Legislature(1999 - 2000)
04/03/2000 03:10 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
April 3, 2000
3:10 p.m.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor, Vice Chairman
Senator Pete Kelly
Senator Jerry Mackie
Senator Lyda Green
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Sean Parnell
COMMITTEE CALENDAR
SENATE BILL NO. 241
"An Act relating to the accounting for and appropriations of the
dive fishery management assessment; and providing for an effective
date."
-MOVED SB 241 OUT OF COMMITTEE
SENATE BILL NO. 301
"An Act relating to the Chitina dip net fishing permit; and
providing for an effective date."
-MOVED CSSB 301(RES) OUT OF COMMITTEE
SENATE CONCURRENT RESOLUTION NO. 3
Relating to the sovereignty of the State of Alaska and the
sovereign right of the State of Alaska to manage the natural
resources of Alaska.
SCHEDULED BUT NOT HEARD
PREVIOUS SENATE COMMITTEE ACTION
SB 241 - No previous Senate action.
SB 301 - No previous Senate action.
SCR 3- No previous Senate action.
WITNESS REGISTER
Senator Gary Wilken
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Explained the provisions of SB 301
Mr. Kevin Delaney, Director
Division of Sport Fish
Department of Fish and Game
333 Raspberry Rd.
Anchorage, AK 99518-1579
POSITION STATEMENT: Supports SB 301
Mr. Mac Minard
Interior Regional Supervisor
Division of Sport Fish
Department of Fish and Game
1300 College Rd.
Fairbanks, AK 99701-1599
POSITION STATEMENT: Supports SB 301
Mr. Charlie Swanton
Division of Sport Fish
Department of Fish and Game
1300 College Rd.
Fairbanks, AK 99701-1599
POSITION STATEMENT: Supports SB 301
Mr. Byron Haley
Chitina Dipnetters Association
1002 Pioneer Road
Fairbanks, AK 99701
POSITION STATEMENT: Supports SB 301
Mr. Allen Barrette
1840 Marika Road
Fairbanks, AK 99701
POSITION STATEMENT: Opposes SB 301
Mr. Bruce Hamilton
138 Farewell Ave.
Fairbanks, AK 99701
POSITION STATEMENT: Opposes SB 301
Mr. Roy Spores
94 Farewell Ave.
Fairbanks, AK 99701
POSITION STATEMENT: Opposes SB 301
Mr. Greg Machacek
Fairbanks Fish and Game Advisory Committee
North Pole, AK 99705
POSITION STATEMENT: Supports SB 301
Mr. Mark Hem
PO Box 72553
Fairbanks, AK 99707
POSITION STATEMENT: Opposes SB 301
Mr. Erling Hem
PO Box 72553
Fairbanks, AK 99707
POSITION STATEMENT:
Mr. Mike Tinker
Fairbanks Fish and Game Advisory Council
PO Box 289
Ester, AK 99725
POSITION STATEMENT: Supports SB 301
Mr. Dick Bishop
Alaska Outdoor Council
211 4th St.
Juneau, AK 99801
POSITION STATEMENT: Supports SB 301
Mr. Joseph Hart
Ahtna Native Corporation
PO Box 649
Glennallen, AK 99588
POSITION STATEMENT: Supports SB 301
ACTION NARRATIVE
TAPE 00-17, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:10 p.m. Present were Senators Pete Kelly, Green,
Taylor, Mackie and Chairman Halford. The first order of business
to come before the committee was SB 241.
SB 241-DIVE FISHERY MANAGEMENT ASSESSMENT
SENATOR TAYLOR explained this bill incorporates an agreement that
was made with the dive fisheries last year. The funds were
appropriated in last year's budget and basically, constitute
another dedicated fund. The Governor promised to introduce this
legislation so that the accounting could take place. Senator
Taylor said he supports the legislation because dedicating funds
seems to be the only way to get a dive fishery started and because
SB 241 creates a good device for both the fishery and the state.
SENATOR MACKIE asked if SB 241 takes the funds out of the budget in
terms of program receipts.
SENATOR TAYLOR replied it does.
SENATOR TAYLOR moved SB 241 from committee with individual
recommendations. There being no objection, the motion carried.
SB 301-CHITINA DIPNET FISHING PERMIT
SENATOR GARY WILKEN made the following comments about SB 301. The
Chitina fishery is one of the largest in the state. Over 10,000
household permits are issued each year with approximately 20,000 to
30,000 Alaska residents participating. Approximately 118,000
salmon are harvested. In December of 1999, the Alaska Board of
Fisheries reclassified the Chitina personal use fishery as a
subsistence fishery. That designation will have little impact on
the way the fishery is managed and it has little to do with the
need to secure public access and provide services. Regulations
governing the Chitina fishery require people to have a permit
issued by the Alaska Department of Fish and Game (ADFG) in their
possession. This permit serves as the harvest record. AS
10.05.340 (a)(22) sets a fee for a Chitina personal use dipnet
permit at $10. This fee has been in place since 1990. Proceeds
from the fee go to the fish and game fund and have been used to pay
Chitina and Ahtna Native Corporations for access across their lands
and for outhouses and garbage services. An agreement between ADFG
and the corporations determines the distribution and services.
