Legislature(1993 - 1994)

04/18/1994 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  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.                               

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