Legislature(2003 - 2004)
03/08/2004 01:12 PM House RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 478-COMMERCIAL FISHING INTERIM USE PERMITS CO-CHAIR DAHLSTROM announced that the next 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." Number 1715 REPRESENTATIVE PEGGY WILSON, Alaska State Legislature, speaking as sponsor, explained that HB 478 provides for an issuance of a commercial fishing interim-use permit. The Alaska Court of Appeals recently held that the Commercial Fisheries Entry Commission (CFEC) lacked the authority to issue the interim-use permits (IUP) in fisheries that it doesn't have the authority to limit. This bill is a house keeping measure that clarifies that CFEC does indeed have the authority to issue interim-use permits in these fisheries. She said this clarification is consistent with the original intent and purpose of the current statute, which has been in use for 30 years. Number 1793 FRANK HOMAN, Commissioner, Commercial Fisheries Entry Commission (CFEC), testified. He explained that HB 478 is a measure to clarify that CFEC does have the authority to issue interim-use permits for fisheries that it may never limit, which has been the practice for 30 years, since the beginning of the program. He said Assistant Attorney General John Goltz is handling this appeal in the courts. He explained that three halibut fishermen came in from the Exclusive Economic Zone (EEZ) to sell fish in Alaska and did not have a permit from the State of Alaska to sell those fish. Those fishermen were cited and the case went to court. In the court's reading of the original statute, it took a very narrow reading to say if CFEC could not limit a fishery, it could not issue an interim-use permit. He said CFEC only issues two permits, which are entry permits and interim-use permits. Every fishery that is not limited gets an IUP to authorize it to fish or to have fish in state waters. He remarked: Their narrow reading of the original language, it said "pending the establishment" of a maximum number. Pending the establishment means ... we had not limited the fishery, where it says "maximum number," you can just put a parenthesis around that and say "a limitation" because ... when we establish a maximum number, that means we limited the fishery. "Pending" means we may never do it, and there's some fisheries, probably, we will ... never do. So, we've always understood that broadly, and the [Alaska] Court of Appeals understood it narrowly. ... The Department of Law (DOL) has appealed this decision to the Alaska Supreme Court to clarify that the original intent was to issue interim-use permits in any fishery that was not limited. That's in the court now, and this clarification, as Mr. Goltz may testify, will help in his presentation to say that the legislature really did mean that they could issue interim-use permits from the very beginning, so that's in essence ... what the bill says. Number 1988 CO-CHAIR MASEK said the bill is very straightforward and is a "housekeeping" bill to ensure that the language is consistent with the intent of the original statute. She said as many members know from experience, sometimes the legislature has to go back and do housekeeping. She said she would like to move this bill forward. Number 2004 REPRESENTATIVE GATTO asked if this bill is retroactive. MR. HOMAN replied no. The purpose of the initial bill was to change the language of the bill to clarify that the CFEC did have the authority to issue the IUP, which it has done for 30 years. He said the House Special Committee on Fisheries added the retroactivity section to further support DOL in its appeal, by saying the legislature understands and authorizes that CFEC has always had that ability. He said the retroactivity was included to support that position, but he thought the attorney would say that it probably won't have a major impact. He said [the legislature] couldn't go back 30 years and change laws, but it does give the "flavor" of the legislature as far as its opinion of this bill. REPRESENTATIVE GATTO commented that this is very hard for him. He remarked, "Somebody wants to say something's retroactive 30- plus years, and you're saying we're only talking about the flavor, well, I think maybe we can talk about the flavor without putting it into statute ...." REPRESENTATIVE GATTO asked if this was a part of the original bill or if it was an amendment. MR. HOMAN said an amendment was added in the House Special Committee on Fisheries to show legislative support for the state's position. REPRESENTATIVE GATTO said this is a 31-year retroactivity clause and "anyone would raise their eyebrows as to anything retroactive," but 31 years is a generation backwards. He asked if it is imperative that the [retroactivity clause be included] or whether it is just to add some flavor to the bill. He said he is not in favor of usually adding flavor to a statute. He asked Mr. Goltz to comment about how valuable or important it is to be retroactive. Number 2126 JON GOLTZ, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, testified. Mr. Goltz said he understands there to be two purposes for the retroactivity provision that was added in the House Special Committee on Fisheries. He explained that the first reason is to essentially ratify the interpretation and the application that CFEC had adhered to the statute since it first started issuing interim use and entry permits in 1974. Mr. Goltz said CFEC has always interpreted this statute, as it currently exists, to essentially mean that it has the authority to issue IUPs in every Alaskan fishery that has not been limited. He said a narrower reading was reached by the Alaska Court of Appeals that creates some question about whether the interpretation and application CFEC has been giving the statute has been incorrect in other instances, and it raised the concern about potential suits against the state arguing that CFEC has issued permits and therefore requires permit fees in instances where it lacks the statutory authority. He said that has actually come to pass and there have been two class action suits that have been filed on the basis of the holding of the [Alaska] Court of Appeals decision asking for reimbursement of fees that the fishermen paid for IUPs. Number 2271 MR. GOLTZ said the feeling of the House Special Committee on Fisheries members who supported the amendment was that the retroactivity provision would help give further assurance of protection and ensure that interpretation of the current statute by the [Alaska] Court of Appeals was not for the use to subject the state for liability in other instances. He explained that the other purpose for the retroactivity provision, as he understands it, is to provide any additional arguments that might be made available to the state in the context of the currently filed court cases. He said there's supposed to be a criminal case that the [Alaska] Court of Appeals has ruled on that has been appealed to the supreme court, but it is still in court and has not been decided