Legislature(2007 - 2008)BARNES 124
02/20/2008 08:30 AM House FISHERIES
| Audio | Topic |
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| Start | |
| HCR22 | |
| HB134 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HCR 22 | TELECONFERENCED | |
| += | HB 134 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 20, 2008
8:38 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Kyle Johansen
Representative Craig Johnson
Representative Gabrielle LeDoux
Representative Peggy Wilson
Representative Bryce Edgmon
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE CONCURRENT RESOLUTION NO. 22
Affirming the legislative intent of state law that the Alaska
Board of Fisheries currently has the tools and authority to
allocate fishery resources within a fishery based on vessel size
class, gear limits, trip limits, and registration areas.
- MOVED HCR 22 OUT OF COMMITTEE
HOUSE BILL NO. 134
"An Act relating to conservation and protection of wild salmon
production in drainages affecting the Bristol Bay Fisheries
Reserve; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HCR 22
SHORT TITLE: REGULATION OF FISHERIES
SPONSOR(s): REPRESENTATIVE(s) SEATON
02/19/08 (H) READ THE FIRST TIME - REFERRALS
02/19/08 (H) FSH, RES
02/20/08 (H) FSH AT 8:30 AM BARNES 124
BILL: HB 134
SHORT TITLE: PROTECTION OF SALMON SPAWNING WATER
SPONSOR(s): REPRESENTATIVE(s) EDGMON
02/14/07 (H) READ THE FIRST TIME - REFERRALS
02/14/07 (H) FSH, RES
02/28/07 (H) FSH AT 8:30 AM BARNES 124
02/28/07 (H) Heard & Held
02/28/07 (H) MINUTE(FSH)
03/02/07 (H) FSH AT 8:30 AM BARNES 124
03/02/07 (H) Heard & Held
03/02/07 (H) MINUTE(FSH)
03/05/07 (H) FSH AT 8:30 AM BARNES 124
03/05/07 (H) Heard & Held
03/05/07 (H) MINUTE(FSH)
05/09/07 (H) FSH AT 8:30 AM BARNES 124
05/09/07 (H) Heard & Held
05/09/07 (H) MINUTE(FSH)
09/24/07 (H) FSH AT 4:30 PM Newhalen
09/24/07 (H) Heard & Held
09/24/07 (H) MINUTE(FSH)
09/25/07 (H) FSH AT 2:00 PM Naknek
09/25/07 (H) Heard & Held
09/25/07 (H) MINUTE(FSH)
09/26/07 (H) FSH AT 8:30 AM Dillingham
09/26/07 (H) Heard & Held
09/26/07 (H) MINUTE(FSH)
02/18/08 (H) FSH AT 8:30 AM BARNES 124
02/18/08 (H) Heard & Held
02/18/08 (H) MINUTE(FSH)
02/20/08 (H) FSH AT 8:30 AM BARNES 124
WITNESS REGISTER
BRIAN KANE, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Responded to questions on HCR 22.
KIP [KEVIN] THOMET
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HCR 22.
ALEXUS KWACHA
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HCR 22.
JULIE KAVANAUGH
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HCR 22.
CLEM TILLION
Aleut Enterprise Corporation
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HCR 22.
JAMIE ROSS
Chignik Seafood Producers Alliance
Chignik, Alaska
POSITION STATEMENT: Testified in opposition to HCR 22.
GREG COOK, Attorney
Chignik Seiners Association;
Chignik Seafood Producers Alliance
Chignik, Alaska
POSITION STATEMENT: Testified in opposition to HCR 22.
JOHN HILSINGER, Director
Division of Commercial Fisheries
Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HCR 22.
TERESA PETERSON
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HCR 22.
BILLY MAINES
Dillingham, Alaska
POSITION STATEMENT: Spoke in support of HB 134.
RON BOWERS
Dillingham, Alaska
POSITION STATEMENT: Testified in opposition to HB 134.
SAM FORTIER
Pedro Bay Corporation
Pedro Bay, Alaska
POSITION STATEMENT: Testified in opposition to HB 134.
PATRICK FLATLEY
Bristol Bay Alliance
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 134.
