Legislature(1999 - 2000)
04/19/1999 05:07 PM FSH
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON FISHERIES April 19, 1999 5:07 p.m. MEMBERS PRESENT Representative Bill Hudson, Chairman Representative Fred Dyson Representative Jim Whitaker Representative John Harris Representative Carl Morgan Representative Mary Kapsner Representative Harold Smalley MEMBERS ABSENT All members present COMMITTEE CALENDAR * HOUSE BILL NO. 160 "An Act relating to the maximum length of salmon seine vessels; and providing for an effective date." - HEARD AND HELD HOUSE CONCURRENT RESOLUTION NO. 2 Relating to the sovereignty of the State of Alaska and the sovereign right of the State of Alaska to manage the natural resources of Alaska. - HEARD AND HELD (* First public hearing) PREVIOUS ACTION BILL: HB 160 SHORT TITLE: LENGTH OF SALMON SEINE VESSELS SPONSOR(S): REPRESENTATIVES(S) WILLIAMS Jrn-Date Jrn-Page Action 4/19/00 (H) FSH AT 5:00 PM CAPITOL 124 3/25/99 569 (H) READ THE FIRST TIME - REFERRAL(S) 3/25/99 569 (H) FSH, RES, FIN 4/12/99 (H) FSH AT 5:00 PM CAPITOL 124 4/12/99 (H) <BILL POSTPONED TO 4/19> 4/19/99 (H) FSH AT 5:00 PM CAPITOL 124 BILL: HCR 2 SHORT TITLE: SOVEREIGNTY OF THE STATE; RESOURCES SPONSOR(S): REPRESENTATIVES(S) COGHILL, Barnes, Green Jrn-Date Jrn-Page Action 4/19/00 (H) FSH AT 5:00 PM CAPITOL 124 2/24/99 300 (H) READ THE FIRST TIME - REFERRAL(S) 2/24/99 300 (H) WTR, FSH, RESOURCES 3/16/99 (H) WTR AT 5:00 PM CAPITOL 124 3/16/99 (H) MOVED OUT OF COMMITTEE 3/16/99 (H) MINUTE(WTR) 3/17/99 490 (H) WTR RPT 4DP 2DNP 3/17/99 490 (H) DP: MASEK, GREEN, COWDERY, BARNES; 3/17/99 490 (H) DNP: BERKOWITZ, JOULE 3/17/99 490 (H) ZERO FISCAL NOTE (H.WTR) 3/17/99 490 (H) REFERRED TO FSH 3/17/99 497 (H) COSPONSOR(S): GREEN 4/12/99 (H) FSH AT 5:00 PM CAPITOL 124 4/12/99 (H) <BILL POSTPONED TO 4/19> 4/19/99 (H) FSH AT 5:00 PM CAPITOL 124 WITNESS REGISTER REPRESENTATIVE BILL WILLIAMS, Sponsor Alaska State Legislature Capitol Building, Room 502 Juneau, Alaska 99801 Telephone: (907) 465-3424 POSITION STATEMENT: Introduced HB 160. JOHN JOHANSON, Klawock fisherman (address not available) Klawock, Alaska 99925 Telephone: (907) 755-2463 POSITION STATEMENT: Testified in favor of HB 160. RUDOLPH JOHANSON, Klawock fisherman (address not available) Klawock, Alaska 99925 Telephone: (907) 755-2463 POSITION STATEMENT: Testified in favor of HB 160. DUNCAN FIELDS, Kodiak fisherman P.O. Box 25 Kodiak, Alaska 99615 Telephone: (907) 486-8393 POSITION STATEMENT: Testified in opposition to HB 160. DONALD WESTLUND P.O. Box 871 Ward Cove, Alaska 99928 Telephone: (907) 225-9319 POSITION STATEMENT: Testified in opposition to HB 160 and testified on HCR 2. DAVID DANIELS P.O. Box 1555 Valdez, Alaska 99686 Telephone: (907) 835-4469 POSITION STATEMENT: Testified in opposition to HB 160. GERON BRUCE, Legislative Liaison Alaska Department of Fish and Game (ADF&G) P.O. Box 25526 Juneau, Alaska 99802 Telephone: (907) 465-6143 POSITION STATEMENT: Answered questions with regards to HB 160. DENNY WEATHERS Third Judicial District Cordova, Alaska 99574 Telephone: (907) 424-3745 POSITION STATEMENT: Testified in opposition to HB 160 and in favor of HCR 2. WEBSTER DEMMERT, Chairman Klawock Village Council (address not available) (telephone unknown) POSITION STATEMENT: Testified on HB 160. REPRESENTATIVE JOHN COGHILL, JR., Sponsor Alaska State Legislature Capitol Building, Room 416 Juneau, Alaska 99801 Telephone: (907) 465-3719 POSITION STATEMENT: Introduced HCR 2. CHARLES DAVIS, JR. P.O. Box 906 Homer, Alaska 99603 Telephone: (907) 235-6908 POSITION STATEMENT: Testified on HCR 2. DALE BONDURANT Alaska Constitutional Legal Defense Conservation Fund (ACLDCF) 31964 Moonshine Drive Soldotna, Alaska 99669 Telephone: (907) 262-0818 POSITION STATEMENT: Testified in support of HCR 2. EDWARD FURMAN, Sergeant Veterans of Foreign Wars (VFW) P.O. Box 2367 Cordova, Alaska 99574 Telephone: (not provided) POSITION STATEMENT: Testified in support of HCR 2. ACTION NARRATIVE TAPE 99-10, SIDE A Number 0001 CHAIRMAN BILL HUDSON called the House Special Committee on Fisheries meeting to order at 5:07 p.m. Members present at the call to order were Representatives Hudson, Dyson, Whitaker, Harris, Kapsner and Smalley. Representative Morgan arrived at 5:10 p.m. HB 160 - LENGTH OF SALMON SEINE VESSELS Number 0048 CHAIRMAN HUDSON announced that the first order of business was House Bill No. 160, "An Act relating to the maximum length of salmon seine vessels; and providing for an effective date." Number 0174 REPRESENTATIVE BILL WILLIAMS, sponsor of HB 160, Alaska State Legislature, read the following statement: House Bill 160 was introduced at the urging of seine fishermen here in Southeast. Similar legislation passed the House and Senate in 1994, but was vetoed by Governor Hickel. HB 160 would remove in statute the 58-foot limit on seiners, and give the Board of Fish the flexibility to modify the vessel length limit through the Board process. I stress that HB 160 alone would not change the current length limit on seine vessels, but would only give that discretion to the Board of Fish. Further, HB 160 would give the Board the option to set the length limit on seiners on a fishery by fishery basis. Mr. Chairman, I have introduced this legislation to bring the discussion of seine vessel length to the table. Some I have talked to believe longer vessels would provide more safety, allow for on-board value added processing, and encourage better quality fish entering the market. Also, a few months ago at the salmon summit, ideas were discussed about possible permit buy-back scenarios. Allowing the Board of Fish to modify seine vessel length could be a tool used in a permit buy-back plan. Thank you Mr. Chairman for scheduling HB 160 for a hearing today. I look forward to the testimony and will be available for questions. Number 0382 REPRESENTATIVE DYSON wondered what the original intent was of the 58-foot limit and if the intent was accomplished. REPRESENTATIVE WILLIAMS replied that he is