02/27/2004 08:52 AM House FSH
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 27, 2004
8:52 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative David Guttenberg
MEMBERS ABSENT
Representative Cheryll Heinze
COMMITTEE CALENDAR
HOUSE BILL NO. 478
"An Act relating to the issuance of commercial fishing interim-
use permits; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 415
"An Act authorizing a commercial fisherman to fish in each
fishery for which the commercial fisherman holds a commercial
fishing entry permit; relating to the power of the Alaska
Commercial Fisheries Entry Commission and the Board of Fisheries
to limit the number of fisheries in which a person may hold an
entry permit and operate gear during a fishing season or a year;
and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 478
SHORT TITLE: COMMERCIAL FISHING INTERIM USE PERMITS
SPONSOR(S): REPRESENTATIVE(S) WILSON
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) FSH, RES
02/27/04 (H) FSH AT 8:30 AM CAPITOL 124
BILL: HB 415
SHORT TITLE: FISHING IN MORE THAN ONE FISHERY
SPONSOR(S): REPRESENTATIVE(S) WILLIAMS BY REQUEST
01/29/04 (H) READ THE FIRST TIME - REFERRALS
01/29/04 (H) FSH, RES
02/16/04 (H) FSH AT 9:00 AM CAPITOL 124
02/16/04 (H) Heard & Held
02/16/04 (H) MINUTE(FSH)
02/18/04 (H) FSH AT 8:30 AM CAPITOL 124
02/18/04 (H) Heard & Held
02/18/04 (H) MINUTE(FSH)
02/27/04 (H) FSH AT 8:30 AM CAPITOL 124
WITNESS REGISTER
FRANK M. HOMAN, Commissioner
Commercial Fisheries Entry Commission (CFEC)
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 478, discussing the history
and current status of limited entry and interim-use permits;
answered questions.
JON GOLTZ, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Called HB 478 a technical fix and discussed
reasons it is desirable; answered questions.
PAUL SHADURA, President
Kenai Peninsula Fishermen's Association
Soldotna, Alaska
POSITION STATEMENT: Testified in support of HB 478 to make it
easier for CFEC to issue interim-use permits; testified in
support of HB 415 in the context of setnet fisheries and the
desire for expansion and an opportunity.
JACK HOPKINS
Cordova, Alaska
POSITION STATEMENT: Testified in support of HB 415.
E.J. CHESHIER
Cordova, Alaska
POSITION STATEMENT: Expressed emphatic support for HB 415,
citing the need to put different salmon permits in his own name
and his wife's in order to fish in two areas.
KENNETH DUCKETT, Executive Director
United Southeast Alaska Gillnetters (USAG)
Ketchikan, Alaska
POSITION STATEMENT: Testified in opposition to HB 415, voicing
concern about increasing the pressure and number of active
permits in Southeast Alaska; stated support for the current
regulation in order to protect local participants.
BRUCE SCHACTLER, President
United Salmon Association
Kodiak, Alaska
POSITION STATEMENT: Said the majority of his organization's
members support HB 415; opined that it doesn't go far enough and
that he should be able to use one boat anywhere he has a permit.
ROBIN SAMUELSEN, President
Board of Directors
Bristol Bay Economic Development Corporation (BBEDC)
Dillingham, Alaska
POSITION STATEMENT: Testified in total opposition to HB 415;
expressed concern that it will increase the burden on nonmobile
fishermen and do serious damage to coastal communities.
BRUCE WALLACE
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 415 as written,
saying he supports the concept as part of a package.
WESLEY J. HUMBYRD
Homer, Alaska
POSITION STATEMENT: Testified on HB 415; offered a copy of his
request form to the Board of Fisheries and related what he'd
been told about the board's decision not to hear it.
KURT KVERNVIK
Petersburg, Alaska
POSITION STATEMENT: Testified that he is strongly in favor of
HB 415; spoke of the need for diversification.
PETER ANDREW
Dillingham, Alaska
POSITION STATEMENT: Testified in opposition to HB 415, citing
increased competition as a concern.
BRUCE MARIFERN
Petersburg, Alaska
POSITION STATEMENT: Urged support for HB 415, mostly for the
reason of diversification.
JERRY LIBOFF
Dillingham, Alaska
POSITION STATEMENT: Testified in opposition to HB 415,
expressing concern about locals, including those who own permits
and make money by working on boats owned by others.
MIKE DAVIS
Dillingham, Alaska
POSITION STATEMENT: Testified against HB 415, voicing concern
about local people and fisheries; asked that it at least not be
adopted in communities that will be negatively affected.
BOB THORSTENSON, President
United Fishermen of Alaska (UFA)
Juneau, Alaska
POSITION STATEMENT: Said HB 415 is one of UFA's highest
priorities this session, and characterized it as a housekeeping
measure.
SCOTT McALLISTER
Juneau, Alaska
POSITION STATEMENT: Testified that he likes HB 415 as written,
for reasons stated by Mr. Thorstenson; suggested the legislature
should deal with this or at least send a resolution, for
example, asking the Board of Fisheries to do so.
STEPHEN WHITE, Senior Assistant Attorney General
Natural Resources Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 415, followed up on
Bruce Twomley's memorandum; said CFEC and the Department of Law
are neutral on the bill, but offered points to think about.
ACTION NARRATIVE
TAPE 04-11, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:52 a.m. Representatives Seaton,
Wilson, Ogg, Samuels, Guttenberg, and Gara were present at the
call to order. Chair Seaton announced that Representative
Heinze was excused because of illness.
HB 478-COMMERCIAL FISHING INTERIM USE PERMITS
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 478, "An Act relating to the issuance of
commercial fishing interim-use permits; and providing for an
effective date."
Number 0085
REPRESENTATIVE WILSON, sponsor, referred to the written sponsor
statement and said HB 478 relates to issuance of a commercial
fishing interim-use permit. The court of appeals recently held
that the Commercial Fisheries Entry Commission (CFEC) lacked
authority to issue these interim-use permits in fisheries that
they don't have authority to limit. Calling it a housekeeping
measure, she said this clarifies that CFEC has authority to
issue interim-use permits in these fisheries. This
clarification is consistent with the original intent and purpose
of the current statute, she said, and is what has been done all
along. She deferred to Mr. Homan for further details.
Number 0201
FRANK M. HOMAN, Commissioner, Commercial Fisheries Entry
Commission (CFEC), Alaska Department of Fish & Game (ADF&G),
noting that Jon Goltz of the Department of Law would address
legal aspects, said HB 478 is short but has a lot of meaning.
For the last 30 years, since the beginning of CFEC, two types of
permits have been issued: an entry permit for fisheries that
were limited, and an interim-use permit (IUP) for fisheries that
weren't.
MR. HOMAN explained that a couple of EEZ [Exclusive Economic
Zone] fishermen in the halibut fishery came into the state
without an interim-use permit probably a couple of years ago and
were cited; it went to court, and the Alaska Court of Appeals
took a very narrow reading of the statute and said CFEC didn't
have authority to issue IUPs for fisheries it couldn't limit.
