03/23/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB70 | |
| SB129 | |
| SB126 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 126 | TELECONFERENCED | |
| *+ | SB 129 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 70 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 23, 2005
8:37 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Charlie Huggins, Vice Chair
Senator Gene Therriault
Senator Hollis French
Senator Gretchen Guess
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 70
"An Act relating to controlled substances regarding the crimes
of manslaughter, endangering the welfare of a child, and
misconduct involving a controlled substance; and providing for
an effective date."
MOVED CSSB 70(JUD) OUT OF COMMITTEE
SENATE BILL NO. 129
"An Act relating to the wrongful recording of a notice of
pendency of an action relating to title to or right to
possession of real property."
MOVED CSSB 129(JUD) OUT OF COMMITTEE
SENATE BILL NO. 126
"An Act relating to aquatic farming; and providing for an
effective date."
MOVED SB 126 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 70
SHORT TITLE: CRIMES INVOLVING CONTROLLED SUBSTANCES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/21/05 (S) READ THE FIRST TIME - REFERRALS
01/21/05 (S) HES, JUD
02/23/05 (S) HES AT 1:30 PM BUTROVICH 205
02/23/05 (S) Heard & Held
02/23/05 (S) MINUTE (HES)
02/25/05 (S) HES AT 1:30 PM BUTROVICH 205
02/25/05 (S) Moved CSSB 70(HES) Out of Committee
02/25/05 (S) MINUTE (HES)
02/28/05 (S) HES RPT CS 1DP 2NR NEW TITLE
02/28/05 (S) DP: DYSON
02/28/05 (S) NR: GREEN, ELTON
02/28/05 (S) FIN REFERRAL ADDED AFTER JUD
03/22/05 (S) JUD AT 8:30 AM BUTROVICH 205
03/22/05 (S) Heard & Held
03/22/05 (S) MINUTE (JUD)
BILL: SB 126
SHORT TITLE: AQUATIC FARMING
SPONSOR(s): SENATOR(s) STEDMAN
03/02/05 (S) READ THE FIRST TIME - REFERRALS
03/02/05 (S) JUD, RES
03/23/05 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 129
SHORT TITLE: WRONGFUL FILING OF LIS PENDENS
SPONSOR(s): SENATOR(s) HUGGINS
03/03/05 (S) READ THE FIRST TIME - REFERRALS
03/03/05 (S) JUD
03/23/05 (S) JUD AT 8:30 AM BUTROVICH 205
WITNESS REGISTER
Mr. Dean Guaneli, Criminal Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified in support of SB 70
Sergeant Timothy Birt, Detective
Division of Alaska State Troopers
Department of Public Safety
3700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Testified in support of SB 70
Mr. Duncan Shackelfold, Coach
Chugiak High School
Eagle River, AK
POSITION STATEMENT: Testified in support of SB 70
Ms. Barbara Brink, Director
Alaska Public Defenders
Anchorage, AK
POSITION STATEMENT: Commented on SB 70
Ms. Debbie Grundmann, Legislative Aide
Senator Huggins' office
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 129
Ms. Ruth Hamilton-Hesse, Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified in support of SB 129
Mr. Tim Barry, Legislative Aide
Senator Stedman's office
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 126
Mr. David Bedford, Deputy Commissioner
Department of Fish & Game
PO Box 25526
Juneau, AK 99802-5226
POSITION STATEMENT: Commented on SB 126
Mr. Roger Painter
Alaska Shellfish Growers Association
No address provided
POSITION STATEMENT: Testified in support of SB 126
Mr. Lance Nelson, Assistant Attorney General
Division of Natural Resources
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 126
Ms. Julie Decker
Southeast Alaska Dive Fisheries Association
No address provided
POSITION STATEMENT: Testified in support of SB 126
Mr. Paul Fuhs, lobbyist
PAC Alaska, LLC
519 Pittinger
Ketchikan, AK 99901
POSITION STATEMENT: Testified in support of SB 126
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:37:54 AM. Present were Senators
Hollis French, Charlie Huggins, and Chair Ralph Seekins.
SB 70-CRIMES INVOLVING CONTROLLED SUBSTANCES
8:38:36 AM
DEAN GUANELI, criminal division, Department of Law (DOL)
proposed Amendment 1 to address the definition of the word
"ingestion".
