Legislature(2003 - 2004)
03/01/2004 09:05 AM House FSH
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 1, 2004
9:05 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Cheryll Heinze
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative David Guttenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 478
"An Act relating to the issuance of commercial fishing interim-
use permits; and providing for an effective date."
- MOVED CSHB 478(FSH) OUT OF COMMITTEE
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
02/27/04 (H) Heard & Held
02/27/04 (H) MINUTE(FSH)
03/01/04 (H) FSH AT 9:00 AM CAPITOL 124
WITNESS REGISTER
JON GOLTZ, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Discussed the possibility of amending
HB 478 with regard to landings from international waters and
retroactivity; answered questions.
FRANK M. HOMAN, Commissioner
Commercial Fisheries Entry Commission
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 478, answered
questions about the history of limited entry and interim-use
permits; said CFEC supports HB 478 to clarify that its practice
for 30 years is what the legislature intended.
ACTION NARRATIVE
TAPE 04-13, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 9:05 a.m. Representatives Seaton,
Wilson, Samuels, Guttenberg, and Gara were present at the call
to order. Representatives Heinze and Ogg arrived as the meeting
was in progress.
HB 478-COMMERCIAL FISHING INTERIM USE PERMITS
[Contains discussion of HB 415 at the end of the hearing]
Number 0041
CHAIR SEATON announced that the only 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."
CHAIR SEATON asked Mr. Goltz whether he had anything to add to
his e-mail of February 27, 2004.
Number 0088
JON GOLTZ, Assistant Attorney General, Natural Resources
Section, Civil Division (Anchorage), Department of Law, said he
could add a little. Noting that he'd been asked to do some
analyses as to whether any amendments to the bill would be
desirable to address landings from international waters, he said
there is some uncertainty now about how CFEC's laws apply to
such situations. He opined that the bill helps a little by
closing a potential gap between when entry permits are issued
and when [interim-use] permits are issued, and by clarifying
CFEC's authority to issue these permits.
MR. GOLTZ said there still could be a question in some cases,
however, as to what CFEC can designate as a fishery; he cited
the example of a tuna fishery off the coast of Hawaii.
Suggesting those might be broader issues, he said he didn't have
a clear picture about what could be changed in this bill to
further clarify the issue of international landings without
significantly changing the real purpose and focus of the bill.
Number 0278
MR. GOLTZ turned attention to retroactivity, noting that he'd
also been asked to look into the possibility of making the bill
retroactive to the date of the original limited entry
legislation. Although it raises some legal issues, he said it's
uncertain how those issues would be applied to the particular
court cases that are ongoing and relevant to this issue. As a
relatively minor first point, he suggested that if the
legislature intends to make this bill retroactive in order to
extinguish current claims for reimbursement of past fees paid,
then the bill should expressly say that in order to comply with
existing AS 01.10.100.
MR. GOLTZ addressed the bigger issues relating to
constitutionality. As the person charged with advocating for
the state both in the [State v. Dupier Alaska Supreme Court]
criminal case and the Sargent and Dupier class action cases
currently in court, Mr. Goltz said he'd be pleased to see the
bill applied retroactively because it would give him additional
arguments in those cases, although he wasn't sure how such
arguments would fare. Most important, it would allow him to
show that this legislature supports CFEC's longstanding practice
in issuing permits in the halibut fishery and other fisheries
that aren't limited. It would also allow him to argue that the
intent and purpose of the bill is merely curative, he said, to
validate that longstanding practice of issuing permits under the
current law, and to argue that the practice is consistent with
what the intent of the law has been all along.
Number 0473
MR. GOLTZ acknowledged that in making those arguments, he'd
expect some opposition; in the criminal case, the opposition
would largely be the contention that applying this bill
retroactively would violate the ex post facto prohibitions in
the federal constitution. He said he wasn't sure how that issue
would play out because the bill doesn't create a new prohibition
or penalty that is applied retroactively, but simply clarifies
the scope of the interim-use permit. He suggested it's an issue
that ultimately would best be resolved by a court.
