Legislature(2007 - 2008)BARNES 124
05/09/2007 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB134 | |
| HB188 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 188 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 134 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
May 9, 2007
8:40 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Kyle Johansen
Representative Craig Johnson
Representative Gabrielle LeDoux
Representative Peggy Wilson
Representative Bryce Edgmon
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 134
"An Act relating to conservation and protection of wild salmon
production in drainages affecting the Bristol Bay Fisheries
Reserve; and providing for an effective date."
- HEARD AND HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 188
"An Act relating to the authority of the Board of Fisheries to
allocate within fisheries; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 134
SHORT TITLE: PROTECTION OF SALMON SPAWNING WATER
SPONSOR(s): REPRESENTATIVE(s) EDGMON
02/14/07 (H) READ THE FIRST TIME - REFERRALS
02/14/07 (H) FSH, RES
02/28/07 (H) FSH AT 8:30 AM BARNES 124
02/28/07 (H) Heard & Held
02/28/07 (H) MINUTE(FSH)
03/02/07 (H) FSH AT 8:30 AM BARNES 124
03/02/07 (H) Heard & Held
03/02/07 (H) MINUTE(FSH)
03/05/07 (H) FSH AT 8:30 AM BARNES 124
03/05/07 (H) Heard & Held
03/05/07 (H) MINUTE(FSH)
05/09/07 (H) FSH AT 8:30 AM BARNES 124
BILL: HB 188
SHORT TITLE: BOARD OF FISHERIES' AUTHORITY
SPONSOR(s): REPRESENTATIVE(s) WILSON
03/12/07 (H) READ THE FIRST TIME - REFERRALS
03/12/07 (H) FSH, RES, JUD
04/27/07 (H) SPONSOR SUBSTITUTE INTRODUCED
04/27/07 (H) READ THE FIRST TIME - REFERRALS
04/27/07 (H) FSH, RES, JUD
05/02/07 (H) FSH AT 8:30 AM BARNES 124
05/02/07 (H) Heard & Held
05/02/07 (H) MINUTE(FSH)
05/04/07 (H) FSH AT 8:30 AM BARNES 124
05/04/07 (H) Heard & Held
05/04/07 (H) MINUTE(FSH)
05/09/07 (H) FSH AT 8:30 AM BARNES 124
WITNESS REGISTER
STEVEN DAUGHERTY, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 188.
BRUCE TWOMLEY, Commissioner
Commercial Fisheries Entry Commission (CFEC)
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska'
POSITION STATEMENT: Testified in support of HB 188.
JOHN JONES
Chignik, Alaska
POSITION STATEMENT: Testified in opposition to HB 188.
CLEM [CLEMENS] GRUNERT, President
Chignik Lagoon Village Council
Representative, Chignik Lagoon Power Utility
Member, Chignik Lagoon Native Corporation Board
Chignik Lagoon, Alaska
POSITION STATEMENT: Testified in opposition to HB 188.
NORMAN ANDERSON
Dillingham, Alaska
POSITION STATEMENT: Testified in opposition to HB 188.
STEVE TAUFEN, Public Advocate
Founder, Groundswell Fisheries Movement
Seattle, Washington
POSITION STATEMENT: Testified in opposition to HB 188.
CALVIN SKONBERG
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HB 188.
ALEXUS KWACHKA
Kodiak, Alaska
POSITION STATEMENT: Testified in opposition to HB 188.
JOHN RANTZ, Secretary
Chignik Fishermen United
Chignik, Alaska
POSITION STATEMENT: Testified in opposition to HB 188.
MOREY JONES, President
Chignik Fishermen United
Chignik, Alaska
POSITION STATEMENT: Testified in opposition to HB 188.
SCOTT MCALLISTER, Member
Sitka Sac Roe Group
Southeast Seiners
Marketing Chair, United Fishermen of Alaska (UFA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 188.
FRANK GRUNERT
Chignik Lagoon, Alaska
POSITION STATEMENT: Testified in opposition to HB 188, and
offered modifications.
BOB THORSTENSON, President
United Fishermen of Alaska (UFA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 188.
BRUCE WALLACE
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 188.
SHAWN DOCHTERMANN, Vice President
Alaska Jig Association
Kodiak, Alaska
POSITION STATEMENT: Testified in opposition to HB 188.
JULIE KAVANAUGH
Kodiak, Alaska
POSITION STATEMENT: Testified on HB 188.
JIM ROCKOM,
(No address provided)
POSITION STATEMENT: Testified in opposition to HB 188.
CHARLES "CHIP" TREINEN
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 188.