8:39:42 AM
A m e n d m e n t
Senate Judiciary Committee March 23, 2005
Amendment to CSSB 70(HES)
Page 1, line 13:
Delete "ingestion of"
Insert in its place "ingesting"
Page 2, line 1: After the period following the word "state"
add:
"As used in this paragraph, "ingesting" means voluntarily or
involuntarily taking a substance into the body in any manner. "
8:40:33 AM
SENATOR GENE THERRIAULT joined the committee.
8:41:54 AM
SENATOR THERRIAULT moved to adopt Amendment 1. There being no
objection, the motion carried.
CHAIR SEEKINS asked Mr. Guaneli to define affirmative defense.
MR. GUANELI explained the difference between affirmative defense
and regular defense:
A regular defense is one that the state as prosecutor
has to disprove beyond a reasonable doubt. An
affirmative defense is one that the Legislature
generally felt the information to establish that
defense ordinarily is something that the defendant
has. The state may not have information to establish
that defense and it's unfair to put the state to the
burden of proving or disproving beyond a reasonable
doubt. An affirmative defense is one that the burden
is on the defendant to come forward, not beyond
reasonable doubt, but to establish that defense by a
preponderance of the evidence.
8:44:15 AM
CHAIR SEEKINS asked Mr. Guaneli if an affirmative defense makes
a person guilty until proven innocent.
MR. GUANELI responded the state always bears the burden of
proving the essential elements of the offense beyond a
reasonable doubt.
CHAIR SEEKINS commented that statutes are trending toward
putting the burden of proof on someone else rather than the
state.
MR. GUANELI agreed and said affirmative defense should not be
routinely enacted in statutes. He added in any case involving
drugs where someone dies; the burden of proof will be impossible
for the state to meet.
8:47:56 AM
SENATOR HOLLIS FRENCH agreed with Mr. Guaneli and added the
state should not have to prove beyond a reasonable doubt in the
case of a drug manufacturer causing death to a person.
CHAIR SEEKINS interjected the discussion was important.
8:49:26 AM
SENATOR THERRIAULT moved to adopt Amendment 2 on behalf of the
Department of Law.
A m e n d m e n t
Senate Judiciary Committee March 23, 2005
Page 1 of 2
Amendment to CSSB 70(HES)
Page 2, line 10, through page 3, line 13:
Delete sections 3, 4 and 5 entirely, and replace with
*Sec. 3. AS 12.55.125(c), as amended by section CCS SB 56,
is amended to read:
(c) Except as provided in (i) of this section, a defendant
convicted of a class A felony may be sentenced to a definite
term of imprisonment of not more than 20 years, and shall be
sentenced to a definite term within the following presumptive
ranges, subject to adjustment as provided in AS 12.55.155 -
12.55.175:
(1) if the offense is a first felony conviction and
does not involve circumstances described in (2) of this
subsection, five to eight years;
(2) if the offense is a first felony conviction
(A) and the defendant possessed a firearm, used a
dangerous instrument, or caused serious physical
injury or death during the commission of the offense,
or knowingly directed the conduct constituting the
offense at a uniformed or otherwise clearly identified
peace officer, fire fighter, correctional employee,
emergency medical technician, paramedic, ambulance
attendant, or other emergency responder who was
engaged in the performance of official duties at the
time of the offense, seven to 11 years;
(B) and the conviction is for manufacturing
related to methamphetamine under AS
11.171.020(a)(2)(A) or (B), seven to 11 years, if
(i) the manufacturing occurred in a building
with reckless disregard that the building was
used as a permanent or temporary home or place of
lodging for one or more children under 18 or the
building was a place frequented by children; or
(ii) in the course of manufacturing or in
preparation for manufacturing the defendant
obtained the assistance of one or more children
under 18 or one or more children were present;
(3) if the offense is a second felony conviction, 10
to 14 years;
(4) if the offense is a third felony conviction and
the defendant is not subject to sentencing under (l)
of this section, 15 to 20 years.
