Legislature(1995 - 1996)

01/26/1995 05:00 PM House FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              HOUSE SPECIAL COMMITTEE ON FISHERIES                             
                        January 26, 1995                                       
                           5:00 p.m.                                           
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Alan Austerman, Chairman                                       
 Representative Carl Moses, Vice-Chair                                         
 Representative Gary Davis                                                     
 Representative Scott Ogan                                                     
 Representative Kim Elton                                                      
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 none                                                                          
                                                                               
 OTHER LEGISLATORS PRESENT                                                     
                                                                               
 none                                                                          
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 Presentation by Paul Seaton, Alliance Against Individual Fishing              
 Quota (AAIFQ)                                                                 
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 PAUL SEATON, Representative                                                   
 Alliance Against Individual                                                   
   Fishing Quotas                                                              
 58360 Bruce Drive                                                             
 Homer, AK  99603                                                              
 Phone: 235-6342                                                               
 POSITION STATEMENT: Provided the AAIFQ presentation                           
                                                                               
 SUSAN REEVES, Attorney                                                        
 601 West 5th Avenue, Suite 500                                                
 Anchorage, AK  99501                                                          
 Phone: 258-6866                                                               
 POSITION STATEMENT: Attorney for AAIFQ                                        
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-2, SIDE A                                                             
 Number 000                                                                    
                                                                               
 CHAIRMAN ALAN AUSTERMAN called the meeting to order at 5:00 p.m.              
 He noted for the record Representatives Ogan, Elton and Moses were            
 present and that a quorum was present.                                        
                                                                               
 CHAIRMAN AUSTERMAN introduced Paul Seaton.                                    
                                                                               
 REPRESENTATIVE GARY DAVIS joined the committee at 5:01 p.m.                   
                                                                               
 PAUL SEATON, REPRESENTATIVE, ALLIANCE AGAINST IFQs, began his                 
 testimony saying, "I'm a fisherman from Homer.  I represent the               
 Alliance Against IFQs which is a statewide, very informal                     
 organization formed in 1991, when it became very obvious that the             
 North Pacific Fisheries Management Council was going to pass the              
 individual fishing quota management option for halibut and                    
 sablefish, even though 93 percent of all the testimony from                   
 Alaskans was opposed to this plan.  The halibut fishery was a                 
 predominant driving force behind this and what the council had done           
 was make a management plan based on the sablefish fishery which is            
 about 10 percent the size.  Then when it came to halibut fishing,             
 they refused to look at any other options for the halibut fishery,            
 simply directing it on the mold that they had done for sablefish.             
 So, that's when the Alliance formed.  Coastal communities knew this           
 would be a very strong detriment, both socially and economically,             
 to their communities and that's why you'll see in your backup                 
 information, you have a sheet there that lists a number of coastal            
 communities, Alaska native associations, boroughs, chambers of                
 commerce.  There are 47 different resolutions that were passed                
 opposing this program.  All were ignored by the management of the             
 council.  This represented communities from the furthest in the               
 south, out to Unalaska.  All were ignored totally by the council.             
 Also, in your packet there is the 1992 resolution by the House of             
 Representatives that was passed unanimously opposing the IFQ plan.            
 It was also ignored.  The basis for the knowledge that this would             
 be a very strong detriment to the coastal communities is found in             
 the `Impact Statement' that the council used to create the IFQ                
 plan.  You just have three pages of this long document.  On page              
 210, `There would be 288 to 376 halibut vessels and 1,500 to 1,900            
 fishermen, if this plan succeeds.'  And these are in comparison to            
 3,796 vessels and 1,400 fishermen without an IFQ program.  So these           
 were not unintended consequences.  These were known and this was to           
 consolidate this fishery massively.  This is why all these                    
 resolutions were passed by these cities and native associations and           
 the House of Representatives.  The other things in there give the             
 same kinds of information such as on page 212, `As fishermen switch           
 fisheries or occupations, their living standards may suffer.  This            
 is especially true in communities which offer few alternatives to             
 fishing.  In these communities, especially along the Alaskan coast,           
 communities could experience reduced income and population.'  This            
 is why these communities asked for social and economic impact                 
 studies to be shared with them before this plan went forward and no           
 such impact statement would be done by the council, and has not               
 been done since now.  There is a kind of a social impact survey,              
 the Institute of Social and Economic Research (ISER) survey and in            
 that, you'll find that 68 percent of the fishermen there, in Table            
 1, tell you that they don't think that under this plan, this                  
 allocation was done fairly.  In figure three, 42 percent of all               
 fishermen say they're going to be worse off under the plan, 14                
 percent don't know, and 21 percent think they're going to be the              
 same but that was before the numbers came out."                               
                                                                               
