Legislature(1993 - 1994)
04/16/1993 08:30 AM House FSH
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON FISHERIES
April 16, 1993
8:30 a.m.
MEMBERS PRESENT
Representative Carl E. Moses, Chairman
Representative Harley Olberg, Vice-Chairman
Representative Gail Phillips
Representative Irene Nicholia
MEMBERS ABSENT
Representative Cliff Davidson
COMMITTEE CALENDAR
HB 251 "An Act relating to the management and allocation
of fishery resources."
HEARD AND HELD IN COMMITTEE FOR FURTHER
CONSIDERATION
WITNESS REGISTER
Steve White, Assistant Attorney General
Alaska Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Phone: 465-3600
POSITION STATEMENT: Believed HB 251 is unconstitutional
Tom Elias, Chairman
Alaska Board of Fisheries
P.O. Box 25526
Juneau, AK 99802-5526
Phone: 465-4110
POSITION STATEMENT: Agreed with the concerns raised by Mr.
White regarding HB 251
Robin Samuelsen, Resources Director
Bristol Bay Native Association
P.O. Box 310
Dillingham, AK 99576
Phone: 842-5257
POSITION STATEMENT: Opposed HB 251
Peggy Osterback
Aleutians East Borough
P.O. Box 101
Sand Point, AK 99661
Phone: 383-2696
POSITION STATEMENT: Had difficulty analyzing HB 251
Norman Anderson
General Delivery
Naknek, AK 99633
Phone: 246-4423
POSITION STATEMENT: Opposed HB 251
Andy Rauwolf
Southeast Herring Coalition
P.O. Box 8555
Ketchikan, AK 99901
Phone: 225-3697
POSITION STATEMENT: Opposed HB 251
Tate Hayes
Upper Cook Inlet Setnetter
2310 20th Avenue
Anchorage, AK 99508
Phone: 272-3943
POSITION STATEMENT: Would like to see more conservation
elements in HB 251
Dale Kelley, Executive Director
Alaska Trollers Association
130 Seward St., No. 505
Juneau, AK 99801
Phone: 586-9400
POSITION STATEMENT: Opposed HB 251
PREVIOUS ACTION
BILL: HB 251
SHORT TITLE: MANAGEMENT AND ALLOCATION OF FISH
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) MOSES
TITLE: "An Act relating to the management and allocation of
fishery resources.
JRN-DATE JRN-PG ACTION
03/24/93 761 (H) READ THE FIRST TIME/REFERRAL(S)
03/24/93 761 (H) FISHERIES, RESOURCES, JUDICIARY
03/29/93 (H) FSH AT 08:30 AM CAPITOL 17
03/29/93 (H) MINUTE(FSH)
04/16/93 (H) FSH AT 08:30 AM CAPITOL 17
ACTION NARRATIVE
TAPE 93-23, SIDE A
Number 000
CHAIRMAN CARL MOSES called the meeting to order at 8:40 a.m.
He noted Representatives Moses and Olberg in attendance and
said the committee would hear once again HB 251, relating to
the management and allocation of fishery resources.
HB 251: MANAGEMENT AND ALLOCATION OF FISH
Number 008
CHAIRMAN MOSES reminded the committee they had heard from
the Alaska Department of Fish and Game concerning some of
the history behind HB 251 in Bristol Bay. He indicated his
intention was to hear further testimony on the bill over the
teleconference, generate discussion, and hold the bill for
further consideration.
Number 014
STEVE WHITE, ASSISTANT ATTORNEY GENERAL WITH THE DEPARTMENT
OF LAW, who has the responsibility of advising the Alaska
Department of Fish and Game and the Board of Fisheries,
testified that although HB 251 looked pretty innocuous on
the face of it, there were potential constitutional problems
with it. He said the constitutional problem arises in
section 2 of the bill, which directs the Board of Fisheries
to allocate resources in a manner that has the least adverse
impact on the people of the state. He believes the intent
of that section is to create a resident preference in
fisheries allocation.
MR. WHITE alleged the Department of Law has consistently
held that preferences for residents over non-residents, when
in a commercial context, probably run up against several
constitutional problems, number one being the privileges and
immunities clause of the U.S. Constitution. That clause has
been the principal reason that the state's local hire bills
have been struck down by the Alaska Supreme Court. MR.
WHITE said the privileges and immunities clause guarantees
that a citizen of one state may do business in another state
on terms of substantial equality.
