juneau and on teleconference. He believed it was fair to say that the commercial fishing permit holders around the state thought, perhaps this was not the best bill in the world. He noted that the sponsor of the bill was Senator Halford, whose aide was present and able to answer questions about it. CHAIRMAN PORTER asked what the wish of the committee on CSSB 316 was. Number 685 REP. DAVIDSON and REP. JAMES both wished to keep the bill in committee for a little while. REP. KOTT made the motion to move the CS for SB 316, and Rep. James objected. CHAIRMAN PORTER asked if there was discussion. Number 693 REP. JAMES stated she did not have as big a problem with it in theory as she did in practice. She felt like it was trying to create a solution in the wrong way, and she felt like many, many more people would be hurt than would gain from this effort. Short of rewriting this bill, and getting it another substitute, which we have the right to do, though we are running out of time, she would like to see the department come up with some better solutions by regulation or by the existing law, rather than to pass this bill which she felt would hurt a lot of people. Number 704 REP. PHILLIPS said she believed that the testimony taken from the people the other day showed clearly what the people felt about this bill. One thing came up in the testimony that she thought could be fixed. She said she had offered a judiciary letter of intent, asking the Department of Fish and Game and the Department of Public Safety to research the issue of an actual physical line; the placement of an actual buoy line. She had talked with several commercial fishermen and several other people involved in this fishery to see if it would be possible, and the answer was yes, it would be possible. She said she did talk with people in the Department of Public Safety. It is something that they have had under consideration. Then, if there was an actual physical line, rather than a line that could be so misrepresented by the difference in technical equipment (LORAN) that people have, she thought there would be a far better leg to stand on before any kind of increase in fines was instituted. CHAIRMAN PORTER said he certainly would support that letter of intent. In his discussions after the bill was heard, it would appear that it is the Department of Fish and Game that actually has to adjust their regulations so as to put out the physical line, in place of the LORAN line. But by an enforcement standpoint, to him, it seemed that the LORAN's variation, which is establishable in court, is 600 feet or so; so you could not get a conviction. You could negligently cross the line, but guilt beyond reasonable doubt would need to be proven, so a conviction could not be the result of crossing that 600 foot line. He said, if the tide moved the physical line 40 feet, who cares? Rep. Porter said he did not understand why the Department of Fish and Game was not already doing this. Number 732 REP. DAVIDSON gave an analogy, saying that in the great resource battle scheme of things, it appears that this bill is one in which general law completely bashes private industry and undermines the general economic well being of lots of people in other areas of the state. It seemed to him that if they were going to make specific law and apply it generally, this is not the best way to go. This will create more problems than it solves. He said, it would appear that if we are not going to be committed to spending more on enforcement, as well as resource management, we should at least, before we move forward with haste, be fair to fishers in other areas. He said he knows there is a problem where this law is trying to correct an eager fisherman and even people who are cheating as they take from the resource bank of the fisheries, but he thinks this bill goes too far and is, in fact, unfair in many respects; because, although he is not a fisherman, he knows it is sometimes difficult to be specific out on the fishing grounds. He believes this bill needs more work, but said he could appreciate the intent of the bill. Number 756 REP. JAMES responded to Rep. Phillips' concerns in her letter of intent. With the letter of intent, she did not think they needed the bill. That was her concern about it. She thought they could handle this if they were to take it on responsibly and solve this problem. She said she will not sit there and say that she wants fishermen to get over the line, taking fish they are not entitled to, and all those other kinds of things. She just thought that if you make the rules so they are easy enough to follow, and then you have the "fish cops" out there to do this, and if the line is very visible, it should not be difficult for them to get a conviction. REP. JAMES said there is more to this bill than that. The additional consequences for failure to adhere to the rules is much, much more, and it is a guilty until proven innocent proviso, and she thought that was another thing that seemed to be totally against due process, particularly when the line is so invisible. She said if they were over the line and then forced to prove that they were not, or prove that they had a reason to be there, or it was an accident, or was not meant to be there, it is a difficult situation. They are replying to something that really needs to be addressed, and Fish and Game can really address it, and we should give them an opportunity. If they do not address it, then next year, maybe we should come back with such a bill, but she thought the timing is wrong for this right now. It has served it's purpose; everybody has been heard, and the problem should be solvable without this legislation. Number 780 CHAIRMAN PORTER stated that he did not have the concern expressed in quite a bit of the testimony, that someone in another fishery, where the gross take might be $6,000, would be fined for a violation up to this maximum of $6,000. If this happened in Southeast somewhere he thought the magistrates and the district court judges who hear these cases would apply appropriate levels of fines. Moving the maximum fine up to $6 - $12,000 would only be applied in those fisheries in which that level of fine was significant. One set can bring in a whole bunch of bucks, as opposed to one month's worth of fishing, not bringing in hardly any. The thing that concerns Rep. Porter is the forfeiture of the permit for a second violation, and you can be found guilty of the violation for a nonintentional act. That is kind of tough, he said, especially when we have decided that the method they use to determine how it is you are going to be found negligent leaves quite a bit to be desired. Number 800 REP. JAMES compared this to the timber industry. She said if you cross the line and cut trees you are not supposed to cut, it does not make any difference if you did it accidentally or not. You did it, and you have to pay three times the value of the timber that you benefitted from. She said she did not know why they could not dream up something for fishing that would be the same thing, and then that way, it would always be applied fairly, and this does not. Rep. James said if she were a fisherman and there was the possibility of a $6,000 or $12,000 fine, and that may be more than she would ever make in a season, she would feel uncomfortable having that law in the book. Number 810 CHAIRMAN PORTER said that the one difference between the fisheries and the timber industry is that you have a big green "X" on that tree, and that tree is not going to move, but it is tough to mark those fish. REP. JAMES replied that the point had been made. That is the point. Are they taking fish illegally? Or are they not? And there has to be a sufficient amount of marking to indicate that for sure they are over the line, or they are not. CHAIRMAN PORTER said he understood. He asked if there was any further discussion or any objection to moving the bill. REP. JAMES objected to moving the bill. A roll call vote was taken and SB 316 was voted down 5 - 1. Reps. Phillips, Davidson, Green, Porter and James voted no. Rep. Kott had the only yes vote. Rep. Nordlund was absent. It was asked of Chairman Porter what he decided to do with SB 252. DANIELLA LOPER said SB 252 would be heard on Wednesday. CHAIRMAN PORTER explained that the number one witness who wanted to testify on SB 252 was not available.