Number 0521
MR. GOLTZ went on to say in the civil cases, it could be argued
that the plaintiffs already have a right to reimbursement for
those claims and that any legislation which retroactive
eliminates those claim would allegedly violate due process. He
said, again, it isn't clear to him how it would be resolved, but
he thinks he could make a strong argument that if the bill is
applied retroactively, it is simply a clarification or
expression of intent about the scope of the original law, not a
retroactive application of "a substantive law ... or one that
would violate due process in that case."
Number 0580
MR. GOLTZ addressed a final possible issue relating to
separation of powers. He explained that a court might be
concerned that by clarifying this law while cases are ongoing,
the legislature is stepping into a judicial role of interpreting
the law and how it should apply to particular cases. While he
said there would be strong arguments against that, he cautioned
that it's a potential issue when talking about changing the law
in the context of cases that already have had rulings and that
will have further rulings before they reach a final resolution.
MR. GOLTZ summarized by saying it isn't clear to him that a
retroactive application would solve the ongoing cases.
Practically speaking, he suggested it would probably complicate
the cases because of raising constitutional issues. He added:
But speaking as an advocate, as I have been here, a
retroactive bill would give me new arguments to make
on behalf of the state's position, and ... from that
point of view, I can't see any harm that would be made
to the state's case. ... In the event that a court
found that the law should not be applied
retroactively, due to constitutional concerns, I
believe the result would simply be that the court
would decline to apply it retroactively, and simply
hold ... that - in that particular case, anyway - the
new law has only prospective application.
MR. GOLTZ closed by emphasizing the difficulty of predicting how
those issues would be decided.
Number 0728
CHAIR SEATON asked whether the ongoing criminal case involves
someone who failed to get a permit.
MR. GOLTZ replied that it involves three individuals; all caught
halibut outside of state waters and brought the halibut inside
of state waters for landing. None had an interim-use permit
from CFEC, and they were cited for not having interim-use
permits.
CHAIR SEATON asked whether it's a fair reading that
retroactively allowing CFEC to issue permits wouldn't impact the
defendants in this case as to whether they were required to have
a permit.
MR. GOLTZ said he thinks it's a fair reading, but isn't the only
reading. He explained:
The rub comes in because the way the court of appeals
decided those cases is ... that those defendants
couldn't be required to have a permit because, in
fact, the CFEC didn't have the authority to issue them
one in that case. And so ... the reasoning about
whether or not they are going to be ... convicted on
the charge of not having a permit does hinge on
whether the CFEC had the authority to issue them a
permit.
Number 0872
CHAIR SEATON asked whether, before 1972, fishermen were required
to have a gear permit card for any fishery in which they
operated.
MR. GOLTZ said he believed so. In further response, he said:
My understanding of the legislative history there is
that the gear card requirement continued until 1977.
So for the period between '73 and '77, fishermen were
required to have both a limited entry ... interim-use
permit and also a gear card for whatever gear they
were using. In '77 the legislature deemed that to be
an unnecessary, duplicative licensing requirement and
dropped the gear license card statute, in reliance on
... the CFEC permits.
Number 0978
MR. GOLTZ, in further response to Chair Seaton, noted that in
the civil [class action] cases, the argument is specific to
halibut, kind of an unusual fishery because federal law, to a
large degree, preempts state management of it. The argument
essentially is that in light of the recent court of appeals
decision - which held that CFEC doesn't have authority to issue
interim-use permits in the halibut fishery because limited entry
is not pending - the people who bought a halibut interim-use
permit should be able to get that money back from the state. In
response to a further question, he offered his belief that in
both cases, the class [of plaintiffs] is limited to persons who
caught halibut in the EEZ [Exclusive Economic Zone] outside of
state waters and brought them in. He said he isn't entirely
sure whether it (indisc.--coughing) the case, but it is only
halibut fishermen.
Number 1135
REPRESENTATIVE GARA asked whether there was any danger that
telling the courts what a prior legislature intended would
expose the state to additional liability in any of these cases.
