Legislature(2003 - 2004)
03/22/2004 09:12 AM House FSH
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ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 22, 2004
9:12 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Dan Ogg
Representative Les Gara
Representative David Guttenberg
MEMBERS ABSENT
Representative Cheryll Heinze
Representative Ralph Samuels
COMMITTEE CALENDAR
HOUSE BILL NO. 309
"An Act prohibiting the release of nonindigenous predatory fish
into public water."
- MOVED CSHB 309(FSH) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 309
SHORT TITLE: PROHIBIT RELEASE OF PREDATORY FISH
SPONSOR(S): REPRESENTATIVE(S) WOLF
05/08/03 (H) READ THE FIRST TIME - REFERRALS
05/08/03 (H) FSH, RES
05/16/03 (H) FSH AT 7:30 AM CAPITOL 124
05/16/03 (H) Heard & Held
05/16/03 (H) MINUTE(FSH)
03/22/04 (H) FSH AT 9:00 AM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE KELLY WOLF
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as the sponsor of HB 309.
DOUG VINCENT-LANG, Assistant Director
Division of Sport Fish
Alaska Department of Fish & Game
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 309 and answered
questions.
ACTION NARRATIVE
TAPE 04-16, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 9:12 a.m. Representatives Seaton,
Wilson, Ogg, and Gara were present at the call to order.
Representative Guttenberg arrived as the meeting was in
progress.
CHAIR SEATON reported that he'd conversed with [assistant
attorney general Stephen White of the Department of Law, legal
counsel to the Alaska Department of Fish & Game], and that a
legal opinion will be provided by the end of the week with
regard to the ability of the Board [of Fisheries] to change the
multiple areas of net-fishing for salmon in a single year.
HB 309-PROHIBIT RELEASE OF PREDATORY FISH
CHAIR SEATON announced that the only order of business would be
HOUSE BILL NO. 309, "An Act prohibiting the release of
nonindigenous predatory fish into public water."
Number 0147
REPRESENTATIVE WILSON moved to adopt the proposed committee
substitute (CS), Version 23-LS1097\S, Utermohle, 3/12/04, as a
work draft. [No objection was stated, and Version S was treated
as adopted.]
Number 0182
REPRESENTATIVE KELLY WOLF, Alaska State Legislature, sponsor,
explained that HB 309 is aimed at nonindigenous fish in Alaska.
Noting that he would reference the Southcentral area
specifically, he advised of a growing problem over the last 25
or so years on the Kenai Peninsula and in the valley involving
the invasion of nonindigenous fish species, specifically,
northern pike. In the last couple of years, the Alaska
Department of Fish & Game (ADF&G) also discovered that yellow
perch on the Kenai Peninsula had been brought in illegally; he
suggested someone from ADF&G could identify the monetary amount
it costs the state to use rotenone on the [unspecified] lake in
the northern Kenai Peninsula area to extinguish those.
REPRESENTATIVE WOLF said the concern is that "bucket biology" is
taking place. Although northern pike are considered game fish
in some of the Interior and some other states, they're not
indigenous to Southcentral Alaska; it costs ADF&G an
undetermined amount of money to control them through rotenone
and education. He said the department currently has an
educational program, as do other organizations, to provide
public awareness about northern pike, their habit, and what the
actions of some "bucket biologist" can create for an entire
watershed. Explaining that ADF&G has worked on [Version S] and
to his belief supports it, Representative Wolf deferred to Doug
Vincent-Lang to address what it costs the department to get rid
of yellow perch in the lake.
Number 0450
DOUG VINCENT-LANG, Assistant Director, Division of Sport Fish,
Alaska Department of Fish & Game, said he wasn't sure of the
name of the lake, but estimated $20,000 to $30,000 in terms of
personnel and so forth in order to poison the lake. He stated
the desire to get ahead of the situation, rather than constantly
be responding to invasive species that have been introduced into
lakes. Expressing concern that it's cost-prohibitive to use
rotenone after the fact, he said this legislation would provide
another tool for prevention.
REPRESENTATIVE GARA asked what impact the rotenone has on
rainbow trout or other fish.
MR. VINCENT-LANG answered that rotenone will kill all the fish
in the lake; clearly, it's a last-ditch effort. Thus [ADF&G] is
always trading off between the need to control an invasive
species and reintroducing the other species back into the lake.
CHAIR SEATON asked whether there have been any problems with
sticklebacks.
MR. VINCENT-LANG replied that sticklebacks are "pretty
ubiquitous" around Southcentral Alaska and there hasn't been
much of a problem with people moving them. The fish that people
have moved around in Alaska are northern pike, into the
Southcentral region, and now yellow perch on the Kenai
Peninsula. He added that northern pike appear to be showing up
increasingly on the Kenai Peninsula as well, which causes
concern to [the department] in terms of the standard stocks on
the Kenai Peninsula.
