03/02/1994 03:50 PM Senate RES

 CHAIRMAN MILLER called the Resources Committee meeting to order at            
 3:50 p.m. and announced  SB 316  (FISHING VIOLATIONS:FINES/BURDEN OF     F    
 PROOF) to be up for consideration.                                            
                                                                               
 SENATOR HALFORD, sponsor, said it changes penalties for commercial            
 fishing violations and misdemeanors.  It doubles the fine for                 
 violations, changes the provisions to make them stronger on action            
 on misdemeanors.  In general, he explained, misdemeanors require              
 intent and violations don't.  It is important to note that the                
 number of enforcement actions is going up, but the amount in fines            
 is going down.  He said he lays a lot of the blame at the                     
 Department of Law's prosecution efforts, citing where in many                 
 cases, especially in Bristol Bay, a prosecutor lowered the                    
 recommended penalty (which the defendant agreed to) to the court,             
 because he thought the plea agreements were too harsh.                        
                                                                               
 SENATOR ADAMS moved to adopt the CS to SB 316.  There were no                 
 objections and it was so ordered.                                             
                                                                               
 SENATOR ADAMS said he had a problem with the percentage of fines,             
 because he comes from a fishing district that does not make huge              
 profits as in Bristol Bay.  He hoped they could look at an                    
 annualized percentage of profit versus a fine.                                
                                                                               
 His other concern was in Section 2, where it says "a person who               
 without any culpable mental state violates Alaska Statute 16.05.440           
 - 16.05.690."  He said that covered a lot of sections.                        
                                                                               
 SENATOR ADAMS also had problems with the $6,000 penalty for                   
 forgetting to renew a license.  SENATOR HALFORD responded that this           
 legislation is increasing the maximum fine which hasn't been the              
 problem.  It isn't his intention to penalize someone who hasn't               
 managed to handle the paper work.  The court of appeals reserves              
 the maximum fine for the worst kinds of offenders.                            
                                                                               
 SENATOR ADAMS said he agreed with those points, but he has problems           
 with Section 2 and designating Alaska Statutes.  SENATOR HALFORD              
 explained that is the existing statutory reference dealing with the           
 violation provision.  He doesn't disagree with Senator Adams'                 
 concern, he said.                                                             
                                                                               
 SENATOR LEMAN asked for clarification of felonies, misdemeanors,              
 and violations.  SENATOR HALFORD said the primary difference is               
 that a misdemeanor requires a culpable mental state.                          
                                                                               
 SENATOR ZHAROFF said Section 4 changes the defendant's                        
 responsibilities from showing a preponderance of the evidence to              
 clear and convincing which would be difficult.  SENATOR HALFORD               
 explained that it is not a criminal standard, but it is a higher              
 standard than currently used.                                                 
                                                                               
 Number 199                                                                    
                                                                               
 C. E. SWACKHAMMER, Deputy Commissioner, Department of Public                  
 Safety, and Colonel Bill Valentine, Fish and Wildlife Protection,             
 joined the Committee.                                                         
                                                                               
 SENATOR ADAMS asked him to comment on his concern with Section 2.             
 MR. SWACKHAMMER agreed that the fines were increasing by twice as             
 much.  He explained that the penalty for merely not renewing a                
 license would be less than $1000.  He said if a person is                     
 commercially fishing without an entry permit it's charged as a                
 misdemeanor with a maximum fine of $15,000.                                   
                                                                               
 There was a brief discussion of fines.                                        
                                                                               
 MR. SWACKHAMMER said that every fishery is different.  Different              
 standards are set.  Courts have been fairly consistent and so has             
 the Department as far as exercising enforcement authority.  He said           
 what they do now is not working.                                              
                                                                               
 SENATOR ADAMS noted there was no fiscal note.  MR. SWACKHAMMER said           
 they would anticipate more misdemeanor trials in the                          
 Dillingham/Naknek courts.  He said this would mean a fiscal note of           
 $10,000 - $20,000 which he would prepare.                                     
                                                                               
 Number 374                                                                    
                                                                               
 DAVID INGRAM, Hearing Officer, Commercial Fisheries Entry                     
 Commission, testified in favor of SB 316 saying it would give the             
 Department of Public Safety the tools they need for enforcement               
 around the state.  He said these penalties are really aimed at the            
 flagrant violator.                                                            
                                                                               
 SENATOR DONLEY said a large fine cannot be given for a minor                  
 infraction.                                                                   
                                                                               
 Number 425                                                                    
                                                                               
 SENATOR ZHAROFF asked if a permit holder could lose his fishing               
 privileges if he had three misdemeanors in different fisheries.               
 MR. INGRAM replied yes, the judge has the discretion to suspend one           
 or more of the privileges.                                                    
                                                                               
 Number 455                                                                    
                                                                               
 SENATOR FRANK moved to pass CSSB 316 from Committee with individual           
 recommendations.  SENATOR ZHAROFF objected saying he was concerned            
 with the amendments suggested by the Limited Entry Commission.  He            
 also thought the one year mandatory suspension provision was very             
 sudden compared to the three years it is now.                                 
                                                                               
 SENATOR LEMAN moved reducing the penalty to two misdemeanors within           
 ten years before mandatory suspension.                                        
                                                                               
 MR. INGRAM said that the Department of Public Safety would like to            
 see it remain one year of discretionary call by the judge and on              
 the second conviction move to mandatory suspension.  He said the              
 problem is that they are not getting any misdemeanor convictions.             
 They are all being given violations, so no one is collecting                  
 misdemeanor number one.  They want to send the message to the fleet           
 that the legislature is concerned.  Sympathetic cases can always be           
 dealt with on a violation level, he added.                                    
                                                                               
 There were no more objections and CSSB 316 passed from Committee              
 with individual recommendations.