Since the halibut fishery is limited by international agreement,
[CFEC] doesn't have that authority. Mr. Homan said this bill is
to clarify that the legislature, in the beginning, meant that an
IUP could be used for any fishery that was not limited. It is
to broaden the language, he said, and to reaffirm that the
legislature meant CFEC could issue an IUP for those other
fisheries.
Number 0482
MR. HOMAN, suggesting [Mr. Goltz] could speak to it further,
continued:
Apparently, the wording here that ... got the court of
appeals' attention was ... in the existing statute it
says pending the establishment of a maximum number,
and that means pending a limited entry designation; we
call it a maximum number, but it means when you limit
the fishery. But then it goes on to say that in all
other cases the commission will issue interim-use
permits for each fishery to all applicants who apply.
So, because the fishery is not limited, we give IUPs
to anyone for any fishery that has not come under ...
limitation.
So those two used to, for 30 years, cover all features
of ... people who needed permits to sell fish in
Alaska. It got a little bit more complicated in 1984,
when there was established a landing permit. ... But
it had a very narrow focus and was discretionary - it
wasn't a mandatory permit - and this was up to the
commissioner of [ADF&G] to issue when it arose that
[an] EEZ fisherman would come in to state waters and
wanted to unload fish that were already limited by the
state.
Because they were not part of the limited entry
permit, they couldn't get a limited entry permit. And
they couldn't get an IUP because that fishery was
already limited. So there was a dilemma in 1984, and
so they established what they call a "landing permit"
in those cases, and ... at that time it was only two
boats that this applied to.
There was a landing permit established at the
discretion of the commissioner of [ADF&G] for those
cases where a fisherman from outside wasn't able to
get an IUP for a fishery because it was already
limited internally. ... But this was never used; a
landing permit has never been issued. So ... those
two fishermen went away, and I don't know what ever
happened to them, but they never came back,
apparently.
Number 0711
MR. HOMAN reiterated that [HB 478] is needed to clarify that
CFEC can issue an IUP to fisheries it doesn't limit. However,
it's a complex legal matter because the issue is in the supreme
court right now; he suggested Mr. Goltz could speak to that.
Number 0762
REPRESENTATIVE OGG expressed concern about liability and whether
there may be a class of people out there, if this effective date
is used, who might say the state didn't have the right to issue
these permits and thus they want their money back for that
period of time.
MR. HOMAN deferred to Mr. Goltz.
CHAIR SEATON suggested that may relate to the Carlson case.
Number 0881
JON GOLTZ, Assistant Attorney General, Natural Resources
Section, Civil Division (Anchorage), Department of Law, noting
that he has worked with CFEC on issues related to this bill for
a few months, said the Department of Law agrees this is
essentially a technical fix to the statute; the goal primarily
is to eliminate the word "pending", which has been interpreted
broadly by the agencies since the Act was initially adopted, but
has been subject to a narrower constriction by the court of
appeals recently.
MR. GOLTZ explained that the bill would close the potential
loophole that Mr. Homan mentioned whereby there might be some
fisheries that are neither subject to a maximum number, so no
entry permit can be issued for them, nor pending the
establishment of a maximum number, so no interim-use permit can
be issued for them. The result would be reduced ability to
enforce the fisheries laws and reduced data-collection ability.
Therefore, it would be helpful to close this loophole.
MR. GOLTZ said he believes, based on his research, that this
bill is consistent with the original intent of the law regarding
the issuance of interim-use permits, and is especially
consistent with the legislature's 1977 decision to eliminate
gear licenses. He explained that from statehood until 1977,
gear licenses were required for the operation of fisheries gear.
They were eliminated in 1977 primarily because it was recognized
that they were duplicative of the interim-use and entry permit
requirements. Thus the bill is consistent with that.
Number 1040
MR. GOLTZ turned to the question posed by Representative Ogg
about potential liability. He said the issue has already come
up, in the sense that since the court of appeals issued the
decision that Mr. Homan mentioned, there have been two class
action cases filed against the state. Each alleges that the
plaintiffs are owed reimbursement for interim-use permit fees
they paid in the past for participation in halibut fisheries;
their claims are based on the holding of the court of appeals,
which was that CFEC lacks authority to issue interim-use permits
in the halibut fisheries because a maximum number of entry
permits is not pending in those fisheries.
MR. GOLTZ explained that those cases are currently stayed
because the court of appeals decision on which they're based has
been appealed by the state to the supreme court. If the supreme
court accepts the state's argument in that case, it will address
the main issue that the agencies and the Department of Law have.
Nonetheless, he said, [the department] believes this bill is
desirable because it eliminates any ambiguity about the scope of
interim-use permits, and would conform the language of the
statute a little closer to the way it has been interpreted and
applied for 30 years.
Number 1178
MR. GOLTZ addressed the effective date, saying he wasn't aware
of any implication it would have on either the pending class
action cases for reimbursement or any other case that somebody
might bring. Explaining that the Department of Law maintains
that the [Alaska] Court of Appeals decision is based on an
erroneous interpretation of the current statute, he added:
We don't believe that the term "pending" was intended
to be as restrictive as the court of appeals interpret
it to be in the scope of application for interim-use
permits. So ... we actually would take the position,
I believe, that this bill and the current language
effectively mean the same thing as to the scope of the
issuance of interim-use permits. It's just that this
bill makes it a little clearer and, hopefully, avoids
the result that we are living under currently with the
court of appeals [decision].
Number 1275
MR. GOLTZ, in reply to a question from Representative Ogg, said
he hadn't analyzed how a retroactive effective date would affect
[those pending court cases].
REPRESENTATIVE OGG suggested perhaps the situation could be
rectified through a legislative Act and then there'd be no need
to go through the courts.
MR. GOLTZ, in response to Chair Seaton, agreed to do an
analysis. In reply to Representative Guttenberg, he explained
that he'd submitted the [appeal] briefing to the supreme court
at the end of January and that the respondents' briefing is
awaited. "I think we have a good position in that case," he
remarked. In further response, he said this bill has no direct
bearing on that case, but if it passes this session, it likely
will be mentioned during an oral argument as an expression of
the state's reaction to the court of appeals decision.
REPRESENTATIVE GARA requested that Mr. Goltz also provide an
opinion on the constitutionality of a retroactive provision.
MR. GOLTZ said he'd incorporate it into his analysis.
Number 1496
CHAIR SEATON observed that the landing permits that Mr. Homan
discussed were generated to look at the question of fisheries
outside of state waters; a number of fisheries might have
vessels operating totally outside of state waters. He asked
whether clarification is needed that this interim-use permit
also acts as a landing permit for fish coming into state
[waters], instead of necessarily for fisheries that are
controlled by the state.
MR. GOLTZ said it's a good question. The extent of state
control over fisheries, both within and especially beyond state
waters, is complicated and varies from fishery to fishery. For
example - and to show that halibut isn't the only fishery that
this bill would apply to - he said the state currently manages
many of the crab fisheries that occur in the EEZ, in federal
waters adjacent to state waters, through a complex relationship
with the federal fishery managers. He continued:
But we do require interim-use permits for many of
those fisheries, even though they exist outside state
waters. There are statutes that require a CFEC permit
for a person to land or deliver or sell fish in the
state waters. And that would apply to somebody who
legally harvested fish outside of state waters without
an interim-use permit but then brought them into state
waters for landing.
