Legislature(2009 - 2010)BARNES 124
03/08/2010 01:00 PM RESOURCES
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SJR 22-FEDERAL PREEMPTION OF SALMON MANAGEMENT 2:36:01 PM CO-CHAIR NEUMAN announced that the second order of business is CS FOR SENATE JOINT RESOLUTION NO. 22(RES), Opposing litigation that seeks to eliminate the Kenai, Kasilof, and Chitina sockeye salmon personal use dip net fisheries. [Before the committee was HCS CSSJR 22(FSH).] 2:36:46 PM SHARON LONG, Staff, Senator Charlie Huggins, Alaska State Legislature, paraphrased from the following written sponsor statement [original punctuation provided]: This resolution takes aim at lawsuits filed in the US District Court of Alaska, one by the United Cook Inlet Drift Association (UCIDA) and other by Herbert T. Jensen. The complaints by this commercial fishing group and an individual, calling for a return of federal management, are an affront to the State of Alaska. Please, do not forget, here in the afterglow of our yearlong celebration of 50 years of statehood, it was a colossal failure of federal salmon management that was a major driving force behind the statehood movement. Hopefully, no one wishes to return to such a regime. UCIDA is an association of both resident and non- resident commercial fishers who participate in drift gillnet salmon fisheries in the inlet. Remarkably, they can keep, for their personal use, an unlimited number of fish from their commercial catch. Their goal is to have the state-managed personal use dip net fishery declared unconstitutional and be pre-empted by federal law. This resolution seeks a fair shake for Alaskans who fish, without commercial gear, with simple dip nets, to feed their families. It asks the governor to intervene in defense of our state's authority to manage its own fisheries in a responsible manner. MS. LONG noted the parties are actively filing motions and briefs and last month the plaintiffs moved to go forward to oral arguments even though the U.S. Department of Commerce National Marine Fisheries Service (NMFS) has responded to petitioners that under the Magnuson-Stevens Fishery Conservation and Management Act it lacks any authority to regulate the state's personal use fishery conducted predominantly within state waters. In this regard, she called attention to page 11 of the NMFS letter contained in the committee packet. She said SJR 22 asks UCIDA to drop the lawsuit and the attorney general to intervene on the state's behalf should the lawsuit go forth. 2:39:56 PM CO-CHAIR NEUMAN understood the two lawsuits - one by the United Cook Inlet Drift Association and one by Herbert T. Jensen - seek to eliminate the personal use dip net fishery. MS. LONG responded yes, the plaintiffs would like for the association's non-resident members to be able to participate in Alaska's resident-only personal use fishery. The plaintiffs want the personal use fishery for Alaska's residents to be declared unconstitutional and thereby open it up. 2:40:40 PM CO-CHAIR NEUMAN read page 2, lines 24-28, of the resolution which states that "members of the United Cook Inlet Drift Association, including all nonresidents, are allowed an unlimited bag limit". He understood from this language that UCIDA members can keep salmon for personal use that are caught during the commercial fisheries. MS. LONG replied yes. She called the Alaska Department of Fish & Game to verify this and was told that it was accurate. In further response, she said the fish must be claimed on the fish tags, as is done by residents on their personal use tags. Additionally, for commercial fishermen in this fishery, the personal-use take is unlimited. CO-CHAIR NEUMAN inquired whether there is a limit on the amount of salmon that a resident Alaskan can keep for personal use. MS. LONG answered she does not know and deferred to Mr. Kane. BRIAN KANE, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, said he would have to look through the regulations in this regard as he does not believe fishing limits are put in statute. The regulations might be different for different areas, he added. 2:42:48 PM CO-CHAIR NEUMAN offered his belief that the limit for the Chitina River is 30 salmon per household and 15 for a single person, and that on the Kenai River the maximum is 45-50 salmon per household. REPRESENTATIVE OLSON said he believes it is 25 salmon for the head-of-household and 10 for each additional family member, but no limit on family members. CO-CHAIR NEUMAN summarized the discussion by noting that a commercial fisherman can take an unlimited bag amount [for personal use], while Alaskans taking salmon for personal use have a limit; both must report the amount taken. MS. LONG nodded yes. 2:44:23 PM CO-CHAIR NEUMAN surmised the goal of SJR 22 is to challenge the two lawsuits. MS. LONG responded yes. MS. LONG, in response to Representative Guttenberg, explained that the housekeeping changes made to the resolution included updating of the names of the governor and U.S. Secretary of Commerce. 2:45:06 PM REPRESENTATIVE P. WILSON inquired why non-residents are being allowed subsistence privileges that are meant for residents. MS. LONG replied this was the serious question that was the genesis of SJR 22. She clarified that it is a personal use fishery, not subsistence. REPRESENTATIVE P. WILSON asked what the difference is between personal use and subsistence. MS. LONG answered that while she cannot do a great job of describing subsistence, she knows that the first priority in the allocation of fish is for subsistence purposes and the second highest priority is the personal use fishery. 2:46:16 PM REPRESENTATIVE P. WILSON inquired whether personal use is a guise for fishers to take more commercial catch, given that the amount for personal catch is unlimited. MR. KANE, at the request of Co-Chair Neuman, first addressed Representative P. Wilson's earlier question about the difference between personal use and subsistence fishing. He read the following from AS 16.05.940 [original punctuation provided]: "personal use fishing" means the taking, fishing for, or possession of finfish, shellfish, or other fishery resources, by Alaska residents for personal use and not for sale or barter, with gill or dip net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; "subsistence fishing" means the taking of, fishing for, or possession of fish, shellfish, or other fisheries resources by a resident domiciled in a rural area of the state for subsistence uses with gill net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; 2:47:59 PM REPRESENTATIVE P. WILSON reiterated her question about why non- residents should be allowed subsistence privileges that are meant for Alaska residents. MR. KANE responded he does not know why that is allowed. MS. LONG said that, personally, she has not ascribed motive as to why the plaintiffs are seeking this. However, she related that the defendant's have interpreted this "as UCIDA seeking a greater allocation of salmon for its members and a lesser allocation for, among others, Alaska residents." Therefore, the defendant's interpretation was the same as the sense of Representative P. Wilson's question. 