SB 301 amends existing statute: it renames the Chitina personal use
salmon dipnet fishing permit to Chitina dipnet fishing permit and
increases the fee from $10 to $25. It changes the name of the
permit to remove the words "personal use" as it is no longer a
personal use fishery. It changes the fee to coincide with the new
agreement reached between the corporations and ADFG. This new
agreement is intended to provide for maximum legal public access to
the dipnet fishery while minimizing the conflicts between private
landowners and the dipnetters at Chitina.
In the year 2000 dipnetters will pay $25 for a permit. Since the
fishery is now designated as a subsistence fishery, dipnetters will
no longer be required to purchase a sport fishing license. In
1999, each dipnetter was required to buy a $15 sport fishing
license and a $10 Chitina permit for a total cost of $25. Under
this plan only the $25 Chitina permit will be required. Since the
Chitina permit is a household permit, families can save under this
plan because a family with two adults will pay $25 instead of the
1999 $50 cost. The permit is good for up to 5 family members.
Services will be significantly increased and improved over the
past. Access to Native lands is more accurately identified than in
previous agreements. The process of obtaining a permit will be
available through ADFG offices in Anchorage, Palmer, Fairbanks,
Glennallen and Chitina. SB 301 will provide better services to the
public, make it easier and faster to obtain a permit and decrease
management costs to ADFG.
Without SB 301, without a change in the name of the permit, ADFG is
unable to collect a permit fee because the Chitina dipnet fishery
is no longer a personal use fishery. Without the permit fee,
funding for services and access will not be available. It is
uncertain what the corporations would do with regard to allowing
access to the river. Families that plan to go to the river this
summer could be faced with a potential conflict.
SENATOR WILKEN noted committee packets contain a sponsor statement,
an explanation of the 40 year history of the Copper River dipnet
fishery, regulations, a letter of support from the Alaska Outdoor
Council and an opinion from the Fairbanks Daily News Miner. His
staff has been working with ADFG on this issue since December.
Number 628
SENATOR TAYLOR asked if ADFG changes the title from "personal use
fishery" to "subsistence fishery" whether that means subsistence
under state law.
SENATOR WILKEN deferred to a representative from ADFG to answer
that question.
SENATOR TAYLOR asked if ADFG charges for state subsistence fishing
permits anywhere else in the state.
SENATOR WILKEN deferred to ADFG for an answer.
SENATOR TAYLOR commented that this agreement creates an interesting
precedent. He noted ADFG has charged an application fee for a
personal use permit in the past. He asked if subsistence fishery
permits would be subject to the Tier 1, Tier 2 and Tier 3 formula
if there are not enough fish to fill the quota.
SENATOR WILKEN said he did not have an answer.
SENATOR MACKIE asked if the Alaska Outdoor Council was referring to
senior citizens in its recommendation that SB 301 be amended to
waive the permit fee for Alaskans who qualify for the Permanent
Identification Card.
SENATOR WILKEN said that is correct and that he supports such an
amendment.
SENATOR MACKIE asked why that is necessary.
SENATOR TAYLOR replied, "Because it is not under the state fishing
licensing thing anymore and their card is [indisc.] a permanent
license. But you don't have to get a state fishing license to do
this."
SENATOR MACKIE asked Senator Wilken if he has language available
for a proposed amendment.
SENATOR WILKEN said the Division of Legal Services is working on
proposed language and that the bill could be amended in the next
committee of referral.
SENATOR TAYLOR asked Senator Wilken if he is aware of any other
place in the state where a Native corporation charges people a fee
to participate in a subsistence fishery.
SENATOR WILKEN said he is not but ADFG may be.
Number 800
MR. KEVIN DELANEY, Director of the Division of Sport Fish, ADFG,
stated his division carries out the management of the Chitina
fishery, regardless of the fishery's name. He noted Mr. Mac
Minard, the Regional Supervisor for the Copper River-AYK area, is
participating via teleconference. He noted Mr. Minard was closely
involved in the negotiations.
SENATOR TAYLOR asked about the distinction between a subsistence
permit and a personal use permit and why ADFG changed the
designation.
MR. DELANEY replied the Chitina fishery is over 100 years old and,
during that time, because of statutory and regulatory changes, it
has been named a subsistence and personal use fishery. It was
designated as a personal use fishery in the mid 1980's based on a
Board of Fisheries' decision. In December of 1999, the Board of
Fisheries, in response to a proposal, made a finding that customary
and traditional use of salmon occurs at that site, thus, the name
shifted back to a subsistence fishery under state law.
SENATOR TAYLOR noted it is his understanding, in his district at
least, that the subsistence taking of sockeye salmon requires a
personal use permit. He asked why different areas have different
classifications.
MR. DELANEY replied the classifications in Southeast are somewhat
confusing because there are both personal use and subsistence
fisheries for salmon. To save everyone a headache, ADFG issues
permits in Southeast as combination personal use/subsistence
permits; people are then required to participate under the rules
that govern a particular site. He noted, for the participants,
there is essentially no difference. The same is true for Chitina
as all Alaskans are able to fish there. In this particular case,
a fee has been established to provide products and services, such
as garbage disposal and practical and legal access across private
lands. It is not so much a license to participate in a subsistence
fishery as it is a charge commensurate with the products and
services delivered. He noted it is the only place he is aware of
in the state where such an arrangement exists.
