Legislature(1999 - 2000)
04/19/1999 05:07 PM House FSH
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= 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.
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