not sure. REPRESENTATIVE HUDSON informed the committee that a written statement from Alan Austerman is included in the packet, which states that he is opposed to HB 160. Number 0497 REPRESENTATIVE HARRIS asked if there was someone who could answer Representative Dyson's question. CHAIRMAN HUDSON replied that a representative from the Alaska Department of Fish and Game (ADF&G) is present and available to answer questions. Number 0603 JOHN JOHANSON, Klawock fisherman, testified via teleconference from Klawock. He stated that he is in favor of HB 160, because a larger vessel, for the reasons Representative Williams sighted, is what they want and the 58-foot limit has outlived its usefulness. The 58-foot limit hinders fisherman more than it allows them to move forward. He pointed out that the fisherman are trying to bring a better quality product to market, which means better quality tenders and not as many. It will be a long time in phasing the 58-foot boats out, but it is the way to go. REPRESENTATIVE DYSON indicated that one argument in the past has been that it would make the existing boats obsolete. He wondered what Mr. Johanson's feelings were on that issue and if the fisherman that have seiners now will try to lengthen them. RUDOLPH JOHANSON, Klawock fisherman since 1949, testified via teleconference from Klawock. He said that he was unable to inform the committee of when the 58-foot limit was implemented, because it was long before his time. His intention is not to diminish any value in 58-foot boats that do exist today, as they own quite a few in their family, but to see the future extend upward in terms of added value to the market and not just a can market. The value has to do with the price of fish and has nothing to do with the limits on boat length. There are seine vessels from 45-foot to 58-foot, so it is a matter of choice, and the fisherman just want the choice to get a larger boat rather than be hindered by the 58-foot limit. He said that he cannot see one reason to stay with the 58-foot limit, because it has outlived its usefulness. Number 0906 DOUG HOLBECK testified via teleconference from Girdwood on his way to Kenai. He stated that he is involved with the Klawock Oceanside Seafood Plant, which hasn't been in operation for five years, but will be opening shortly. He has been in the fish business his whole life, and as he can recall the 58-foot limit was implemented to keep the herring seiners from the Puget Sound fleet out of Alaska. The reason he feels the 58-foot limit is something of the past is that the fishermen either fish two days on and two days off, with the way the fisheries are going, and if the boats were larger the fish would not have to be unloaded onto a tender every day. Also, many of the fishermen out of Klawock are talking about getting involved in the halibut fishery on a 10 or 12 month basis and it's a lot nicer to fish a bigger boat. The main reason is the quality of the fish, meaning that the fish are higher quality if they are only unloaded once as opposed to two or three times. DUNCAN FIELDS, life-long Kodiak salmon fisherman, testified via teleconference from Kodiak. He stated that he is representing the Old Harbor Fishermen Association and several of the rural communities on Kodiak with regards to fish issues. The people in Kodiak are adamantly opposed to lifting the 58-foot limit. He understands that the legislature is not actually implementing the removal of the 58-foot limit, but actually just passing the baton to the Board of Fisheries and giving them the opportunity to do so. He explained that the key issue is balance; both balance within gear types in a single region and balance between regions. Frequently, one region is before the Board of Fisheries and an adjacent region is not before the board. For example, if there was a Kodiak Board of Fisheries meeting and everyone from Kodiak was interested in lifting the 58-foot limit and persuaded the board to do so, people in Kenai (the other region) would think that Kodiak had an advantage. That is also true for inter-regions in Kodiak as well as Southeast; there are multiple gear types. If the seine vessels become more efficient, then all of the other gear types, driftnet and setnet, are going to want increased fishing opportunities. There is also the intercept issues between the Yukon and Kuskokwim region, Kodiak and Kenai region and Southeast and Canada region. All those issues will come to the forefront as the Board of Fish would discuss the lifting of the 58-foot limit. MR. FIELDS further stated that the other aspect in terms of lifting the 58-foot limit has to do with the question of why. There are things like quality and opportunity to process. Fisherman with 58-foot boats certainly have enough capacity for multiple holds as well as the other things that were discussed for quality and efficiency, so he doesn't think that the 58-foot limit is necessarily a limitation. The opportunity to process fish on board is a great option, but a solution might be to licence specific vessels for the purpose of processing while fishing, rather than open the gate to all fisherman. There is also the question of, if not a 58-foot limit, then what? He added that the entire industry has been structured around the 58-foot limit for years and he encouraged the committee to maintain the status quo in that regard. Number 1388 CHAIRMAN HUDSON asked Mr. Fields if he is aware that the Board of Fisheries will have the option to adopt regulations for each salmon seine fisheries. MR. FIELDS replied yes. He stated that he is a strong supporter of the Board of Fisheries process and he appreciates and works with them most of the winter. When talking about balance and whether one area should have the 58-foot limit lifted and one should not, frequently what happens at the Board of Fisheries is only one region in the state is primarily represented. For example, if a Board of Fisheries meeting is occurring in Kodiak and Kodiak is