According to MR. WHITE, the federal constitution allows
discrimination against non-residents, but only if several
conditions are found. There has to be a legitimate
difference for the discrimination against non-residents.
MR. WHITE said the courts have held that merely economic
protectionism is not a legitimate purpose. There has to be
another purpose for legislation of this type, such as
conservation of the resource. The non-residents would have
to be shown to be a "peculiar source of the evil" if the
evil is conservation, and it would have to be shown that the
non-resident component of the fishery creates a greater
conservation problem than the resident population does.
MR. WHITE advised that if the non-residents do create a
greater problem than the residents, it would have to be
shown that there is no alternative way to cure that problem
other than discriminating against nonresidents. The burden
on the state is quite high, MR. WHITE said, and all the
findings would be evidence for the record.
Several other constitutional clauses are implicated, MR.
WHITE said, one being the commerce clause under the U.S.
Constitution which says a state cannot erect barriers
against another state in matters of trade and commerce. If
a non-resident discrimination would affect the travel of
non-residents in a significant way, it would be considered a
burden on interstate commerce. Finally, the Uniform
Application clause in the resource section of the Alaska
constitution says the resource laws must apply equally in
similarly situated persons. If nonresidents and residents
create the same management concerns, differences in how they
are managed in order to favor one group over another would
not be allowed, MR. WHITE said.
MR. WHITE also referenced a Department of Law memo from
himself to House Speaker Ramona Barnes responding to a
proposal from one of her constituents concerning an uneven
tax on non-resident commercial fishermen, guides and
outfitters. The proposal would be to tax all those people
10% of their gross income from their businesses, but people
who receive Permanent Fund Dividends (residents) would get a
credit against that tax. According to MR. WHITE, that would
be discrimination against non-residents.
Besides the constitutional problems, MR. WHITE said HB 251
would create some internal conflicts with other state
statutes. He said subsection b in Section 2 would supersede
all other state laws in dealing with allocation.
Theoretically it would supersede the subsistence law, MR.
WHITE pointed out, and this would direct the Board of
Fisheries to allocate fisheries to subsistence users in all
cases as opposed to commercial, sport and personal use
fisheries. The result would conflict with the existing
subsistence law which creates a priority only in certain
circumstances.
MR. WHITE also said it may conflict with the law that sets
up criteria for allocating among different user groups. He
cautioned the committee to consider the far-reaching
implications of HB 251 before adopting it.
Number 106
TOM ELIAS, CHAIR OF THE BOARD OF FISHERIES, testified that
in reviewing HB 251 he has many of the same concerns as Mr.
White. The problem of resident versus nonresident always
comes up before the Board of Fisheries he said, and while he
sympathizes with the notion that residents should be given
preferential treatment because of their ownership of the
resource, he did see problems that could arise. MR. ELIAS
called the residential preference a good idea, but not
workable given the context of the law.
Number 135
ROBIN SAMUELSEN, FORMER BOARD OF FISHERIES' MEMBER, AND
CURRENTLY RESOURCES DIRECTOR FOR THE BRISTOL BAY NATIVE
ASSOCIATION, testified in opposition to HB 251. According
to MR. SAMUELSEN, the management and allocation of fisheries
has been worked out over time among the various user groups
in the proper forum - the Board of Fish, with a lot of
public meetings. MR. SAMUELSEN said his concerns echo those
of Mr. White. "Who will pay for these new changes in light
of the budget cuts taken by the Division of Boards and the
Department of Fish and Game?" MR. SAMUELSEN asked.
MR. SAMUELSEN said HB 251 is quite vague on what roles the
Board, the Department, and the Commissioner have, and all
that needs to be spelled out. There is more than what meets
the eye in this bill, MR. SAMUELSEN warned, and if adopted
with these vague interpretations, it could be very
disruptive to the user groups that have sat through
countless board meetings coming to decisions.
Number 160
PEGGY OSTERBACK, testifying on behalf of the ALEUTIANS EAST
BOROUGH, said it was difficult to analyze HB 251 since its
intent is not immediately clear. On the surface it looks
like a paraphrasing of several sections of Article VIII of
the Alaska Constitution. However, this particular
paraphrasing appears to be aimed at basing fishing
regulations and in-season management decisions on the basis
of the number of Alaska residents in any segment of the
fishery. If that is the case, MS. OSTERBACK cautioned, the
amendment to Title 16 contained in HB 251 is fraught with
equal protection and U.S. Commerce clause problems when it
is applied to commercial fisheries management and
allocations.