There also, in fact, is a CFEC regulation that says
that anybody who possesses fish for a commercial
purpose in state waters has to have either an entry or
interim-use permit to authorize ... that possession.
So I think that with those statutes and that
regulation currently in effect, ... the result is that
anybody who is operating in a commercial fishery
inside state waters, even if this ... harvesting
actually took place in federal waters, is subject to
this permit requirement.
Number 1685
CHAIR SEATON recalled harvesting tuna outside the EEZ and
attempting to get a CFEC permit; CFEC didn't and wouldn't issue
a permit and had said it had no way to do that in international
waters; ADF&G didn't want any fish tickets; and he'd had to pay
landing fees to the Department of Revenue. Noting that
fishermen are starting to bring tuna into Kodiak or Homer from
international waters, for example, Chair Seaton highlighted the
need to ensure that there aren't any loopholes in the bill so
another bill isn't required. He asked Mr. Goltz to look at it
carefully in this regard.
MR. GOLTZ agreed, but said CFEC has a fair bit of discretion to
determine what is a fishery, which has an impact on determining
when a permit is required for a particular fishery.
Number 1896
PAUL SHADURA, President, Kenai Peninsula Fishermen's
Association, testified in support of this change to make it
easier for CFEC to issue interim-use permits. He asked whether
this will allow CFEC to issue permits for yet-to-be-classified
commercial-use fisheries.
CHAIR SEATON requested clarification.
MR. SHADURA said he sits on the board for the Kenai River
Special Management Area, and though he doesn't represent that
board, it is dealing with contentious issues relating to guide
restrictions in Kenai and other areas, predominantly on the
Kenai River. In some of those discussions and in discussion of
another bill introduced by Representative Heinze, he said, "We
were trying to wrestle with different ways that possibly the
guide industry could be accommodated with some kind of
limitations based on CFEC regulations." He added that with the
change in this language, it allows a little more flexibility.
Acknowledging that other questions are involved with this, he
said this is something he wants to bring back to "the working
committees that will be conducted here in the next month, with
the possibility of maybe some changes in this language that
would help facilitate, possibly, some guide limitations."
Number 2018
CHAIR SEATON, saying he didn't want to get into the crux of the
other bill that was alluded to, asked Mr. Homan to address
whether there would be a need in that kind of circumstance to
put anything in [HB 478] to address that issue.
MR. HOMAN, asking that Mr. Goltz assist if he was still on
teleconference, related his understanding that with the ability
to issue an interim-use permit, CFEC would be able to cover all
commercial fisheries. He said he believed the answer,
therefore, was that if it's a commercial fishery, CFEC would
have authority with [HB 478] to issue those permits.
REPRESENTATIVE OGG declared a conflict as a halibut permit
holder.
REPRESENTATIVE WILSON objected [to his removing himself from
voting on the bill].
CHAIR SEATON announced that he'd have the same conflict, as
others on the committee might.
REPRESENTATIVE OGG objected [to Chair Seaton's removing himself
from voting on the bill]. [HB 478 was held over.]
HB 415-FISHING IN MORE THAN ONE FISHERY
Number 2142
CHAIR SEATON announced that the final order of business would be
HOUSE BILL NO. 415, "An Act authorizing a commercial fisherman
to fish in each fishery for which the commercial fisherman holds
a commercial fishing entry permit; relating to the power of the
Alaska Commercial Fisheries Entry Commission and the Board of
Fisheries to limit the number of fisheries in which a person may
hold an entry permit and operate gear during a fishing season or
a year; and providing for an effective date." [Before the
committee, treated as adopted on 2/16/04, was a proposed
committee substitute (CS), Version H.]
Number 2161
JACK HOPKINS, Cordova, testified on his own behalf in support of
HB 415. He suggested if the legislature wants to help the
fishermen and the fisheries, this is going in the right
direction. In answer to questions from Representatives Gara,
Seaton, and Ogg, he said it would allow him to go to another
area and "catch some prime fishing time," and then people who
stayed to "scratch fish and stay" where he'd left could do so.
He participates primarily in the salmon gillnet fisheries now
and believes most of the permits in his area are being fished.
REPRESENTATIVE OGG asked whether Mr. Hopkins or someone fishing
with a similar gear type has approached the Board of Fisheries
with a proposal similar to what this legislation would do.
MR. HOPKINS said he wasn't aware of it.
Number 2324
E.J. CHESHIER, Cordova, testified on his own behalf. Expressing
emphatic support for HB 415, he said it allows someone to fish a
permit he/she has legally bought and probably has loans to pay
for. He suggested it will help fisheries and fishermen like him
diversify in order to feed their families. Presently, someone
who owns two or more permits in the same gear-type fishery must
place a permit in someone else's name in order to go fishing; in
some cases, people don't have a relative to use for this
purpose, which is probably the most palatable alternative.
Calling it a "silly pre-limited-entry hoop," he said many
fishermen end up fishing all their permits at the same time in
the same season. He suggested passage of the bill would
decrease that likelihood and there'd be less risk and hassle.
MR. CHESHIER proposed that if fishermen could leave one fishery
that is past its peak and go to another entering its peak, this
would be good for the first fishery and would have little impact
on the second. In the case of Bristol Bay, he remarked that
it's "just what the doctor ordered" in a year like this. Noting
that he has fished in Prince William Sound his whole life, he
said his wife holds the Bristol Bay permit and they've sent
their son, beginning when he was two years old, to a relative's
house in Washington State every year they've fished that permit.
"It's either do that, lie to CFEC to get an emergency transfer,
or put it in someone else's name and risk losing your permit,
which has happened in my own family since limited entry," he
said, adding that it's time to change this "antiquated" law.
MR. CHESHIER indicated he'd sent this proposal to the [Joint
Legislative Salmon Industry Task Force ("Task Force")] last year
as a [proposed regulation change] for the Board of Fisheries
that required only fishing one permit at a time and that only
addressed gillnet fisheries in hopes of a better chance of
passage. He said he can't see why it shouldn't apply to all
salmon fisheries, however.
Number 2510
MR. CHESHIER, in response to Chair Seaton, specified that he
seines and gillnets in Prince William Sound, gillnets in Bristol
Bay, and participates in the gillnet herring fishery off Bristol
Bay. In response to Representative Ogg, he said he'd been
trying to get this [proposal] passed for some time, but had
missed the statewide proposal deadline [for the Board of
Fisheries]; thus he'd sent it to the Task Force instead, but in
the format one would use for a regulation change to be put
before the Board of Fisheries.
Number 2580
REPRESENTATIVE WILSON asked Mr. Cheshier how prevalent it is
that fishermen want to fish and thus do all kinds of things to
ensure another family member is on board, for example, in order
to stay within the law.
MR. CHESHIER said several of his friends do exactly that. In
response to questions from Representative Gara, he said he has
no plan to expand further, since it's difficult enough to "fish
both ends of the state at the same time right now." He said
it's a hassle he must go through every year, and his wife is
worried about going to Bristol Bay again. He added, "My wife
doesn't care to go at all, but I make her go because I cannot
own the permit in my name."