MR. DELANEY explained that ADFG came to this arrangement after a
decade of turmoil and confusion. 10,000 people per year fish that
site and, with the addition of family members, 25,000 people may
visit that site in a year. In addition, the area consists of a
patchwork of public and private land with an ill-defined DOTPF
right-of-way running through it. To remedy the problems, ADFG sat
down with the landowners and the Chitina dipnetters in the early
1990's to explore solutions. At that time the dipnetters came to
the legislature and asked for the original permit. Since then,
more people are fishing that area and the cost of products and
services has increased prompting ADFG to meet with the dipnetters,
landowners, and Senator Wilken's staff. SB 301 is the result of
those meetings.
SENATOR TAYLOR expressed concern about setting a precedent in state
law that other private parties may look to and use to their
advantage in charging fees to people who want to participate in
subsistence/personal use fisheries or hunts. He noted he wants to
make sure to preserve the activities that have been occurring on
the Chitina for 100 years. He referred to Mr. Delaney's statement
that the Chitina fishery is open to all Alaskans and asked if, by
classifying the Chitina dipnet fishery as a subsistence fishery
that, the salmon run is inadequate to meet the projected take from
this fishery, it could be classified by ADFG as a Tier 1, Tier 2,
or Tier 3 fishery, thus limiting those Alaskans who can
participate.
MR. DELANEY replied, "Mr. Chairman, Senator Taylor, you could get
there under state law. That's a possibility. This particular case
- in recent years the total return to the Copper River in the
numbers of sockeye salmon has been 1 million - 2 million fish. The
end river goal, which includes spawning escapement and fish
allocated to the personal use and/or subsistence fisheries, has
been in the neighborhood of about 500,000. The remainder is the
commercial take on the Copper River delta, a very valuable fishery.
It's been an extremely successfully managed system. To get down to
that Tier 2 type of a situation, you'd have to see about a 75
percent decrease in the run. It's Mother Nature - it could happen
but there's quite a bit of surplus at the present time, but it's
possible under state law you could get there."
SENATOR MACKIE commented that is the case right now, with or
without SB 301, because the Board of Fisheries has to review that
every year.
MR. DELANEY agreed.
SENATOR MACKIE noted that the agreement between ADFG and the Native
corporations was announced only four days ago.
MR. DELANEY stated the Chitina organization finally signed the
agreement a few days ago.
SENATOR MACKIE referred to the precedent mentioned by Senator
Taylor and remarked that this agreement is not being established in
statute. He commented that he is well aware that every Native
corporation in the state is dealing with issues of access and
waste. This agreement appears to be well thought out and
accommodates the interests of both the public and private
landowners. He asked if ADFG is aware of any outstanding issues
that have not been addressed in this agreement.
Number 1383
MR. DELANEY said he is sure there are but he considers them minor.
There is still a question of whether or not it is necessary to
enter into an agreement when some state land is available. Again,
that area is a maze of titled property, rights-of-way, state land
and private Native corporation land. Theoretically, there is a
place where people could come off of state land and enter navigable
water. ADFG is looking at this as a package deal and as an
opportunity to facilitate legal and practical access and to take
care of waste and garbage.
SENATOR MACKIE added that the agreement provides for the
traditional areas of access and means of access with the blessing
of the landowners.
MR. DELANEY admitted that during negotiations some of the
dipnetters wanted additional lands on the West side of the river.
Those lands are more culturally and historically sensitive to the
Native corporations. In addition, the Native corporations wanted
a higher fee.
SENATOR TAYLOR asked what portion of the fee will go to the
corporations.
MR. DELANEY replied the permit costs $25; ADFG will get $5 to take
care of services, $18 will go to the Native corporations for
access, and the remaining $2 will be used by ADFG for
administrative overhead.
SENATOR TAYLOR asked if members of that Native group will be
required to purchase the permit.
MR. DELANEY said they will.
SENATOR TAYLOR asked if the Native corporations will get about
$360,000.
MR. DELANEY said they will get about $180,000 to $200,000.
SENATOR TAYLOR repeated that establishing this precedent of earning
$180,000 to let people walk on one's land to participate in a
subsistence fishery is very interesting. He hopes the next time a
subsistence fishery is established, the nearby landowners do not
have to be paid off before Alaskans can participate in their
natural and cultural heritage.
CHAIRMAN HALFORD asked how far the road goes South on the old
right-of-way.
MR. MAC MINARD, Regional Supervisor for the Division of Sport
Fisheries, replied the agreement will extend from the O'Brian Creek
campground to Haley Creek, a distance of about five miles. The
road continues beyond that point but the area under discussion is
about five miles.
CHAIRMAN HALFORD asked if the road continues South of Haley Creek
and, if so, how far.
MR. MINARD said about 15 to 20 miles.