all gungho to lift the 58-foot limit, frequently the people that the decision might impact are not present, which is an issue if the ball is passed to the Board of Fisheries. CHAIRMAN HUDSON referred to an e-mail from Ray Wadsworth, which read, "Bill, Rumor has it that there is a bill to do away with the 58-foot limit. I hope so. I have a 56-foot seiner. I have developed a machine, thanks to the Alaska Science Technology Foundation (ASTF), which fillets salmon and also removes the pinbone. This summer we will be testing it in Southeast on a tender. The idea is to produce frozen at sea salmon fillets of consistent high quality. If this 'showcase' for our machine works, the next step is to build the machine into a seiner, but the boat has to be longer than 58-foot. Why 58-foot, what a stupid law. The world is changing and if Alaska fisheries can't change too, we will continue to go broke." Number 1587 REPRESENTATIVE WILLIAMS explained that if the Board of Fisheries changed the boat length in the Southeast region, it would not affect the Kodiak region. MR. FIELDS said that it is highly improbable that a regulation change in the Southeast region would impact Kodiak; however, it is highly probable that the regulation change would impact the issue of Southeast versus Canada. Adjacent regions are where the issue would occur rather than regions that are as remote as Kodiak and Southeast. REPRESENTATIVE WILLIAMS stated that he disagrees with what Mr. Fields is saying. The Board of Fishery would go to each area and discuss the issue of whether they wanted to increase or keep the status quo. MR. FIELDS presented an illustration of the concern. He stated that for the past ten years Kodiak and Cook Inlet have had opposing views about the Kodiak salmon fishery and whether or not the fishery does or could intercept a portion of the fish headed for Cook Inlet. If the Board of Fisheries were to consider lifting the 58-foot limit in Kodiak, it would allow the Kodiak seiners to be more efficient and to fish in weather they otherwise could not fish. He said that no one really knows whether or not the Kodiak fisherman are catching Cook Inlet fish, but certainly allowing the Board of Fisheries to make the regulation change would shift the current balance between those two regions. DONALD WESTLUND testified via teleconference from Ketchikan. He agreed with Mr. Fields even though he could see some of the benefits of lifting the 58-foot limit for multiple fisheries. His concerns are that there is the possibility of over-fishing the stock, because more efficient boats will be able to be out on the water longer. Even though it is going to be a better quality product, the fisherman are going to be enticed to over-fish. Number 1925 MR. JOHANSON stated that there are 58-foot boats now that can pack 180,000 to 190,000 pounds. He owns a 58-foot boat and he would like to make it larger to compete. In 1996 he was fishing for a nickel a pound and they the fishermen have to get away from that, so that they can get paid for their investments and top quality fish will only be available if they are once handled fish, not fish that go from a tender to a plant and so on. Number 2004 REPRESENTATIVE MORGAN asked Mr. Westlund what fishery he is involved in. MR. WESTLUND responded that he has some Individual Fishing Quotas (IFQs), a shrimp permit and a hand-troll permit. He also is a sport fishering guide. CHAIRMAN HUDSON wondered if Mr. Westlund's boat fit within the current standard; under 58-feet. MR. WESTLUND replied yes, but it is not anything like a commercial boat. With regards to lengthening existing boats, it might be possible to lengthen a fiberglass vessel, steel vessel or aluminum vessel, but he doesn't know of any ship yards that would extend a wooden vessel. The older wood seiners will not be able to remain in the fishery, if the 58-foot limit is lifted, and continue to be competitive. He reiterated that he is opposed to HB 160. CHAIRMAN HUDSON stated that he is assuming, since Mr. Westlund does not have a seine permit, that he is not speaking in reference to himself, but rather an opinion based on conservation or other aspects of the bill. MR. WESTLUND replied, "That's correct. It will directly affect me if those fisherman ... can catch more fish. If they are more successful in being out there longer in rougher weather. I've been on a seine vessel myself. I no longer do. I've chosen other things. I've also been in the processing end. ... The value added at sea might be a good idea, but who is going to be the one inspecting ... the fish out in the ocean as they're doing this." Number 2167 DAVID DANIELS testified via teleconference from Valdez. He stated that he is opposed to HB 160. He said, "I think maybe we could hold off at the Board of Fish [Fisheries] meetings having the 58-foot limit dropped here, but there are other circumstances that affects us. I think what would happen first is Southeast ... Area M, False Pass, [and] out that way, would be granted the right to go out with bigger boats. Your talking about doing away with the tender fleet, which Prince William Sound we rely on heavily. Most the people I know do not have the over-loaded capital construction funds. The price; most of our buyers have either sister companies or are the same company that buy in Southeast and these other areas. They start getting fish. You get bigger boats that could start offering to fish for less money [and] deliver to the dock refrigerated. We've seen that up here affect us. We always have the fact they can get the fish in Southeast any time we're trying to negotiate price. Why should we give you this; we can get them cheaper there. I see that happening. I think the 58-foot limit and limited entry are two of the finest things this state has ever done. I think it works. All I see in this bill is a lot of people being put out of work. ... Like I say, I really oppose this." CHAIRMAN HUDSON asked Mr. Daniels if he is a seine fisherman. MR. DANIELS