HEATH HILYARD, Business Development Manager
Alaska Supply Chain Integrators
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 134.
SHARON ANDERSON
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 134.
GAIL PHILLIPS, Co-Chair
Truth About Pebble
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 134.
JASON BRUNE, Executive Director
Resource Development Council for Alaska, Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 134.
NORMAN VAN VACTOR
Sno Pac Products
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 134.
WASSILLIE ILUTSIK
Aleknagik, Alaska
POSITION STATEMENT: Testified in opposition to HB 134.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:38:37 AM. Representatives
Seaton, Edgmon, LeDoux, Johansen, Johnson, and Wilson were
present at the call to order. Representative Holmes arrived as
the meeting was in progress.
HCR 22-REGULATION OF FISHERIES
[Contains discussion of HB 188.]
8:38:51 AM
CHAIR SEATON announced that the first order of business would be
HOUSE CONCURRENT RESOLUTION NO. 22, Affirming the legislative
intent of state law that the Alaska Board of Fisheries currently
has the tools and authority to allocate fishery resources within
a fishery based on vessel size class, gear limits, trip limits,
and registration areas.
[Chair Seaton turned the gavel over to Representative Johansen.]
8:40:01 AM
CHAIR SEATON reported that HCR 22 is seeking to clarify the
legislative intent of the statutes which are currently used for
management guidelines by the Board of Fisheries. He opined that
questions will arise as a result of Dean Anderson and Michael
Grunert v. State, Board of Fisheries and Chignik Seiners
Association (Alaska Supreme Court No. S-10481). He explained
that when making a determination, the courts will first review
the statutes, and if these are unclear, they will refer to the
legislative intent. He stated that HCR 22 addresses the
fisheries history. He presented examples of the guidelines the
Board of Fisheries uses to determine allocations: time and area
closures, vessel size, gear limits, trip limits, and different
district and administrative areas. He pointed out that this
resolution is attempting to resolve future guideline questions
through interpretation of the existing statutes.
8:46:49 AM
REPRESENTATIVE JOHANSEN inquired as to the reason a nonbinding
resolution is being presented in lieu of HB 188 which has
already been passed out of the committee.
CHAIR SEATON explained that HB 188 has had numerous proposed
amendments and alterations, so he decided to hold the bill in
the House Special Committee on Fisheries. He stated that a
resolution which addresses the interpretation of current
regulations cannot have more pieces added to it. He offered his
belief that interpretation of the regulations is the basis for
the determinations by the Board of Fisheries. These
interpretations have come into question in Grunert. He
expressed his belief that identifying the legislative intent of
those statutes which are used for the determination basis, will
clarify those statutes for the courts.
8:49:15 AM
REPRESENTATIVE JOHANSEN commented that he did not remember any
discussions of HB 188.
REPRESENTATIVE WILSON, sponsor of HB 188, said that the only
change was a clarification. She expressed concern with a
resolution rather than a bill, although she allowed that a
resolution was better than nothing.
REPRESENTATIVE EDGMON asked if this concurrent resolution, which
is nonbinding and advisory, would be more effective as a joint
resolution.
REPRESENTATIVE JOHNSON opined that it is no more difficult to
amend a resolution than a bill.
CHAIR SEATON explained that both a house concurrent resolution
(HCR) and a house joint resolution (HJR) pass through both
bodies: a joint resolution is used to address advice to the
federal government, and a concurrent resolution is used to
address state policies. He opined that although a resolution
cannot change a judicial decision, it can explain the
legislative intent, which the courts may consider. He expressed
his belief that the courts have clarified statutory authority in
Grunert.
REPRESENTATIVE JOHNSON pointed out that a resolution can also be
amended, and thus ultimately reflects a legislative intent that
is counter to the sponsor's desires.
REPRESENTATIVE LEDOUX questioned the possibility of changing a
resolution to a bill on the floor of the House, the Senate, or
in a committee.
8:56:02 AM
BRIAN KANE, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, relayed
that a resolution cannot be changed into a bill, although it can
be the basis for a bill.
