Legislature(2007 - 2008)BARNES 124
03/26/2008 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HCR22 | |
| HB241 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HCR 22 | TELECONFERENCED | |
| *+ | HB 241 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 26, 2008
1:18 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Co-Chair
Representative Craig Johnson, Co-Chair
Representative Anna Fairclough
Representative Bob Roses
Representative Paul Seaton
Representative Peggy Wilson
Representative Bryce Edgmon
Representative David Guttenberg
MEMBERS ABSENT
Representative Scott Kawasaki
COMMITTEE CALENDAR
HOUSE CONCURRENT RESOLUTION NO. 22
Affirming the legislative intent of state law that the Alaska
Board of Fisheries currently has the tools and authority to
allocate fishery resources within a fishery based on vessel size
class, gear limits, trip limits, and registration areas.
- HEARD AND HELD
HOUSE BILL NO. 241
"An Act creating the Stampede State Recreation Area."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HCR 22
SHORT TITLE: REGULATION OF FISHERIES
SPONSOR(S): REPRESENTATIVE(S) SEATON
02/19/08 (H) READ THE FIRST TIME - REFERRALS
02/19/08 (H) FSH, RES
02/20/08 (H) FSH RPT 1DP 6NR
02/20/08 (H) DP: SEATON
02/20/08 (H) NR: JOHNSON, LEDOUX, WILSON, JOHANSEN,
HOLMES, EDGMON
02/20/08 (H) FSH AT 8:30 AM BARNES 124
02/20/08 (H) Moved Out of Committee
02/20/08 (H) MINUTE(FSH)
03/26/08 (H) RES AT 1:00 PM BARNES 124
BILL: HB 241
SHORT TITLE: STAMPEDE STATE RECREATION AREA
SPONSOR(S): REPRESENTATIVE(S) GUTTENBERG
04/20/07 (H) READ THE FIRST TIME - REFERRALS
04/20/07 (H) RES, FIN
05/04/07 (H) RES AT 1:00 PM BARNES 124
05/04/07 (H) <Bill Hearing Canceled>
03/26/08 (H) RES AT 1:00 PM BARNES 124
WITNESS REGISTER
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HCR 22.
AL ANDERSON
Chignik Lagoon
POSITION STATEMENT: Testified that if the Board of Fisheries
was going to get sued over the decisions it has made, the
lawsuits would have been filed by now.
NORENE JONES, Secretary
Chignik Fishermen United
(No address provided)
POSITION STATEMENT: Testified that Chignik Fishermen United is
taking a neutral position on HCR 22.
LANCE NELSON, Senior Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Testified [the Department of Law] does not
oppose HCR 22 per se, but thinks it will not accomplish what is
hoped for.
BOB THORSTENSON, Lobbyist
for Sitka Herring Group
Juneau, Alaska
POSITION STATEMENT: Testified that a bill, not a resolution, is
what is needed.
JOE CHILDERS, President
United Fishermen of Alaska (UFA)
Juneau, Alaska
POSITION STATEMENT: Testified United Fishermen of Alaska does
not have an official position on HCR 22, but unofficially the
organization sees the resolution as a waste of time.
CLEM TILLION
Homer, Alaska
POSITION STATEMENT: During hearing on HCR 22, testified on
behalf of the Aleut Corporation that a bill would be preferable
to a resolution, but will take the resolution if that is all
that can be gotten.
REPRESENTATIVE DAVID GUTTENBERG
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as prime sponsor of HB 241.
CHRISTIAN GOU-LEONHARDT, Staff
to Representative David Guttenberg
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 241.
JAMES KING, Director
Central Office
Division of Parks & Outdoor Recreation
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding HB 241.
DAVE TALERICO, Mayor
Denali Borough
Healy, Alaska
POSITION STATEMENT: Supported HB 241.
ARMEDA BULARD, Presiding Officer
Denali Borough
Cantwell, Alaska
POSITION STATEMENT: During hearing on HB 241, stated the Denali
Borough has been working on the Stampede State Recreation Area
through Representative Guttenberg and Senator Thomas.
ACTION NARRATIVE
CO-CHAIR CRAIG JOHNSON called the House Resources Standing
Committee meeting to order at 1:18:45 PM. Representatives
Wilson, Seaton, Roses, Gatto, and Johnson were present at the
call to order. Representatives Guttenberg, Edgmon, and
Fairclough arrived as the meeting was in progress.
HCR 22-REGULATION OF FISHERIES
1:18:54 PM
CO-CHAIR JOHNSON announced that the first order of business
would be HOUSE CONCURRENT RESOLUTION NO. 22, Affirming the
legislative intent of state law that the Alaska Board of
Fisheries currently has the tools and authority to allocate
fishery resources within a fishery based on vessel size class,
gear limits, trip limits, and registration areas.
1:19:14 PM
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, sponsor of
HCR 22, paraphrased from the following written sponsor statement
[original punctuation provided]:
HCR 22 affirms that legislative intent behind current
law allows the Board of Fisheries to manage by
allocation based on vessel size, gear type, trip
limits, and different districts in an administrative
area.
The resolution was introduced to provide the court
with clear understanding of the Legislative intent
utilized for current fisheries management statutes.
This will be important if management regulations
adopted over the past many years by the Board of
Fisheries are challenged in court.
Following the Grunert decision by the Alaska Supreme
Court regarding the Chignik co-operative fishery,
attorneys for the Board of Fisheries have cautioned
that any allocation within a fishery by the Board
including long standing fundamental regulations could
be in danger of being overturned.
This concern is highly speculative. The Grunert
decision focused on a regulation allowing non-
participants to benefit from the efforts of
participants. This ran afoul of the Limited Entry
Act, which requires the benefit of a fishery to go to
active participants. The discussion in the Grunert is
separate from the wide range of management tools
adopted by the board that flow from current law.
This Department of Law interpretation of the effects
of the Grunert decision has factored into recent Board
of Fisheries decisions to not adopt a variety of
proposals that would have allocated fisheries
resources within a fishery based on the historic
intent of our statutes.
HCR 22 encourages the Board of Fisheries to proceed
with the management of public resources without
speculative consideration of the Grunert decisions.