CHAIR SEATON asked whether anyone from Mr. Cheshier's fishing
group has had this proposal go to the Board of Fisheries.
MR. CHESHIER said no, though he knows someone who'd support
this, since "he's one of the guys that has to lie to CFEC every
year" to get an emergency transfer of his permit to a
crewmember.
Number 2738
KENNETH DUCKETT, Executive Director, United Southeast Alaska
Gillnetters (USAG), testified in opposition to HB 415, noting
that [members of USAG] in Southeast Alaska see this as
increasing pressure on the number of active permits and the use
of those permits during the peak of the season. Quite frankly,
he said, they don't want company from folks from other areas.
He explained:
We think the regulation the way it exists now was
developed that way for a purpose. It was developed to
keep areas available to local fishermen so that when
runs were good, ... the people who stay in an area can
fully utilize those runs ... and make a living off of
them, and then make some cash flow when they scratch
the rest of the time.
MR. DUCKETT, replying to Representative Ogg about similar
proposals before the Board of Fisheries, indicated he wasn't
aware of any specifically, although there have been discussions
of multi-area fishing for a long time "in a number of different
forms." In response to Representative Gara, he expressed high
regard for the department's management of [the Southeast
gillnet] fishery, and said he doesn't believe this is a
conservation concern. Perhaps 350 permits of the 482 are
actively fished; a few people have fished only an opening or two
and then participated in other fisheries because of price
considerations and so forth. He said it's really a matter of
competition: if all permits were fully utilized and people were
participating at the peak of the sockeye salmon run in Lynn
Canal or in District 6, the increased pressure would be
detrimental.
Number 2949
BRUCE SCHACTLER, President, United Salmon Association, told the
committee his association represents members statewide; the
majority, but not all, support this bill. Stating his personal
support, he remarked that the state has given people the
opportunity to invest in the fisheries, and that no problems
have been seen in the herring fisheries.
TAPE 04-11, SIDE B
Number 2985
MR. SCHACTLER said although some areas will see added [fishing]
effort at some times, they'll see a dramatic decrease when
fishing is slower; he suggested those "shoulders of the fishery"
are the best times to get rid of the effort anyway, when there
are fewer fish. Surmising that those who'd take advantage of
the bill would primarily fish in peak seasons in different
areas, he opined that a few added boats during peak seasons
won't make much difference, that there won't be any detriment to
the majority of people, and that it will add opportunity for
people to realize a benefit from their investment.
MR. SCHACTLER offered his personal opinion that the bill doesn't
go far enough, and suggested the need to allow his boat to fish
wherever he has a permit, just as it is in the herring
fisheries. He added that just having a permit in an area
doesn't mean the fisherman can find someone to buy the fish,
"due to the consolidation within the processing sector."
Because the bill won't help with marketing, he suggested this is
self-limiting, although it will create some opportunity.
Number 2796
CHAIR SEATON questioned the assertion that increased fishing
during the peak of the season wouldn't make much difference. He
pointed out that if people begin utilizing now-inactive permits
at the time of the highest catch rates, the greatest number of
fish will be removed in the shortest period of time.
MR. SCHACTLER replied:
What I'm referring to is the effect that it's going to
have on the fishermen that are there already. If
you're in the peak of the season, especially in
today's fisheries and today's access to markets and
processing capacity, most people are on limits anyway.
Most people, you're not going to be able to come in,
as I said before, and fish anyway, 'cause you don't
have a market, especially in these volume fisheries.
You come in at the peak of the season, ... there's
fish everywhere. It's really a matter of how many you
can sell, not how many you can catch. And ... for me,
to be out here fishing, for a half a dozen boats or 10
boats ... to come in to the Kodiak seine fishery, for
10 boats to come in to the Southeast Alaska fishery
that is stretched over 250 miles, ... it's a nonissue.
There's so many fish, you can't sell them, and you
can't catch them anyway. So, for each individual boat
that's worried about some added competition, it's a
nonissue.
Number 2685
CHAIR SEATON, surmising that this discussion pertains mainly to
seining, asked about the ability for a really good fisherman
from Kodiak, for example, who had market leverage there, to come
in and "peel off" some of that limited marketing capacity in
Southeast Alaska, having a dramatic effect on fishermen who
currently are limited to Southeast Alaska.
MR. SCHACTLER answered that he didn't think it would have a
dramatic effect, although it could have an effect. He
acknowledged that there wouldn't be this [processing] limitation
for those who come to an area to process on board. This would
create an opportunity for those people to get different species
by going to a different area. In response to Representative
Wilson, he said he isn't concerned because the amount of fish
processed on board by someone is very small in the grand scheme
of things. He said numerous people are trying to process on
board now and get a few thousand pounds and then "drift off into
the sunset processing them" before they can catch more.
Number 2470
REPRESENTATIVE OGG pointed out that setnetters had provided
written testimony in opposition to this bill. He asked Mr.
Schactler to elaborate on the gear types used by his
organization's members in each area, how many members there are,
and whether a vote had been taken in each area.
MR. SCHACTLER said the only area he knew of that took an
official vote, "sort of a straw poll," was in Kodiak, at a
meeting he attended as a board member a couple of days before;
of the board, there were eight setnetters and one seiner -
himself - and those polled were unanimously in favor of this
bill. In further response, he indicated other members statewide
hadn't taken a position chapter by chapter.
Number 2401
REPRESENTATIVE OGG asked whether Mr. Schactler's organization
has put a related proposal before the Board of Fisheries.
MR. SCHACTLER said no. In further response, he recalled that it
was tried perhaps five years ago, but didn't recall the board's
reasoning for not adopting it.
REPRESENTATIVE OGG asked that Mr. Schactler provide related
information, if he found any, to the committee.
CHAIR SEATON also requested that testifiers on teleconference
provide any written testimony.
Number 2303
REPRESENTATIVE WILSON surmised that if a proposal was before the
Board of Fisheries five years ago, it was prior to the glut of
farmed fish on the market and the downturn of salmon prices.
MR. SCHACTLER agreed the world is different in the last two
years in the salmon business, let alone five or ten years.
Number 2249
REPRESENTATIVE GARA asked what the legislature needs to do to
ensure there are markets, at least at the local processor level.
MR. SCHACTLER mentioned options including [existing legislation]
for direct marketing and [increasing] the 58-foot limit so
people can process their own fish, and the bigger chore relating
to state fisheries policies and even up to the National Marine
Fisheries Service. He suggested creating an environment that
allows new investment related to processing capacity in these
areas that have lost so much.
Number 2100
ROBIN SAMUELSEN, President, Board of Directors, Bristol Bay
Economic Development Corporation (BBEDC), testified in total
opposition to HB 415, noting that BBEDC represents 17
communities within the Bristol Bay area. He explained:
We feel that it will increase absentee ownership and
allow fishermen just to cherry pick fisheries and be
disruptive. Most of our fishermen in Bristol Bay are
nonlocal fishermen. The local fishermen that fish
here - there's 30 communities in Bristol Bay - some of
them participate in the ... salmon season and herring
fishery and 100,000-pound CDQ [community development
quota] allocation halibut fishery.