CHAIRMAN HALFORD said, according to a map of the land ownership of
the area, the 300 foot right-of-way looks like about half of the
river frontage shown between O'Brian Creek to Haley Creek.
MR. MINARD said it is conceivable that along the right-of-way,
there are numerous locations where, within 150 feet of the
centerline, you could be into the river, but the court decision
that established the right-of-way was unclear as to what activities
are allowable and exactly where the right-of-way is.
CHAIRMAN HALFORD asked if the right-of-way is under its original
ownership or whether it is a right-of-way under another underlying
patent - the railroad.
MR. DELANEY replied it is the right-of-way for the Copper River
Railroad.
CHAIRMAN HALFORD asked if the right-of-way is an easement or state
land.
MR. DELANEY said his understanding is that it is based on those
events that led up to the original agreement with Chitina and Ahtna
in about 1993 and that the right-of-way is an easement. From the
center line of the road, the easement is 150 feet on either side.
It is not surveyed and, theoretically, if the road were to move the
easement would move with it. Portions of the road have been moved.
When this was being discussed for the first time in 1992, a choice
had to be made: either the corporations or the state would have to
pursue the right-of-way questions as a legal matter to determine
exactly what can be done and where - a win-lose situation - or the
parties could enter into an agreement and leave some uncertainty on
the table. The legal questions remain regarding exactly where the
right-of-way lies in relation to the road as well as questions
about exactly what can take place on that right-of-way.
SENATOR TAYLOR asked if the Chitina River is navigable.
Number 1687
MR. DELANEY replied the Copper River is navigable. He was not sure
of the federal designation of the Chitina River but he thought it
would be considered navigable by the state.
SENATOR TAYLOR noted the Chitina River was closed.
MR. DELANEY repeated that the state would consider the Chitina
River a navigable river.
SENATOR TAYLOR said he assumed the Copper River was navigable. He
asked if, based on the navigability of the Copper River, Alaska is
asserting its state's rights through this law to regulate this
fishery.
MR. DELANEY replied it has always been and continues to be a state-
managed fishery. He noted there is certainly a chance in the next
couple of years, as federal management unfolds, that will change
but at the present time it is under state management.
SENATOR TAYLOR said he was confused because many groups believe
that the "feds" took over subsistence as of October 1. He asked
why ADFG is regulating that fishery if that is true.
MR. DELANEY responded the wheels of the federal system are
definitely turning. It is assembling staff, taking proposals
through advisory councils and preparing to deliberate through the
federal subsistence board. No changes on the ground have occurred
at this time, however.
SENATOR TAYLOR said he is not concerned about changes on the
ground, he is concerned about a bill that ADFG supports that will
change the definition of a fishery that has been called "personal
use" for years. He stated as long as all Alaskans have the
opportunity to dipnet on the Copper River, he will be a "happy
camper." He will also be happy as long as the State of Alaska
controls that issue because the state practices a sustained yield
principle. He questioned how, if this bill can pass today and ADFG
can exercise the legal authority to regulate that river, the "feds"
have taken over.
Number 1762
MR. DELANEY said, in the case of the Chitina dipnet fishery, ADFG
manages the fishery and is capable and willing to work with the
corporations to take care of waste and garbage, which is what SB
301 is about.
MR. MINARD stated that Mr. Delaney did a good job of describing
where ADFG is at with this issue. ADFG had a similar agreement in
place for 10 years which expired on December 31, 1999. Over that
10 year period, the number of permits increased from 4,000 to
10,000 and now about 25,000 to 30,000 people go there every summer
for the express purpose of getting fish to eat. As ADFG entered
into this renegotiation, the Board of Fisheries took action on
Proposal 44, which reclassified the Chitina dipnet fishery as a
subsistence fishery. In reality, ADFG has approached this issue in
a manner that will allow the fishery to operate as a personal use
or subsistence fishery. That aspect of this issue has little
bearing on what this agreement deals with. ADFG was attempting to
reach an agreement that maximized public legal access and minimized
the potential for conflict. Many more people will fish the Chitina
without having any idea that the fishery changed from a personal
use to a subsistence fishery. The parties that negotiated started
out far apart in what they wanted. The final agreement is not
perfect but it does address the notion that an ill-defined
patchwork of public and private land surrounds the river and it
addresses the need for increased services. In its pure form, the
fee is a payment to a private landowner and to the state to provide
the services necessary to manage 30,000 people, whether on public
or private land. SB 301 also streamlines the permitting process.
SENATOR MACKIE asked Mr. Minard about the previous agreement.
MR. MINARD explained the legislation actually amends a statute that
established a personal use permit and a $10 fee that has been in
place for 10 years.
SENATOR MACKIE asked if a similar agreement was in place that dealt
with access and waste removal.
MR. MINARD replied that is correct and that the previous agreement
was for one year and was substantially similar.
Number 2020
SENATOR MACKIE asked if SB 301 modifies an approach that has worked
well for the past 10 years and streamlines the permit process for
the public.
MR. MINARD said that is correct and, technically, the agreement
expands the lands that are included in the agreement. The previous
agreement only addressed the O'Brian campground and Haley Creek.
The new agreement includes all of the lands on the West side of the
river between the right-of-way and the river.