REPRESENTATIVE LEDOUX noted that a court usually examines
committee records and debates on the floor to determine
legislative intent. She asked whether a court would look for
the legislative intent from a resolution passed by a legislature
that had not enacted the bill.
MR. KANE replied that a court is not required to look at any
intent unless it determines this would help with the
interpretation. He offered his belief that a court could take
into account a resolution which states that it is an
interpretation of an earlier bill's history.
REPRESENTATIVE EDGMON questioned the effect of a house
concurrent resolution versus a house joint resolution as an
advisory statement.
MR. KANE cited a concurrent resolution is an advisory from one
body urging action and a joint resolution is a statement from
both bodies, though neither is binding.
REPRESENTATIVE WILSON asked Mr. Kane for his view on the
effectiveness of a resolution reflecting the current House's
opinion, as opposed to the legislative intent when the statute
was passed.
MR. KANE responded that he would need to review the court
responses to resolutions. He expressed his belief that the
Grunert decision has reflected a different interpretation of the
statute, so this legislature's opinion, which speaks more to the
statute, might be more influential.
REPRESENTATIVE LEDOUX asked if a legislature has ever passed a
resolution summarizing legislative intent, and has the court
ever considered it.
9:02:41 AM
MR. KANE said that he would have to research this.
REPRESENTATIVE EDGMON asked if time and area closures were
intentionally withheld from HCR 22.
MR. KANE responded that he had drafted the resolution as it was
requested. He suggested asking the Alaska Department of Fish &
Game (ADF&G) or the sponsor for the basis of the choice of
categories.
REPRESENTATIVE WILSON offered her belief that it will be
difficult for the committee to make a decision on HCR 22 until
it knows why the resolution is in the committee. She questioned
why HB 188 was scheduled but not discussed and suggested hearing
it to compare with HCR 22.
9:05:14 AM
CHAIR SEATON said that the resolution is in response to both the
Grunert decision and the possibility of a legal challenge to the
historical determinations for fisheries. He said he would
include time and area closures if the Department of Law (DOL)
believes it will be helpful. He allowed this was not meant to
be a definitive list for all the types of management tools for
the ADF&G or the Board of Fisheries.
REPRESENTATIVE JOHANSEN asked if HB 188 was ever discussed by
the committee.
CHAIR SEATON expressed his belief that the committee did discuss
the bill.
REPRESENTATIVE EDGMON commented that HB 188 engendered a lot of
controversy within his constituency.
9:09:52 AM
CHAIR SEATON opined that there were three hearings on HB 188,
and a sponsor substitute was later offered.
KIP [KEVIN] THOMET said that he supports HCR 22. He expressed
his concern with giving more tools to the Board of Fisheries.
ALEXUS KWACHA allowed that he supports HCR 22, but not HB 188,
as he feels there needs to be a clear direction. He said that
he favors giving tools to the Board of Fisheries, but not
loopholes of interpretation for the board to go in another
direction. He noted that he also supports HB 134.
JULIE KAVANAUGH reported that she supports HCR 22 because it
affirms the intent of the state law to provide the Board of
Fisheries the necessary tools and authority to allocate fishery
resources. She noted that fishery resources are managed for all
Alaskans and for conservation. She asked that the Board of
Fisheries only implement and extend those management regimes
consistent with active participation and individual access
rights. She said that she supports the Board of Fisheries
ability to manage these allocations. She suggested that the
committee add language to HCR 22 supporting "active
participation access" and "access only be granted to an
individual."
CLEM TILLION, Aleut Enterprise Corporation, related his
understanding that HCR 22 would allocate 50 percent of the state
water fishery to vessels under 60 feet, because he believes that
without this allocation Alaska will no longer have a local
resident fleet.
CHAIR SEATON pointed out that page 2, line 18, states that it is
not necessary that 100 percent of the allocation be for one
specific vessel size class.
9:19:03 AM
MR. TILLION confirmed that he will support HCR 22 if it will
protect the Alaska-based small boat fleet.
JAMIE ROSS, Chignik Seafood Producers Alliance, conveyed his
belief that this resolution will do nothing to solve the
problems in the state fisheries.