Number 0684
REPRESENTATIVE OGG mentioned people who transport crab from the
Bering Sea to the Gulf of Alaska, but don't have a permit and
have to get rid of them into the water because they aren't able
to offload them. Pointing out that this could put fertilized
crab eggs into the Gulf of Alaska and mentioning that water
might be released as well, he asked whether this bill would make
those commercial fishermen subject to a class C felony.
MR. VINCENT-LANG said he was trying to think that through, and
one question is whether there is a difference between the
species in the Bering Sea and those in the Gulf of Alaska. He
then said there is a possibility "that could be done," but he
wasn't sure what language could be added to ensure that isn't
occurring now and isn't damaging to the health of the ecosystem.
CHAIR SEATON offered his belief that there definitely are
different species if people may release live crab in such a
situation, and that it's not appropriate to do that. He pointed
out that although these aren't "ornamental fish," seawater must
be circulated around live crab the entire time. He said it's a
valid point that should be covered here.
Number 0885
REPRESENTATIVE GARA noted that this has focused on the problem
of impacts on freshwater fish. He said he hadn't heard a
concern about this with regard to saltwater species. He asked
what Mr. Vincent-Lang would think if this were limited to just
freshwater species.
MR. VINCENT-LANG replied that invasive species clearly are a
problem in fresh water and salt water, although the major
problems [raised] to date are in fresh water. He recalled that
perhaps some laws or policies on the state level deal with
invasive species in the marine environment.
CHAIR SEATON asked whether Representative Wolf had a comment.
REPRESENTATIVE WOLF said not at this time, and that this had
caught him off guard.
CHAIR SEATON remarked that that's a reason for the committee
process.
Number 0995
REPRESENTATIVE GARA suggested perhaps exempting conduct in salt
water that is an accepted commercial fishing practice. He added
that he didn't know whether what Representative Ogg was
discussing involved accepted commercial fishing practices.
REPRESENTATIVE OGG explained that he is just concerned that this
doesn't subject commercial fishermen to a class C felony for
doing what they've normally done for many years, such as
bringing golden king crab or blue king crab from the Bering Sea
to the Gulf of Alaska if they somehow escape or the eggs go out
in the seawater system. He recalled that last time the
committee talked about this, there was also the issue of escaped
fish from salmon farms or other fish farming, in case that is
permitted in the future.
Number 1110
CHAIR SEATON suggested, however, that it should be illegal if a
fisherman comes back with golden king crab or some other species
that isn't native to Kodiak, Cook Inlet, or Prince William Sound
and releases those to plant a new stock, unless there is a
permit issued by the commissioner [or the commissioner's
designee]; he referred to the language in subsection (a) on
[page 1] line 7. He added that if such a permit were held,
which would be required in a mariculture or aquaculture
situation, this wouldn't apply. He requested confirmation from
Mr. Vincent-Lang that [subsection] (a) allows for a mariculture
or aquaculture operation that is permitted to "not be held to
this section."
MR. VINCENT-LANG said that's correct, and clearly the intent was
that if a permit is issued by the department, [the permittee]
would be exempt. With regard to commercial fishermen, he said
he'd have to check whether or not transporting fish to a
different area and the landing of those fish are covered under a
permit. He surmised that selling would be covered under a
permit, but not the release of any live fish into a different
ecosystem; thus it would remain illegal.
CHAIR SEATON noted that this talks about "either that,"
wastewater, or eggs. Reiterating that crab tanks must
continuously circulate water and thus water flows overboard, he
emphasized that this is a normal activity of crab fishing, and
said it seems "a more important part than introducing live crab
and releasing them."
Number 1291
REPRESENTATIVE WOLF asked Mr. Vincent-Lang whether he could
define fish species versus crustacean or crab species.
MR. VINCENT-LANG replied that he thinks the way "fish" is
defined under regulations, crustaceans would be included. He
said he was wondering whether another way to get around this is
to exempt activities currently covered under water discharge
permits from the Department of Environmental Conservation (DEC),
if commercial fishermen needed water-quality permits from DEC to
release wastewater.
CHAIR SEATON answered that it isn't the case, however; crab
fishermen don't need a DEC permit, and yet they circulate sea
water from outside the boat through the crab tank, through the
crab, and then back overboard to bring in oxygen and keep the
crab alive.
Number 1392
REPRESENTATIVE WILSON began discussion of what would become
Conceptual Amendment 1. Referring to the wording "does not
apply to" [Section 1, page 1, line 9], she suggested there could
be a paragraph (3) that says: "conduct that is acceptable
fishing practices by commercial fishermen".