*Sec. 4. AS 12.55.125(d), as amended by section CCS SB 56, is
amended to read:
(d) Except as provided in (i) of this section, a defendant
convicted of a class B felony may be sentenced to a definite
term of imprisonment of not more than 10 years, and shall be
sentenced to a definite term within the following presumptive
ranges, subject to adjustment as provided in AS 12.55.155 -
12.55.175:
(1) if the offense is a first felony conviction and
does not involve circumstances described in (2) of this
subsection, one to three years; a defendant sentenced under this
paragraph may, if the court finds it appropriate, be granted a
suspended imposition of sentence under AS 12.55.085 if, as a
condition of probation under AS 12.55.086, the defendant is
required to serve an active term of imprisonment within the
range specified in this paragraph, unless the court finds that a
factor in mitigation under AS 12.55.155 applies;
(2) if the offense is a first felony conviction,
(A) the defendant violated AS 11.41.130, and the
victim was a child under 16 years of age, two
to four years;
(B) two to four years if the conviction is for
an attempt, solicitation or conspiracy to manufacture
related to methamphetamine under AS 11.31 and AS
11.171.020(a)(2)(A) or (B), and
(i) the attempted manufacturing occurred, or
the solicited or conspired offense was to have
occurred, in a building with reckless disregard
that the building was used as a permanent or
temporary home or place of lodging for one or
more children under 18 or the building was a
place frequented by children; or
(ii) in the course of an attempt to
manufacture the defendant obtained the assistance
of one or more children under 18 or one or more
children were present;
(3) if the offense is a second felony conviction,
four to seven years;
(4) if the offense is a third felony conviction, six
to ten years.
*Sec. 5. AS 12.55.185 is amended to add a new definition, to
read:
(18) "building," in addition to its usual meaning, includes any
propelled vehicle or structure adopted for overnight
accommodation of persons or for carrying on business; when a
building consists of separate units, including apartment units,
offices, or rented rooms, each unit is considered a part of the
same building.
SENATOR FRENCH objected for the purpose of discussion.
MR. GUANELI explained the provisions in the current version of
SB 70. Sections 3,4, and 5 were a result of Alaska State
Troopers experiences with mobile methamphetamine laboratories
(meth labs). The main concern is the close proximity of children
to mobile meth labs. Convicting a person of two separate crimes
for the same conduct introduces the concept of merger where
courts will take two convictions and merge them for the purpose
of sentencing.
SENATOR FRENCH clarified the separate crime is when a person
manufactures in a building knowing that children are near.
8:53:44 AM
MR. GUANELI referred to a sentencing chart and offered an
explanation of the adjusted sentences. There would be an
additional penalty for manufacturing methamphetamines near
children.
8:56:45 AM
MR. GUANELI advised the committee that manufacturers have been
known to use children to assist them in the production of
methamphetamines.
8:58:09 AM
SENATOR THERRIAULT asked Mr. Guaneli if SB 70 addresses the
situation where the manufacturer's friend brings children into
the house.
MR. GUANELI said the intent of SB 70 addresses an overnight
situation. There was no thought as to children visiting.
8:59:45 AM
SENATOR THERRIAULT asked whether the committee could modify the
language.
CHAIR SEEKINS agreed.
SENATOR FRENCH said children do not spend the night in daycare
centers.
CHAIR SEEKINS suggested including the words "frequently
present".
9:00:58 AM
MR GUANELI admitted he is not bothered by the notion of
"frequently present" as language. He suggested it was ambiguous
and if necessary, a jury could decide.
CHAIR SEEKINS asked how long it takes to cause harm to a child
in the presence of the manufacturing of methamphetamines.
MR. GUANELI deferred the question to Sergeant Tim Birt.
9:02:38 AM
SERGEANT TIMOTHY BIRT, detective, Alaska State Troopers, advised
there are no studies to indicate a specific time frame.
Variables include the size of the operation, how the chemicals
are stored, stages of operation, and location. Meth lab fumes
are extremely toxic.
9:05:02 AM
SENATOR THERRIAULT commented there is an explosive nature as
well.
SENATOR FRENCH suggested adding language regarding children
frequenting the area.
SENATOR GRETCHEN GUESS asked if SB 70 included children present
during manufacturing.
9:07:38 AM
MR. GUANELI suggested under Section 3, subparagraph (B) sub
subparagraph (i) after 18, add the phrase "place frequented by
children", and under Section 3, subparagraph (B) sub
subparagraph (ii) after 18, add "or one or more children were
present".