It does not provide the board with any additional
allocation authority. It simply provides
reaffirmation of the legislative intent of current
statutes.
REPRESENTATIVE SEATON drew attention to the 1/28/08 memo from
legislative counsel Brian Kane of Legislative Legal and Research
Services, along with other materials in the committee packets.
1:22:54 PM
CO-CHAIR GATTO inquired whether there is any connection to sport
fishing in HCR 22.
REPRESENTATIVE SEATON responded no, a fishery is defined by a
species, a gear, and an area. There is no intent in HCR 22 to
say anything other than allowing the Board of Fisheries to
continue to manage the fisheries of the state under the exact
same principle the board has been using since statehood. It
lets the board know that the legislature does not think the
Grunert decision has these unintended consequences that have
been raised speculatively that would not let the board make
decisions based on the parameters it has been using for years.
1:24:16 PM
CO-CHAIR GATTO requested a synopsis of [Grunert v. State (Alaska
2005)] (Grunert I) and [State v. Grunert (Alaska 2006)] (Grunert
II) as well as [State v. Herbert (Alaska 1990)] (Herbert).
REPRESENTATIVE SEATON explained that the 100-104 permit holders
in the Chignik fishery on the Alaska Peninsula asked the Board
of Fisheries to allow them to harvest the fish in a co-operative
basis. But what they really asked for was an allocation of a
percentage of the harvest based on how many permit holders
signed up in the co-operative, so it would not be competitive
anymore. Only a few boats participated, but checks were sent to
all the permit holders in the co-operative. The supreme court
ruled that the limited entry statute says permits have to be to
natural persons and the person has to be a participant in the
fishery; so a person could not gain revenue by the work of
others by virtue of just owning a permit. The court did not go
to the constitutionality, it only went as far as the limited
entry law in the state of Alaska. In the Grunert II case, the
supreme court ruled against allowing a scenario in which every
permit holder would participate by making a few deliveries, but
in which each permit holder would not necessarily participate
equally or for the full amount of time. There was some wording
in the Grunert II case that was interpreted to mean that the
Board of Fisheries cannot allocate within a fishery and
therefore allocation cannot be done on vessel sizes, districts,
gear limits, or trip limits as was done in the past.
Representative Seaton said he regards this as speculative, as do
many other people. Based on the Department of Law's opinions,
the Board of Fisheries has been holding back from doing its
normal management regimes based on the idea that those might get
overturned.
1:28:13 PM
CO-CHAIR GATTO asked who was representing the state and who was
Grunert.
REPRESENTATIVE SEATON replied that Grunert was a Chignik fishery
fisherman who disagreed that the Board of Fisheries had the
legal and constitutional authority to allocate fish to someone
who does not fish. The State of Alaska was defending in that
lawsuit because the Board of Fish had passed the regulations.
The case would be written as Grunert v. State [(Alaska 2005)].
In response to further questions from Co-Chair Gatto,
Representative Seaton explained that the state lost the case and
therefore could not allow two fisheries - one that was
competitive and one that was an allocative co-operative in which
a permit holder could get fish by putting his or her permit into
the co-operative. He clarified that Grunert I [Grunert v. State
(Alaska 2005)] was the initial decision. The Board of Fisheries
then went back and tried to tweak the regulation so that
everyone in [the co-operative] had to make a certain number of
deliveries in order to receive a share of the check. The court
came back [in Grunert II] with the same reading that this is not
allowed under the limited entry statute.
1:30:58 PM
CO-CHAIR GATTO inquired whether Herbert preceded the Grunert
decision.
REPRESENTATIVE SEATON answered correct. He explained that
Herbert was a challenge to the state regarding superexclusive
registration areas. He said he believed it was based on a
herring case in Bristol Bay. If a permit holder picked one
area, then the permit holder could not use his or her permit to
fish in another area in the herring fishery in the same year.
In other words, a permit holder could fish only one
administrative area in a particular year, but the permit holder
is free to select whatever area he or she wants. In that case,
the Supreme Court said that is a quota-setting mechanism for
ensuring an orderly fishery and upheld that decision as a
correct way of allocating fisheries. That was never overturned;
it was never mentioned in the Grunert II case that the decision
overturned the previous decision.
1:32:46 PM
REPRESENTATIVE ROSES asked how HCR 22 either strengthens or
weakens the Board of Fisheries' management.
REPRESENTATIVE SEATON responded HCR 22 gives the Board of
Fisheries the knowledge that the legislature understands that
the statutes under which the board has been making allocations
based on vessel size, trip limits, gear limitations, and
registration areas are appropriate and still in place. There is
no court decision that overturns this. There is simply a
decision by the Department of Law's representatives for the
Board of Fisheries that says Grunert II might have put those in
jeopardy and maybe someone would challenge the regulations based
on trip limits or gear limits or vessel size.
1:34:52 PM
REPRESENTATIVE ROSES surmised that Representative Seaton's
opinion is that HCR 22 does not change the Board of Fisheries'
position for management.
REPRESENTATIVE SEATON replied he does not think the Board of
Fisheries' position has been weakened at all. It is simply the
Department of Law speculating that possibly, if the board
manages the way it has been managing under current statutes,
somebody could take the board to court and the board might lose.
The resolution just reaffirms that the legislature's
understanding is that current statutes allow the Board of
Fisheries to continue to function as it has unless the court
rules that it is wrong. He said he thinks the court is not
going to make the decision that the board does not have the
authority because otherwise in Grunert II the court would have
said it was overturning its Herbert ruling.
1:36:27 PM
REPRESENTATIVE ROSES inquired whether someone from the Board of
Fisheries would be testifying.
CO-CHAIR JOHNSON said there is no one from the Board of
Fisheries, but there is someone from the Department of Law.
REPRESENTATIVE SEATON noted that Legislative Legal and Research
Services has taken a position contradictory to that of the
assistant attorney general for the Board of Fisheries. He said
HCR 22 reaffirms the position of Legislative Legal and Research
Services.