MR. GOLTZ replied that he hadn't been able to think of any way
in which that would create additional liability. He
acknowledged that he'd only been working on the issue of
retroactivity for a few days. He added:
What I've been able to discern from my reading on the
issue is that to the extent retroactivity proved to be
a problem in the court's view, ... it would only speak
to whether or not the court would actually apply the
statute retroactively in that particular case. ... I
am not aware of a situation where this could create
liability.
Number 1220
REPRESENTATIVE GARA asked, if the legislature says CFEC should
have issued permits that it hasn't been issuing, whether it's
possible someone could claim entitlement to a permit that
historically CFEC hasn't issued and claim damages for not being
issued a permit that [CFEC] wasn't issuing.
MR. GOLTZ replied that he doesn't see that situation here
because, as he sees the bill, it is intended merely to validate
and conform the law to CFEC's actual practice for 30 years, and
to interpret the statute broadly to say, essentially, that
[CFEC] has authority to issue interim-use permits in every
fishery that doesn't have a maximum number and so doesn't have
entry permits issued for it.
Number 1323
REPRESENTATIVE GARA expressed skepticism that this 2004
legislature, by saying what a prior legislature intended, will
be given much weight by the courts in that interpretation. He
surmised that the court would say it could figure out the prior
legislature's intention equally well. He asked for Mr. Goltz's
view on that.
MR. GOLTZ agreed that the foregoing has "a fair bit of weight to
it" and that the court would certainly consider that view of the
case. He pointed out that this is a bit awkward for him, since
he's still in a position of advocating in these particular
cases.
MR. GOLTZ, in reply to a question from Representative Wilson,
said he doesn't see a significant downside in relation to the
cases he's involved with if the bill is retroactive. Although
it would allow him to make some arguments in the state's favor
that he otherwise wouldn't be able to make, it raises issues and
he isn't sure the bill would, in fact, be applied retroactively
by a court in those particular cases.
Number 1472
CHAIR SEATON said he's not so concerned about the pending cases,
but would be concerned about expanding that to all other
nonlimited fisheries. He asked, if a retroactive date is
included now, whether it would have more influence on potential
cases that haven't yet been filed, for all other fisheries that
were interim-use permit fisheries, regardless of whether they
impact the current cases.
MR. GOLTZ said he didn't have a comprehensive understanding of
the answer, but essentially believes it won't hurt. If someone
could file a claim now but hasn't, he believes that's a
significant question that would have to be argued in the context
of a particular case before a court. He offered his view that
the effect of retroactivity in [HB 478] would be this
legislature's statement of intent, in as strong terms as
possible, that CFEC's past practice has been the appropriate
one. He said he doesn't know that much can be done beyond that.
CHAIR SEATON requested confirmation that this legislation
doesn't affect any fishery that would have been actively
undergoing the process of limited entry.
MR. GOLTZ said he believes that's correct.
Number 1659
REPRESENTATIVE GUTTENBERG asked whether the policies and
procedures for issuing these interim-use permits have been
consistent, and whether passage of this legislation would cover
all past instances or if would there be different categories or
timelines for regulations.
MR. GOLTZ said he thinks the answer is yes. He noted that CFEC
has issued interim-use permits for different fisheries at
different times, as they have evolved, and that the process has
developed; he suggested a CFEC commissioner may be able to
discuss how that process has developed. Offering his belief
that this bill would relate to those all equally, he said he
keeps coming back to CFEC's hope of conforming the statutory
language a little more clearly to the actual interpretation and
practice all along. "We're not, in the view of the CFEC,
changing anything here," he said. "This has been the law the
entire time. And we only need to make it even more clear now
because of the decision we originally got from the court of
appeals."
CHAIR SEATON acknowledged that Representatives Heinze and Ogg
had arrived shortly after the hearing began.