JIM PETERSEN
(No address provided)
POSITION STATEMENT: Testified in opposition to HB 188.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:40:17 AM. Representatives
Wilson, Johnson, LeDoux, and Edgmon were present at the call to
order. Representatives Johansen and Holmes arrived as the
meeting was in progress.
HB 134-PROTECTION OF SALMON SPAWNING WATER
8:40:34 AM
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 134, "An Act relating to conservation and
protection of wild salmon production in drainages affecting the
Bristol Bay Fisheries Reserve; and providing for an effective
date."
CHAIR SEATON explained that permission has been received to hear
HB 134, during the interim in conjunction with the House
Resources Committee. This will allow both committees to
collaborate during the planned field hearings, and have the
benefit of receiving the information together.
8:42:06 AM
REPRESENTATIVE EDGMON said it would be helpful to have as many
members of both committees as possible attend the area meetings
to gain a full perspective of the situation.
8:42:22 AM
REPRESENTATIVE LEDOUX expressed her support for the field
meetings, asked where the hearings would be held, and how much
of the area the committee members could expect to visit.
CHAIR SEATON stated that, thus far, the expectation is to hold
hearings in more than one community, spend several days in the
area, and tour the effected areas of the region. Arrangements
are still being made, he said.
REPRESENTATIVE LEDOUX suggested including a visit to the village
of Nondalton.
CHAIR SEATON asked that committee members submit written agenda
suggestions to his office.
[HB 134 was held over.]
HB 188-BOARD OF FISHERIES' AUTHORITY
8:43:59 AM
CHAIR SEATON announced that the next order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 188, "An Act relating to
the authority of the Board of Fisheries to allocate within
fisheries; and providing for an effective date."
8:44:22 AM
REPRESENTATIVE PEGGY WILSON, Alaska State Legislature, presented
HB 188, as prime sponsor, and stated that this bill was drafted
by request of the Department of Law (DOL) and the Alaska
Department of Fish & Game (ADF&G); both departments find need
for this legislation. Since the bill was first introduced,
concerns have been addressed and included in the [sponsor]
substitute (SS). Further, she emphatically disclaimed:
I have no intention of doing anything with a co-op, I
have no intention about dealing with any kind of IFQ's
[individual fishery quotas], ... and I want that to be
made very clear.
8:46:55 AM
REPRESENTATIVE LEDOUX noted that the bill appears to have "a
relatively loose title." If it is not the intent to allow for
IFQ's, or for co-ops, would the sponsor consider an amendment to
the title, she asked.
REPRESENTATIVE WILSON responded that, as sponsor, she would have
no problem with a title change. The DOL may need to weigh in on
the question, however.
8:47:48 AM
STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources
Section, Civil Division (Anchorage), Department of Law (DOL),
provided official departmental support for HB 188, as a bill
necessary to preserve and allocate fishery resources. This bill
became necessary due to Supreme Court opinions in Grunert v.
State. The decisions opinion redefined what constitutes a
fishery administrative area. He provided examples of sub
district management areas that regularly occur in Bristol Bay
and on the Yukon River, to illustrate how this ruling effects
every area of the state. Additionally, allocations for kelp, as
well as sport fishing interests, could be effected. He pointed
out that it has always been assumed that the board is not
restricted in it's authority to allocate within fisheries.
There is a significant risk of litigation, if this is not
addressed. This bill is important to preserve existing
regulation, and to continue to allow the board's ability to
allocate resources. The board has been cautioned to minimize
allocative measures, while this is being addressed.
8:54:01 AM
REPRESENTATIVE LEDOUX asked how many cases are pending, and how
many letters have been received by DOL regarding suit
considerations.
MR. DAUGHERTY replied none. He offered that there have been
"mutterings," and speculated that it is probably a matter of
time before another suit arises.
REPRESENTATIVE LEDOUX noted that this decision occurred in March
17, 2005. It appears that if there were a flood gate of
mitigation suits, there would have been some indication of that
by now.
8:55:26 AM
MR. DAUGHERTY clarified that the main problem did not arise
until 2006. He opined that people may not challenge this until
they see a benefit to their user group. In most cases the
regulations that the board has adopted are beneficial to all
user groups. Someone on the outside, who is not benefiting from
a user group, will be the person who makes a challenge, he
opined.
8:56:16 AM
REPRESENTATIVE LEDOUX asked if the bill could not address the
specific regulations of concern, rather than take such an open
approach.
MR. DAUGHERTY responded that there is no way to address the
issue completely. It may not be possible to identify all of the
regulations. There is a possibility that this could affect
hundreds of regulations. Additionally, it will serve to protect
future regulations.