REPRESENTATIVE ROSES commented he had noticed the dueling
opinions, but that is something that happens with nearly every
bill so he does not put a lot of stock in it. His concern is
whether HCR 22 minimizes or maximizes the board's ability to do
what the legislature has charged it to do. He said that while
he does not understand the intricacies of what HCR 22 actually
gets, his decision of yes or no on the resolution is whether it
has a positive or negative impact on the Board of Fisheries'
ability to manage itself the way the legislature expects it to.
1:38:29 PM
REPRESENTATIVE WILSON requested Representative Seaton to explain
why he feels HCR 22 is better than [HB 188] that would do the
very same thing.
CO-CHAIR JOHNSON explained there is a bill [HB 188] in the House
Special Committee on Fisheries that addresses this issue
directly and would put it into statute as opposed to a
resolution.
REPRESENTATIVE SEATON answered that HCR 22, if passed by the
legislature and signed by the governor, would express the
opinion of two branches of government that the method in which
the Board of Fisheries has been operating and the allocations it
has made, other than Grunert I and Grunert II, are appropriate
and are the statute. The bill [HB 188] would change state law
and there are some implications in that. There are also
proposals in the bill to overturn Grunert I and Grunert II.
People have testified that overturning Grunert is what the bill
will do, although the sponsor says that is not the intent. That
will not happen with the resolution. The resolution lets the
courts know that the legislature believes the Board of Fisheries
has the statutory authority and is appropriately managing
fisheries within the board's allocation schemes. The bill would
change the statute and there are some people who would like to
change the constitution in the same way.
1:41:57 PM
REPRESENTATIVE WILSON asked whether Representative Seaton feels
a resolution will really have any weight with the court versus a
bill that changes the words.
REPRESENTATIVE SEATON responded he does, and the legal opinion
from Legislative Legal and Research Services also says the court
would look at the resolution.
CO-CHAIR JOHNSON inquired whether Representative Seaton is
referring to the Legislative Legal and Research Services legal
opinion from Brian Kane dated 1/28/08.
REPRESENTATIVE SEATON replied correct. He drew attention to the
last two sentences on page 2 which state: "A resolution stating
the legislative intent could provide 'guidance,' but a
resolution does not carry the power to obligate a court to defer
to the intent stated in a resolution. A resolution of intent
might be a factor a court looked at, but the court would be
under no duty to do so."
1:43:41 PM
CO-CHAIR JOHNSON surmised the intent of HCR 22 is to send a
signal as opposed to a direction.
REPRESENTATIVE SEATON answered correct.
REPRESENTATIVE GUTTENBERG asked if Representative Seaton has
checked historically to see whether the courts have looked at
resolutions as they pertain to cases about fish as well as cases
about other topics.
REPRESENTATIVE SEATON responded he has not. He said he thinks
this is an unusual situation because there is no court direction
saying the Board of Fisheries cannot exercise its full
authorities, it is simply an attorney general's interpretation
that the state might lose if someone were to make a challenge.
1:45:40 PM
CO-CHAIR JOHNSON opened public testimony.
AL ANDERSON stated that if the Board of Fisheries was going to
get sued over the decisions it has made, it seems the lawsuits
would have been filed by now since the ruling happened several
years ago.
CO-CHAIR JOHNSON stated the [Herbert] ruling was in 1990.
REPRESENTATIVE SEATON added there was a 2005 decision and a 2006
decision for Grunert I and Grunert II [respectively].
MR. ANDERSON said he does not understand the reason for doing
this. Up until the Chignik decision the Board of Fisheries was
within its bounds to do whatever it was doing. That decision is
the only thing he thinks the board did wrong in regard to the
limited entry. He said he thinks most other people feel the
same way because the Board of Fisheries has not been slammed
with a bunch of lawsuits.
1:47:53 PM
NORENE JONES, Secretary, Chignik Fishermen United, spoke on
behalf of Mr. Morris Jones, president of the organization:
Chignik Fishermen United would like to inform the
Alaska State Legislature that we are taking a neutral
position on HCR 22 and we stand firmly behind the
Grunert decision. We are also adamantly opposed to HB
188 and SB 184 as we believe these bills undermine the
Alaska state Limited Entry Act.
1:49:56 PM
LANCE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Anchorage), Department of
Law, stated he is one of the attorneys who advises the Board of
Fisheries on a regular basis. He is the attorney who
represented the Board of Fisheries in the two Grunert decisions.
He said [the Department of Law] does not oppose HCR 22 per se,
but [the department] thinks the resolution will not accomplish
what is hoped for because it will not have any legal affect one
way or the other.
MR. NELSON explained the case is called State v. Grunert because
Grunert was the plaintiff below, but after losing at the
superior court level the state appealed and became the appellant
in the supreme court appeal. That case banned allocations
within a single fishery and it defined single fishery broadly to
include different sizes of the same type of basic fishing gear.
The gist of that part of the decision was that just because a
different size of gear is used, that does not mean it is a
different fishery. It also held that use by one group of net
pens and fixed leads, as well as purse seines, did not create a
different fishery. So this part of the ruling is, legally
speaking, separate from the flaws that the court found with the
co-op aspect of the fishery. [The Department of Law] believes
it would be interpreted by the courts independently of the co-op
kind of circumstances. He said that is what explains [the
department's] basis for supporting HB 188 which would put into
statutory language the clarification of the board's authority to
allocate within a fishery as it does in many situations right
now under current regulations.
1:52:39 PM
MR. NELSON noted [the state] has been sued. A legal challenge
was filed against the Prince William Sound sablefish fishery in
2006. [The state] was able to settle the case without going
very far into the litigation process because the attorney and
the fisherman challenging the regulation were not aware that
there was a statute and regulation providing for late
registration in certain circumstances and the fisherman was
suing to invalidate the regulation because he had failed to
register on time. [The state] was able to settle the case by
allowing the fisherman to register late.