Number 1847
FRANK M. HOMAN, Commissioner, Commercial Fisheries Entry
Commission, Alaska Department of Fish & Game (ADF&G), addressed
Representative Guttenberg's question by saying interim-use
permits have been issued from the very beginning, going back to
probably 1974. The commission has always issued two types of
permits: the entry permit and, for all those fisheries that
were not limited, the interim-use permit. Over the years, as
new fisheries have been limited, CFEC has switched from an
interim-use permit for that fishery to an entry permit.
CHAIR SEATON asked about the relationship between the gear
permits that were issued and the interim-use or entry permits.
MR. HOMAN answered:
I'll try to go back that far. ... I think what
happened was, in the early years of the commission,
the carryover of the gear license came from pre-
limited entry days, and ... it was always the type of
permit that was issued ... for fishermen. After
limited entry, that continued to be issued, but we
also began issuing an interim-use permit and an entry
permit. ... This happened for three or four years,
until 1977, when ... the situation arose that "why
were we issuing these two types of cards, when ... the
interim-use permit or the entry permit could
substitute for the gear permit." So ... they switched
at that time and said ... that the interim-use permit
and the entry permit would cover a gear license. And
so, I guess, from 1977 ... the state hasn't issued a
gear license.
Number 1991
REPRESENTATIVE WILSON asked whether a retroactive date in the
bill would be back to 1974 or 1977.
MR. HOMAN said he believed 1974, when [CFEC] first started
issuing interim-use permits.
REPRESENTATIVE WILSON asked how much money is at stake if there
is a class action lawsuit over this, and whether the department
had considered this.
MR. HOMAN indicated it hadn't been considered, but said there
are probably thousands of permits.
REPRESENTATIVE WILSON asked whether it would be more than for
the Carlson case.
MR. HOMAN said he couldn't guess, but it would be substantial.
Number 2055
CHAIR SEATON offered his belief that the criminal case before
the court, which only involves three people, has nothing to do
with the purpose of a retroactivity clause here. The other
would probably only apply to halibut when it went to individual
fishery quotas (IFQs), he suggested, because that's when the
federal government first started issuing a federal card for
delivery of fish; before that, they were delivered under a state
"gear interim-use card." He mentioned 1996 as a possible date
when it became effective, not when it was passed.
REPRESENTATIVE OGG recalled that previous to that, the federal
government issued permits for halibut, both sport-charter cards
and commercial cards.
CHAIR SEATON said before that, delivery was made on the state
card, even though there was a federal fishery permit.
Number 2143
CHAIR HEINZE asked how many fisheries aren't subject to limited
entry or a moratorium.
MR. HOMAN said it's hard to answer because some fisheries have
no activity, but [CFEC] has limited approximately 66 or 67
fisheries, and probably another 125 or more have been identified
that aren't limited. The majority of the major fisheries like
the salmon fisheries are limited, but there are a lot of
miscellaneous fish and crab that haven't been limited.
CHAIR HEINZE requested confirmation that these permits help
[CFEC] in tracking the healthiness of the fish stocks.
MR. HOMAN said absolutely; that's where all the data comes from.
Because of the permit system and the requirement that the fish
tickets contain the permit number, how the resource is faring
under the fishery can be determined. It's the basic tool used
by ADF&G and CFEC to assess the fishery.
Number 2238
CHAIR HEINZE asked whether [CFEC] is looking at permitting for
the 125 or so fisheries that aren't limited now.
MR. HOMAN answered yes, saying it's through the interim-use
permit system for all those nonlimited fisheries. The same data
is collected from the nonlimited fisheries.
CHAIR SEATON requested confirmation that prior to limited entry,
gear cards were used to track the fisheries resources.
MR. HOMAN said that's correct.
Number 2291
REPRESENTATIVE GARA asked whether CFEC supports HB 478.
MR. HOMAN answered that [CFEC] definitely supports it, to
clarify that its practice for 30 years is what the legislature
intended.
REPRESENTATIVE GARA, noting that he is an attorney but still
doesn't understand them fully, requested an explanation of the
class action claims that this bill, if applied retroactively,
might impact, and how it would benefit the plaintiffs.