8:57:47 AM
CHAIR SEATON referred to legal letters in the packet, and
directing attention to the March 26, 2007, Brian Kane,
Legislative Counsel, memorandum. He read Mr. Kane's response to
questions regarding the ability to overturn a direct supreme
court decision, which states on page 2 [original punctuation
provided]:
The Hebert and the Grunert decisions, together,
proceed from different starting points. Hebert
unquestionably involved active participation by
individual fishermen; in Grunert II, the court noted:
"The cooperative scheme addressed in Grunert I
differed from the cooperative scheme we consider here,
but our conclusion is the same: The legislature must
give the board statutory authority to create a fishery
scheme in which permit holders profit from the
harvests of other permit holders."
Because of the factual circumstances and differing
principles between the two sets of decisions, and
because the regulatory system sustained in Hebert
contemplated expanded opportunity for active fishermen
within the entirety of a fishery administrative area,
I don't see the court's Hebert decision as being put
"at risk" either by the Grunert decisions or by
legislative action, or inaction, on the amendment
proposed by House Bill 188.
CHAIR SEATON said that this has been addressed in statute in the
Korean hair crab, and scallop industries, and the effects have
been experienced. He said:
Would you please address why you think that the
general language of Grunert II is going to overturn a
specific supreme court decision, based on the facts
and the conditions of the administrative area, and
breaking the administrative area, and allowing those
choices to be made for super exclusive areas.
9:01:44 AM
MR. DAUGHERTY noted that the supreme court, in the Grunert case,
went far beyond what it would have to do in order to overturn a
cooperative fishery, and he discussed the language that
established this ability. Further, the court held that the BOF
does not have the authority to allocate within fisheries, or to
define a fishery. These two actions together create the
problem. He maintained that the board does have the ability to
maintain super exclusive areas under the authority allowing them
to set quotas, bag limits, harvest levels, and other methods and
means restrictions. However, there is a strong argument that
the reasoning of the court in Grunert, would apply and that a
super exclusive area is an allocation within a fishery, and
could be challenged on that ground. This point was not raised
in the Hebert case.
CHAIR SEATON queried that, if the court had intended to overturn
Hebert, would they have taken this action without specifying
that they were, in fact, overturning an existing case.
MR. DAUGHERTY suggested that they may not have been overturning
an existing case, at the time, but the point to consider is that
the court's reasoning could be used in the future if specific
facts were raised to the court that could serve as a basis for
overturning Hebert. The outcome of such litigation cannot be
predicted.
9:04:44 AM
REPRESENTATIVE LEDOUX observed that, thus far, the state has had
one case based on Grunert, and asked if it was settled.
MR. DAUGHERTY replied, "Yes."
REPRESENTATIVE LEDOUX suggested that it be used as a test case.
MR. DAUGHERTY explained why the single case was easily settled,
but not worth the risk of litigation. The decision was made to
solicit a solution through the legislature instead.
9:06:45 AM
BRUCE TWOMLEY, Commissioner, Commercial Fisheries Entry
Commission (CFEC), Alaska Department of Fish & Game (ADF&G),
stated departmental support for HB 188, citing this as a
critical issue. He explained why the limited entry system works
best on a system that is managed for escapement goals vs. the
quota system. An example of this is the Southeast, Chatham
Strait, sablefish industry, and he proceeded to detail how this
fishery devolved to the point that the managers were afraid to
open the fishery. The BOF finally allocated within the fishery,
allotting shares of the quota to individual permit holders.
This equated to a bag limit, which improved conservation, and
provided confidence to the participants and managers for the
success of the fishery. Because of this action, this fishery is
viable today. However, in 2005 and 2006, when the supreme court
held that the board lacks statutory authority to allocate within
a fishery, doubt ensued regarding the board's authority to
sustain this type of management effort.
9:12:13 AM
REPRESENTATIVE LEDOUX suggested that these arguments could be
used to support IFQ's, which has been done by the department
regarding the ground fish harvest. She recalled past efforts to
have such a bill put before the legislature.
COMMISSIONER TWOMLEY said that had occurred, however that is not
why this bill is being requested; it is precipitated directly
from the Grunert decision.
9:13:27 AM
REPRESENTATIVE LEDOUX queried how the passage of this bill would
effect the sable fish industry. Further, she offered that this
could be challenged on constitutional as well as statutory
grounds. She asked if the legislature is really avoiding
anything here, given that the constitutional aspect has not been
tested.
COMMISSIONER TWOMLEY replied, "I think not. ... I don't think
there could be a realistic challenge."
REPRESENTATIVE LEDOUX asked what is the difference between an
IFQ, and how the sablefish fishery was managed. She recalled
that the Chatham Strait quotas were considered unconstitutional
when they were implemented, but no one challenged the point.