MR. NELSON said the key question for courts in interpreting
statutes is to try to identify, What was the adopting
legislature's intent? A concurrent resolution adopted by a
subsequent legislature does not amend the law as interpreted by
the court in the Grunert case. It does not constitute a
legislative history or legislative intent as to the meaning of
the law interpreted by the court because it is not an expression
of intent by the adopting body. He said he has been able to
find no example where a court considered a subsequent post-
enactment legislative resolution to interpret the legislature's
intent in adopting the original statute. On the other hand,
there are many examples where the supreme court has said it will
not consider post-enactment explanations even by a bill's prime
sponsor to explain legislative intent. This case is an even
more extenuated circumstance because the current legislature is
largely composed of different people so a concurrent resolution
is unlikely to be given any weight as guidance on the original
intent of the legislation. While [the Department of Law] hopes
that if challenged it can make an argument to defend some of
those regulations that it believes are vulnerable, it does not
believe this resolution will have any impact or lend any force
to its arguments in future challenges.
1:55:09 PM
MR. NELSON stated there are not a lot of lawsuits yet on these
issues because most fishermen are pretty happy with the way
current regulations are set up and are not inclined to challenge
them. [The Department of Law] has been pretty careful in its
advice to the Board of Fisheries that future regulations,
especially controversial ones, could be pretty vulnerable. He
said he thinks the board believes that and understands [the
department's] advice and is disinclined to take too many risks
by putting out a regulation that is controversial and likely to
be challenged. Regardless of whether HCR 22 passes, [the
department's] advice to the board is going to stay the same and
likely be followed.
REPRESENTATIVE ROSES surmised that Mr. Nelson feels HCR 22 has
very little legal impact and would therefore have very little
impact on the management ability of the Board of Fisheries.
MR. NELSON responded yes, that is true.
1:56:58 PM
BOB THORSTENSON, Lobbyist for Sitka Herring Group, noted he is a
past officer of United Fishermen of Alaska (UFA), but on this
particular matter he is representing the Sitka Herring Group.
He said the Sitka Herring Group is comprised of herring purse
seiners who have been looking to modify the fishery - not into
any kind of a co-operative - but using existing state law to do
an equal split fishery identical to what is occurring right now
in Prince William Sound black cod, Clarence Strait black cod,
and Chatham Strait black cod. A bill is needed and this is not
a bill. A bill was introduced well over a year ago and has been
held in the House Special Committee on Fisheries by the sponsor
of this resolution. He said the Sitka Herring Group believes
the sponsor of this resolution succumbed to local pressure in
his area to come up with something that looks somewhat
meaningful.
MR. THORSTENSON related that the Sitka Herring Group has been
working on this with the Department of Law and Legislative Legal
and Research Services. One of the problems between the
Department of Law and Legislative Legal and Research Services is
that the Board of Fisheries only relies upon legal counsel from
the Department of Law. The Sitka Herring Group has heard from
the Department of Law that the department is going to give
caution to any issues that will be controversial in the future,
not only for past issues like Clarence Strait and Chatham Strait
black cod equal split, but potential future fisheries changes.
Technically in law today those changes are allowed, but the
Department of Law has been saying for nearly two years that
statutory action is needed, not a resolution. While he has
heard of other people supporting this resolution, he has not
heard of any lawyers that believe this resolution takes care of
the problem with the Board of Fisheries.
2:00:20 PM
MR. THORSTENSON argued that there will be a sport fishing
impact. There are those in Cook Inlet who believe there could
be a broader impact, so they are concerned about Native impact
to commercial fishing from some kind of action taken. [The
Sitka Herring Group] does not believe that to be the case.
However, it does believe that the sport fish community could
harvest more herring, salmon, and other species if a different
system could be figured out so that fishermen could work, not in
a co-operative system, but cooperatively. By only passing a
resolution and not a bill like HB 188, the legislature is
basically telling the Department of Law and the Board of
Fisheries that it is not going to give them any help and to keep
things the way they are with no changes. So, if the legislature
wants things to stay the way they are, then passing a worthless
resolution is probably the way to go.
CO-CHAIR JOHNSON deduced that what Mr. Thorstenson is saying is
that HCR 22 is not going to do any good and the legislature
might as well do nothing.
MR. THORSTENSON replied pretty close. The resolution gets about
one percent of the way there. A bill is needed.
REPRESENTATIVE ROSES surmised that in Mr. Thorstenson's opinion
HCR 22 does very little and therefore has neither a positive nor
a negative impact on the board's ability to manage the fishery.
MR. THORSTENSON answered he does not believe the resolution will
have any real, logical, or legal impact, but it may have a
psychological impact on the board.
REPRESENTATIVE ROSES inquired whether Mr. Thorstenson thinks the
psychological impact would be positive or negative in terms of
the board's ability to manage.
MR. THORSTENSON responded slightly positive.
2:04:11 PM
JOE CHILDERS, President, United Fishermen of Alaska (UFA),
stated he has been actively involved in commercial fisheries
around the state of Alaska since 1966. United Fishermen of
Alaska does not have a position on this resolution, he
testified, so it must be understood that his comments are not
the official UFA position. However, UFA would foresee HCR 22 as
being a waste of time. The Board of Fisheries might consider
the resolution to have some value, but the operative word is
might.
MR. CHILDERS pointed out that the Board of Fisheries is charged
with managing fisheries in a dynamic world where conditions
change constantly. It was because of that recognition that the
Limited Entry Act was adopted, which was an extremely
controversial thing to do. The Board of Fisheries needs to have
the ability to manage as it sees fit. One of the things it
needs to be able to do is to look at the fact that the tools at
hand do not necessarily provide the board with the ability to
have an economically efficient or environmentally sensitive
management to fisheries. The ability to harvest fish in the
sport sector, charter sector, and the commercial sectors grows
constantly with the advent of new gear types. So, the ability
to close areas, close time, close gear, do vessel length, and do
all these various things does not necessarily provide the board
with the ability to achieve what the board needs which is a
total control on the output from a fishery. "We need to know
how much fish are going to come out of the water and when they
are going to come out and how they are going to come out, and we
need to control that if we are going to have long-term
sustainability," he said. The resolution is a half-measure that
does not say yes or no and will not have anything to do with
actions that are taken by the Board of Fisheries.
2:06:55 PM
CO-CHAIR GATTO asked whether Mr. Childers is opposed to the free
market.
MR. CHILDERS replied he has been actively involved as an
entrepreneurial fisherman since he was 12 years old. He bought
his very first fishing operation, a setnet in Cook Inlet, when
he was 16. He owned a fishing vessel, a license, and a truck
before he was old enough to drive. So, no, he has never been
opposed to the free market system.