 MR. SEATON continued, "The lawsuit that was enjoined by the                   
 Alliance Against IFQ, had ten points.  I'm not going to go into               
 those points tonight.  The crucial thing for which we're here and             
 want to talk to the committee about is that we are appealing to the           
 Ninth Circuit, the findings of the court.  And the most important             
 one tonight is that the District Court ruling extends far beyond              
 IFQ's into allowing federal regulations to apply inside of state              
 waters and that's in total contradiction to the Magnuson Act.  In             
 other words, the judges findings said that, `Well, there's no                 
 conflict, you can apply federal regulations in state waters.'  The            
 Magnuson Act says, `Nothing in this act shall be construed as                 
 extending or diminishing the jurisdiction or authority of any state           
 within it's boundaries.'  And of course the boundaries, as far as             
 fisheries go, are the three mile limit.  If any further                       
 clarification was needed, it can be found in the administrative               
 record of the Magnuson Act where it says, `The federal government             
 can assert jurisdiction in the waters of any state only in those              
 limited instances when the state action, or the state's failure to            
 take action will substantially, as well as adversely, effect the              
 carrying out of the plan.'  There's very specific requirements that           
 must be met.  The majority of the fishery must occur in federal               
 waters and the action must severely restrict the Secretary's                  
 ability to manage the federal fishery.  And that has to be done in            
 a public hearing and an official secretarial finding.  That was not           
 done.  These actions, these federal regulations are going to apply            
 to state waters without following the dictates of law.  What                  
 happened in this case are two things:  One is the judge didn't seem           
 to look at the law.  And the other is:  The judge found that the              
 state of Alaska is the only party that has the right to object.               
 The court found that, as citizens of the state, we do not have                
 standing to raise the preemption issue.  And that's what this is,             
 it's preempting state management by applying federal regulations in           
 state waters.  And the problem is, some people don't like the word            
 `precedent,' it's a federal district court ruling and we know                 
 what's going to happen.  If they can do it here, they can do it in            
 any other situation.  The judge found that unless the state raises            
 a conflict, there's no problem with exerting federal regulations.             
 The only way that a state can exert a conflict, as far as the                 
 district court is concerned, is to take the federal government to             
 District Court.  This is the creeping federalism that you've been             
 dealing with it all day today and yesterday:  The problem of the              
 federal government taking over fish and game management in state              
 waters.  That was specifically on subsistence, this is the same               
 issue on the federal takeover of commercial fisheries in the state            
 of Alaska.  We would sincerely hope that the House, or this                   
 committee, would recommend that the Governor use his full resources           
 to defend the state's exclusive rights to manage the fisheries                
 within state waters.  The (fisheries) transition team, that met               
 over in Kodiak, one of the things they identified for immediate               
 action was `to defend the state management of fisheries and prepare           
 to make legal responses as necessary to maintain state authority of           
 fisheries.'  We hear it from the Governor's Office, we hear it from           
 the transition team, we hear it from the House and the Senate, the            
 only problem was that, in court, the state of Alaska had filed an             
 amicus brief and had raised the problem of this, but there was                
 nobody from the state in court.  And they asked, `Is there anyone             
 here from the state of Alaska to respond to the preemption issue,             
 and there wasn't.  We really need someone from the state of Alaska,           
 the Attorney General, to be present and to expand their amicus                
 brief on the taking over of state waters by the federal government            
 at the Ninth Circuit Court of Appeals.  So that's what I would                
 really urge you to consider and that's the main thing, why we are             
 right now with this.  There are four points that we're going to               
 appeal.  This is the main one, the important one right now that we            
 really need the state's help with.  The state is the only one that            
 has standing to raise the issue."                                             
                                                                               
 Number 250                                                                    
                                                                               
 MR. SEATON concluded, "I am thoroughly familiar with the IFQ                  
 regulations, if you have any questions on those.  The other points            
 that we're litigating on is the Bellingham issue where the                    
 Secretary, outside of the purview of law, expanded the primary                
 ports to allow Bellingham and every other state to be landing ports           
 for fish.  That's a technical argument, as well as, without                   
 enforcement you have resource degradation.  Not considering the               
 present participation of individuals and the fact that                        
 administrative convenience was used as the sole reason for giving             
 all IFQ's to vessel owners, cutting out the crew and others.  Once            
 we say that, administrative convenience is an adequate reason for             
 taking actions under the Magnuson Act, it's all over.  I mean, if             
 that can be your reasoning for taking action then there's severe              
 problems for any of the public to have any input at all."                     
                                                                               