COMMISSIONER TWOMLEY agreed that there is a possibility for a
challenge, however, strong arguments exist for taking such a
measure.
9:17:23 AM
CHAIR SEATON suggested that the CFEC would not have an issue if
only one boat actively fished, never landed on shore, served
conservation efforts, and presented a well managed system;
similar to the current scallop fishery. However, the
legislature views this from a different policy perspective. He
directed attention to the Legal Services memorandum, dated March
26, pages 3 and 4, and read:
Since, independently of the amendment proposed by
House Bill 188, the board has adopted in regulation a
quota based, at least in part, on vessel size class,
there is no reason to believe that legislative
inaction on the bill would call that regulation into
question.
CHAIR SEATON question whether this isn't a fundamental
difference from Mr. Twomley's opinion.
COMMISSIONER TWOMLEY responded, "No." He said it appears that
Mr. Kane is invoking the same theory as Mr. Daugherty. Due to
the unpredictability of a decision, why condemn people to a four
year litigation process and risk their livelihood, he asked.
The legislature could provide the clarification with this
legislation, and do no harm.
9:20:35 AM
REPRESENTATIVE LEDOUX observed that the primary concern for this
decision is coming from the CFEC and the attorney general's
office. She offered that it is not standard practice in the
legislative halls to be in anticipation of a supreme court
decision.
COMMISSIONER TWOMLEY suggested that perhaps the constituents do
not know how this may directly effect them.
9:22:04 AM
REPRESENTATIVE JOHANSEN asked that the use of the term "we" be
used conscientiously by committee members, and suggested that
they restrict their comments to personal opinion. Further, he
expressed support for HB 188.
9:23:26 AM
JOHN JONES stated opposition to HB 188, citing how past
allocations have not worked. He described the Chignik "single
fishery," and his concerns for the board managing within such
fisheries. He said that the board does not need to have further
allocation authority, but should focus on regulations, with the
department managing the resource.
9:27:28 AM
CLEM [CLEMENS] GRUNERT, President, Chignik Lagoon Village
Council, Representative Chignik Lagoon Power Utility, Member,
Chignik Lagoon Native Corporation Board, stated opposition for
HB 188. He paraphrased from a prepared statement, which read as
follows [original punctuation provided]:
Currently I run a family fish operation. I invest my
time in this village and the fishery so that it can be
a good place to live and make a living for the younger
generations.
House Bill No. 188 worries me not only for the
elimination of checks and balances for the fishing
industry in Alaska, if it were to pass, but also for
the disrespect it shows the judiciary system for the
State of Alaska.
I was one of the very few that did not join the
cooperative fishery at all for its duration in our
fishery. Even though my income and fishing time was
stripped from me and my family, I could not put aside
my stand against the co-op. Besides that I don't
think there were any guarantees that you would make
more in the co-op because you had to be a catcher boat
or a tender to do that and not everyone got selected
for those jobs.
This bill needs more than one week's consideration,
not like the co-ops three days, to put it in place.
Residents of villages and the earnings as fishermen
are at stake and it goes without saying that those are
important and need a lot of time and public comment
first. The high cost of fuel has raised the cost of
living in the village so much that it would not take
much to turn most fishing villages into ghost towns.
So I ask that all of these necessary things are
considered and to move slowly on Bill No. 188.
9:29:41 AM
NORMAN ANDERSON stated opposition to HB 188, and expressed
concerns for the Naknek fishery.
9:31:02 AM
STEVE TAUFEN, Public Advocate, Founder, Groundswell Fisheries
Movement, stated opposition to HB 188. He said, "I take umbrage
with this role of the BOF, and others, in economic allocation
...." This is a power shift from the legislature to the
agencies, he opined, and a classic case of the attorney general
office's not adhering to putting the public first. He agreed
with the legal opinion of Brian Kane, Legal Counsel, and praised
his work. Because there is so much more surrounding this issue,
it is premature to advance this bill, he stressed.
9:34:20 AM
CALVIN SKONBERG stated support for HB 188. He provided a brief
history of his 54 year fishing experience, working with the
board, and as a member of an IFQ.
9:35:40 AM
ALEXUS KWACHKA stated adamant opposition to HB 188, arguing that
IFQ's have been detrimental. The Chignik co-op allowed
fishermen to remain at home rather than fish. He expressed
concern that the state fisheries management is paralleling the
federal system. He said, "I do not want one more tool in the
tool box to allow [BOF] to go there."
9:37:04 AM
JOHN RANTZ, Secretary, Chignik Fishermen United (CFU), stated
opposition to HB 188. He described the extreme, negative,
socioeconomic impacts, caused by the cooperative in Chignik. He
expressed concern for, and cautioned against, repeating this
error.