MR. CHARLIE SWANTON, ADFG, stated that he will be implementing the
management plan therefore streamlining and minimizing the conflicts
will ensure that the management plan is adhered to and that people
get the fish they want.
MR. DICK BISHOP, Vice President of the Alaska Outdoor Council
(AOC), stated strong support for SB 301 as it provides the means
for people to have a relatively trouble-free opportunity to fish in
a traditional dipnet fishery. That fishery has been used since
pre-contact times which is one of the reasons that the Board of
Fisheries reclassified it as a subsistence fishery. Also, in 1978,
when the state passed a subsistence priority law, one of the
questions that arose was whether people from Fairbanks would be
able to persist in the subsistence dipnet fishery at Chitina. The
answer was yes. He believes it is appropriate that it has been
reclassified as a subsistence fishery.
MR. BISHOP noted the agreement strikes a balance between what is
needed to accommodate the various interests without getting into
further legal tangles or expensive surveys. In the long term, it
would be best if all parties seek a more permanent solution, such
as planning for surveys, but SB 301 is the appropriate measure at
this time so that people can participate in the dipnet fishery as
of June 1. Had ADFG been unable to negotiate a contract, thousands
of people would have been very disappointed.
CHAIRMAN HALFORD asked how a 60 year old person and his/her family
members would be licensed. He said that he would think that the
immediate family of the identification cardholder would be exempt
from the license requirement only if in the presence of the
cardholder.
SENATOR WILKEN remarked that the Division of Legal Services is
working on the amendment right now but he did not know what form it
will take.
CHAIRMAN HALFORD said he did not know how it would work otherwise.
He thought many families with a member who does not intend to
participate but who qualifies for the senior citizen license will
have that member get one so that all family members are exempt from
the fee.
SENATOR MACKIE suggested notifying the Division of Legal Services
of that problem so that it can be taken into account. He added
that he believes there will be general support for the amendment
and that it can be addressed by the Senate Finance Committee.
MR. BISHOP thought Chairman Halford's suggestion to the problem was
a practical approach.
Number 2340
SENATOR TAYLOR asked what will happen to the entire dipnet fishery
if Alaska's Constitution is amended to adopt the federal
subsistence laws.
MR. BISHOP said he thought if the federal government preempted
state management on that fishery, then the rural priority would
kick in and the only people who could participate in that
subsistence fishery would be those, who by federal rules, qualify
as rural. He noted that a second question would then be if those
licenses were considered personal use, would the non-rural license
holders have been protected. He did not think they would because
the subsistence priority under the federal rule takes precedence
over other fisheries.
CHAIRMAN HALFORD asked if that assumes the failure of state
management to allow enough fish to provide for the federal rural
priority and a harvest beyond that in a reasonable pattern of
personal use, state subsistence and commercial fisheries. The
federal government's job under federal management is to guarantee
enough fish for the rural priority. He asked if the state system
ensures enough fish for the federal system, whether the state will
have the ability to manage the remaining fish.
MR. BISHOP said that is correct.
SENATOR TAYLOR noted the distinction is, with cash sales, that
fishery becomes a commercial fishery. He asked if the number of
fish a person can take from the Chitina dipnet fishery is limited
and if those fish must be used for personal consumption.
MR. BISHOP said that is correct.
MR. BYRON HALEY, President of the Chitina Dipnetters' Association,
made the following comments. He has seen many things happen in
this fishery over the years. After the Native people got their
lands, they started to charge access to those lands. They put a
gate up at Fox Creek and charged $15 per person per day for access.
The Chitina Dipnetters' Association lobbied the Legislature and the
Governor for access. If SB 301 does not pass, he is not sure what
will happen. DNR charges fees for use of state boat ramps and
campgrounds.
MR. ALLEN BARRETTE stated objection to SB 301. There is a
difference between a personal use and a subsistence permit. He
doesn't believe that ADFG, or any state agency, should be
collecting fees for corporations. He sees a big problem with
discrimination because the only people paying for access are those
fishing. There is no charge to raft down the river or camp on
Native land. Enlarging the boundary area would help alleviate the
problem because confining 10,000 people in such a small area
increases the problems of waste, trash, and traffic.
Number 0163
MR. BRUCE HAMILTON stated opposition to SB 301. SB 301 is a quick
solution that will set a dangerous precedent. If any other private
entity was inserted into the equation, no consideration would be
given. It seems that everytime an issue like this arises, the
state errs on the side of the Native corporations and almost always
against non-Native residents of Alaska. If he were a private
property owner in a similar situation, he would expect to mark his
own property and to hire someone to collect any charges to cross
his land. He would not expect the state to act as a mediator or a
money collector. He encouraged the state to send a message to the
Native corporations and tell them to get the property surveyed to
determine the boundaries.
MR. ROY SPORES said he agrees with the last two speakers as he is
opposed to paying a trespass fee to cross a state right-of-way. He
would not mind paying an extra $5 to pay for restroom and trash
facilities. He would prefer to see the state spend money to survey
the land rather than collect money to pay trespass fees.