SENATOR FRENCH asked Mr. Guaneli if SB 70 covers using children
to purchase ingredients.
9:10:08 AM
MR. GUANELI advised the intent of the language was broad enough
to include that scenario.
9:12:13 AM
SENATOR THERRIAULT moved the conceptual amendment to Amendment
2. Hearing no objections, it was so ordered.
9:13:14 AM
MR. GUANELI informed the committee SB 70 contained a separate
sentencing provision to address attempted manufacturing,
solicitation to manufacturing and conspiracy to manufacture.
9:14:27 AM
SENATOR GUESS asked Mr. Guaneli whether there were any other
places in the Alaska statutes where they discuss using children
in the manufacturing or preparing of elicit drugs.
9:15:41 AM
MR. GUANELI responded this is the only place where children are
reflected because it is the current problem.
9:17:18 AM
SENATOR GUESS asked how the DOL would handle a case where a
person under 18 was forced to deliver illicit drugs.
SENATOR FRENCH offered it would be a defense of coercion or
duress.
MR. GUANELI agreed with Senator French. When an act is committed
under duress, the law takes that into account. However, there is
a certain level of responsibility even children have to bear
when they are involved in selling drugs.
SENATOR GUESS commented the legislation would protect children
if they are being used to manufacture illegal drugs but not if
they are being used to deliver the drugs.
9:19:32 AM
MR. GUANELI responded if a child is knowingly and willingly
participating in the manufacturing of a controlled substance, it
is a prosecutable offense. SB 70 provides a measure of
protection for children but depending on their culpability,
there could be consequences.
CHAIR SEEKINS asked Mr. Guaneli if he could conceive someone
prosecuting an eight year old for involvement in illegal drugs.
MR. GUANELI answered it would be dealt with in the juvenile
justice system. The law doesn't feel children that age have a
culpable mental thought process.
9:21:59 AM
CHAIR SEEKINS asked Sergeant Birt if he has seen situations
where little children have knowingly and willingly assisted in
the manufacturing and selling of illicit drugs.
SGT. BIRT answered no.
CHAIR SEEKINS asked Sgt. Birt if he has seen the same situation
with teenagers.
SGT. BIRT answered yes.
CHAIR SEEKINS remarked his constituents were concerned with the
ease at which drug manufacturers meet bail.
9:24:13 AM
MR. GUANELI replied judges take into account a number of
circumstances including previous offenses and flight risks when
setting bail. The Legislature can set guidelines and help judges
consider other requirements.
9:26:57 AM
SENATOR FRENCH asked Mr. Guaneli about a controlled substance
schedule bill that the Legislature passed 5 years ago.
MR. GUANELI said the DOL would like to impose tougher sentencing
when methamphetamines are involved.
CHAIR SEEKINS commented some states allow no bail for
methamphetamine offenses. If it does not create a constitutional
problem, he would support an amendment to SB 70 that would
require an extremely high cash bail.
9:28:19 AM
SENATOR FRENCH offered a judge would balance the strength of the
case. In a strong case the judge could set the bail high. In a
weak case the suspect could walk.
9:29:46 AM
CHAIR SEEKINS asked Mr. Guaneli if he had any objection to the
Legislature instituting a high cash bail for the second offense.
MR. GUANELI replied he sees merit in the suggestion.
CHAIR SEEKINS announced the chair would entertain a conceptual
motion to add for a second arrest a minimum of $250,000 cash
bail.
SENATOR HUGGINS moved to adopt the second conceptual amendment
to Amendment 2. There being no objection, the motion carried.
9:32:01 AM
MR. GUANELI commented some people could meet the high cash bail
and he would like the court to be able to impose the other
restrictions that accompany the offense.
CHAIR SEEKINS answered it was not the intent of the Legislature
to impair the courts ability to impose other restrictions.
9:33:27 AM
MR. DUNCAN SHACKELFOLD, head football coach, Chugiak High
School, testified in support of SB 70. He expressed concern
about the easy access youths have to steroids.
9:40:14 AM
CHAIR SEEKINS asked Mr. Guaneli if the list of anabolic steroids
on Page 4 is limiting.