9:39:37 AM
MOREY JONES, President, Chignik Fishermen United (CFU), stated
opposition to HB 188, on behalf of CFU. He cited the abuse of
power exercised by the BOF, and the board's refusal to respond
to the local interests. The board was also unwilling to accept
the decision of the Alaska Supreme Court. Due to these historic
actions by the board, CFU members harbor a fear of expanding the
board's authority. He said:
After our previous experience, through the Chignik
allocated co-op, we know that the BOF will do, and can
do, whatever they want. ... If the BOF is given the
power of HB 188, then we don't need a state
constitution, and we don't need a legislative body of
government. ... Expanding [BOF] authority is to
supersede that which is set forth by the legislature.
9:42:23 AM
CHAIR SEATON reminded witnesses that the committee is working
with the sponsor substitute, Version K, which should be
available to everyone.
9:43:02 AM
SCOTT MCALLISTER, Member, Sitka Sac Roe Group, Southeast
Seiners, Marketing Chair, United Fishermen of Alaska (UFA),
stated support for HB 188, and said he believes in the system,
and that the BOF needs to have this authority. He acknowledged
that the Chignik co-op was a BOF error, however, this bill does
not give the BOF the ability to create co-ops or IFQ's. If the
board is not provided this authority, issues may need to be
brought to the legislature, which creates a lengthy, costly,
arduous process.
9:45:38 AM
CHAIR SEATON read again from the Grunert case [original
punctuation provided]:
The legislature must give the board statutory
authority to create a fishery scheme in which permit
holders profit from the harvests of other permit
holders.
MR. MCALLISTER clarified that the court is requiring that the
legislature provide this authority to the board, hence the
necessity of HB 188.
9:46:59 AM
FRANK GRUNERT stated opposition to HB 188. He suggested
including wording about processors not receiving an allocation.
He said that the situation with the Chignik co-op has been
devastating to many fishermen, and this bill may create similar
situations in other areas.
9:48:49 AM
BOB THORSTENSON, President, United Fishermen of Alaska (UFA),
stated support for HB 188, on behalf of an overwhelming nod from
UFA, and pointed out that the sponsor substitute does contain a
Chignik prohibition. He elaborated on the fisheries that will
be effected by the bill, and provided examples of what may
happen if the board is not provided this authority. He opined
that this is an important, official, housekeeping measure, that
has been thoroughly vetted by the UFA.
9:52:22 AM
BRUCE WALLACE stated support for HB 188, and said that he trusts
the legislative necessity for this action, and for the board to
have appropriate authority.
9:53:53 AM
SHAWN DOCHTERMANN, Vice President, Alaska Jig Association,
stated opposition to HB 188, opining that this bill is a clean
up measure "for all of the mess that the BOF has brought before
us with allocation measures; they have ... gone outside of their
rights to allocate." The issues need to be sorted out on an
individual basis, rather than attempting to correct it with one
bill. He suggested that many of the stakeholders are currently
fishing, and unable to participate in the hearings.
9:55:59 AM
REPRESENTATIVE WILSON directed attention to the bill, page 2,
line 28 and read:
Sec. 3. AS 16.05.251 is amended by adding a new
subsection to read:
(j) Nothing in (e) of this section authorizes the
Board of Fisheries, without separate express statutory
authorization, to allocate to
(1) a cooperative fishery; or
(2) an individual fisherman based on
individual catch history.
9:57:20 AM
JULIE KAVANAUGH stated that there is a significant difference in
using language in the bill to specify "among" vs. "within." She
elaborated on her point that these two words are not
interchangeable and alters the meaning of the legislation.
Further, she said that the bill could be interpreted to imply
that the BOF has been operating in a constrained manner, and
opined that it has not.
9:59:10 AM
JIM ROCKOM stated opposition to HB 188, and stressed that BOF
members should be elected, not appointed, to minimize the
politicalization of the board process.
10:00:07 AM
CHARLES "CHIP" TREINEN stated support for HB 188, citing the
supportive restrictions that have been included in the SSHB 188,
and suggested that some people may be missing that aspect of the
bill. With the ever changing aspects of the fishing industry
the BOF needs to have the ability to manage the fisheries;
adapting to the ever changing methods, means, and marketing
advances. He opined that this bill does not effect a radical
change.
10:02:56 AM
JIM PETERSEN stated opposition to HB 188, and opined that
inserting the language "within" would further empower the BOF
beyond what is necessary.
10:04:01 AM
CHAIR SEATON closed public testimony.
[HB 188 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 10:04.
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