MR. HOMAN, noting that he hasn't gone into the issue a lot, said
the claim was that CFEC didn't have authority to issue IUPs
[interim-use permits] that it had issued in the halibut fishery,
because it didn't have the ability to limit that fishery.
Surmising that they were seeking their money back, he said there
are five fee classes, ranging, to his belief, from $60 to $300.
REPRESENTATIVE GARA asked whether their position was that they
should have been able to engage in the fishery for free, without
the permits, and that CFEC, by charging money for permits, had
exceeded its authority.
MR. HOMAN deferred to Mr. Goltz, but said he believes that's the
basic claim.
Number 2440
MR. GOLTZ said he basically agreed with Mr. Homan's answers.
Noting the approximately 3,000 halibut permits in Alaska, he
said the alleged class, not yet certified by the court, consists
of persons who caught fish only outside of state waters and
landed them in state waters. He explained, "We don't know
exactly how many people that is, because we believe most people
catch halibut both inside and outside of state waters." He said
the claim is that these persons complied with the law and the
practice of purchasing an interim-use permit for halibut from
CFEC in order to catch fish in state waters or to authorize the
landing and selling of their fish in state waters, in compliance
with state statutes.
MR. GOLTZ continued, saying [the plaintiffs'] argument is that
they shouldn't have had to comply with that law, because the
court of appeals has now held that CFEC didn't have authority to
issue them an interim-use permit. Thus they're seeking
reimbursement of the money paid, although to the best of his
knowledge they didn't protest paying it at the time. He said he
believes for most of the time period in question, approximately
1996 through 2003, the fee was either $50 for a resident or $150
for a nonresident for an interim-use permit for halibut.
Number 2531
REPRESENTATIVE GARA related his understanding, then, that the
plaintiffs claim, first, that CFEC had no authority to issue the
permits, and, second, that they should have been able to engage
in the fishery for free, without a permit.
MR. GOLTZ clarified that the pleadings don't allege that second
part, but said he thinks it's an inherent part of their claim
"and is something that we hope to point out in the litigation."
REPRESENTATIVE GARA asked whether these claims just apply to
interim-use permits for the halibut fishery beyond the three-
mile limit.
MR. GOLTZ said he's almost positive that's the only thing
alleged in the pleadings, but indicated he'd have to check. He
added that he thinks the people who are alleging to be part of
this class only allege that they are persons who have harvested
halibut outside of state waters, beyond the three-mile limit,
but have brought the halibut into state waters for landing. In
that circumstance, state law requires that the person have a
halibut interim-use permit. One reason is to promote
enforcement, he said, since halibut obviously are available in
state waters and it wouldn't be clear whether they'd been
harvested inside or outside of state waters. Thus the law
requires a person to have a permit anytime he/she possesses
halibut for commercial purposes inside of state waters or is
landing, delivering, or selling them.
Number 2640
CHAIR SEATON, noting that he is a halibut fisherman, offered the
following clarification. He said things have gotten complicated
because of the federal IFQ program, which issues a federal card.
When a person delivers halibut, a machine like an ATM [automated
teller machine] tells how many pounds that person has available,
and there is a printout of how many pounds have been delivered
and so forth. Since halibut is the only fishery controlled by
international treaty, the state doesn't really manage it within
state waters; the fishery goes from the shoreline out to 200
miles, and the federal government, through the halibut treaty,
manages it.
CHAIR SEATON, emphasizing the duality of the system, explained
that a person also must have an entry-permit card, which is used
to stamp the fish ticket; this [provides data on] what size of
fish were caught and so forth. The biological information is
only recorded on the state fish ticket, whereas the federal
permit records how many pounds have been delivered and how many
remain to be caught that year. He suggested that's the reason
for the confusion: people who had the plastic card from the
federal government thought they didn't need one from the state
anymore, and yet the state card is needed for a fish ticket in
order to deliver fish within the state. He continued:
That fishery alone is segregated. And as I'm
understanding it, it's not even the IFQ fisheries
together, because there's a sablefish [fishery], which
is not under international treaty. You still have a
card, but ... the state manages sablefish within state
waters. ... It's a very complex situation. ...