replied yes. He said that he has a Copper River gillnet permit and a Prince William Sound salmon seine permit. Number 2348 GERON BRUCE, Legislative Liaison, Alaska Department of Fish and Game (ADF&G), stated that the ADF&G is neutral on the issue. He referred to a question that was heard earlier with regards to where the 58-foot limit came from in the beginning. The 58-foot limit originated in the 1940s or 1950s as a means of protecting Alaskan small boat fishermen from competition from larger boats from other areas, especially Puget Sound, which was involved in the herring fishery. Puget Sound also had a salmon fishery and they developed their salmon fishery along a different line than Alaska. He said that he could only guess as to why 58-feet was the magic number, but he believes it has something to do with the largest size boats that were involved in the fishery during that time. He reiterated that the main reason was to protect Alaskan residents with smaller boats who had less capital available to them from competition from non-Alaskans who could get bigger vessels. Many of the arguments heard today on both sides are good and cannot be ignored. For example, the quality of the fish could be improved with the larger vessels, because there is no question that the more a fish is handled the more the quality is reduced. On the other hand, the efficiencies and the distributional effects that might affect different Alaskans is a real issue as well. REPRESENTATIVE WILLIAMS asked what Mr. Bruce meant by distributional effects. Number 2479 MR. BRUCE replied that there are a couple different ways distributional effects could affect people. One would be competition within a fleet. He said that he was not sure if there would be that much difference in catching efficiency between a larger boat and a standard 58-foot boat, but they are going to be able to pack more fish, deliver those fish to a processor, and get the extra money from those incentives. Naturally, someone who doesn't have those things is going to want them, because they will feel at a disadvantage. The end result is that the fishery is going to become more capital intensives. Another disadvantage is the perception that there is going to be an increase in efficiency and it is going to affect intercept fisheries, such as Kodiak and Cook Inlet. The latter is more difficult to understand in terms of what kinds of differences will come about, compared to the economic differences that could result from the larger capacity and economic advantage that some fishermen might have. He reiterated that vessel size is only one factor that goes into the fishing operation; there are fishing quotas based on a percentage of the return and there are limits. Number 2616 REPRESENTATIVE DYSON wondered if there were other jurisdictions that they could learn from that have implemented limits and then abandoned them. MR. BRUCE responded that he is unable to answer that question and would have to research it. REPRESENTATIVE DYSON wondered, with regards to management of wild stocks, if HB 160 makes a difference. MR. BRUCE replied that the ADF&G management is based on achieving escapement and then harvesting what is left in accordance with the allocations that the Board of Fisheries sets up. The vessel size itself is not a factor. Number 2716 DENNY WEATHERS testified via teleconference from Cordova. She first testified on behalf of her husband, Eric Weathers. She stated that he is a salmon seine fisherman and he is opposed to HB 160 for removing the 58-foot limit. Most of the processors or canneries are foreign owned already, and if they are allowed to have their own permits and catch their own fish, then where do you suppose the local fishermen will be able to sell their fish? At present, the local fishermen are on limits, because the canneries won't take their fish; therefore, the fishermen will be paying for the hatcheries and the Alaska Seafood Marketing Institute (ASMI) for only the processors with no place to sell their fish. MS. WEATHERS further stated, shifting to her testimony, that her husband is also a crab fisherman and they have tried to get crab limits on both pot sizes, but because they can't get limits, people come in from outside with giant crab boats and clean up the season in one or two days and leave. Not only do they leave, but they take their crab and sell them in Seattle; therefore, the market and the fishery are being lost. If it is allowed to happen with the seine fishery as well, then there won't be anything left. They tried to talk to the Board of Fisheries, and the Board of Fisheries said that it would be discriminatory to the outside fishermen if they granted limits. Her husband has to go to Icy Bay, outside of Yakutat, to fish for crab now. He only gets a short term limit, because all the boats from Oregon, California and Washington hit Cordova and leave them with nothing and the local fishermen are shut down. She indicated that it is very difficult to fight the Board of Fisheries and probably not a good idea to them too much power. She urged the committee to try to support the local fishermen instead of the Oregon, California and Washington fishermen. WEBSTER DEMMERT, Chairman, Klawock Village Council, testified via teleconference from Klawock. He informed the committee that currently there is a fisheries plant in Klawock that they are trying to start back up. He stated that he is a seine fisherman and he is supportive of a larger boat size, because it means better quality fish, less handling of the fish and more safety. He added that the boat size will probably only increase to 65 or 70-feet. It is not going to be a huge increase, because of the gear. TAPE 99-10, SIDE B Number 2950 MR. DEMMERT continued, he said that the halibut season will be longer, the fishermen will be able to start fishing earlier and the fishermen will get good prices for their fish. He said, with regards to the boats coming up from Washington, that a lot of