9:26:06 AM
GREG COOK, Attorney, Chignik Seiners Association; Chignik
Seafood Producers Alliance, testified that in 30 years of
practicing fisheries law in Alaska, he does not recall a case in
which a court has looked to subsequent legislation for
interpretation of a pre-existing statute. He opined that the
effect of this resolution on any court action will be "virtually
nil;" for there to be any influence on the court, the committee
would need to adopt a statute, not a retrospective resolution.
REPRESENTATIVE LEDOUX expressed concern that HB 188 would become
a vehicle for the addition of the Chignik associations. She
asked if Mr. Cook would commit for his clients that they would
not be added to HB 188.
MR. COOK said that there was nothing he "could say or do that
would effectively shackle any member of the legislature in
exercising their legislative duties." He said he could not
commit this for his clients.
REPRESENTATIVE LEDOUX posed a scenario in which a legislator
requested adding the Chignik associations to HB 188. She asked
if Mr. Cook would go to the legislator and ask for the Chignik
associations not to be added to the bill.
MR. COOK said that he cannot say what a client is going to ask.
9:32:06 AM
JOHN HILSINGER, Director, Division of Commercial Fisheries,
Department of Fish & Game (ADF&G), relayed that ADF&G supports
HCR 22.
REPRESENTATIVE LEDOUX asked Mr. Hilsinger whether ADF&G believes
HCR 22 will have any effect.
MR. HILSINGER responded that ADF&G has also questioned as to
whether a court will place stock in a retroactive resolution but
regardless, ADF&G does support the intent of the resolution.
REPRESENTATIVE WILSON asked if a legal representative for ADF&G
would conclude that the resolution accomplishes what is
necessary.
MR. HILSINGER replied that the ADF&G legal representatives
believe that HB 188 would be more effective, but they support
HCR 22 in lieu of the bill.
TERESA PETERSON said that HCR 22 clarifies the intent, but that
she opposes HB 188 as it leaves open the possibility for
management policies that are contrary to the limited entry
system. She offered her belief that HB 188 allows the
possibility of absentee ownership and benefits to non-
participants of the fishery. She strongly advocated that active
participation be a requirement for coastal fishing permits.
9:37:19 AM
REPRESENTATIVE JOHANSEN closed public testimony.
REPRESENTATIVE LEDOUX said that she supports HCR 22. She
offered her belief that the need for this resolution highlights
an endemic structural problem in the legislature. She observed
that all too often when a bill arrives on the House floor, an
addition is made that was not discussed in the committee.
9:39:26 AM
CHAIR SEATON expressed his belief that when things are unclear
in a statute, the interpretation of broad general powers is
meaningful. He opined that HCR 22 provides meaningful
interpretation to the legislature and to the Board of Fisheries.
He offered his belief that the courts will take notice and this
resolution "can get us to where we want to go."
9:41:26 AM
REPRESENTATIVE WILSON reported that HB 188 was scheduled three
times, but only heard once. She offered her belief that HCR 22
will be meaningless.
9:42:25 AM
REPRESENTATIVE LEDOUX moved to report HCR 22 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HCR 22 was moved out of
committee.
HB 134-PROTECTION OF SALMON SPAWNING WATER
[Representative Johansen returned the gavel to Chair Seaton.]
9:42:56 AM
CHAIR SEATON announced that the next order of business would be
HOUSE BILL NO. 134, "An Act relating to conservation and
protection of wild salmon production in drainages affecting the
Bristol Bay Fisheries Reserve; and providing for an effective
date." [The motion to adopt CSHB 134, Version 25-LS0381\M,
Kane, 2/22/07, was left pending at the 2/28/07 meeting.] [The
motion to adopt CSHB 134, Version 25-LS0381\O, Kane, 1/22/08,
was left pending at the February 18, 2008 meeting.]
CHAIR SEATON reminded the committee that public testimony is
being offered on CSHB 134, Version O.
9:44:22 AM
BILLY MAINES offered his support of HB 134. He expressed his
belief that the penalties should be stronger, that incarceration
for a violation should be included in Version O.