REPRESENTATIVE GARA proposed another addition: "or the
inadvertent release by commercial fishermen of an Alaska species
from one area into another".
CHAIR SEATON noted that in commercial crab fisheries two actions
take place. First, water is circulated as described previously,
and the water that goes overboard could carry eggs or something
else; this is a normal commercial practice. Second, when taking
crab out of the tanks, fishermen discard crab that they think
are dead, generally by throwing them overboard; some crab might
not really be dead, though.
CHAIR SEATON surmised that the "incidental release" language
would cover both, but reiterated that he doesn't want to go to
the extent of allowing intentional release or transport to
establish [a new area for those crab or other species].
Expressing concern about genetics-related problems, for example,
he requested confirmation that Representative Ogg's intention
isn't to permit that.
Number 1613
REPRESENTATIVE OGG affirmed Chair Seaton's understanding. He
proposed language along the following lines: "generally
accepted conduct in relation to permitted commercial fishing".
REPRESENTATIVE GARA said he thinks the language Representative
Ogg used is fine, but suggested limiting it to saltwater
commercial fishing. He explained that he'd hesitate to deal
with the argument from someone who believes more hatchery salmon
are needed in a freshwater body, for example, since something
like that might be generally accepted among a number of
commercial fishermen.
REPRESENTATIVE OGG responded that he had no problem with that,
but was trying to understand where commercial fishermen would be
"carrying buckets of salmon eggs into a lake."
REPRESENTATIVE GARA replied that it's not really buckets and
that he doubted anybody could convince a court it's a generally
accepted practice, but explained that perhaps someone could
argue that hatchery fish already exist in many salmon streams
and that he or she was only furthering the commercial purpose of
adding more hatchery fish here. "Well, we don't want you to do
that," he remarked, added that he doesn't want to leave any room
for argument in the freshwater area.
CHAIR SEATON said that makes sense to him because those
activities can be permitted and someone should have a permit
before doing it. He mentioned genetic stocks.
REPRESENTATIVE OGG pointed out that salmon do transfer between
salt water and fresh water, and that Alaska has commercial
salmon fisheries in fresh water. He again expressed concern
that it might impact commercial fishermen who are doing what
they normally do in the course of their business.
Number 1796
REPRESENTATIVE WOLF referred to page 1, line 6, which addresses
live fertilized eggs of nonindigenous species. He said someone
is required to carry a permit to do any fertilization in any
lake within Alaska. Recognizing Representative Ogg's concerns
about crab, he said he'd fully accept the conceptual amendment
that has been under discussion.
CHAIR SEATON asked whether anyone else wished to testify. He
then closed public testimony.
Number 1882
REPRESENTATIVE OGG moved to adopt Conceptual Amendment 1, to
perhaps have a paragraph (3) [after page 1, line 12] that covers
this concept: generally accepted conduct in relation to
permitted commercial fishing would be excluded.
CHAIR SEATON objected for purposes of discussion. With regard
to salt water, he referred to Representative Wolf's discussion
of "nonindigenous" and asked:
Does that really take care of all of the ...
freshwater problems? In other words, if you're on the
Yukon River, any fish you catch there are going to be
indigenous? This would relate to ornamental fish, or
this would relate to ... other nonindigenous [species]
and eggs of nonindigenous fish. So, do we have a
situation where we are talking about anything that
...?
Number 1980
REPRESENTATIVE OGG replied that not being a freshwater fisherman
"except for sheer joy," he doesn't know and would rather leave
it to the department. He reiterated his desire to avoid having
commercial fishermen be subject to a class C felony if it is
limited to just salt water "and then we cause that to happen to
somebody." He said he didn't know if there is an event that
would do that, but if the department comes back and says there
is nothing in fresh water that would be affected if [the
exemption] is limited to salt water, he has no problem with it.
"But I don't want to set the parameter for them to say 'just
salt water', because they may not look beyond that," he added.
CHAIR SEATON asked whether within Conceptual Amendment 1, then,
is that if the department feels it would be beneficial to have
'salt water' included and that it wouldn't impact commercial
fisheries in fresh water, Representative Ogg would accept having
it in there.
REPRESENTATIVE OGG affirmed that, if it's acceptable to the
sponsor.
CHAIR SEATON asked Representative Gara whether that satisfies
his concerns.
REPRESENTATIVE GARA replied, "Sure, ... if it's OK with the
department to add 'saltwater commercial fishing', just to make
that term 'saltwater commercial fishing', just to be safe, that
would make me comfortable, I guess." He asked whether
Representative Wolf would be asked to work with the department
or whether the committee would "pass out the amendment and have
Representative Wolf report to us on the floor."