MR. GREG MACHACEK, a 17 year user of the Chitina dipnet fishery and
a Fish and Game Advisory Committee member in the Fairbanks area,
said the fee is considered to be on the high end but it is
affordable for most people. People feel they will benefit from
having access and restroom facilities. The cost of $18 per person
who trespasses is high, especially since not everyone trespasses.
Overall, he supports the bill but he is concerned that the state is
setting a precedent by collecting fees for private landowners.
SENATOR LINCOLN thanked Mr. Machacek for his testimony but noted
the $18 fee is per family, not per person. In addition, she noted
that fishers paid a total of $25 per year last year so the charge
has not changed.
MR. MARK HEM of Hem Charters stated he has operated a charter at
Chitina for almost 18 years. He takes an average of 600 people out
per year. Over the years he has heard a lot of comments from
dipnetters who use the fishery. He is very grieved that most of
those people have very limited knowledge and more than likely have
not spent more than three or four days in the area of Chitina.
When Charlie Swanton of ADFG took this over last year, he had never
been to Chitina. When he contacted legislators two weeks ago, most
knew nothing of this issue. Fairbanks' residents did not know that
a deal of this magnitude was being proposed - $180,000 for three
months of the use of a very small piece of land. He hopes the bill
does not pass out of committee. He pointed out that the majority
of Chitina dipnetters buy a sport fishing license anyway, so the
fact that one is not needed for the Chitina fishery will not save
them money.
Regarding improved access, MR. HEM stated no improvements have been
made and the corporations do not plan to provide anything. The
corporations remain adamantly opposed to anyone even being in the
area. The only reason the corporations agreed to this arrangement
is because the road goes through the area and it is a state right-
of-way. The corporations can stop use on the other side of the
river because there is no road, which is why they will not consider
negotiating the use of the other side of the river. He is
concerned about the scare tactics used by the dipnetters'
association, such as, if the bill does not pass, then people who go
to Chitina will be threatened and ticketed for trespassing. He
noted that he owns two houses in Fairbanks and school children
cross his property. To stop them, he would have to survey his
property and put up a fence. Even so, if someone climbed the fence
and was injured on his property, he would be sued. The two
agreements before the committee remove any responsibility from the
corporations for anything that happens in Chitina.
MR. HEM noted that ten years ago, when this agreement was first
negotiated, the road went around Fox Creek. Since that time the
state has straightened the road and it is no longer on private
lands. When the dipnetters came to the state ten years ago to
figure out a way to resolve this conflict they received no help
whatsover from the state.
MR. HEM informed committee members that ADFG opened up a buffalo
hunt in the St. Elias Range recently. When ADFG issued the permits
for that hunt, the Native corporations wanted $2,000 for each
hunter even though the hunt was not on Native land. He pointed out
that nowhere else in the State of Alaska do fishers have to pay a
fee to use restrooms and garbage cans. When a person buys a
fishing license, some of those services are supposed to be
provided.
SENATOR MACKIE asked Mr. Hem if he thinks it is unreasonable for
the Native corporations to be concerned about people trespassing on
their land and leaving garbage and human waste.
MR. HEM said he would not argue that any private landowner should
be concerned but he would argue that the amount the landowner will
be paid is ridiculous. The land could be purchased for probably
half that amount at a price above fair market value. He thought it
makes no sense that the Native corporations should have more rights
to protect their lands. They should survey their lands, fence it,
and hire someone to collect fees to cross the property. He has
heard talk from the corporations that gravesite markers have been
used for firewood. He said in all of his years there, he has seen
nothing like that.
SENATOR MACKIE asked Mr. Hem if he uses state land to put his
charter boat in the river.
MR. HEM said that is correct.
SENATOR MACKIE asked Mr. Hem what the going rate is for a charter
in that area.
MR. HEM said the going rate is $60 per person. He said each trip
costs him a minimum of $145.
SENATOR MACKIE asked if the number of Mr. Hem's customers have
decreased because some of the access questions have gone away.
MR. HEM said there is no relationship. At one point he had three
boats so his clientele increased to 1500. He found that operation
was not cost effective so he decided to operate with one boat.
SENATOR TAYLOR asked Mr. Hem about his statement that the state has
assumed liability for any harm that occurs on the Native land in
the agreement and whether he has actually seen the contract.
MR. HEM said he knows the corporations have taken that stand but he
did not bring his copy of the agreement with him. He pointed out
the state and the corporations both claim a right to the land.
SENATOR LINCOLN said she wanted to correct, for the record, that
she has never said that anything on the Native corporation land was
torn down to be used for firewood and she has never heard that.
She has heard that people leave 55 gallon drums and oil cans and
human waste from RVs which requires a lot of clean up.
MR. HEM asked Senator Lincoln how many times she has been in
Chitina.
SENATOR LINCOLN said quite a number of times, and that she was
there last summer. She noted that Chitina is in her district.
MR. HEM asked Senator Lincoln how many actual days she has spent
there. He repeated that he has been there for 18 years, seven days
per week, for 2+ months per year and he has never seen 55 gallon
drums left on any private property nor any waste from motor homes.
SENATOR LINCOLN said because Chitina is in her district, she has
heard from people who live there year round so she depends upon
their word.