yet, in addition to the two class action cases that he'd mentioned. MR. GOLTZ said the [House Special Committee on Fisheries] seemed to understand that there would be some potential constitutional restrictions on whether or not this change, if adopted by the legislature, could be applied retroactively in those cases that are already in progress. He said he testified before the House Special Committee on Fisheries that there would be some strong arguments he thought he could make on the basis of a retroactive bill to show that the CFEC has had the authority to issue these permits all along. Mr. Goltz said even though there was some question about whether that would ultimately prevail in the courts (indisc.) that could be worthwhile arguments for him. REPRESENTATIVE GATTO remarked: With the understanding that the criminal case currently before the supreme court, and the potential for reimbursement of past fees paid, and retroactivity might not be allowed in all cases, I have to tell you that short of some compelling reason and absolute necessity for retroactivity of 31 years, I find that section of this bill very difficult to support. REPRESENTATIVE GATTO asked Mr. Goltz if he would agree or disagree. MR. GOLTZ said in his view the retroactivity provision in this bill is not problematic because the bill is essentially conforming the language of the statute to the way the current statute has always been interpreted and applied by state agencies. He said to the best of his reading of the legislative history of the bill, it is also consistent with what the intent of the legislature has been since this language was initially adopted in 1973. Mr. Goltz said with that understanding, he didn't think that any new requirements or provision is being added retroactively by this bill. He said it is essentially a clarifying amendment in the sense that it ratifies the interpretation that's always been given to the statute in the past. Mr. Goltz said it is also a curative in the sense that it is made in response to and disapproval of the [Ninth Circuit] Court of Appeals decision. He said the arguments that he is making on behalf of the state to the supreme court are that the current statute essentially means what this bill better expresses, so in light of that he doesn't think there is any new requirement being imposed retroactively by this bill. Number 2373 REPRESENTATIVE GATTO asked how that would change anything. He remarked, "If we say today, this is what we firmly believe is true and what was intended by the past, that still holds whether or not we make it retroactive to the past, doesn't it?" MR. GOLTZ said he would agree that there is an issue there and there are some arguments that could be made on both sides about the extent to which this legislature could do anything to change what a previous legislature meant when it adopted a statute. He said he thought the effect that that would have in the application of the law in any particular instance would best be decided by the court. He said he didn't feel like he could express the wishes about what would be resolved in every possible circumstance. Number 2503 REPRESENTATIVE WOLF asked Mr. Goltz if the retroactive clause would cost the state any money. MR. GOLTZ said he thought there was a reasonable basis for the decision that was made to apply this retroactively, which is to essentially ratify the interpretation that's been given to (indisc.) historically. Mr. Goltz said he does recognize that there are some instances in which the application of it retroactively could be problematic constitutionally. He said this bill would initially present that it was intended simply to give CFEC the ability to continue to apply the law the way it always has in the past, not withstanding the [Ninth Circuit] Court of Appeals decision, but to the extent that this legislature can apply the law retroactively to basically remove the lack of authority that might be argued for the issuance of other permits. Mr. Goltz said he thought it was a reasonable thing to do, although he recognized that there can be some dispute about the applicability of that. REPRESENTATIVE WOLF suggested there would be a fiscal note. MR. GOLTZ disagreed. He said he was not aware how this bill, even applied retroactively, would cause any appropriations to be made. REPRESENTATIVE WOLF asked if the retroactive clause was going to "feed the fire" of the class action lawsuits. MR. GOLTZ said in his judgment it would not. Number 2641 REPRESENTATIVE GUTTENBERG asked if it would "damper the fire" of the lawsuits. MR. GOLTZ said arguably yes, but he was not sure that it was going to have a strong effect one way or the other, but if it had any effect, it would be to discourage anybody seeking to bring a claim making the argument that CFEC lacks the authority to issue permits in the past. He said because the retroactive provision would allow DOL to argue that, if that were true under a previous version of the law, that was effectively cured by the retroactive adoption of that authority in order to bring a wording of the statute into line with the practice and the intent all along. REPRESENTATIVE GUTTENBERG said the courts are going to rule on the original lawsuit as it is. He asked how much weight the courts are going to place on this bill with the retroactive date on those current standing cases. MR. GOLTZ said he didn't know for sure. He said because he is the person who is advocating on behalf of the state in these cases he is not in a good position to make that argument in a strong fashion, because it would essentially run counter to the goal he is serving for the state. Number 2736 REPRESENTATIVE LYNN asked if changing it to be retroactive would make it effective as of 30 years ago and if the court would have to base it upon the bill with it being retroactive. CO-CHAIR DAHLSTROM asked if the original version of the bill did not include the language adding the uncodified law by amending the new section for retroactivity. She asked Representative Wilson to comment on how and why it was necessary to add that. She said she thought there is a general feeling from committee members that they might be more comfortable in adopting the original version. REPRESENTATIVE WILSON said the intent of the legislation itself was for clarification, and the [uncodified law] was added because of Mr. Goltz's testimony that there were some class action lawsuits ready to happen because of this. She said the amount of the permit is $150 and she thought the fishermen were probably not going to gain from that, but the attorneys probably would. She said [the committee] thought that the there might be a possibility that it would help the class action lawsuit. She said she was not "locked in" to that part of it, but it could be a possibility that it might help. Number 2841 REPRESENTATIVE GATTO moved to report HB 478 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 478 was reported from the House Resources Standing Committee.
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