We've requested an optimum-yield study to be done for
Bristol Bay with hopes of doing a buy-back. We've
instituted the first of its kind in the state of
Alaska, a Bristol Bay restructuring study, which has
been completed. We are now going through a study with
Northern Economics to see the effects on five Bristol
Bay communities with various handpicked options.
I think this will increase the burden on nonmobile
fishermen. ... We have a crisis in the state of
processors and lack of processors and processing
capacity. An earlier gentleman said this is what the
doctor ordered for Bristol Bay this year. Bristol Bay
has a salmon forecast return of 34 million harvestable
fish. The early analysis shows that there's going to
be about 9 million surplus ... sockeye salmon that are
going unharvested. The price the processors are
talking is 35 cents a pound, and they're looking at
putting Bristol Bay fishermen on limits ... right
around June 25th, June 26th; that'll probably be a
10,000-pound limit, which will severely limit the
income ... of the region residents.
Number 2001
MR. SAMUELSEN recalled that this was brought up before the Board
of Fisheries, and surmised it was turned down because of
overwhelming testimony against it. Today, he said, there is a
mobile fleet, "a few chosen by the processors to be a mobile
fleet that could cherry pick fisheries." Local residents cannot
get markets in the Togiak herring fishery; even though they've
participated in the past, he said, the processors are picking
and choosing who they want.
MR. SAMUELSEN turned attention to the salmon fishery and latent
permits. Noting that two years ago 600 people didn't show up to
fish Bristol Bay salmon, he remarked, "With the big run, they're
all begging to get back in the door, but because of lack of
processing capacity, ... a lot of the processors are telling
fishermen, 'If you haven't fished in the last two years, no, we
don't want you back - we don't have the processing capacity for
them.'"
Number 1944
MR. SAMUELSEN expressed concern that this [bill] will do serious
damage to Alaska's coastal communities, including his own.
Referring to legislation introduced by then-Representative
Scalzi a few years ago and noting that the Board of Fisheries
recently had allowed "permit stacking," he remarked, "Both
times, the increase of selling and buying permits, outside
ownership, increased." Emphasizing that this is within the
board's purview, he said:
I think people are looking at the Alaska legislature
to rationalize fisheries and take the power away from
CFEC [Commercial Fisheries Entry Commission],
especially the Board of Fisheries. And I don't think
that's right. I think we need to go to a board of
fish and argue these things out, not through the
Alaska legislature. If you've given the power to the
Board of [Fisheries], don't take it away. Let these
people that want to change the fishery and rationalize
the fishery and just have a few of us left standing -
let them go to the Board of [Fisheries].
MR. SAMUELSEN noted that he represents small-boat fishermen who
use 18-foot skiffs in Togiak, mom-and-pop operations, not 58-
foot seiners or "wannabe 70-foot seiners" traveling from
Southeast Alaska to Norton Sound. He emphasized that 30
communities in Bristol Bay have their sole livelihood from
salmon and herring. He expressed concern about how his
communities, boroughs, and school districts will stay open,
because people who come up from Seattle just take the money and
leave after harvesting fish, and even bring their groceries; the
only thing they buy locally is fuel, and they leave behind
trash, but no economic benefit.
MR. SAMUELSEN said there's a crisis. Opportunities for people
within his region are closing rapidly. Referring to talk of
"rationalizing the fishery," he said people in his area don't
have the capital to participate in a rationalized fishery; thus
outside interests will come in and buy up the permits, and then
communities and school systems will have to close, and many
people will be laid off. He suggested this [bill] will speed up
the demise of local residents, with cherry pickers coming in
during good seasons and fishing elsewhere when it's a bad
season. He offered his belief that previous legislatures hadn't
envisioned that happening.
Number 1725
CHAIR SEATON, noting that Mr. Samuelsen had been a Board of
Fisheries member, asked whether there had been a proposal to get
rid of the administrative areas entirely or to allow certain
administrative areas.
MR. SAMUELSEN agreed with Mr. Schactler that it had come up five
or six years ago.
Number 1608
BRUCE WALLACE, Ketchikan, testified in support of the bill as
written. Recalling that this [issue] came before the Board of
Fisheries at least five or six times from about 1983 forward in
different forms, he said it largely ended up being a question of
a statewide proposal, which made it contentious. Referring to
Representative Wilson's question and Mr. Schactler's point about
changing conditions, Mr. Wallace said he wouldn't have expected
to hear as much support in past years, which he attributed to
changing circumstances.
MR. WALLACE said one advantage not raised so far is that fewer
permits are being used and thus fewer crewmembers will need to
earn a living wage; he proposed that fishermen will have to be
able to work across a broader spectrum than "most anything that
a single region would do." As to how this fits in today, he
said Mr. Schactler had spoken to it and that it's a question of
"the definition of opportunity as the state will see it."
MR. WALLACE suggested this is larger than HB 415 and needs to be
judged in the new context; he opined that a lot of testimony
today had been from a lack of understanding of how the future
fisheries' profiles will look. He stated support for the
concept as part of a package;, said it's appropriate; and closed
by proposing that negative and positive impacts cannot be judged
until "we've sort of come to the new age, if you will."
Number 1424
CHAIR SEATON asked why Kodiak and Southeast Alaska seiners, for
example, couldn't ask the Board of Fisheries to reduce the
administrative restriction between those two areas, rather than
having it statewide.
MR. WALLACE said he didn't recall its ever being requested as a
structure or limitation between two registration areas, didn't
know the legal ramifications, and wasn't sure why that iteration
[of a board proposal] hadn't occurred. In further response, he
specified that he fishes herring, seines for salmon, and runs
some tender operations.
Number 1285
WESLEY J. HUMBYRD, Homer, said he'd fax a copy of the agenda
change request form he'd sent to the Board of Fisheries on
July 7, 2001. He explained that he'd attempted this proposal
through the board's statewide agenda change [process] because he
knew it affected many areas; however, the board had decided it
wasn't its position to make a decision on this and had believed
it was up to the legislature or CFEC. In response to Chair
Seaton, Mr. Humbyrd said he'd only received a verbal response,
from Art Hughes, to his belief, whom he'd called in Juneau to
find out why he hadn't heard anything. Turning attention to the
market, he offered his belief that it should have no bearing on
this; if the market isn't there and somebody wants to buy a
permit in any area for future years, for example, it should be
that person's decision.
MR. HUMBYRD, in response to Representative Wilson, said he'd
tried to get this changed for many years and believes he is
discriminated against because he is a single person [and thus
has more difficulty putting a second permit in another's name].
He reiterated that the board didn't want to hear his proposal
and that Art Hughes had said the board didn't know whether it's
the legislature or CFEC that has the legal right.
Number 0981
REPRESENTATIVE OGG referred to a memorandum in committee packets
from CFEC [dated February 25, 2004, sent by Bruce Twomley,
chair, because he'd be out of town and unable to testify].
MR. HUMBYRD said he had it, but hadn't had a chance to read it.