The big thing that we need the clarification for is
that the state has the authority to issue interim-use
permits for fisheries which are not currently pending
for limited entry. And that's the big question here.
And I don't really see it as a question because I see
the interim-use card as the replacement for the gear
card to give us tracking of fish and our fisheries
resource. And if we didn't have that, we would be
sitting out here managing fisheries without ... any
data or information.
MR. HOMAN, in response to Chair Seaton, indicated he had nothing
to add and commended him for the foregoing explanation.
Number 2804
REPRESENTATIVE OGG told Mr. Goltz he appreciated the clarity and
research. He asked what the ballpark figure is for the total
liability in the civil [class action suits].
MR. GOLTZ replied that it isn't known yet, because it isn't
known how big that class is. "If the cases do go forward, we're
going to have to do some discovery to find out who needs to be
in that class," he added. With regard to the Carlson case
mentioned earlier, he said he didn't believe it was close to
that, but reiterated that it's undetermined yet. Expressing
hope that that the cases wouldn't go forward, he explained, "If
we can prevail in the supreme court on the criminal action
that's currently pending, I think ... that the wind will be
taken out of the sails eventually ... of the civil claims,
because they won't have that court of appeals ruling to rely on
anymore."
CHAIR SEATON reiterated that the halibut-related claims are
probably fairly limited because most people fish in both state
and federal [waters]. He said the bigger question is that if
CFEC doesn't have authority to issue these [permits] unless
there is a pending limited entry in a fishery, there'd be no way
to track biological data and wouldn't be any fish tickets;
something like a gear card would have to be instituted again in
order to have a fish-ticket tracking system.
Number 2904
CHAIR SEATON closed the public hearing.
REPRESENTATIVE OGG said he'd been weighing the testimony to see
whether retroactivity would do more or less harm, and thinks
there'd be less harm because of "what could be out there."
Number 2922
REPRESENTATIVE OGG moved to adopt [Amendment 1], to add a new
Section 2 after line 12 that makes the bill retroactive to
January 1, 1974. A newly renumbered Section 3 would say that
the Act takes effect immediately.
Number 2987
REPRESENTATIVE GARA announced that he opposed making the bill
retroactive for two reasons, although he clarified that it
wasn't the most important thing in the world to him. He
suggested the need to get out of the habit of having bills that
affect pending litigation be made retroactive.
TAPE 04-13, SIDE B
Number 2998
REPRESENTATIVE GARA explained that he isn't particularly
sympathetic to the class action claims, and even if the
committee does nothing about retroactivity, he suspects that the
courts might be skeptical also. He said he doesn't like the
idea of the [legislature's] taking sides, even if well
motivated, but also doesn't think it will amount to anything,
since it is the court's duty to decide what the legislature
intended by the 1974 law. He surmised that the court would give
no weight to what a legislature says 30 years later about a
previous legislature's intent. He suggested the better argument
is the one he's heard that the state will take in these cases,
but reiterated that the courts are there to make that call.
Saying it looks unseemly and won't amount to a hill of beans
anyway, he spoke against adopting a retroactivity provision, and
for just letting these cases proceed.
Number 2886
REPRESENTATIVE GUTTENBERG agreed with both Representative Ogg
and Representative Gara. He said although this appears to
validate what has been done for 30 years, he doesn't know the
1974 legislature's intent. He said it seems the state also has
an inherent interest in collecting biological information, and
if the federal government doesn't do it, it seems there would be
a constitutional requirement to manage the fisheries by
collecting that data.
REPRESENTATIVE WILSON said she, too, was pulled in both
directions, but would ask the department what it wanted.
REPRESENTATIVE HEINZE said she feels the same way, but unlike
Representative Gara, doesn't see this as [the legislature's]
taking sides. She sees this as clarification, she said, but
acknowledged the argument against the ability to clarify what
happened 30 years ago. She expressed the need for direction on
Amendment 1.