 CHAIRMAN AUSTERMAN thanked Paul Seaton for his presentation.                  
                                                                               
 Number 283                                                                    
                                                                               
 REPRESENTATIVE GARY DAVIS said, "You mentioned that the state had             
 filed an amicus brief.  Have you followed up on that?  So they must           
 have been concerned that they weren't there.  Who did that?  Which            
 administration?  Why weren't they there?"                                     
                                                                               
 MR. SEATON replied, "The Hickel Administration are the ones that              
 became very concerned on the issue of preemption and we talked to             
 them quite a bit.  They finally decided, it was kind of at the last           
 minute, that they needed to respond in federal court.  Otherwise,             
 preemption was going to take the state's rights away.  The argument           
 was on the 19th of December.  The Attorney General who had written            
 that opinion was no longer employed there.  Also, in the amicus               
 opinion they were saying, `Well, we're supporting IFQ's, we're                
 supporting CDQs, but we're opposed to preemption of state                     
 management in state waters, essentially.  I don't know why they               
 weren't there.  We were talking to them.  I don't think that                  
 anybody was really up to speed.  There was quite a bit of confusion           
 on CDQs, IFQs.  The CDQ section, I might say, was being challenged            
 in our ten points that they were only being allocated to native               
 communities in Bristol Bay.  The judges ruling said that there is             
 basis for giving that kind of an allocation solely based on                   
 economic and social hardships in any community.  So we are not                
 challenging the CDQ regulations.  I don't know if there was a                 
 conflict between people wanting parts of it and not wanting parts             
 of it.  We haven't been able to find out exactly what happened."              
                                                                               
 Number 320                                                                    
                                                                               
 SUSAN REEVES, ATTORNEY, ALLIANCE AGAINST IFQ'S, interjected saying,           
 "I want to make sure that you have an accurate picture here.  You             
 asked what the position of the Attorney General's Office was now.             
 We have spoken to them and they're considering this.  They haven't            
 told us that they won't be involved.  They haven't told us that               
 they will but they are aware that the issue is on appeal and they             
 are looking at it right now."                                                 
                                                                               
 Number 333                                                                    
                                                                               
 REPRESENTATIVE KIM ELTON asked, "I haven't seen the full opinion,             
 and it's probably very difficult to make an interpretation based on           
 a half a page of an eleven page opinion, but it seems to me that              
 there's nothing that precludes the state at any time in the future            
 to raising the issue of state control of its fisheries.  He then              
 referred to last page of the District Court Judge's Findings where            
 it says, "If the state of Alaska later enacts legislation contrary            
 to these regulations, in waters not specifically excluded from                
 coverage, the issue may then be ripe for review,"   He concluded,             
 "It seems to me that that means that at anytime in the future, if             
 indeed there is a conflict between state law and state regulations            
 and the IFQ Program, that the state can raise the issue at that               
 time."                                                                        
                                                                               
 MR. SEATON replied, "The big problem is, what this court has                  
 allowed is to say, `Oh, there isn't any conflict, therefore, you              
 can apply federal regulations.'  This could be extended to observer           
 coverage, to reporting coverage, to taxing coverage.  As long as              
 there's not a problem with taxes, they could extract taxes out of             
 state waters.  They could say, `Okay, we want to have federal                 
 observer requirements on all the vessels in state waters.'  There             
 wouldn't be any conflict there.  That's the big problem.  What's              
 happening is that unless there is a significant conflict, this                
 judge is saying, `There's nothing to review, there's no problem.'             
 And what the Magnuson Act says is, `The only time that you can                
 extend federal regulations in state waters is if there is so large            
 a conflict, that the state regulations prevent the Secretary from             
 being able to manage the federal fishery.  Significantly and                  
 adversely effect the Secretary's ability to manage the federal                
 fishery.  So, by this huge leap, what we've done is we've said,               
 `Okay, federal regulations can apply to state waters.'  That's what           
 this judge has said.  When right now the Magnuson Act says,                   
 `Federal regulations cannot apply in state waters unless the                  
 state's action or inaction so impairs the Secretary's ability that            
 he can't manage the federal fishery.  And they have to make certain           
 findings are that the majority of the fishery takes place in                  
 federal waters and that this is going to impair the ability of the            
 Secretary to manage the federal fishery.  And he has to make that             
 a specific finding.  Part of this problem becomes, if the state               
 would later enact legislation contrary to the regulation and then             
 the federal government would then come in and preempt.  Sure, then            
 it could come back to court.  One thing under the Magnuson Act                
 which is really peculiar is that there is a 30 day window on a                
 fisheries management plan.  When a management plan is passed, you             
 have to, after it is published in the federal register, you have to           
 file a lawsuit within 30 days in federal court, otherwise you can             
 never challenge that fisheries management plan.  You can challenge            
 on a constitutional grounds or something, but you can't challenge             
 the fisheries management plan."                                               
                                                                               