REPRESENTATIVE OGG observed that the memo says the board, by
regulation, requires [Alaskan salmon fishermen to choose a
single net area in which to fish each season], and that CFEC has
adopted a complementary regulation; it cites those regulations
[5 AAC 39.115 for the Board of Fisheries and 20 AAC 05.1940,
20 AAC 05.1942, and 20 AAC 05.1944 for CFEC]. Thus he said it
seems clear that the board and CFEC have regulations and the
authority to adopt them.
MR. HUMBYRD asked, if that's the case, why the board hasn't
accepted the one agenda change [request] he'd submitted.
REPRESENTATIVE OGG suggested the need for verification of the
verbal response Mr. Humbyrd had received from Art Hughes.
CHAIR SEATON encouraged Mr. Humbyrd to fax to the committee his
request to the board, as agreed to previously.
Number 0843
KURT KVERNVIK, Petersburg, a commercial fisherman for the last
24 years, testified in favor of HB 415 as follows:
I would first like to point out that many fishermen
whom I know cannot attend this hearing; they are
currently brown crabbing in Southeast or preparing to
depart for longlining. This is called
diversification, which is the topic that I would like
to talk about today.
I'm a Bristol Bay salmon gillnetter, and I own a
permit up there. And I owe far more on my permit than
it is currently worth, which financially ... prevents
me from selling it to move on to a different salmon
fishery. To help supplement my income, I would like
to diversify into the Southeast seine ... fishery,
which is a completely different gear type, a different
area, a different vessel, and more crew.
Currently, the only way that I can do this is to find
a seine permit holder to come on board each season.
This method carries financial risks that are
unacceptable to most lending institutions. The law as
it is currently written prevents me from making
further capital investments in our state salmon
fisheries. This law prevents me from employing more
people in the state.
I think that we should be able to choose which salmon
fishery might best support our families, depending on
the market and its conditions for each season. It is
clear to me that just fishing one salmon fishery will
not support my family. If I am allowed to [diversify]
with multiple permits, I will be able to decide which
fishery that I will participate in, and when.
The state limited entry system has already addressed
the issue of maximum effort for each fishery, so I do
not see this increased effort, or lack of it, as being
an issue. If the new studies lower the permit
thresholds, then my argument remains the same.
Number 0717
MR. KVERNVIK continued:
The salmon industry is going through some very hard
times. There are many hundreds of permits that are
not currently being fished for economic reasons.
This, in effect, has resulted in lost jobs, lost
community revenue, and lost fish taxes. I think, if
the state were to allow multiple registration, that
there are those of us who are willing to step up to
the plate and invest in the permits, invest in the
boats and the gear and the crews that have been washed
out of our salmon fishery for the last decade.
This law needs to be changed. The salmon fishermen of
this state should be allowed to diversify for their
own benefit and for the good of the state. For those
reasons, I am strongly in favor of House Bill 415.
Number 0642
MR. KVERNVIK, in response to a question from Chair Seaton,
offered the following clarification:
The point I was trying to make, the first point, on
Bristol Bay: since I owe so much more money on that
permit than I could sell it for, it's not feasible for
me to sell the permit and then just move into another
salmon fishery entirely, which is pretty much what
you're forced to do.
The other one I was talking about is for seining.
It's difficult to go for a bank, and for me to go get
a competitive seine vessel and everything that goes
along with that, when I don't even have a permit in my
own name. Currently, I've got a guy from Washington
that comes up and steps on the vessel. And ... it
makes it near impossible for me to upgrade when I
really have no rights to that fishery.
Number 0525
PETER ANDREW testified in opposition to HB 415. A 30-year
commercial fisherman who has lived in Dillingham all his life,
Mr. Andrew said he has family in other villages that have
problems getting markets [for fish]. Of the approximately 40
percent of Bristol Bay permits not being fished, many are local.
He expressed concern that [the bill will result in] a great
increase in competition for the few fish they'll be able to
harvest this summer.
Number 0393
BRUCE MARIFERN, a Petersburg resident and commercial fisherman
for 20-some years, spoke in favor of HB 415, mostly for the
reason of diversification. Involved in several salmon
fisheries, Mr. Marifern said he looks at this somewhat as a
housekeeping measure, and highlighted the desire to extend into
other fisheries. He voiced his opinion that this would result
in less overall impact on the state's salmon industry; with
several permit holders [in a family, for example], there could
be several fisheries going at the same time, but he'd be
inclined to go from one fishery to another if he held the
permits. Urging support for HB 415, he surmised that others in
his community who are out fishing [and thus unable to testify
today] would support it as well.
Number 0238
JERRY LIBOFF testified in opposition to HB 415. Noting that he
has lived in Dillingham almost 40 years and manages a local
village corporation, he specified that he was testifying on his
own behalf. Mr. Liboff reported that at a meeting in Koliganek
- a nearby village of 160 people including 15 or so permit
holders, where [fishing] is the main source of nongovernmental
income - every person opposed changing the current system.
Agreeing that this bill will tend to accelerate permits'
drifting out of local communities, he suggested the rich will
get richer and the poor will get poorer and be driven out of
business. Locals who cannot afford to buy into another fishery
will be forced to compete with those who can.
MR. LIBOFF, calling it an [allocation] issue, said he sees the
next piece, if this passes, as the ability to transfer boats
from district to district. He expressed concern that already
plenty of highly competitive boats come from other areas or out
of state, and people in his region cannot compete because those
boats are bigger, faster, and so forth. If the boats are then
enabled to move from district to district, the cherry-picking
issue will arise repeatedly.
MR. LIBOFF emphasized keeping local permits in local hands.
Pointing out that some permit holders don't own boats that are
in good shape or competitive, he said he has helped a number of
local villagers get on boats owned by people from other areas
who don't have a local permit. Thus the restriction of fishing
one permit a year per district has actually helped a number of
local people make money.
TAPE 04-12, SIDE A
Number 0001
MR. LIBOFF concluded by stating concern that the price of
permits will be driven up, making it even more difficult for
locals to compete. In reply to a question from Representative
Wilson, he surmised that most salmon fishermen in Alaska are
going through hard times now, but said it's an individual issue.
He related his belief that most [permit holders] in Koliganek
are eking out a living and earning a few dollars, rather than
making a good living, but are optimistic, which he indicated is
characteristic of fishermen.
Number 0211
PAUL SHADURA, President, Kenai Peninsula Fishermen's
Association, stated support for HB 415 in the context of setnet
fisheries. He said Alaska has more setnet limited entry permits
than any other, and he doesn't perceive the bill as creating an
influx or large change in who'd utilize it; rather, it allows a
small opportunity to remain viable within the industry. As for
concern about an influx of new permits into an area, he said
this works within the limits already established. He surmised
it will reduce latent permits in some areas, and if those areas
institute a buy-back program, will reduce the burden on those
left within communities such as those in rural areas.
MR. SHADURA turned attention to direct marketing in the Cook
Inlet area and said 80 percent of the 745 setnet permit holders
there are residents of the area. He mentioned reductions
implemented by the Board of Fisheries over the years, including
[fishing] time, and said opportunities are limited. He spoke in
favor of expansion that allows use of vessels in different areas
and remarked:
We have really tried hard in the Cook Inlet area to
devise ... regional marketing programs and to go to a
direct-marketing program. And those opportunities ...
are coming about. Larger processors seem to be ...
divesting their interests here in the Cook Inlet area,
but we have [an] influx of ... smaller direct-
marketing companies that, in fact, are looking for a
high-quality product.