2:07:54 PM
CO-CHAIR GATTO said that seems to be in contrast to Mr.
Childers' testimony. Is limited entry the free market, he
asked.
MR. CHILDERS answered limited entry is similar to having liquor
licenses, cab licenses, or any sort of franchises that are
allocated by the state that are considered to be done for the
public good. The reason limited entry went into effect is that
from the early 1960s to the early 1970s Alaska's fisheries were
in the toilet; 1969 was the lowest salmon harvest on state
record at 21 million fish. The halibut fisheries were in the
toilet as well. The off-shore fisheries were basically
nonexistent; they were being wiped out sequentially by foreign
fleets and the United States did not have a 200-mile limit.
Coupled with that was the Bolt decision in the federal court in
the state of Washington which determined that under a federal
treaty with a sovereign nation, right to the fish was actually
allocated to the Native fishermen in Washington. Thus, he
related, the Native fishermen had a property right which
basically was the supreme law in a system that operates with the
market system. Alaska was the only place for the dispossessed
fishermen to come to. So, there was a very strong understanding
that without limited entry the fisheries in Alaska were going to
become uncontrollable. The effort that went into limited entry
included optimum number studies, and a system was created that
met the needs of the time for the coastal communities and the
people who were dependent. Subsequent to that many things have
changed in fisheries, including in the Chignik area.
2:10:32 PM
CO-CHAIR GATTO referenced the "combat fishing" on the Kenai
River and inquired whether Mr. Childers believes there should be
limited entry for sport fishermen.
MR. CHILDERS responded he thinks it will come to a point in
Alaska, like it has in other places in the world and especially
in the salmon fisheries, where there is enough pressure put on
the resource that there will be no way to provide full
unrestricted access to people. He said he does not believe
there is going to be a way to do that if at the same time there
is no protection for the resource that the fish require. In
other words, if roads, access, and growth are allowed along the
rivers, there is not enough possibility to actually provide
everyone with all the sport fishing opportunity that is wanted.
He said limited entry for sport fishermen is a complex thing,
but he thinks where it will have to be done is in the charter
sectors. He continued: "Right now, with this bill at issue,
you would not have the ability. Even if you were to create
limited entry in the charter sector you would not be able to
allocate .... So this is an example of where this bill is
actually hindering long-term management of the resource, in my
opinion."
2:12:22 PM
CLEM TILLION stated he is representing the Aleut Corporation and
the Natives in the Aleutian Islands. He said he was in the
legislature in 1973 when the Limited Entry Act was passed and
there were legislators who were pretty sure that Judge Bolt was
going to win. Limited entry is no different than farm land -
there is a limited amount of farm land and anybody can be a
farmer, but he or she has to buy a farm. He said he thinks
there will come a day on the Kenai River when a person will have
to apply for a permit and there will only be so many permits.
The banks of the river cannot be torn down endlessly and to
prevent this boardwalks might have to be built along the edge.
This is not at all an objection to how many [fish] are given to
the sport fishery, he said, he just wants to make sure the
resource itself is in good shape. He agrees with Mr. Childers
that HCR 22 does not accomplish everything he wants, but it is a
step that maybe the Board of Fisheries will pay attention to.
MR. TILLION said he represents a people who were taken out of
their homeland to internment camps in 1942 and never allowed
back to the islands from which they were taken. Then someone
had an attack of conscience and allowed them back into some of
the areas. The people were offered the right to purchase Adak,
it was not given as a gift from the federal government. They
got the facilities, but they had to buy with other lands the
island of Adak. The people moved back and were doing well
packing two million pounds of crab a year for a Norwegian-
American who built a plant out there. Then along came crab
rationalization and the two million pounds was reduced to 67,000
pounds. The rest was given to Japanese owners in Dutch Harbor.
The plant owner went to cod fish which was unlimited and the
season went mostly all year long.
2:15:28 PM
MR. TILLION explained that the Aleut people involved in this
fishery are also involved in the salmon fishery and the salmon
fishery requires that they fish vessels of under 58 feet in
length. Their investments are made in these small boats that
are perfectly capable of catching the cod, the halibut, or the
other fishery in the area, but they cannot go out in any kind of
weather. The trouble with a quota is the competition for a
finite resource - the boats get bigger and bigger and soon the
boats are so big they cannot be taken care of in Alaska and this
results in exporting the whole fishery to Seattle. Alaska's
king crab fishery was a case in point - 96 percent of all of the
crab fishermen of Alaska lived in Alaska when the state operated
on size and sex management and the season went all year. Within
four years of going to a quota system, only 40 percent of the
fishermen still lived in Alaska because to compete the fishermen
bought bigger and bigger vessels that could fish in any kind of
weather, but the boats were too big for the yards in Alaska to
take care of. The season got shorter. Mr. Tillion said he now
is looking at going before the Board of Fisheries to ask that
the state water fishery be made 60 foot or less. There is no
problem taking all the fish. The problem is that if the
community is going to live the fish must come in for a long
enough period of time that the small work force in the community
can process these fish. This will provide in-town employment
and the store can operate and the school has enough kids.
2:17:26 PM
MR. TILLION noted that when the price of cod went up a
particular company decided it would like to take over Adak. The
North Pacific Fishery Management Council made some amendments,
called Amendment 80, that allowed the vessels a fixed percentage
of the catch. But, nobody closed the Aleutian Islands west of
"170" and so the company had all this idle time and used it as a
catcher-processor or as just a processor buying from other
vessels and moved in. This year a fleet moved in on Adak and
took the quota very quickly. The people of Adak saw their
state-of-the-art processing plant, where every part of the fish
is used, reduced from last year's 27 million pounds to 8 million
pounds. He related that the city of Adak is destitute because
the raw fish tax is not coming in even though Trident said it
would give Adak a share of what was packed in the area. So, he
said, there is a need to go to the Board of Fisheries. He is
interested in a solution, and would prefer a bill to a
resolution, but he will accept a resolution if that is all he
can get in hopes it will influence the board to say that for
state waters west of "170", 50 percent of the catch shall be
taken by vessels under 60 feet so Alaskan fishermen have a
chance.