Klawock's village permits are already down there, because they were sold out over the years. He reiterated that they are not asking for huge boats; they just want a better quality fish and more money for the fish when they are brought to port. REPRESENTATIVE HARRIS stated that even though, as Mr. Demmert said, they are not asking for a huge boat, the Board of Fisheries could potentially allow for very large boats, so the legislature has to be careful in giving up regulatory power. Number 2865 REPRESENTATIVE WILLIAMS pointed out that a very large boat would not be able to maneuver the seine. A lot of the boats coming up from Washington, Oregon and California that are 70-foot long and fishing for halibut get most of the IFQs, because they are able to fish out there. CHAIRMAN HUDSON stated that the combination of operational capabilities and the economics of the fisheries are all factors involved. MR. DANIELS interjected that many people have testified on how the quality of fish is compromised when the fish have to be unloaded on to a tender. He said that he doesn't think that argument holds water. Number 2687 REPRESENTATIVE SMALLEY stated that he has always felt that the ADF&G should develop policies with regards to fisheries and game. He said that he sees the Board of Fisheries and the Board of Game as implementers of that policy; not developers of policy. Since the ADF&G is neutral on this issue, he doesn't see any reason to give any more authority to the Board of Fisheries. He is finding it difficult to support HB 160, because he is concerned that an inequity is being created between the older wooden boats trying to compete with the larger boats. He is also concerned with the distributional impacts within districts and in competing districts. For example, Cook Inlet has seining, setnetting and gillnetting, and if the Board of Fisheries were to allow larger size seine boats that potentially could fish longer and catch more fish it will impact the resources available for those setnetters and gillnetters. He referred to Alan Austerman's letter where it reads, "I feel that passage of this bill would open the door to other changes that might eventually destroy the limited entry system as it now stands." He said that the fact that a larger boat can serve as a catcher and processor may eliminate shore-based plants and that is a concern. Number 2557 REPRESENTATIVE HARRIS referred to Representative Hudson's comment on economics. He said that there is already a limited entry in the seine fishery and it seems that with the passage of HB 160 a larger limited entry will be created when the smaller operators are forced out of the industry, because of the economics. REPRESENTATIVE WILLIAMS stated that one of the reasons Governor Hickel vetoed the bill originally was because of the reason Representative Harris just touched on. The prices are low in the fishing industry right now. Alaska has been fighting a battle for the last two or three years. He asked, "What are we doing to help these fishermen?" He believes nothing is being done and the fishermen need the opportunity to see how they can better their return on the investments they have made already. If getting the best return for their dollar means having a bigger boat then so be it. REPRESENTATIVE HARRIS explained that he wants to do what is right for the fishermen and feels that he is not prepared to vote one way or the other on HB 160. Number 2265 CHAIRMAN HUDSON announced that he is going to hold HB 160 until the next meeting. HCR 2 - SOVEREIGNTY OF THE STATE; RESOURCES CHAIRMAN HUDSON announced that the next order of business is House Concurrent Resolution No. 2, relating to the sovereignty of the State of Alaska and the sovereign right of the State of Alaska to manage the natural resources of Alaska. Number 2148 REPRESENTATIVE JOHN COGHILL, Sponsor, Alaska State Legislature, he stated that HCR 2 is a form of an appeal that is necessary in view of the federal government taking steps to take over management of the fish and game in Alaska. HCR 2 is simply asking the Governor and encouraging the legislature to band together to make the appeal and lay it at the feet of the United States Supreme Court. He indicated that there is definitely a problem between the jurisdictions of the United States Department of the Interior and the State of Alaska. When the federal government is demanding that Alaska either change their constitution or be given a mandate to accept management by them there is a genuine dispute and it calls for action. He pointed out that HCR 2 is really just calling for action and putting the Governor in a position where the legislature is requesting that he take action. Furthermore, it brings the legislators to the point where they are defending the Constitution of the State of Alaska. There is a lot of dispute in Alaska as to who should get subsistence, but HCR 2 does not line out that issue, it just states that the final place of appeal needs to be at the U.S. Supreme Court. He urged the committee to pass HCR 2. Number 1999 REPRESENTATIVE KAPSNER referred to lines 10, 12 and 14 of HCR 2, each line starting with "WHEREAS", where it states, "all persons are equal and entitled to the equal rights, opportunities, and protection under the law." She said that she agrees with all those things, but it seems that under those standards a number of practices are unconstitutional, such as renting people sport fishing and sport hunting guides and limited entries. She asked Representative Coghill if he was going to propose a resolution to uphold those standards as well. REPRESENTATIVE COGHILL replied no. He stated that limited entry is actually lined out in the Constitution of the State of Alaska and sport fishing and other uses are actually brought out in the Constitution of the State of Alaska as uses that can be regulated, because of biological factors. He explained, "Our dispute with the federal government is that if you're going to go on residency