9:46:23 AM
RON BOWERS said that he supports subsistence and the commercial
fisheries, but that he is against HB 134 because it will violate
the rights of private property owners and deprive Alaskans and
Americans of the revenue from state and federal lands in Bristol
Bay. He asked for an inventory of private land owners,
including Native corporations, in the Bristol Bay region that
would be affected by Version O. He then requested the creation
of a funding source for reimbursement to those private
landowners for the loss of revenue.
9:47:50 AM
REPRESENTATIVE JOHNSON posed a scenario in which this is
determined to be a "takings" issue and the landowners are
allowed to go to court. Would this be adequate to recover any
loss, he asked.
MR. BOWERS responded that this would put the burden on the
landowner. He said that he preferred a large reimbursement fund
because many private individuals would not have the resources to
pursue the legal process.
REPRESENTATIVE JOHNSON offered his belief that the landowners
would have a right to a portion of the permanent fund if land is
taken inappropriately.
CHAIR SEATON asked that Mr. Bowers clarify whether he was
referring to private or corporate loss of land development
revenue.
MR. BOWERS responded that he was referring to Native
corporations and individuals, but that he did not want to draw
on the permanent fund for these payouts.
SAM FORTIER, Pedro Bay Corporation, said that Pedro Bay
Corporation is neutral on the development of Pebble Mine, but
that the corporation strongly opposes HB 134. He said that
Pedro Bay Corporation is a private landowner with investment
expectations for its lands, which include the most favorable
transportation route from Pebble Mine to Cook Inlet. He
explained that even if the Pebble Mine is never built, this road
will allow easier access and reduce the costs for goods and
services to Pedro Bay. He expressed his belief that the bill
does not address some of the inclusions to sulfide mining
operations identified in AS 27.20.060, namely the
transportation, communication, and utility routes that go along
with the mine development. With the adoption of HB 134, these
opportunities for development would no longer exist.
REPRESENTATIVE LEDOUX asked if any other entities in Pedro Bay,
specifically the local village council, have offered an opinion
on HB 134.
MR. FORTIER responded that the Pedro Bay Village Council is
opposed to the construction of the mine, but that Pedro Bay
Corporation is united with other Native corporations against HB
134.
9:54:53 AM
PATRICK FLATLEY, Bristol Bay Alliance, communicated that his
group will provide information on hard rock mining to any of the
stakeholders in the Bristol Bay watershed, and that the Bristol
Bay Alliance is urging the committee to vote in support of HB
134.
9:56:09 AM
HEATH HILYARD, Business Development Manager, Alaska Supply Chain
Integrators, conveyed that his company is opposed to all of the
versions of HB 134. He said that he will submit written
testimony at a later time.
9:57:02 AM
SHARON ANDERSON reported that she is opposed to HB 134. She
offered her belief that Version O is slanted more toward closing
the mining industry in Alaska than protecting and conserving the
anadromous fish resources. She expressed that the mining
industry is closely monitored and that mining regulations
require state of the art technology and monitoring.
9:58:51 AM
GAIL PHILLIPS, Co-Chair, Truth About Pebble, mentioned that her
written testimony will be submitted, and she reminded that the
legislature is sworn to protect Alaska from unwarranted lawsuits
and unlawful "takings" of lands and resources. She expressed
her opposition to HB 134.
9:59:58 AM
JASON BRUNE, Executive Director, Resource Development Council
for Alaska, Inc., announced that Version O will have an economic
impact on all Native corporations as defined by the revenue
sharing section of the Alaska Native Claims Settlement Act
(ANCSA), 43 U.S.C. § 1606 (ANCSA § 7) (i)(1)(A). He offered his
belief that the state and federal permitting process is already
extremely rigorous and said that he is opposed to HB 134.
10:01:52 AM
NORMAN VAN VACTOR, Sno Pac Products, observed that HB 134 will
protect renewable resources and that he will forward his written
comments.
10:03:50 AM
WASSILLIE ILUTSIK stated that HB 134 will block economic
development for Native corporations.
[HB 134 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 10:06
a.m.
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