MR. ERLING HEM stated he has lived in Chitina for the past 15 years
and has people trespassing on his land. [The remainder of Mr.
Hem's testimony was inaudible.]
SENATOR TAYLOR asked Mr. Hem to send his written comments to the
committee.
MR. MIKE TINKER, Fairbanks Fish and Game Advisory Committee
Chairman, stated the Chitina dipnet fishery is near and dear to the
constituency of the Fairbanks Advisory Committee. An estimated
2600 families participate in this fishery. The Advisory Committee
has recognized that, for a long time, there have been landowner
impacts that predate the original agreement in the 1990s by some
time. Problems with trespass into inhabited and uninhabited
property have been occurring, and some sites are sensitive, such as
gravesites, some of which are within the state right-of-way.
Prehistoric sites also exist in that area and DOTPF has done a lot
of work to protect those sites, such as moving parking areas. The
Fairbanks Advisory Committee discussed the dipnet agreement in its
draft form a month ago. The Committee's only disappointment is
that it is for a short term. ADFG will have to renegotiate this
agreement next year and it is a difficult agreement to negotiate
because it involves cultural traditions and people's emotions. SB
301 offers short term relief; the Fairbanks Advisory Committee
recommends that the legislature pass this legislation. Regarding
the discussion about a personal use fishery versus a subsistence
fishery, the federal regime does not recognize personal use
fisheries at all so that if the "feds" did exert themselves in this
area, they would not recognize the Chitina dipnet fishery. The
change to a subsistence fishery at least puts those dipnetters on
a footing under the state rules. Finding other funds to work on
this issue, such as the federal tax funds that can be used for
access to fishing sites, would be helpful. Unfortunately those
funds cannot be used at Chitina because the fishery is not open to
non-residents. He would like to see a more broad based approached
during the next negotiaion so that a long term solution can be
found.
Regarding other issues, MR. TINKER mentioned that the senior
citizen waiver could apply to family members living under the same
roof, such as is done for the Nilchina caribou herd hunt.
SENATOR TAYLOR asked if this agreement is only good for one year.
MR. TINKER said that is his understanding.
SENATOR MACKIE pointed out that does not affect the bill; the bill
only changes the fee structure for the permit.
SENATOR TAYLOR expressed concern that the Native corporations might
want $240,000 next year instead of $180,000 so the legislature will
have to change the fee since it is set in statute.
MR. DELANEY verified that the agreement is for one year. It is
modelled after the agreements that have been entered into to date.
Two things made the agreement more difficult to reach this year:
disagreement as to whether a fee should be charged and the amount
of the fee. Now that the fee has been set, the revenue will be
predictable. The money collected will be separately accounted for
in the fish and game fund.
SENATOR TAYLOR asked what arrangements were made within the
agreement regarding liability.
MR. DELANEY asked Mr. Minard to send that information to Senator
Taylor.
SENATOR TAYLOR said in the 40 year history that was provided, the
landowner was first given a significant portion of these monies
through appropriations to the ADFG budget. In previous years, they
were paid for cleaning up the campgrounds, etc. He asked if they
now get $180,000 with no responsibilities for cleanup.
MR. DELANEY said that is correct.
SENATOR TAYLOR asked if the cleanup work will be done by state
employees.
MR. DELANEY said that work will be contracted out and ADFG will
manage those contracts for performance.
MR. JOSEPH HART, Ahtna Native Corporation, informed committee
members that he worked with Mr. Minard in the negotiation process.
He thanked Mr. Minard for his accurate comments. Mr. Hart stated
that the Native corporations have attempted to collect fees in the
past but those efforts created problems that lead to SB 301. Ahtna
has posted signs and attempted to impose fines, however the signs
get torn down. Ahtna then began working with the state to find a
better solution to limit the impacts of the dipnet fishery to its
property. There are places within the right-of-way of the current
road where the road goes outside of the state's 300 foot right-of-
way. He believes the liability issue is covered by recent law
because a private landowner who gives permission is held harmless.
TAPE 00-18, SIDE A
Number 001
In response to a previous comment made about the buffalo hunt, MR.
HART said the bison available for hunting were on private property
80 percent of the time. The Native corporations are responsible
for protecting the resources of the rivers year-round, not just
during the dipnet season. The Native corporations took the steps
necessary to make sure an oil spill on the Copper River was cleaned
up. He noted that he can provide testimony from past employees who
have cleaned up the trash from the dipnetters. The dipnetters
leave bags of trash and fire rings and they cut down trees. Most
of the dipnetters revisit the area two to four times each year so
the number of visitors is more than 10,000. He also offered to
provide photographs of barrels left on the sand bars and state
lands.
SENATOR TAYLOR said he thought the previous agreements all involved
the State of Alaska paying the corporations a fee that had been
negotiated for cleanup.
MR. HART said that was the agreement. The Native corporations were
to take the money from the $10 fee and pay for the pick up of the
trash. Now the fee is $25 and a portion will be kept separate to
pay for the pick up of the trash. That job will be contracted out.
SENATOR TAYLOR noted he was just told the state would be
contracting out for trash pick up. He asked if the Native
corporations will no longer be responsible for doing that.