2:19:47 PM
MR. TILLION stated that two years ago a fleet of 40 small boats
showed up and stayed there until the state water season opened.
But the big boats moved in and the quota was taken in one week.
Because the weather was calm, each one of the small boats got
one load which was enough to pay for the trip back. This year
those small boats did not even bother coming out because the
Board of Fisheries would not allocate half of the catch to the
smaller boats due to the attorney general's opinion. He said he
wants to go before the board and say, "Let's have a share of
it." This has already been done in Kodiak and Cook Inlet.
There are small boats fishing Cook Inlet this winter. It is
personal, he said, because he has a grandson with one of those
boats. Those boats are getting over a dollar a pound for cod
fish because of access to the Anchorage airport and Korean
Airlines and the fish arrive in Frankfort, Germany, in less than
48 hours. "Isn't this what we want our fisheries to be," he
asked. He said he is asking the committee to give the tools
that let the Board of Fisheries do it. He would be surprised if
the board could not be convinced that this is beneficial to
Alaska.
2:21:43 PM
MR. TILLION acknowledged there will be complaints. Some of the
groups in the Community Development Quota (CDQ) Program will not
be happy because they have made deals with outside interests for
floating processors and they do not want that to be closed out.
But, somewhere, somebody is going to have to make the decision
on whether to have the fisheries belong to Seattle and other
places or to keep them in Alaska. To keep the fisheries in
Alaska, then it must be ensured that the resource is harvested
by vessels that can be overhauled, repaired, and maintained in
Alaska. He urged the committee to give the Board of Fisheries
the tools "so that then we can go to the governor and plead with
her to kind of put the pressure on the department and the board
to support us." The vessels are here and owned by Alaskans. It
can be done and the money will stay in Alaska.
MR. TILLION added that the limited entry fight was bitter. His
niece had her car tires slashed and his kids were beat up at
school because he was in Juneau supporting limited entry. It is
not always easy, but now nobody wants to go back to wide open,
he said. Did some people get hurt? Yes. However, it is no
different than homesteading - the guy that got there in time to
homestead got the land and everybody thereafter has to buy a
piece of it from that person. He does not know any other way;
life is not always fair. According to Alaska Geographic, there
are only three places in the world that manage their fisheries
well - Iceland, New Zealand, and Alaska. Alaska has eight times
more salmon today than it did in 1959 when he was in the
fishermen's association fighting for control, he related, and he
was in the gallery of the U.S. Congress when the Magnuson Act
passed.
2:25:05 PM
CO-CHAIR GATTO asked whether Mr. Tillion sees a day when five
people with sport fishing licenses will send one person to fish
for all of five of them.
MR. TILLION responded he already does that, being over 60 years
of age. When friends go out for king salmon he has them pick
one up for him because they are allowed to do so under Alaska
law. He said Mr. Childers is right about the sport fishery -
there will come a day when there will have to be a limit on how
many people can fish on each stream because when there are
10,000 fish in the stream and 30,000 people that want to fish
them, not everyone can be allowed to take one fish. The
spawners must be taken care of, no matter how much pain is
inflicted. He said he is not here to fight over whether a sport
or commercial fisherman gets the fish - he gets short-tempered
about overharvest. The whole prestige of Alaska is dependent on
the fact that the state manages its fisheries well and who gets
the fish has to be second to whether there is enough fish there.
2:26:52 PM
CO-CHAIR JOHNSON stated he is concerned about HCR 22 and may set
it aside until Friday [3/28/08] to get more information. In
response to Representative Fairclough, he said he is not closing
public testimony as there may be additional testimony resulting
from setting the resolution aside.
REPRESENTATIVE ROSES commented he does not feel comfortable
spending time on legislation that does not seem to serve any
purpose and that is only a band aide for a serious hemorrhage.
At some point the cause of the problem must be faced. He said
he does not know whether or not he likes the resolution because
of not knowing whether it will have any positive impact. He is
unsure whether holding the bill will provide further information
and he may therefore be just as conflicted on Friday.
CO-CHAIR JOHNSON held HCR 22.
HB 241-STAMPEDE STATE RECREATION AREA
2:29:28 PM
CO-CHAIR JOHNSON announced that the next order of business would
be HOUSE BILL NO. 241, "An Act creating the Stampede State
Recreation Area."
The committee took an at-ease from 2:30 p.m. to 2:32:38 PM.
REPRESENTATIVE DAVID GUTTENBERG, Alaska State Legislature, prime
sponsor of HB 241, testified that the bill would create the
Stampede State Recreation Area. He noted that the area on the
map with diagonal lines has historically been called the "Wolf
Townships". He drew attention to an area on the map bordering
the boundary of Denali National Park and Preserve and explained
that many people over the years have had designs on this area:
the National Park Service would like to add it to the park,
there have been proposals to put a railroad through the area,
and Governor Murkowski wanted to put a road through it. The
people of the Denali Borough recognized they needed to be
proactive, he related. They have traditionally used this area
for many years for many purposes and the bill is designed to
turn this into a state recreation area without limiting any of
these traditional uses. Representative Guttenberg said the
Denali Borough came to him and Senator Thomas with the proposal,
which came out of a long process. The Denali Borough rotates
its assembly meetings among its four communities and everybody
from four-wheelers to photographers has been involved. The
result was a unanimous resolution to [establish this as a state
recreation area] because the people want to preserve the
traditional uses of the area such as hunting and recreation.
Part of the process was ensuring that no interest groups were
excluded. The purpose is to be able to plan and determine the
area's future without excluding any of these traditional uses.
2:36:24 PM
CO-CHAIR JOHNSON inquired how much private property is within
the boundary of the proposed recreation area.
REPRESENTATIVE GUTTENBERG responded it is all state land. In
further response to Co-Chair Johnson, Representative Guttenberg
confirmed there is no private property and the eminent domain
provision is just in there. He said there is no active mining
going on. In response to a member of the audience, he corrected
himself and said there may be a couple of holdings, but the
intent is not to take away any of those rights.
CO-CHAIR JOHNSON asked whether this is the area where the
railroad that was once talked about would go through to the
backside of Denali National Park and Preserve.