only or if you're going to actually challenge the sovereign ability of Alaska to govern under this constitution then there's a real dispute and I think it needs to be settled. At this point in Alaska we are giving the freedom of people throughout Alaska the subsistence use; there able to do it based on beneficial uses. Obviously, there are biological factors involved. So, at this point we don't want to restrict based on geography, basically, but I think it goes even further then that, representative, and that is, does the federal government have the right to say, 'you either amend your constitution or we're going to take over management of territory that you have been given the right to manage based on a [Alaska] Statehood Act.' I think that is a fundamental problem that needs to be answered and at this point the only place to answer it is at the [United States] Supreme Court, and so that's what this appeal is." Number 1860 REPRESENTATIVE KAPSNER said that the Governor came out with a press release saying that he would like to see the state amend its constitution so it is in compliance with the Alaska National Interest Lands Conservation Act (ANILCA). The Alaska Congressional Delegation; Senator Stevens, Senator Murkowski and Congressman Young, have said that they are not encouraging the legislature to ask for an amendment to ANILCA. She wondered how receptive Representative Coghill thought the Alaska Congressional Delegation, and especially the Governor, would be in asking the U.S. Department of the Interior, being that they are all in favor of seeing a constitutional amendment. She asked Representative Coghill if he thought the congressional delegation and the Governor would change their mind once they see HCR 2, and decide to have the U.S. Supreme Court take up the dispute. REPRESENTATIVE COGHILL replied that he did not know the answer. He said that it was his hope that the congressional delegation and the Governor would make that decision, otherwise he wouldn't go through the exercise. He indicated that if they don't make the decision to take it to the U.S. Supreme Court, then it is important for the legislature to defend the equal rights of the citizens of Alaska and not stand by idly, while the federal government muscles Alaska into amending its constitution. If the constitution is amended on one issue only, there are several places in the constitution that it will affect; in essence, rewrite the constitution. Number 1688 CHAIRMAN HUDSON referred to line 7, page 1, of HCR 2, where it reads, "the Alaska statehood compact guarantees that Alaska has the exclusive authority to manage its fish and wildlife resources and that all submerged lands and fish are the exclusive property of the State of Alaska." In the Submerged Land Act the United States deeded title all the submerged lands that were not expressly reserved by the federal government. The state of Alaska does not own all submerged lands, because it was not deeded title to all submerged lands at the time of statehood. Furthermore, fish are not truly property of the state, rather they are held in trust by the state for the benefit of the common good. He wondered if Representative Coghill would be willing to make certain that the language in HCR 2 is truly accurate, because there are a number of areas that he believes need to be corrected. Number 1568 REPRESENTATIVE COGHILL wondered if the first correction was at the second "WHEREAS"; line 7, page 1, of HCR 2. CHAIRMAN HUDSON indicated that he did mean the second "WHEREAS", where HCR 2 states, "the Alaska statehood compact guarantees that Alaska has the exclusive authority to manage its fish and wildlife resources and that all submerged lands and fish are the exclusive property of the State of Alaska." The question is whether or not that is completely accurate. REPRESENTATIVE COGHILL replied that there are two different acts involved; the Alaska Statehood Act and the Submerged Land Act. CHAIRMAN HUDSON recommended that somebody from the Department of Law sit in while they are discussing HCR 2. Number 1469 REPRESENTATIVE COGHILL responded that the Alaska Statehood Compact said that Alaska was to manage vacant, unappropriated and unreserved lands belonging to the federal government and receive 90 percent of the potential revenue for those lands. In addition, the Submerged Land Act shows that the submerged lands were actually entitled to the state. He noted that he would be glad to make those available to the committee. CHAIRMAN HUDSON stated that his intention, after the original presentation of HCR 2, was to listen to some testimony and hold HCR 2 over until the next meeting. MS. WEATHERS referred to AS 16.05.940, and stated, "Notes to decision. Rural residency requirement; unconstitutional. The requirement contained in the 1986 subsistence statute, chapter 52 SLA 1986, that one must reside in a rural area in order to participate in subsistence hunting and fishing violates [the] Alaska [State] Constitution. The federal government already made Alaska change the constitution against rural; therefore, now they're trying to change it and go back." She noted that she agrees with Representative Coghill's statement. She urged the committee members to get a copy of the Alaska Statehood Act and read it, instead of hesitate. Representative Coghill has all the facts and it's about time the rest of the legislature uphold the constitution and tell the federal government to get the hell out. Number 1213 CHARLES DAVIS, JR., 22-year Homer resident, testified via teleconference from Homer. He stated that he supports Representative Coghill's efforts in asking the U.S. Supreme Court to adjudicate this question. He addressed the committee and said that they took an oath of office to uphold and defend the Constitution of the State of Alaska. He said that he speaks for at least 200 Alaskans that live throughout the state. He expressed concern with the lack of reference, in HCR 2, to the citizen's sovereignty. He