 REPRESENTATIVE ELTON said, "But I'm reading this as saying, `There            
 is no problem unless there's a problem in the future and if there's           
 a problem in the future, the state then has standing to address it            
 in federal court.'  You're saying, `Why not address it now so that            
 there's never a future problem.'"                                             
                                                                               
 MR. SEATON replied, "What this court is saying is, `There is no               
 problem, unless there's a conflict.'  The law, the Magnuson Act               
 says, `Nothing in this act allows the federal government to extend            
 its jurisdiction into state waters, unless there is a conflict, and           
 that conflict has to be so severe that it impairs the Secretary's             
 ability to manage the federal fishery.  Then the Secretary, under             
 very specific conditions in the Magnuson Act, can preempt state               
 management.  What this judge has said is that, `Without any                   
 conflict, without any preemption, federal regulations can apply in            
 state waters.  That means it's going to happen all the time because           
 it's much easier for the feds to pass a regulation going right up             
 to the shore and talk about all of the fish.  What else they did in           
 this is they preempted, effectively, state management because they            
 allocated 100 percent of the total allowable catch (TAC) to the IFQ           
 fishery.  The state fishery can still occur but there's no fish to            
 catch, because they've allocated 100 percent under these                      
 regulations of the total allowable catch to the IFQ fishery.  It's            
 going to be a huge problem.  What does the state do?  Does the                
 state close its waters and say, `Oh well, you can't catch any IFQ             
 or non-IFQ fish here.'  Because a person without any IFQ's can fish           
 in state waters.  A state vessel (which) doesn't have a federal               
 fisheries permit can go out and fish in state waters.  But there's            
 no fish to catch unless you go beyond the biological limit because            
 the total allowable catch, under these regulations, has been given            
 to the federal IFQ fishery.  So, there's huge problems when you               
 allow these federal regulations to be applied to state waters.                
 Biological problems as well.  State management doesn't know what to           
 do.  They don't know whether to open the fishery or close the                 
 fishery.  If they open the fishery, there's going to be fish taken            
 that aren't counted in the TAC because the federal regulations                
 allocate all of the fish personally to people with IFQ's and yet              
 you're going to have this other fishery occurring.  If the state              
 says, `Oh, we can't have that,' they have to close the waters and             
 those federal permits can't be used in state waters, because the              
 waters are closed.  So people who fish in small boats and fish in             
 close are going to be, `Oh what do we do, well we sell out or go              
 out where it's dangerous.'"                                                   
                                                                               
 Number 451                                                                    
                                                                               
 REPRESENTATIVE SCOTT OGAN thanked Mr. Seaton and committed to study           
 this issue further.                                                           
                                                                               
 REPRESENTATIVE DAVIS said, "It is my understanding that this whole            
 thing came about because of a perceived need to control the harvest           
 of certain species.  Was that a valid concern?  Would these species           
 get over harvested?"                                                          
                                                                               
 MR. SEATON said, "It was a totally invalid concern.  These fish are           
 now, and they will be in the future, harvested on a quota basis.              
 In other words, the amount of fish is set each year as to how much            
 will be caught and this an economic allocation issue.  It had                 
 nothing to do with the biological health of the resource."                    
                                                                               
 CHAIRMAN AUSTERMAN said, "I would suggest maybe that either myself            
 as chairman of the committee, or this committee itself, encourage             
 the Governor to take a hard look at the issue to see whether we               
 should be back in court."                                                     
                                                                               
 Number 473                                                                    
                                                                               
 REPRESENTATIVE DAVIS said, "I would appreciate that.  It sounds               
 like he's looking at it.  It would be nice to inquire at his office           
 and find out when and if he does make a decision, if he'd let you             
 know and then you could copy us on that."                                     
                                                                               
 REPRESENTATIVE ELTON said, "If you do that, you may wish to ask               
 about the other facets of the issue.  You heard about the socio-              
 economic impact, but it would be interesting to know about the                
 market and safety impacts also before we have that discussion."               
                                                                               
 Number 485                                                                    
                                                                               
 CHAIRMAN AUSTERMAN thanked his guest and adjourned the meeting at             
 5:27 p.m.                                                                     
                                                                               

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