REPRESENTATIVE GUTTENBERG replied it could be. The Kantishna-
holding folks would also go through here, he added.
CO-CHAIR JOHNSON inquired whether turning this into a recreation
area would prohibit that.
REPRESENTATIVE GUTTENBERG answered no.
CO-CHAIR JOHNSON commented he does not see explicit language for
motorized use and as "a roads guy" he does not want to see
something that would not allow this to go through.
2:38:33 PM
REPRESENTATIVE ROSES asked whether there are folks with mining
permits who have not yet exercised them.
CHRISTIAN GOU-LEONHARDT, Staff to Representative David
Guttenberg, Alaska State Legislature, responded that, according
to the Division of Mining, Land and Water, there are no active
state or federal mining claims in the area. He also related
that James King, Director of the Division of Parks & Outdoor
Recreation, has been working with the Division of Mining, Land
and Water as well as the Division of Oil & Gas to ensure that no
resource development will be blocked in the area.
2:39:34 PM
REPRESENTATIVE FAIRCLOUGH inquired who owns the subsurface
rights.
REPRESENTATIVE GUTTENBERG replied it is all state land.
REPRESENTATIVE FAIRCLOUGH asked whether the subsurface is
included.
REPRESENTATIVE GUTTENBERG nodded yes.
REPRESENTATIVE FAIRCLOUGH asked whether the property includes
the famous bus from [the true story] Into the Wild.
REPRESENTATIVE GUTTENBERG answered yes; the bus is located along
the Savage River.
2:40:22 PM
REPRESENTATIVE EDGMON inquired what the difference is between a
recreation area and a park, and why is the bill for a recreation
area as opposed to some other designation.
JAMES KING, Director, Central Office, Division of Parks &
Outdoor Recreation, Department of Natural Resources, explained
that a state recreation area is less restrictive than a state
park and allows many different uses. For example, the Chena
River State Recreation Area near Fairbanks allows hunting,
fishing, and camping, and has all-terrain vehicle (ATV) trails,
non-motorized trails, dog mushing, a rifle range, and roads. A
legislatively designated state park usually has more restrictive
language in regard to activities.
2:42:05 PM
CO-CHAIR GATTO observed that page 2, line 2, states, "continued
motorized access for owners of private property".
MR. GOU-LEONHARDT responded there are a few inholdings. His
office spoke with members of the public about that very
sentence, he related, since "continued" implies that people who
have not yet accessed their private property would not be able
to do so. He understood this is not the intent - owners of
private property inholdings should be able to have access.
There has therefore been discussion to remove the word
"continued".
CO-CHAIR GATTO asked whether these inholdings are large or
cabins where someone owns the land or squatters.
MR. GOU-LEONHARDT understood there are a few cabin sites.
2:43:54 PM
CO-CHAIR GATTO inquired whether the cabin owners have rights or
are they cabin sites that are not owned.
REPRESENTATIVE GUTTENBERG answered, "Our intent is not to change
any of the conditions that anybody has out there currently, that
if somebody has a cabin and there is an existing easement or
access agreement, that that stays in place."
CO-CHAIR GATTO asked why not just leave it the way it is.
REPRESENTATIVE GUTTENBERG responded people in the Denali Borough
came to him saying they wanted to be more proactive in the
planning and the future of this area. These people are the
majority members who are traditional users and they would like
to be more active in the management than they are currently able
to be, such as putting in turnouts or park benches.
REPRESENTATIVE FAIRCLOUGH stated she would like to know how many
pieces of private property there are and the size of each
property. She also still has the question about subsurface
rights. Additionally, she wants to see the provision for resale
as she does not want to see the state close off rights to the
property if someone wishes to sell outside of their family.
2:47:20 PM
MR. KING, in response to Representative Roses, confirmed there
are quite a few state recreation areas around the state that are
managed by the Division of Parks & Outdoor Recreation.
REPRESENTATIVE ROSES asked whether the state charges user fees
for its state recreation areas.
MR. KING answered it depends on the recreation area, there are
charges for some areas. At public meetings in Healy there was a
real mix of testimony, he related, but a couple of things came
out very clearly. One was that the public loves that area and
they love it for a variety of reasons - because they hunt, fish,
drive off-road, dog sled, hike, ski, or watch the caribou. They
said they really like it the way it is and want it to continue
to be that way. But they felt that change is coming because the
state's population is growing and they fear that this place will
not be able to be used like it is. Mr. King said what was heard
loud and clear was for the division to come in and do a public
management plan in which the public dictates what goes on and
what is allowed, and where restrictions, if any, are created.
There would be local management through an advisory council and
a local ranger living there. Fees would be a piece of that.
Whether to collect fees is a legislative decision as far as
whether to put a budget in the general fund, or collect fees, or
a mix of funding mechanisms to support the area.
REPRESENTATIVE ROSES commented that according to HB 241, the
people currently using the area will be able to continue using
it in a manner to which they have become accustomed, but now
they will have to pay a fee to do it. He recounted his personal
experience when Kachemak Bay State Park was first established
and how people who had not yet purchased their open-to-entry
recreational sites within the park boundaries lost their land.
Thus, even with the best of intentions of protecting what people
have, there is no way of knowing that the protection will
continue in the future. He said he is not opposing the bill at
this point, but he has other questions and things he will be
watching for.
2:52:18 PM
DAVE TALERICO, Mayor, Denali Borough, drew attention to the map
and said the area being talked about is just below the red
letters spelling "Denali Borough". This has been very
contentious, he said. He has been the mayor for almost six
years and this area of real estate has been on his desk all six
years. He pointed out the Stampede Trail on the map and noted
there was a proposal for a rail line that would have gone all
the way to Kantishna. There was also a proposal by the former
administration to make a 12-foot-wide pioneer road to the
Sushana River. The Stampede Trail is an R.S. 2477 all the way
to the Stampede Mine on the Clearwater Fork of the Toklat River.