Number 2780
CHAIR SEATON remarked that he is generally opposed to
retroactive clauses when changing the law, but doesn't believe
that's what is being done here, since it says that what the
state has been doing in managing the fisheries, collecting the
biological data, and requiring this card in place of a gear card
is the logical extension of what needs to be done to manage the
fisheries. He surmised that what is done here won't impact
either of the court cases, which are specific: one involves
people who failed to get a permit, which this bill doesn't
cover, and the other relates to a specific federal fishery that
has a dual-management scheme.
CHAIR SEATON said he does see a problem, however, if the
question arises about whether the state has the ability to issue
any permit for a fishery that's not limited or that has an
application [pending] for limitation; that has huge consequences
with regard to the state's ability to manage the fisheries,
because there is no system or permitting availability. Chair
Seaton said he is leaning towards the retroactive clause, which
will establish "not only that we want to go forward, but that we
agree that collecting our biological data and managing our
fisheries as we do, with a limited entry interim-use permit
system, is the right and proper thing that we need to do for our
fisheries." He specified that he'd support Amendment 1 for that
reason, not for anything to do with the pending court cases, and
agreed with Representative Gara that the courts wouldn't listen,
or at least listen very hard, in those cases.
Number 2660
REPRESENTATIVE WILSON concurred. She estimated that under the
class action suit, the most any fisherman could get back - if
$150 had been paid for seven years - would be a little more than
$1,000. She suggested the attorneys and not the fishermen would
benefit from that. She proposed the need to look at this with
regard to the best way to clarify this and to possibly help [in
the pending court cases], as Mr. Goltz had said. She concluded
that she would vote for Amendment 1.
Number 2607
REPRESENTATIVE GARA pointed out that passage of the bill without
a retroactivity provision gives CFEC the power to issue the
necessary permits, and it can use all the fisheries data from
the past. The only question in deciding whether to make it
retroactive is whether to have the chance to impact the pending
litigation, he said, reiterating that he doesn't believe it will
have any impact or should do so.
CHAIR SEATON clarified that his point isn't the pending
litigation with regard to halibut, but the possibility that
reimbursement will be sought as well from [participants] in all
other fisheries across the state that had an interim-use permit
that wasn't associated with pending limited entry; those cases
aren't currently before the court in any way.
REPRESENTATIVE HEINZE said she was trying to figure out the
reason for going ahead with the bill without an amendment
providing retroactivity.
MR. HOMAN agreed this clarifies that this upholds a practice
that CFEC has been using for 30 years. If it stands as the
court of appeals has read the statute, [CFEC] couldn't issue
IUPs to any fishery it didn't limit. He concurred with Chair
Seaton that the potential would exist for all those fisheries
that [CFEC] hasn't limited, or may never limit, to have a claim.
CHAIR HEINZE said she'd support [Amendment 1].
[Chair Seaton explained Amendment 1 to Representative Samuels,
who had just returned.]
Number 2428
CHAIR SEATON referred to comments made earlier by Mr. Goltz
about possible additional language. He asked whether
Representative Ogg just wanted Amendment 1 to say it's
retroactive to that date or to include other language.
REPRESENTATIVE OGG offered his impression that Mr. Goltz wasn't
asking for additional language, but that the retroactive clause
would allow him to argue those points. Representative Ogg added
that he'd hesitate to say what the supreme court would rule; he
noted that Mr. Goltz had indicated he didn't know, either, but
had said this wouldn't hurt his argument and [may] help.
REPRESENTATIVE OGG went on to say he thinks it is a proper power
of the legislature - although it should be used sparingly - to
make a decision in these matters when it finds something is
unclear, and will write a statute [counter to] a ruling made by
a court that the legislature finds abhorrent, for example. He
suggested this is a sparing use, to ensure that what has been
done over many years is proper.