CHAIR SEATON pointed out that it will go to the House Resources
Standing Committee. He said he was comfortable enough with that
direction to the department. He asked whether anyone else had a
problem with giving the department leeway to specify "saltwater"
if it wouldn't negatively impact any freshwater commercial
fisheries. He then said Conceptual Amendment 1 inserts,
approximately on line 12 [page 1], a new [paragraph] (3) that
adds a generally accepted conduct in relationship to a permitted
commercial fishing activity, or to permitted commercial fishing.
Number 2116
CHAIR SEATON removed his objection.
CHAIR SEATON asked whether there was any objection to adopting
Conceptual Amendment 1. There being no objection, it was so
ordered.
Number 2128
REPRESENTATIVE GARA moved to adopt Conceptual Amendment 2 as
follows:
Page 2, line 1, after "class C felony"
Add ", and must pay a fine of at least $1,500"
CHAIR SEATON objected for discussion purposes.
REPRESENTATIVE GARA explained his reasoning: although this kind
of crime in many senses isn't as serious as one involving a
human victim, it is, in some sense, a crime against the whole
community. Tens of thousands of Alaskans cherish that Alaska
has wild fish that in size and number are similar to what
they've always been. "We've done a very good job managing our
fisheries, and when somebody commits the kind of conduct that
Representative Wolf is trying to prevent, ... they impact the
lives of the whole community at the same time," he explained.
REPRESENTATIVE GARA noted that ADF&G has ongoing efforts to deal
with this impact and has biologists who are concerned right now
with how to deal with predatory, introduced, nonnative fish.
Therefore, he said, he believes it's appropriate for somebody
who commits this crime to pay a minimum fine, since it occupies
the time of the state and impacts the interests of its people.
Furthermore, he opined, this is the kind of conduct ADF&G can
help to deter by talking about the minimum $1,500 fine, by
posting it in appropriate places, for example. Thus he
suggested a minimum fine in this regard is important.
Number 2237
CHAIR SEATON asked what the range of fines and penalties is for
a class C felony.
MR. VINCENT-LANG answered that the maximum fine is up to $50,000
and up to five years in jail for a class C felony. Clearly, he
said, a $15,000 penalty would be ...
CHAIR SEATON clarified that it's $1,500.
MR. VINCENT-LANG responded that a $1,500 penalty would be in
line with the maximum allowed under a class C felony.
CHAIR SEATON asked whether there is a minimum currently in
statute for a class C felony.
MR. VINCENT-LANG said he wasn't sure.
Number 2278
REPRESENTATIVE GARA expressed confidence that there's no such
minimum, but made the commitment that if this amendment passes
and it turns out there is a minimum [already in statute], he'd
work with the sponsor to delete the language.
REPRESENTATIVE OGG suggested conditional language such that if
there is no minimum fine [already in statute], this will be the
minimum.
REPRESENTATIVE GARA accepted that as a friendly amendment that
might result in the following language: "Unless a minimum fine
is provided elsewhere in law, the minimum fine for a violation
of this section shall be at least $1,500". In response to a
request from Chair Seaton to repeat it, he reworded it slightly:
"To the extent a minimum fine is not provided elsewhere by law,
the minimum fine for a violation of this section shall be
$1,500." He offered to do research on the minimum fine so the
language could be cleaned up on the House floor.
CHAIR SEATON specified that he wanted it done in the House
Resources Standing Committee. He requested confirmation that
the intention, if there is a minimum fine elsewhere in law, is
that this amendment won't be incorporated.
REPRESENTATIVE GARA affirmed that.
Number 2450
CHAIR SEATON removed his objection.
CHAIR SEATON asked whether there was any objection to adopting
[Conceptual Amendment 2, as amended]. There being no objection,
it was so ordered.
CHAIR SEATON noted that the halibut commission has found that
15 percent of supposedly dead halibut come back to life and
survive.
Number 2532
REPRESENTATIVE GUTTENBERG referred to page 2, line 11,
paragraph (4), "water of the state". He asked whether that
definition is consistent throughout statute.
MR. VINCENT-LANG said it's a definition of how [ADF&G] applies
public policy.
CHAIR SEATON asked whether any of the other definitions are new.
MR. VINCENT-LANG replied that they're basically consistent with
how [ADF&G] has been applying this in terms of managing the
fisheries.
Number 2591
REPRESENTATIVE OGG moved to report CSHB 309, Version 23-
LS1097\S, Utermohle, 3/12/04, as amended, out of committee with
individual recommendations and the accompanying [zero] fiscal
notes. There being no objection, CSHB 309(FSH) was reported
from the House Special Committee on Fisheries.
MR. VINCENT-LANG said he'd be glad to work on the aforementioned
language.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
9:51 a.m.
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