MR. HART said that is correct.
Number 259
SENATOR TAYLOR maintained the Native corporations will now be paid
$180,000 without the obligation of taking care of the impacts of
this fishery.
MR. HART pointed out that when the agreement first began, there
were only 4,000 dipnetters. The increased number of dipnetters has
a much greater impact. The dipnetters engage in camping
activities; for example, they cut down trees. The Native
corporations are asking for compensation for those impacts that are
going to occur.
MR. DALE BONDURANT stated in 1977 he, as a public interest
litigant, fought the federal government to establish legal access
to all public waters of Alaska, not just navigable waters. Alaska
then passed a statute to do that. He does not want to set a
precedent so that the public has to pay for access. He prefers
keeping the Chitina dipnet fishery as a personal use fishery
because it is compatible with Alaska's Constitution. He suggested
working out an agreement for water access.
SENATOR MACKIE moved to adopt a conceptual amendment that applies
the same criteria for a senior citizen card to SB 301.
SENATOR TAYLOR asked if that would limit the family members to
those living in the same household.
SENATOR GREEN said the family members must live under the same
roof.
There being no objection, CHAIRMAN HALFORD announced the conceptual
amendment was adopted and would be incorporated into a committee
substitute.
SENATOR TAYLOR asked how the Public Trust Doctrine fits into SB 301
and whether any provisions in state law give people the right to
access navigable waters.
CHAIRMAN HALFORD said such a provision is in the Constitution and
in statute. The Senate Resources Committee amended a House bill
last year to more strongly state that right.
SENATOR TAYLOR asked what happened to that right.
CHAIRMAN HALFORD replied it is obviously there. He clarified that
the bill only changes the fee from $10 to $25.
SENATOR TAYLOR commented he does not have a problem with the bill
but he does have a problem with the concept of charging people an
access fee for a right which is guaranteed under the Constitution.
SENATOR MACKIE noted the private landowner concerns need to be
looked at as well.
Number 672
SENATOR GREEN asked if there is a prohibition against private
landowners collecting fees.
MR. DELANEY said there is none in this particular case.
SENATOR GREEN asked if the state owns part of the land that the
people are using for access and, if the Ahtna and the Chitina
corporations were not involved, whether the state would charge a
fee at all.
MR. DELANEY explained that the primary need in this situation comes
from the fact that 15,000 to 25,000 come to an area that has no
facilities. If it were all state land, a state agency would have
come to the legislature for a permit fee to cover the cost of the
products and services that need to be delivered. In this case,
there are two large private landowners involved in addition to the
state, and the patchwork of property lines cannot be described to
people who show up. ADFG designed a package deal that includes
compensation for access across private lands and for services.
SENATOR GREEN asked Mr. Delaney if setting this precedent is of
concern to him since this agreement could be used as a hallmark
event in future discussions about similar areas.
MR. DELANEY said that issue was discussed right from the start with
this concept. ADFG looked around the Western states where, in
almost every case, the state acted as a facilitator in some manner
to collect fees and manage public access on private lands. In his
opinion, if this is a precedent, it is not a bad one because ADFG
can step in as an intermediary between 15,000 people and private
landowners to make a workable situation.
CHAIRMAN HALFORD asked if the actual agreement includes a
disclaimer of any precedent from a legal perspective against the
state in future access.
MR. DELANEY said it is his understanding that the issue left
unresolved is the issue of where exactly the right-of-way is as the
road moves and what can happen on that right-of-way. This
agreement leaves that question unresolved which is specifically
noted in the agreement.
CHAIRMAN HALFORD said he did not agree with Mr. Delaney's earlier
statement that the right-of-way moved with the road. He added that
the point that Senator Taylor was concerned about is that no
agreement entered into can be in anyway construed to change any
rights of the state with regard to access provisions in state or
federal law. The Supreme Court has upheld that the state has the
right to provide access to public waters. He does not want the
state to back away from any of the public access provisions in
working something out. He noted SB 301 does not ratify the
agreement.
SENATOR TAYLOR repeated that he is not concerned with SB 301
itself, but he is concerned with what goes on beneath the
legislation because major issues are being approached in a way that
may be a good resolution but do not pay attention to the Public
Trust Doctrine. He stated he believes the state's title on the
Copper River extends to the high average flood line. He noted the
Doyon Corporation just won a case in the Ninth Circuit Court of
Appeals in which Doyon argued that the Bureau of Land Management
(BLM) could not force it to take thousands of acres of land under
navigable water on three rivers. Doyon argued that those lands
belong to the State of Alaska and that it wanted uplands instead.
If that case is accurate, then all of the land that the dipnetters
will be standing on is state land. In addition, there is strong
case law that gives the public the right to cross private property
to get to public access areas. He does not want to see a precedent
set so that in the future any private landowner can demand that the
state pay an exhorbitant price before the public can have access to
the resource.
SENATOR MACKIE moved CSSB 301(RES) with its accompanying fiscal
note to its next committee of referral. There being no objection,
the motion carried.
CHAIRMAN HALFORD announced that SCR 3 would be held until the next
calendar. He then adjourned the meeting at 5:05 p.m.
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