According to MS. OSTERBACK, it is true that the legislature
has provided the Board of Fisheries with allocation criteria
which include a comparison of the number of residents and
nonresidents in each fishery. However, the Department of
Law has repeatedly warned the Board that it would be
difficult, if not impossible, to come up with a viable
application of this standard for commercial fisheries, she
said.
Number 200
The majority of the permits for salmon fisheries in the
Aleutians East Borough are held by residents, MS. OSTERBACK
pointed out, with a larger percentage of Area M permits held
by residents than in both Bristol Bay fisheries. However,
even as potential beneficiaries of such a preference, MS.
OSTERBACK said the Aleutians East Borough could not support
legislation that is bound to confuse allocation and
management decisions and increase the number of lawsuits
filed.
While they understood the desire to benefit Alaska
residents, MS. OSTERBACK argued that in some cases the
impediments are simply too great; in particular, the U.S.
Constitution and the commerce clause. Looking closely at
Article VIII, the Natural Resources Article of Alaska's
Constitution, MS. OSTERBACK said the borough is not certain
that the proposed statute accurately reflects the principles
listed. The section 4 language, "subject to preferences
among beneficial uses," does not say "subject to preferences
among beneficial users."
According to MS. OSTERBACK, it appears to the Aleutians East
Borough that the "least adverse impact" language in HB 251
attempts to change the focus of the Constitution to provide
the opportunity for the Board of Fisheries and the
Department of Fish and Game to make regulatory and in-season
allocation decisions based on the murky and dangerous
concept that what's best for some individuals is somehow
best for the state.
MS. OSTERBACK also argued that Section 17 is also relevant
to this issue, because there can be no legal barrier to
nonresidents holding interim use or entry permits, so that
all commercial fisheries are similarly situated. Given
that, attempting to impose a residency standard on
allocation and management decisions could not be condoned,
she said.
Representative Gail Phillips and Representative Irene
Nicholia joined the Committee.
Number 224
NORMAN ANDERSON testified in opposition to HB 251, calling
it a multi-faceted bill. He believes a portion of this bill
is condoning the actions of the Department of Fish and Game
in over-managing the Egegik fishery, which negatively
impacted the Kvichak district.
Number 257
ANDY RAUWOLF, representing the SOUTHEAST HERRING COALITION,
testified in opposition to HB 251, arguing that it would
restrict the Board of Fisheries' ability to act on proposals
aimed at conservation and enhancement of a resource.
Scientific studies indicate that some harvest thresholds now
being used on depleted stocks are designed as tradeoffs, he
said. His organization does not believe enough
consideration to enhancing depleted stocks would be given if
HB 251 were adopted. Maximum benefit, consistent with
sustained yield, can only be vaguely defined at best, he
said.
According to MR. RAUWOLF, the Alaska Constitutional
Convention concluded that sustained yield is not an
absolute. In fisheries it would be impossible to calculate
because it is not capable of precise specification. Under
HB 251, MR. RAUWOLF argued, you wouldn't be able to require
enhancement of depleted stocks.
Number 297
TATE HAYES, a commercial setnetter in the northern district
of Upper Cook Inlet, expressed concern about the future of
Alaska's fisheries. Conservation must be the most important
aspect of any management plan, he said. Management plans
must be implemented and carried out throughout the entire
migratory range for the species if conservation is to be
ensured, he added, and management plans for different areas
must be incorporated throughout in order to ensure sustained
yield. All fisheries harvests, as well as incidental takes,
must be incorporated in those plans, he said, since they all
play a role in the future of the fisheries resources.
MR. HAYES also stressed that the protection of fish habitat
is crucial to Alaska's fisheries. A restoration strategy is
needed to be in place before a disaster occurs, MR. HAYES
argued. Management of fisheries must follow the
constitutional mandate and statutes, and the Board of
Fisheries should follow these guidelines.
Number 340
REPRESENTATIVE IRENE NICHOLIA asked to put forth an
AMENDMENT to HB 251.
CHAIRMAN MOSES responded that no amendments would be taken
at this time since it was not his intent to act on the
legislation.