He clarified that the R.S. 2477 does not go all the way to
Kantishna; it goes to the Stampede Mine and from the mine the
Moose Creek Trail goes over the top of the Kantishna Hills to
Kantishna and that is an R.S.T. This is pertinent to the issue,
he explained, because it shows that designation of this area
does not eliminate the ability to have a transportation corridor
and to have that corridor go beyond Denali National Park and
Preserve and into western Alaska. The Denali Borough would
prefer to see any future state transportation corridor go beyond
a dead-end zone that would be controlled by another agency.
2:55:11 PM
CO-CHAIR JOHNSON inquired whether the state has actually settled
with the federal government or is just claiming on the trail.
MR. TALERICO responded that to the best of his knowledge the
state is still claiming that R.S. 2477 as a trail.
MR. TALERICO continued his testimony, noting that this area is
very heavily used by Denali Borough residents as well as people
from the North Star Borough. There is hunting, grayling
fishing, ATV use, off-road vehicle use, snowmobiling, skijoring,
and camping. There are Alaskan-owned businesses for dog sled
tours, horseback riding, and jeep tours within the area. It is
a great place for small businesses owned by Alaskans. Many
Native Alaskans come down for the blueberries, he added. There
is history in the area that is worth preserving, such as cable
crossings over the Savage and Teklanika rivers that were
installed by the U.S. Army Corps of Engineers. There are also
old, carved Alaska Railroad stakes. The famous Into the Wild
bus is receiving a lot of attention and [the borough] has
concerns about what its search and rescue people will do and
whether there will be a management plan to manage that.
2:57:56 PM
MR. TALERICO stated that a management plan is really what is
being talked about. [The borough] wants to take the appropriate
arm of state government and put it in place so that a management
plan can be created. The land is managed by the Department of
Natural Resources, Division of Mining, Land and Water, and he
said he thinks they have the responsibility for this right now.
If this area is made into a state recreation area, then there is
the ability to put a plan in place in order to keep the
residents' traditional activities afloat. It also provides some
economic opportunities near the area. This will be a completely
different venue than the national park's management plan. There
are things that are not allowed in Denali National Park and
Preserve that will be allowed if this becomes a state recreation
area. He said the borough would like to use its property
adjacent to the east boundary [of Denali National Park and
Preserve] near Eightmile Lake to generate revenue. He has used
this area for 39 years, he noted, and he would like to have some
kind of a plan that will ensure this area will be there for use
by his grandchildren.
MR. TALERICO pointed out that along the Parks Highway there are
no state recreation areas or campgrounds between the Chena River
State Recreation Area in Fairbanks and Denali State Park - a
distance of 194 miles and the largest gap in Alaska's highway
system. [The proposed Stampede State Recreation Area] is right
in the center of this gap. He said [the borough] appreciated
that its representative and senator listened. The borough's
biggest concern is the traditional uses, and that is why [the
borough] specifically asked that hunting, trapping, fishing, and
off-road use stay in place. If that changed, so would the
support of the Denali Borough.
3:02:24 PM
REPRESENTATIVE ROSES asked whether having to pay a fee in the
future to utilize the area would be bothersome.
MR. TALERICO replied he does not like to pay fees to use public
property. However, if a management plan and fee schedule are
not put in place, he foresees that this area will get stormed
over in the future and possibly end up being taken out of use
with closures as a result of abuse. He is not crazy about a
fee, but at the same time the fees help support the facility
[the borough] is recommending, as well as other facilities
around the state.
REPRESENTATIVE ROSES expressed his concern about Alaskans who
traditionally use this area for berry picking and their
receptiveness to a fee. However, he is also concerned that the
area could be lost.
3:05:13 PM
REPRESENTATIVE EDGMON inquired whether there is strong support
for this throughout the Denali Borough.
MR. TALERICO answered the borough assembly passed its resolution
unanimously, but he cannot say it is 100 percent support. A lot
of people have a lot of different ideas and will monitor this
closely. He said he thinks there are very strong feelings in
support of some type of preservation and management plan in the
area. He cannot say it is 100 percent support, but he does
think there is very strong support throughout the borough.
REPRESENTATIVE EDGMON asked what communities are in the borough.
MR. TALERICO said the city of Anderson, the Healy area, McKinley
Village, Cantwell, and the Ferry area are the large
concentrations of residents.
3:06:50 PM
REPRESENTATIVE SEATON commented that it does not seem that the
language on page 2, line 2, would provide for motorized use of
the area other than for access by the owners of private
property.
CO-CHAIR JOHNSON noted this was covered when the sponsor stated
his intention to amend the provision by taking out the word
"continued".
3:08:26 PM
ARMEDA BULARD, Presiding Officer, Denali Borough, stated the
borough has been working on the Stampede State Recreation Area
for some time now through Representative Guttenberg and Senator
Thomas. Mayor Talerico has presented the general consensus of
the community from Cantwell to Anderson, she said. The use
being referred to is primarily local and local means all the way
to Fairbanks. [The borough] would like to be able to have some
concrete say-so in this area because of past proposals, which
include the federal park taking that chunk of land and
expansions such as the proposed road. She related that [the
borough] feels any transportation would best be done by putting
it on the north side of the north boundary of the national park
and go all the way to the rivers.
3:10:49 PM
REPRESENTATIVE ROSES cited the provision on page 2, [lines 8-10]
which states, "After adequate public hearings and in
consultation with the Denali Borough Assembly, the commissioner
may designate incompatible uses and shall adopt and may revise a
management plan...." He said he would be pretty much against HB
241 if it were not for this public hearing process. He inquired
whether Ms. Bulard is comfortable with the way this bill is
worded in regard to the public hearing process because a public
hearing does not necessarily mean that the advice of the people
that testified will be taken.
MS. BULARD responded she thinks [the borough] is fairly
comfortable with the way the bill is written. The activity
level of the people within the borough is such that this would
keep a door open for dialog with the state, and preferably
through the Division of Parks & Outdoor Recreation.
REPRESENTATIVE ROSES asked whether the language "may revise a
management plan" leads Ms. Bulard to believe that it is an
ongoing fluid process that will continue and one plan will not
be put in place and locked forever.
MS. BULARD replied yes, nothing in concrete, please.
3:12:42 PM
CO-CHAIR JOHNSON [held HB 241] and kept public testimony open.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:13 p.m.
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