pointed out that the state sovereignty and the federal sovereignty are derived from the citizen's sovereignty; therefore, without the sovereignty of the citizen there is no sovereignty of the state. The source of state government is in Article 1, Section 2, which reads, "All political power is inherent in the people. All government originates with the people, is founded upon their will only, and is instituted solely for the good of the people as a whole." MR. DAVIS further stated, "One of the things about this that I'm a little confused, in this bill, is exactly what is meant when you refer to the 'United States', because the 'United States' has at least three different legal terminology in the courts, and if we don't ask the right question with all the right terminology we get an answer back from the Supreme Court that doesn't mean anything. I would like to briefly just quote from a ruling, Hoogan and Allison Company v. Evak(ph), 'United States, this term has several meanings, it may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in a family of nations. It may be designated territory by which sovereignty of the United States extends or it may the collective name of the states, which are united by and under the constitution.' He urged the committee to check and make sure that Representative Coghill correctly quotes the constitution in HCR 2. He asked Representative Coghill to check and make sure that the question being asked the U.S. Supreme Court is a question that they want an answer to. That question being, does Alaska have sovereign powers guaranteed by the constitution or has the constitution been superseded by the War Powers Resolution? Number 0893 DALE BONDURANT, 51-year Alaska resident, Alaska Constitutional Legal Defense Conservation Fund (ACLDCF), testified via teleconference from Soldotna. He read his testimony, as follows: I have been actively and consistently involved in the subsistence issue from the very beginning. Our organization, the Alaska Constitutional Legal Defense Conservation Fund, has entered as an intervenor in support of the Alaska [State] Legislature's case filed in the federal court, District of Columbia. We have also filed a Brief of Amicus Curiae in support of the legislature's appeal on the merits of Alaska state sovereignty and all Alaskans equal protection rights as users of our common property fish, wildlife and water public trust resources. We have distributed approximately 300 copies of our brief to inform Alaskans of the constitutional right and responsibility of all people as equal users of the fish, wildlife and waters. We give full support to HCR 2, believing that is it properly grounded in both the Alaska and U.S. Constitutional doctrines of equal protection for all the people under the law. It rightly promotes Alaska state sovereignty, which has been abrogated by Title VIII of ANILCA. We believe it is important for Alaskans to know that the Alaska Supreme Court has repeatedly supported the equal protection clauses of the Alaska [State] Constitution related to the users of the state fish, wildlife and water resources, [which include]: Article VIII, Section 3, Common Use; [Article VIII], Section 15, No Exclusive Right or Fishery; [Article VIII], Section 17, Uniform Application. The court also supported the state sovereignty as provided by the U.S. Constitution's Privilege and Immunities, Due Process, Police Powers, Equal Footing, Equal Protection Doctrines and the Submerged Land Act. A short list of such Alaska Supreme Court findings include: Owsicheck v. Alaska (1988), the court made over 20 references to public trust and common use stating, "imposes upon the state a trust duty to manage the fish, wildlife and water resources of the state for the benefit of all the people." McDowell v. Alaska (1989), the court declared, "We note that several other jurisdictions have struck down inter-state residential preferences in fish and game statutes. These authorities support our views that the equal access clauses of Article VIII, [Sections] 3, 15 and 17, which are a special type of equal protection guaranty, bar the residential discrimination imposed in this case. When the sovereignty undertakes to regulate or restrain the individual in its right to enjoy the right to take and use the common property of all, it must do so upon the same terms to all alike." Totemoff v. Alaska (1993), the court gave six explicit reasons, over four pages, why the state, and not the federal government, has the authority to regulate hunting and fishing in Alaska's navigable waters. Further they cited over 40 references to other court cases, regulations and acts. Importantly, they also stated, "The Alaska Supreme Court is not bound by decisions of federal court other than the United States Supreme Court on the questions of federal law." I asked the Governor if he really wanted state management authority, why he did not declare this state authority under this decision and inform the federal government that Alaska will exert its police powers to manage our hunting and fishing until the U.S. Supreme Court orders otherwise. The Governor replied that a number of attorneys disagreed with the Totemoff decision. When I pointed out that this was a unanimous decision by Alaska's highest legal authority and not an opinion of attorneys, he turned and walked away. Payton v. Alaska (1997), the court declared, "Despite repeated legal challenges to and multiple revisions of the subsistence law, 'subsistence uses' have long been defined in terms of customary and traditional uses. Accordingly, we consistently have interpreted 'customary and traditional' to refer to uses rather than users." As such, this is the most important distinction in the understanding of preferences and equality. The common property fish, wildlife and water resources of public lands, whether state or federal, maybe assigned preferences among beneficial uses, but once available to public consumption, i.e., hunting and