MR. GUANELI replied the courts have always said a list includes
but is not limited to. A list always helps due to pharmacologic
language. Legally it is not necessary to add the additional
language, "includes but is not limited to."
9:42:10 AM
SENATOR FRENCH proposed an amendment on Page 4; line 21 after
the word "includes" insert "but is not limited to the
following." Hearing no objections, Amendment 3 was adopted.
9:42:59 AM
MS. BARBARA BRINK, director, Alaska Public Defenders, commented
on the first section of SB 70. She took issue with the phrase on
Page 1; line 14:
"...the death is a result that does not require a
culpable mental state."
She suggested SB 70 would seek to punish people who do not have
mental culpability. She said:
The people did not intentionally, knowingly,
recklessly, or negligently cause death. This is a huge
difference from the vast majority of crimes that we
punish. Usually a crime has to have three things: An
act that is illegal, a result, and a mental state
about that result. In this instance we're dramatically
changing what we usually do and who we usually hold
responsible. A person may have had reason to believe
that any death would occur. It was clearly not
intended or expected and may not have even been able
to foresee such an outcome. Oftentimes they've merely
shared a small amount of a substance that they
themselves believed is used without any harm and just
for a social purpose.
She said the Alaska Supreme Court has looked unfavorably on
punishing people who don't have a criminal mind.
9:45:17 AM
MS. BRINK asserted to change a homicide offense to a strict
liability offense may not pass constitutional muster under the
Alaska Supreme Court. In the United States, tobacco kills
approximately 450,000 people annually. Alcohol kills
approximately 80,000 people and cocaine, heroin and aspirin each
kill about 2,000 people a year. Holding somebody accountable for
a death somewhere down the drug line does not prove to be a
societal benefit. New Jersey has imposed strict liability for
drug deaths based on the fact that 50 percent of all crimes were
drug related. It is a lucrative, organized crime issue in that
state. The Legislature attempted to use strict liability to
attack the drug trade and hold kingpins responsible. However a
study ten years after showed that most people who were arrested
for strict liability deaths were minors with no priors, family
member, or small time users.
9:48:09 AM
MS. BRINK said SB 70 will not address a huge problem in Alaska
and it may not be constitutional.
9:49:16 AM
MS. BRINK added there is no proof that jail is effective in
helping people overcome drug addictions. She said therapeutic
courts are a valuable alternative to putting non-violent drug
offenders into treatment.
9:50:22 AM
CHAIR SEEKINS closed public testimony.
SENATOR THERRIAULT moved CSSB 70(JUD) from committee with
individual recommendations and accompanying fiscal notes.
CHAIR SEEKINS announced a short recess at 9:51:19 AM.
CHAIR SEEKINS reconvened the meeting at 10:00:02 AM.
SB 129-WRONGFUL FILING OF LIS PENDENS
10:00:32 AM
CHAIR SEEKINS announced SB 129 to be up for consideration.
MS. DEBORAH GRUNDMANN, staff to Senator Huggins, introduced SB
129. She explained SB 129 is an act relating to the wrongful
recording of a notice of pendency of an action relating to title
to or right to possession of real property. SB 129 seeks to
discourage abusive filings of illegal lis pendens notices. The
recorders office has no way to prevent people from filing
improper lis pendens.
10:02:04 AM
SENATOR GUESS asked Ms. Hamilton-Hesse why the state doesn't
require proof before people can place a lien on a property.
MS. RUTH HAMILTON-HESSE, assistant attorney general, Department
of Law (DOL) advised the DOL is attempting to amend an existing
law that already provides criminal class A misdemeanor sanctions
for abusive process of recorder office filings.
SENATOR THERRIAULT asked if it would be better to have more
generic language.
MS. HAMILTON-HESSE answered the basis of SB 129 is that things
are being filed against property while the owner is not aware.
10:04:41 AM
CHAIR SEEKINS brought attention to Page 2; lines 11-12 and asked
if the consent should be in writing.
MS. HAMILTON-HESSE acknowledged it was a reasonable suggestion.
SENATOR HUGGINS moved to adopt Amendment 1. On Page 2, line 12,
after the word "consent" insert "in writing." There being no
objection, the motion carried.
SENATOR FRENCH asked Ms. Hamilton-Hesse to recite the proper
usage of a lis pendens.