Number 353
DALE KELLEY, representing the UNITED FISHERMEN OF ALASKA
(UFA) and the ALASKA TROLLERS ASSOCIATION (ATA), testified
in opposition to HB 251 on behalf of both groups. She
explained their concerns that HB 251 would increase
allocation disputes among Alaska residents and that it has
questionable constitutionality. Resident fishermen who fish
in fisheries dominated by nonresidents would be unfairly
discriminated against and cause significant problems in the
state, she argued. The UFA and the ATA believes there
should be equal consideration for all permit holders since
they all benefit the state in significant ways, she added.
Number 376
MS. KELLEY added the UFA and the ATA also believe that HB
251 totally disregards those benefits received by the
predominantly resident support industry to the fleets -
processing, gear sales, etc. The Board of Fish is the best
forum to assess the maximum benefit to the state of Alaska,
MS. KELLEY said. She pointed out that the Board is
currently mandated to manage under sustained yield, with
socio-economics a key part of their decision-making, based
on statistical evidence and public testimony. She also
questioned whether you can legally discriminate against
nonresidents under the Constitution. The Board of Fisheries
process is not broken and does not need to be fixed, MS.
KELLEY concluded.
Number 407
REPRESENTATIVE NICHOLIA offered the committee copies of a
proposed amendment to HB 251. Management and allocation of
our fisheries should benefit Alaskans first, she agreed.
However, she suggested HB 251 be amended to include
conservation because the legislature has not provided clear
policy to the Board of Fisheries regarding conservation and
management of Alaska's fisheries. Conservation decisions
must be made at a level that includes the entire migratory
range of the species, she said.
REPRESENTATIVE NICHOLIA used the Yukon River fishery as an
example of how conservation measures are taken now: During
the fishing season, she said, conservation measures are not
taken until the salmon start their way up the Yukon River.
The managers decide in-season that fishing time must be cut
back or eliminated, even for subsistence fishing. Yukon
fishermen are the only fishermen to take conservation
measures, she pointed out.
The policy proposed in REPRESENTATIVE NICHOLIA's AMENDMENT
would direct managers at the Department of Fish and Game to
apply conservation measures throughout the entire migratory
range of the fish specie. Good management decisions must be
made on sound scientific information, REPRESENTATIVE
NICHOLIA asserted. However, she doesn't believe that the
state has adequate data to manage all its fisheries. If
this information is not available, according to
REPRESENTATIVE NICHOLIA, the end result is status quo
management.
REPRESENTATIVE NICHOLIA believed that if fisheries have
conservation problems, the policy should advocate erring on
the side of management, and when a fishery starts to
experience conservation problems, managers must start taking
preventative measures rather than waiting until a crisis
occurs.
REPRESENTATIVE NICHOLIA also argued that decisions made for
conservation should be separated from decisions made for
allocation. Conservation decisions should be made before it
is ever decided who the user should be and how much fish
they should be allocated, she said.
REPRESENTATIVE NICHOLIA said that fisheries with strong
stocks are currently managed at the expense of the weak
stocks. Although she does not advocate "weak stock
management," a very controversial approach, she said she
does advocate the Department of Fish and Game getting a
better handle on its fishery management strategies.
Management of terminal stream fisheries can be done in such
a way to provide conservation of the resources, she added,
and recognizing this kind of management enables the state to
comply with the constitutionally mandated sustained yield
principle.
REPRESENTATIVE NICHOLIA stated if fisheries cannot be
managed to provide protection to weaker stocks, then the
Department of Fish and Game needs to bite the bullet and
identify management measures that should be taken.
REPRESENTATIVE NICHOLIA said management plans need to
include sustained harvest and allocation policies, which not
only address the subsistence, commercial, sport fishing, and
personal use fisheries, but also include incidental catch.
Habitat is critical to the well-being of fishery resources,
REPRESENTATIVE NICHOLIA pointed out. Management plans
should address habitat, she said. Unless the resource is
managed so that it may reproduce with a population surplus
from year to year, there will, sooner or later, be no reason
to quibble over allocation since the surplus or the species
itself will become depleted, she added.
REPRESENTATIVE NICHOLIA concluded the overriding priority of
our fisheries management should be towards conservation in
order to maintain the resource for future generations.
HB 251 WAS HELD FOR FURTHER CONSIDERATION.
ADJOURNMENT
CHAIRMAN MOSES adjourned the meeting at 9:15 a.m.
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