fishing, it must be offered on an equal basis to all people. Any changes in Alaska's constitution, equal access provisions to comply with ANILCA, will be a direct violation of all Alaskans fundamental equal protection under the U.S. and Alaska [State] Constitution. In Shapiro v. Thompson and Townsend v. Swank the U.S. Supreme Court stated, "Congress is without power to enlist state cooperation in a joint federal-state program by legislation, which authorizes the state to violate the equal protection clause of The Fourteenth Amendment. In Dandridge v. Williams the U.S. Supreme Court stated, "The equal protection clause of The Fourteenth Amendment gives the federal court no power to impose upon the state their views of what constitutes wise economic or social policy. We support HCR 2 and will challenge in court any attempt to abrogate the common use and equal access clause of Alaska's constitution. Number 0268 EDWARD FURMAN, Sergeant, Veterans of Foreign Wars (VFW), testified via teleconference from Cordova. He stated, "I support HCR 2, because of Article 1, Section 8 ... of the United States of America, does not allow the federal government land within Alaska without the states consent." He said that he feels that Alaska is losing its rights and sovereignty and that Alaska has to stand up for its rights. He indicated that recently Native Alaskans have sold land to the federal government and he feels that it is wrong. He informed the committee that he has submitted a copy to the committee of an article that he wrote for "The Cordova Times" dated Thursday, April 15, 1999. Number 0108 CHAIRMAN HUDSON stated that he would like to get somebody from the Department of Law, State of Alaska, to sit in on the next meeting. He stated, "I'm one who does believe that the Governor should not have left the court case. I think we should have continued to assert on that before -- I remember when the legislature decided they were going to go ahead the suit to try to bring the case some satisfaction. I was concerned then that we may not have the standing, and I suspect that's going to ultimately be the case. So we do need to get the Governor to the table, and before it leaves here I'd like to give him that opportunity to come in and sit down at the table with us and make sure that we have the language right and see if we can't convince him ... " TAPE 99-11, SIDE A CHAIRMAN HUDSON continued, "... have that opportunity." Number 0038 MR. WESTLUND referred to 5 USC Sec. 605. He stated: It has to do with the Executive Order No. 12612; Federal Consideration and Policy Formulation and Implementation, October 26, 1987, ... "By the authority vested in me as the President, by the constitution and the laws of the United States, in order to restore the division of governmental responsibilities between the national government and the state that is intended by the framers of the constitution to ensure the principles of federalism established by the framers guide, the executive departments and the agencies in the formulation and implementation of policies. It is here by ordered as follows: Section 2, paragraph (b), the people of the state create the national government, then they delegate to it those enumeral governmental powers relating to matters beyond the competence of the individual states. All other sovereign powers say those expressly prohibit the state, by the constitution, are reserved to the state or to the people; [paragraph] (c), the constitutional relationship among sovereign governments, state and national, is formalized in and protected by The Tenth Amendment of the [U.S.] Constitution; paragraph (e), in most areas the governmental concern, the state usually possesses the constitutional authority, the resource and the competence in discerning the sentiment of the people and to govern accordingly. In Thomas Jefferson's words, the states are the most competent administrators for the domestic concerns and the surest bulkhead against anti-republican tendencies; [paragraph] (g), acts of the national government, whether legislative, executive or jurisdictional in nature that exceed that enumerated powers of that government under the constitution violates the principles of federalism established by the framers; [paragraph] (i), in the absence of clear constitutional or statutory authority the presumption of authority should rest with the individual state; Section 3, Federal Policy Making Criteria, [paragraph] (a), there should be a strict adherence to constitutional principles. Executive departments and agencies should closely examine the constitution and statutory authority supporting any federal action that would limit the policy making discretion of the state, and should carefully assess the necessity for such action to the extent practical. The states should be consulted before any action is implemented; paragraph (b), federal action limiting the policy making discretion of the state should be taken only when constitutional authority for the action is clear and certain and the national activity is necessary by the presence of a problem of national scope. It is important to recognize the discretion between problems of national scope, which may justify federal action, and the problems that are merely common to the state, which will not justify federal action, because individual states acting individually or together can effectively deal with them." ... What this does is it tells you that ANILCA, Title VIII, that the U.S. Government has no authority to be passing that type of legislation and I would encourage the Governor to get on track with this, instead of saying -- continually saying, that we need to change the states constitution. When we change the states constitution all we're doing is going under federal authority. Number 0594 CHAIRMAN HUDSON announced that HJR 2 will be brought up again at the next meeting. ADJOURNMENT Number 0623 CHAIRMAN HUDSON adjourned the House Special Committee on Fisheries meeting at 6:50 p.m.