MS. HAMILTON-HESSE explained lis pendens is a notice filed with
a recorders office, which notifies the public there is a valid
pending action against a piece of real property.
SENATOR FRENCH asked why the notice is not served on the owner
of the property.
MS. HAMILTON-HESSE answered that is a recorders issue and the
DOL is not involved with their processes.
10:06:54 AM
SENATOR THERRIAULT moved CSSB 129(JUD) from committee with
individual recommendations and attached fiscal notes. There
being no objection, the motion carried.
10:07:35 AM
SB 126-AQUATIC FARMING
10:08:23 AM
CHAIR SEEKINS announced SB 126 to be up for consideration.
MR. TIM BARRY, staff to Senator Stedman, introduced SB 126.
Senator Stedman sponsored SB 126 as a result of a coalition
between the Alaska Department of Fish and Game (ADF&G), the
Southeast Alaska Regional Dive Fisheries Association (SARDFA)
and the Alaska Shellfish Growers Association (ASGA). SB 126 is a
result of a compromise agreement between the groups who have
been working together for years to resolve legal and management
issues. SB 126 amends the Aquatic Farming Act (AS 16.40.100-199)
to allow aquatic farms to continue to operate in compliance with
a recent Supreme Court decision.
10:10:10 AM
Section 1 amends the Aquatic Farming Act to allow shellfish
farmers to own, harvest and sell insignificant populations of
wild shellfish stocks on their aquatic farm sites. ADF&G is
conducting a commercial dive fishery on designated mariculture
sites to remove commercially significant population of wild
geoducks.
10:11:24 AM
SENATOR HUGGINS asked Mr. Barry if there are a significant
number of geoducks in Alaska.
MR. BARRY answered there is a thriving commercial dive fishery
in Southeast Alaska. The farms are on a specific spot on the
bottom of the ocean. The farming act gives farmers the right to
grown and harvest shellfish on a specific spot of underwater
land.
10:13:38 AM
CHAIR SEEKINS commented wild free roaming animals, including
shellfish, belong to all the people of Alaska. Under established
law, title normally transfers at the point of harvest. SB 126
transfers ownership once people are granted agricultural rights.
He asked Mr. Barry if that was an accurate summary.
MR. BARRY agreed.
10:14:56 AM
MR. DAVID BEDFORD, deputy commissioner, ADF&G, also agreed with
Chair Seekins' comments.
SENATOR THERRIAULT said SB 126 cleans up a past problem that has
been pestering the state for seven years.
10:16:21 AM
CHAIR SEEKINS commented only the Legislature can transfer a
title prior to harvest.
SENATOR THERRIAULT advised there have been audits and
litigation. SB 126 will clear up any confusion of farming
rights.
SENATOR FRENCH asked if the farms or plots are visibly marked
for the general public.
10:17:26 AM
MR. ROGER PAINTER, vice president, Alaska Shellfish Growers
Association (ASGA), answered Senator French's question. The
sites are required to be marked with visible buoys. The buoys
have the permit-holders name and permit identification.
SENATOR FRENCH inquired on the size of a typical farm.
MR.PAINTER responded approximately 3-4 acres.
SENATOR THERRIAULT asked Mr. Painter where the farms reside in
relation to the shoreline.
MR.PAINTER disclosed they were generally located with some
protection from the weather, which could mean along a shore or
in a cove.
10:18:39 AM
SENATOR THERRIAULT asked if farms have onsite caretakers.
MR.PAINTER responded the farms are in the starting phase. They
will not have caretakers on-site at all times.
SENATOR FRENCH asked whether the plots would cover a shore where
the public might suddenly be restricted from clam digging.
MR.PAINTER intimated there are inter-tidal geoduck farms under
development. Leases that farmers get from the state require
public access that would allow the public to harvest other
resources or to recreate so long as they are not disturbing the
geoduck crop or the farm equipment.
10:21:19 AM
SENATOR FRENCH expressed concern about public notification of a
farm on the beach. He asked Mr. Painter whether there is any
opposition to SB 126.
MR.PAINTER claimed there was no negative testimony so far. ASGA,
the United Fisherman of Alaska, and SARDFA support SB 126.
SENATOR THERRIAULT asked Mr. Painter who the two parties were in
the lawsuit.