Number 2291
MR. GOLTZ, in reply to a question from Chair Seaton, said he
doesn't think additional language is necessary, and that the
retroactive date is sufficient and would go a long way to make
the point that the intention of the amendment is to be
consistent with the way the law has been intended all along.
Number 2221
REPRESENTATIVE OGG requested that the foregoing statements by
Mr. Goltz be included in the record to support why Amendment 1
is being added. He emphasized Mr. Goltz's statement that the
intention isn't to change the law, but to clarify what was
always there.
REPRESENTATIVE GARA maintained his objection to Amendment 1.
A roll call vote was taken. Representatives Heinze, Samuels,
Ogg, Guttenberg, Wilson, and Seaton voted in favor of
Amendment 1. Representative Gara voted against it. Therefore,
Amendment 1 was adopted by a vote of 6-1.
Number 2151
REPRESENTATIVE GUTTENBERG asked whether there is an inherent
problem in using the word "interim", since the state has the
ability to issue a permit in any fishery.
MR. HOMAN replied that he doesn't see it as a problem.
Initially, when the permits were established, the entry permit
was for those that were limited, and the [interim-use permit]
was for those that weren't; over the years, that's been the
pattern. He said he supposed it could be read as being "on the
way to do something else," but it has always been the practice
that "interim" covered everything other than the entry permit.
REPRESENTATIVE GUTTENBERG said he wondered whether the pending
lawsuits are because people thought this was an interim use for
something that hadn't happened. Remarking that the state
certainly has a right and an obligation to have permits, he
suggested perhaps Mr. Goltz could address that better.
CHAIR SEATON pointed out that in this case it's different
because of the dual-permitting system for halibut. He
elaborated:
That's specifically what this is addressing, ... not
an interim nature. Interim-use permits are used in
two ways. One is if you have a limited entry system
and people are qualifying by number of points and
there's appeals; they're given those interim-use
[permits] until there's a final determination as to
whether they qualified for ... a limited entry permit.
And then they're also used for all other fisheries for
which there has not been the determination ... for
going to a limited entry system. So ... I can see
there's a little confusion, but they've been used this
way all along.
Number 2013
MR. HOMAN added:
We always have looked at the interim-use permit as the
permit that was issued before you decided whether
there was going to be a limitation or not a
limitation. So ... it could be used for quite a
number of years because ... you may never make that
decision; ... if a fishery doesn't look like it needs
to be limited, then ... the interim-use permit ...
will stay out there. ... You could read it to be that
way, as well, that ... interim-use permits are there
because no decision has been made on that fishery; ...
it remains open until you limit it. So ... if you
never limit it, then the interim-use designation stays
there.
CHAIR SEATON requested confirmation of his understanding that in
CFEC's view, these other fisheries are all really pending as
being available for limited entry, even though there's no
application for limited entry; thus it's under that kind of
jurisdiction that the interim-use permit is being offered.
MR. HOMAN replied that the commission has the authority to limit
any fishery if the conditions warrant it. But without that
limitation, that designation stays on those fisheries as
"interim use."
Number 1890
REPRESENTATIVE OGG moved to report HB 478, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHB 478(FSH) was
reported from the House Special Committee on Fisheries.
Number 1852
CHAIR SEATON briefly turned attention to HB 415. He reported
that he'd contacted the chair of the Board of Fisheries about
the timeframe for addressing the issues in HB 415, either on a
regional or statewide basis; he indicated the board would get
back with the committee this week on that. He also noted that
[Stephen White of the Department of Law] will be providing a
legal opinion this week.
Number 1803
REPRESENTATIVE GARA asked Mr. Goltz to provide his office with
the supreme court opinion, if one is issued ultimately, relating
to the legislature's statement of intent [in HB 478] as to what
the 1974 legislature meant. He suggested it would be good to
start developing data on the impact of these retroactivity
clauses and how the supreme court views them.
MR. GOLTZ agreed to do that.
CHAIR SEATON asked that the information be provided to all the
committee members. [CSHB 478(FSH) was reported from committee.]
ADJOURNMENT
Number 1747
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
10:17 a.m.
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