Legislature(2003 - 2004)

03/08/2004 01:12 PM RES

Audio Topic
* first hearing in first committee of referral
+ 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                                                               
     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                                                                    
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                                                               
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                                                               
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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