This bill would allow us ... to accommodate that, and
a problem being, ... with such a short season, if you
do establish your own market, that your market's very
limited and [your business is] subject to the
fluctuations within your regional area.
Number 0482
CHAIR SEATON asked whether Mr. Shadura represents mainly
setnetters.
MR. SHADURA said yes.
CHAIR SEATON asked: If this allowed another couple of hundred
drift permits in Cook Inlet to be utilized during the peak of
the season, since the setnet sites are pretty well taken, would
that create any conflict or problems for members of his
organization, or would he be comfortable with that?
MR. SHADURA answered that it would possibly be more of a
management problem at that point. If a high effort on a
particular section of the run occurred, for example, it might
reduce the available fishing time. Relating his experience with
the Board of Fisheries over 10 years, he recalled that this
proposal has come up several times; said [the board] has power
to expand regulatory boundaries and to include adjacent areas;
and surmised that the board has felt uncomfortable making that
widespread policy decision and so has looked to the legislature
to reinforce [the board's] authority to do that.
CHAIR SEATON agreed that if there is any confusion on the board,
the legislature can certainly [provide that reinforcement].
Number 0682
MIKE DAVIS, Dillingham, testified in opposition to HB 415.
Noting that he has been setnetting there for 25 years, he
suggested looking at local communities and people who'll be
negatively affected by this blanket piece of legislation in
their ability to participate in this fishery. Pointing out that
other Dillingham testifiers had illustrated what could happen to
the Bristol Bay region, he urged members to not adopt this
legislation, or at least not adopt it in regions where it will
negatively affect communities.
Number 0871
BOB THORSTENSON, President, United Fishermen of Alaska (UFA),
told the committee that this is one of [UFA's] highest
priorities this session; that the impact is limited; that boats
cannot move into other areas to impact other communities; and
that UFA voted this in largely as a "simple housekeeping
measure" because since limited entry began in 1974, all the
things that people on both sides of the issue have testified
about have already happened. He likened it to owning a taxi
company in Homer and Juneau, but not being able to have the
Homer company in one's own name.
MR. THORSTENSON referred to a brochure relating to trade
adjustment assistance (TAA) for fishermen ["TAA Alaska Salmon
Technical Assistance Study Guide"] and read the following from a
page of Chapter 2 that had been provided:
Over the years, many salmon fishermen have diversified
their way to prosperity. One way has been to buy a
second salmon permit, one that allows them to fish the
peak of two different runs that do not coincide with
one another.
MR. THORSTENSON asserted that this has taken place to such a
widespread degree for 30 years that it's the "number-one
diversification option in trade adjustment assistance put
together by the University of Alaska Fairbanks." He said he
feels for the person who is single and doesn't have trusted,
close family in whose name to put a second permit, but related a
story about his own relatives and a divorce. He continued:
The reason we favor this so strongly at UFA and we
have such solid support throughout most of Southeast,
Kodiak, Cook Inlet, Prince William Sound and the
peninsula, and ... not necessarily in the Bristol Bay
region, but a lot of fishermen from Alaska who do fish
Bristol Bay, is ... simply because it really doesn't
do very much but straighten up this situation that's
occurred for the past 30 years where people have to
put permits in different people's names.
MR. THORSTENSON said the only problem he sees in going to the
Board of Fisheries [to resolve this] is that the board is
overworked and it would take several years, if it could even be
done there. Noting that Mr. Shadura and another in the audience
had experience dealing with the board, he offered the belief
that the legislature - and this committee, in particular - has
the prerogative and should act on this bill, and he urged that
the bill move from committee as soon as possible.
Number 1208
REPRESENTATIVE SAMUELS stated that he thinks these are good
arguments, on all sides of the issue, to have before the Board
of Fisheries, where he suggested [UFA] could be successful in
having it put on the agenda. Indicating legislators have to
hear numerous issues, he said this sounds like the kind of issue
the legislature has turned over to the board for a general
policy call. He pointed out that legislation heard the previous
week would give the board some authority.
MR. THORSTENSON replied that the main difference is that
[increasing the] 58-foot limit [for seiners, the subject of that
legislation] will come up region by region. He also suggested
that Dillingham residents will have less opportunity to weigh
in, if there's a statewide board meeting in Anchorage, than they
do [before the legislature]. Noting that the legislature could
give the board [certainty about] the board's authority to
address this issue or that the attorney general could issue an
opinion, he voiced concern that it will take three or four
years. He opined that this won't be a major change "other than
a businesslike approach, that people that actually ... control
permits will hold them in their own names."
Number 1401
REPRESENTATIVE GARA pointed out that the board has expertise
such that it could decide in which areas this makes sense. He
asked what Mr. Thorstenson would say to the testifiers from
Bristol Bay if he believes the bill should pass.
MR. THORSTENSON answered that he understands the concern "in any
region" and indicated Southeast gillnetters have concerns
similar to those of Dillingham fishermen. He said he'd talked
with Bruce Twomley of CFEC yesterday, and the typical business
practice has been that if [the permit isn't held by] a spouse or
child, a life insurance policy is taken out for the permit
holder. Mentioning chutzpah, he said the lack of HB 415 hasn't
prevented people from going to Bristol Bay, for example, and
most people have a crewmember [in whose name to put a permit].
Acknowledging that he doesn't understand the setnet leasing
situation as much in Cook Inlet, for example, he nonetheless
suggested this might help some people to consolidate permits.
He opined that the fears of people who believe there will be
negative consequences are "far overblown."
Number 1595
REPRESENTATIVE OGG addressed the board's powers, noting that the
1990 State v. Hebert case dealt with the superexclusive herring
fisheries in Western Alaska; as a result, someone could fish for
herring in a particular area, but couldn't fish in other areas
as well, in an effort to protect the local fishery. He said it
is clear the Board of Fisheries has authority, at least
according to the Alaska Supreme Court, to do exactly what is in
state regulations right now. He asked why [the legislature]
would want to take up the Board of Fisheries' power and create a
statewide [law] based on today's testimony that indicates
fishermen in one region of Alaska are fearful of competition and
are pretty strongly against removing their exclusive-use area.
MR. THORSTENSON said, "First of all, we didn't bring this bill.
This bill is actually from Representative Williams. But we
support it." Indicating Mr. McAllister would further discuss
the board, he added that if it goes before the board and it
takes longer, so be it. He questioned whether folks from
Dillingham would be any more comfortable with the board's
handling of it, since they'd had a less-than-desirable outcome
at a board meeting the previous week.
Number 1777
MR. THORSTENSON, in reply to a question from Chair Seaton, said
UFA isn't asking for a management tool to be taken away from the
board, but doesn't believe the board has authority to deal with
this. If it is clarified that the board has authority, however,
he said he's very comfortable that the board will pass this,
though it will take more time. He expressed concern that it may
become a dead-end, with the legislature saying the board can do
it, but the board saying it cannot.