2:49:22 PM CO-CHAIR JOHNSON said he thinks what is being talked about is priority use and the plaintiffs are asking that the commercial use be elevated to the same priority level as personal use. REPRESENTATIVE SEATON pointed out that there is a priority usage for subsistence, but not a designation of priority use among the other uses for Alaska fisheries. Under current Alaska law, a personal use fishery is essentially like a sport fishery, but with different gear. This is not a priority situation; rather, this is asking for non-residents to be able to use personal use fisheries the same as the others. He clarified that it is not an unlimited catch available to members of the Upper Cook Inlet Drift Association because there are limited days and times for the commercial fishery; it is limited to their legal commercial catch. This legal commercial catch must be reported and the fishermen can choose whether to sell, donate, distribute, or keep that catch for their own personal use. 2:51:40 PM CO-CHAIR NEUMAN said there is concern about this issue across Alaska. REPRESENTATIVE TUCK added to Representative Seaton's statement by reading the following written testimony from commercial fisherman Matt Donohoe of Sitka [original punctuation provided]: Commercial fishermen cannot keep all the fish they want. They can choose to keep some or all of their commercial catch and not sell it. They cannot keep fish when their commercial fishery is closed. CO-CHAIR NEUMAN opened public testimony. 2:53:09 PM ROD ARNO, Executive Director, Alaska Outdoor Council (AOC), stated that the Alaska Outdoor Council represents over 10,000 Alaskans statewide who participate in dip net fisheries and harvest wild food. He said AOC supports passage of SJR 22. The state constitution provides that Alaskan individuals are obligated to respect the rights and protections of other Alaskans. The personal use fishery was established in 1982 to provide an opportunity for non-Copper River Basin residents who had lost their priority to dip net for salmon at Chitina because the Board of Fish and the Board of Game had adopted a rural priority. He related that the AOC is in currently in court trying to make sure that that dip net fishery on the Chitina is not a personal use fishery, but a subsistence use fishery, which would give it a priority to Alaska residents who choose to gather a wild food harvest. In response to Co-Chair Neuman, he added that fish caught in a personal use fishery cannot be sold commercially. CO-CHAIR NEUMAN closed public testimony after ascertaining no one else wished to testify. 2:56:39 PM MS. LONG, in response to Representative Tuck, stated that two lawsuits have been filed. CO-CHAIR NEUMAN, in response to Representative Tuck, pointed out that the resolution does address the lawsuit filed by Herbert T. Jensen and this can be found on page 1, line 15. REPRESENTATIVE SEATON posited that the lawsuit may have been entered into with the idea of restricting a dip net fishery because the dip net fishery has expanded exponentially in Cook Inlet, with hundreds of thousands of fish now being taken annually and possibly exceeding the commercial catch. The problem is the way the lawsuit is written. He referenced the language on page 1 of HCS CSSJR 22(FSH), lines 12-13, "requesting the court to declare that the state-authorized resident-only salmon fisheries are unconstitutional" and said he thinks a court is not going to say to close down the fishery. He thinks the probable logical thing is that the state would then say the fishery cannot be restricted to residents only, which would mean that it would greatly expand the personal use fishery. For this reason, he appreciates the resolves that ask for withdrawal of the lawsuits. He said he thinks state management is much preferable to federal management and it is perfectly legitimate to have a resident-only personal use fishery. Therefore, he supports the resolution. CO-CHAIR NEUMAN disagreed that the personal use catch is close to the commercial catch. 3:00:15 PM REPRESENTATIVE TUCK pointed out that the State of Alaska is a party in the Jensen lawsuit. He asked whether the state is on the same or opposite side of Mr. Jensen's lawsuit. MS. LONG responded the state is opposing Mr. Jensen's lawsuit. REPRESENTATIVE TUCK offered his concern about hindering people's seventh amendment right to go to court. He agreed that Alaskans should have priority to the state's fisheries and said he enjoys dip netting to provide fish for his family. He encouraged the attorney general to continue fighting this on behalf of Alaskans. However, while he opposes this type of lawsuit, he asked rhetorically whether the legislature through resolutions should be telling people to drop lawsuits. 3:03:04 PM CO-CHAIR JOHNSON moved to call the question. REPRESENTATIVE TUCK objected and said he has an amendment he would like to offer. CO-CHAIR JOHNSON withdrew his motion to call the question. 3:04:10 PM REPRESENTATIVE TUCK moved Conceptual Amendment 1 to add "continue to" after the second "to" on page 3, line 27. CO-CHAIR JOHNSON objected and said he does not want to send the message that the legislature is going to oppose all lawsuits, those particular lawsuits, or additional lawsuits once those are done. CO-CHAIR NEUMAN pointed out that there are wildlife management lawsuits and others that he would like the state to continue opposing. REPRESENTATIVE TUCK withdrew Conceptual Amendment 1. 3:07:17 PM CO-CHAIR JOHNSON moved to report HCS CSSJR 22(FSH) out of committee with individual recommendations and the attached zero fiscal note. There being no objection, HCS CSSJR 22(FSH) was reported from the House Resources Standing Committee.