MR.PAINTER answered the Department of Fish and Game and four or
five farmers.
10:22:59 AM
SENATOR HUGGINS inquired as to the region in which geoducks are
found.
MR.PAINTER answered primarily Southeast Alaska.
10:23:23 AM
MR. LANCE NELSON, assistant attorney general, testified in
support of SB 126. The division of natural resources section of
the AGs office in Anchorage believes SB 126 establishes a
framework for a fair permitting system. SB 126 is an attempt to
address the issues raised in both the Superior Court and the
Alaska Supreme Court decisions in the Alaska Trademark Shellfish
case.
10:25:39 AM
CHAIR SEEKINS asked Mr. Nelson if he believes the Legislature is
operating in the best of public interest if they were to pass SB
126.
MR. NELSON said it was a good approach to solving the issues.
SENATOR THERRIAULT asked what would happen in a case where a
permit is issued to a location where it is later determined to
be a significant population of wild stock.
MR. BEDFORD advised ADF&G has rescinded sections of permits
before. The ADF&G has also denied permits due to significant
populations of wild shellfish stocks. ADF&G has not yet adopted
regulations that clearly define what a significant population
is. Should SB 126 pass, ADF&G will put into place regulations
that give clear definition so that the industry will know their
limitations and so the department will have standards by which
to judge applications.
SENATOR THERRIAULT asked Mr. Bedford if they are prepared to
write the regulations.
MR. BEDFORD advised a group including representatives from both
sides of the industry have been working on the regulations for
some time. The approach is to place a maximum limit on the
amount of pounds of wild stock geoducks on a farm site. The
group will also take into account the density of geoduck
population and the location of other geoduck commercial
fisheries.
CHAIR SEEKINS asked Mr. Bedford if the intent is to get farmers
to farm on non-productive land.
10:29:28 AM
MR. BEDFORD responded not exactly. The court clearly informed
ADF&G to focus on farming areas that had some geoduck presence
but not significant amounts.
10:29:53 AM
CHAIR SEEKINS commented the Legislature has yet to give ADF&G
the authority to do that.
MR. BEDFORD mentioned the court said ADF&G is the expert agency
that would be best suited to define significant populations.
Presently ADF&G has no ability to transfer titles to farmers.
10:30:21 AM
SENATOR HUGGINS asked whether a recreational diver would have
access to a commercial fishery area of geoducks.
MR.PAINTER responded commercial fishing areas are open to sport
fishing.
SENATOR HUGGINS asked Mr. Painter whether commercial fishermen
and recreational divers would come to a dispute over a fishing
area.
MR.PAINTER answered he could not envision that situation. Most
recreationally harvested geoducks are taken by commercial
divers.
10:32:20 AM
SENATOR THERRIAULT pointed to Section 5 of SB 126 and asked Mr.
Bedford why ADF&G would want to keep fishery records
confidential.
MR. BEDFORD explained for reasons of private business practices.
ADF&G will produce an annual report for the public. Private
enterprises should have confidentiality for their business
records.
SENATOR THERRIAULT asked Mr. Bedford how long it takes for a
geoduck to reach harvestable size.
MR. BEDFORD answered 5-7 years. The industry has not been
growing long enough to establish an exact number.
10:34:12 AM
SENATOR FRENCH pointed out a technicality in Section 6 on line
24. The word mean should be means.
CHAIR SEEKINS clarified ADF&G would protect individual aquatic
farm sites records but not the accumulative area record.
MR. BEDFORD agreed.
CHAIR SEEKINS suggested the language in Section 5 is unclear.
MR. BEDFORD responded the drafters should be queried regarding
Section 5. He believes the language is parallel to the language
they have for confidentiality of other records.
MR. NELSON detailed Section 5; Paragraph (4) refers to wild
stocks. It would not apply to accumulative harvest of farmed
stocks. Section 5 would not make confidential accumulated
reports prepared from individual submissions by ADF&G.
10:37:51 AM
MS. JULIE DECKER, member, SARDFA, testified in support of SB
126.
MR. PAUL FUHS, lobbyist, testified in support of SB 126.
10:39:20 AM
SENATOR THERRIAULT moved SB 126 from committee with individual
recommendations and attached fiscal note(s). There being no
objection, the motion carried.
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 10:42:01 AM.
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