CHAIR SEATON said clarification could be obtained and noted that
there was a memorandum from CFEC.
Number 1847
REPRESENTATIVE SAMUELS referred to page 5 of the [memorandum
dated October 15, 2003, from George Utermohle, legislative
counsel, to Senator Ben Stevens], which lists options for
legislative action. He also noted that the CFEC [memorandum
dated October 24, 2003, to Senator Ben Stevens disagrees with
the first memo and] says on page 3 that the Board of Fisheries
has the power. Pointing out that page 5 of the first memo lists
the options of leaving it for the courts to decide later or
clarifying that the [Board of Fisheries and CFEC] have the
power, Representative Samuels proposed perhaps having a bill
from the committee to provide that clarification.
CHAIR SEATON suggested it possibly could be a committee
substitute (CS) for HB 415.
Number 1909
SCOTT McALLISTER, Juneau, lauded the current process for airing
the pros and cons in the big picture, which he said has been
difficult under the board process. He said he'd put in his
first Board of Fisheries proposal in 1983 to "do exactly this,"
has put in one since, and has seen as many as four proposals in
any given year to deal with this before the board. Saying the
board deals with regional issues every three years and statewide
issues come up every three years as well, he remarked that under
"statewide" the board has a history of traveling from community
to community to make it accessible.
MR. McALLISTER, a purse seiner who fishes in multiple areas of
the state, explained that he wants to own these permits, start
his season the first week of June, and end in September or
October. He emphasized the desire to diversify and, with
capital investments, maximize the potential for profit in an
"otherwise failing industry." He said this clearly, if vessels
were included, would maximize his potential as a purse seiner.
MR. McALLISTER said he likes the bill as written, for the
reasons stated by Bob [Thorstenson]. Referring to AS 16.43.140
and remarks by Representative Samuels, he noted that subsection
(c) of that statute says in part, "(c) A person may hold more
than one interim-use or entry permit issued or transferred under
this chapter only for the following purposes: ... (2) fishing
in more than one administrative area". He suggested either
allowing the legislative process to have its due on this or at
least addressing the board with a resolution, for example, that
says this issue needs to be dealt with.
MR. McALLISTER spoke about a friend under scrutiny by CFEC,
people's unwillingness to compromise their investments by
adhering to the letter of the law, and trying to make money in
an industry that is going through hard times. He closed by
saying it's important for the legislature to address this in
some form and clean up this "housekeeping" that is very messy
right now.
Number 2237
STEPHEN WHITE, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Juneau), Department of Law,
noted that he'd been advising and representing the Board of
Fisheries for about a dozen years. He told members:
I guess I'm following up some of the comments that
Bruce Twomley [chair of CFEC], who's my client, made
in his written comments here. ... CFEC's neutral on
the bill. Of course, the Department of Law's neutral
on the bill. We don't have any policy issues; we're
just here to ... talk about legal implications and
things to think about.
I think there's two things you need to think about.
This bill would remove the board's authority to take a
certain management action, which they've done in the
past, which is called "superexclusive area
registration." And that's something Mr. Twomley
referred to, and that's where the board decides that
even though a person may fish different areas
sequentially and whatever, ... they have to register
... one of those areas, and if they register to choose
one of those areas, they can't fish in any other
areas. That's superexclusive registration.
MR. WHITE said he's not aware of the foregoing being done in any
salmon fisheries, although someone told him of a case in Togiak
that he hadn't been able to confirm. Rather, it has been
employed in herring fisheries; one purpose and goal is to allow
local people to have more opportunity and less competition. If
this bill passes, that tool no longer would be available in
salmon fisheries.
MR. WHITE noted that another possible consequence, which he
hadn't really thought through, is that inside fisheries there
are registration requirements that tend to limit competition
within those fisheries, at least from area to area. For
example, in Bristol Bay a person must register for a district to
fish, and before fishing there, to his belief, must wait for a
period of time.
MR. WHITE said he's not certain whether the bill would restrict
that kind of management scheme. However, he suggested that if
there's any uncertainty, it would be worthwhile to discuss
whether the intent also is to restrict that type of internal
fishery-registration scheme or a limitation on people's
participating in different districts or areas of a fishery. "If
that's not your intent, I would like to have that on the record
so if anyone claims that this bill would have that effect, ...
we can at least go ... to the record and say, 'No, that wasn't
the intent,'" he advised the committee.
Number 2376
MR. WHITE noted that he'd just received Mr. Utermohle's memo and
hadn't read it. Relating his belief that the Board of Fisheries
clearly has the ability to undo what it already has done by
regulation, and indicating willingness to verify this, he
explained:
If they established this prohibition by regulation,
someone made a determination in my office they had
authority to do that. So if they have authority to do
it, they certainly would have the authority to undo
it, either completely or ... area by area, and I
believe that they could ... consider a proposal at a
statewide meeting.
Number 2408
CHAIR SEATON indicated the committee would appreciate receiving
Mr. White's analysis. Since this [bill] deals exclusively with
salmon, he also asked whether there'd be any implication
relating to the regulatory scheme for crab fisheries, for
example.
MR. WHITE said no, he didn't believe it would restrict the board
to do superexclusive fisheries in anything other than the salmon
net-gear fisheries, and it wouldn't undo the superexclusive
herring fishery that the court already said was fine.
Number 2475
CHAIR SEATON, in response to Representative Gara, specified that
he'd like Mr. White to provide a legal opinion on
Mr. Utermohle's research. He announced the intention of holding
the bill for further review.
REPRESENTATIVE GARA voiced a general concern about relying on
legal opinions from people who may have only recently delved
into an issue, but acknowledged Mr. White's experience in this
particular instance.
MR. WHITE clarified that he is one of three or four attorneys
[at the Department of Law] who represent the Board of Fisheries,
and said they'd consult and come up with a consensus among
themselves on this.
Number 2560
REPRESENTATIVE OGG inquired about Mr. McAllister's assertion
that statewide issues only come up at the Board of Fisheries
every three years.
MR. WHITE recalled that [the board] has a statewide meeting
every year, and said anything that has a statewide implication
can be proposed to the board at that meeting. However, if
someone has put an agenda-change request before the board at a
meeting where it otherwise wouldn't be considered, the board has
discretion to say it will wait and consider it at another
meeting; he suggested that may have happened when
[Mr. Humbyrd's] proposal wasn't heard.
Number 2604
REPRESENTATIVE OGG requested that Mr. White include something
about CFEC, which had adopted language that comported with the
Board of Fisheries [regulation].
MR. WHITE agreed to that.
CHAIR SEATON also asked for input on whether [the legislature]
needs to take action to clarify that it confers upon the Board
of Fisheries the regulatory authority, and what form such
clarification should take, if there is a question about it.
MR. WHITE agreed to offer such a suggestion if there is any
question.
Number 2679
REPRESENTATIVE OGG declared a conflict of interest, since he
holds a setnet limited entry permit for Kodiak.
CHAIR SEATON announced that he tenders fish, but isn't a permit
holder in the salmon fishery.
Number 2695
CHAIR SEATON closed the public hearing. [HB 415 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
11:07 a.m.
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