Legislature(1993 - 1994)
03/16/1994 09:10 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE BILL NO. 316 An Act relating to commercial fishing penalties. Co-chair Pearce directed that SB 316 be brought on for discussion and referenced CSSB 316 (Res), a $10.4 fiscal note from the Dept. of Public Safety, a $60.1 note from the Dept. of Law, a sectional analysis, comments from the commercial fisheries entry commission, and information from the Division of Fish and Wildlife Protection regarding the Bristol Bay Enforcement Program. DAVE THOMPSON, aide to Senate President Halford, explained that the proposed bill would tighten commercial fishing penalties and increase the burden of proof on fishermen with respect to evidentiary materials. There has been no stated opposition to the bill up to this time. Data compiled by the Dept. of Public Safety indicates that a small group of fishermen are repeat offenders who make it difficult for honest fishermen to ply their trade. During the 1993 fishing season in Bristol Bay, 90 repeat offenders were cited. In one case the history of offenses went back to 1986. That individual had broken the law 18 times. Data supports the contention that habitual violators cause the bulk of the problems in commercial fishing. The proposed bill targets those individuals. Changes contemplated by the bill would add three new subsections: 1. Allow for suspension of one or more of the individual's commercial fishing privileges for a period of at least two years. 2. Allow for suspension of one or more of an individual's commercial fishing privileges and licenses for a period of at least four years. 3. Allow for forfeiture of commercial or fishing privileges and licenses upon a person's fifth or subsequent conviction in a ten-year period. The bill also doubles the fines and changes the burden of proof from a "preponderance of" to "clear and convincing" evidence with respect to fish found on board a vessel and whether or not they have been taken illegally. Data gathered by the Division of Fish and Wildlife Protection Services shows that in 1993 the Bristol Bay fishery had an all-time high number of violations resulting in 509 criminal charges. Gross fines exceeded $1 million. There was also more than a 100% increase in "closed water" cases, exceeding the previous high by more than 210 cases. In the course of plea bargaining, misdemeanors are reduced to violations. When that occurs, there is no record of the wrong-doing. It is thus difficult to effect subsequent fines, much less attach an individual's fishing permit. The number of cases in Bristol Bay are increasing while the fines per case are decreasing. Both judges and prosecutors are culpable. A fine of $1.0 against an illegal catch of $10.0 creates an economic incentive to break the law. The Division of Fish and Wildlife Protection made a great effort to increase surveillance and "crack down on violators." Senator Rieger inquired concerning the difference between "clear and convincing evidence" and a "preponderance" of the evidence. Mr. Thompson voiced his understanding that the change increases the burden of proof upon the fisherman. BILL VALENTINE, Director, Division of Fish and Wildlife Protection, Dept. of Public Safety, came before committee. He explained that under a preponderance of the evidence, all the fisherman needs to verify his argument is one more bit of evidence than the department has in proof of the violation. An additional crewman who says that the fish were not caught in violation would tip the scale in his favor. Much more would be needed to establish "clear and convincing" evidence. The fisherman would need the testimony of workers on a tender, other fishermen, etc., individuals other than those crewing his boat. Senator Rieger noted that language speaks not only to fish found aboard a vessel but also fish "found at the fishing site." He then inquired as to the extent of existing language. Mr. Valentine advised that current language speaks to "the preponderance at the site or on board the vessel." He added that he had not been party to a scenario in which a whole season's worth of fish would be at a particular site. In the Bristol Bay salmon fishery, fish are generally delivered daily to preserve freshness. Senator Rieger next pointed to language in Sec. 3, relating to forfeiture of fish taken as a result of commission of a violation. He then asked if failure to have one's identification aboard the vessel would constitute a violation. Mr. Valentine acknowledged that it would be but stressed that lower-level, small violations are covered by the uniform bail schedule. That is similar to a traffic ticket involving an established fine and "mail-in bail." Those offenders cannot be charged at a higher level. Senator Rieger voiced his understanding that uniform bail provisions would override forfeiture. Mr. Valentine concurred. He clarified that no forfeitures or loss of fishing privileges are associated with small violations. That is the distinction between a violation and a misdemeanor. Senator Rieger referenced Sec. 3 language calling for forfeiture for violations and again raised questions. Mr. Valentine explained that the language in question relates to higher violations for commercial fishing in closed waters, commercial fishing during a closed period, etc. Those violations have a direct impact on the fishery. GEORGE UTERMOHLE, Legislative Counsel, Legal Services, Legislative Affairs Agency, came before committee. He said that preponderance of the evidence standards require that the evidence be more likely than not that the evidence supports a particular conclusion. Clear and convincing evidence is a higher standard requiring more than just a reasonable probability. It must create in the fact finder a clear conviction that the facts exist. The highest standard is "beyond a reasonable doubt." Senator Jacko MOVED that CSSB 316 (Res) pass from committee with individual recommendations. No objection having been raised, CSSB 316 (Res) was REPORTED OUT of committee with a $10.4 fiscal note from the Dept. of Public Safety and a $60.1 note from the Dept. of Law. Co-chairs Pearce and Frank and Senators Jacko, Kelly, and Sharp signed the committee report with a "do pass" recommendation. Senators Kerttula and Rieger signed "no recommendation."