ALASKA STATE LEGISLATURE SENATE RESOURCES COMMITTEE  May 8, 2002 3:50 p.m. MEMBERS PRESENT Senator John Torgerson, Chair Senator Gary Wilken, Vice Chair Senator Ben Stevens Senator Kim Elton MEMBERS ABSENT  Senator Rick Halford Senator Robin Taylor Senator Georgianna Lincoln COMMITTEE CALENDAR  SENATE BILL NO. 366 "An Act relating to the fee for the Chitina dipnet fishing permit; and providing for an effective date." MOVED CSSB 366(RES) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 287(FIN) "An Act relating to the exemption of commercial fishing entry permits from claims of creditors and execution on an interest in a limited entry permit; and providing for an effective date." MOVED CSHB 287(FIN) OUT OF COMMITTEE HOUSE BILL NO. 447 "An Act relating to the interest rates that may be charged on loans by the Commercial Fishing and Agriculture Bank." MOVED HB 447 OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION  SB 366 - No previous action to consider. HB 287 - No previous action to consider. HB 447 - See Resources minutes dated 4/19/02.   WITNESS REGISTER  Mr. Gordy Williams, Legislative Liaison Department of Fish & Game PO Box 25526 Juneau, AK 99802-5226 POSITION STATEMENT: Commented on SB 366. Mr. Kelly Hepler, Director Division of Sport Fish Department of Fish & Game PO Box 25526 Juneau, AK 99802-5226 POSITION STATEMENT: Commented on SB 366. Mr. Ralph D. Swarthout, Regional Director Northern Region Department of Transportation and Public Facilities 2301 Peger Rd Fairbanks AK 99519-6900 POSITION STATEMENT: Commented on SB 366. Mr. John Bennett Right-of-way Chief Northern Region Department of Transportation and Public Facilities 2301 Peger Rd. Fairbanks AK 99709 POSITION STATEMENT: Commented on SB 366. Ms. Sue Aspelund, Executive Director Cordova District Fishermen United POB 1715 Cordova AK 99574 POSITION STATEMENT: Commented on SB 366 and HB 287. Mr. Bruce Cain, Executive Director Native Village of Eyak POB 1225 Cordova AK 99574 POSITION STATEMENT: Commented on SB 366. Mr. Joseph Heart Resource Manager, Ahtna Corporation, Chairman, Land Committee, Chitina Corporation Vice President, Chitina Corporation No address provided POSITION STATEMENT: Opposed SB 366. Mr. Tom Talby Glennallen Office Department of Fish and Game POB 47 Glennallen AK 99588-0047 POSITION STATEMENT: Answered questions on SB 366. Mr. Mike Tinker Fish and Game Advisory Committee POB 289 Ester AK 99775 POSITION STATEMENT: Commented on SB 366. Mr. Stan Bloom, President Chitina Dipnetters Association 303 Bentley Dr. Fairbanks AK 99701 POSITION STATEMENT: Opposed SB 366. Ms. Lisa Harbo 820 Capricorn St. Fairbanks AK 99709 POSITION STATEMENT: Opposed SB 366. Mr. Herb Simone Nelchina AK POSITION STATEMENT: Opposed SB 366. Mr. Dick Bishop, President Alaska Outdoor Council POB 73902 Fairbanks AK 99707 POSITION STATEMENT: Supported SB 366. Ms. Mary McDowell, Commissioner Commercial Fisheries Entry Commission Department of Fish and Game 8800 Glacier Hwy, Ste 109 Juneau AK 99801 POSITION STATEMENT: Supported HB 287. ACTION NARRATIVE TAPE 02-28, SIDE A  Number 001 SB 366-CHITINA DIP NET FISHERY PERMIT FEE    CHAIRMAN JOHN TORGERSON called the Senate Resources Committee meeting to order at 3:50 p.m. and announced SB 366 to be up for consideration. SENATOR WILKEN explained that three years ago, the legislature enacted legislation that requires a $25 fee per family to fish the Chitina dipnet fishery of which $18 went to the Ahtna and Chitina Corporations and $7 went to the Alaska Department of Fish and Game (ADF&G) for maintenance. There has also been some discussion, after a survey was completed, that perhaps no trespass fees are required anymore. This bill addresses changing the fee to a certain amount that doesn't pay the trespass fees. MR. GORDY WILLIAMS, legislative liaison, ADF&G, said the Chitina dipnet fishery is the largest fishery in the state and varies from year to year. Last year over 8,000 household permits were issued. A fee has been in place since 1992; it was initially $10 but was increased to $25 in 2000 by SB 301. That bill also changed language to reflect that the Board of Fisheries had changed the fishery from personal use to subsistence and it contained intent language directing the Administration to do several things. The Administration was to enter into an agreement by February 1, 2001 that would last for at least three years and ADF&G was to work with other state and federal agencies on long- term solutions. It also required the state to work with private owners to identify and survey the right-of-way. ADF&G was unable to enter into a three-year contract with the Chitina and Ahtna Corporations, but it has entered into two successive one-year contracts, the last of which expired in December. Those contracts continue to provide guaranteed access for dipnetters across the Chitina-Ahtna lands that lie between the boundary of the public right-of-way and the ordinary high water line of the Copper River. The fee has provided $10 to Chitina Native Corporation, $8 to Ahtna for guaranteed access, $5 to ADF&G for maintenance contracts for solid waste and garbage, and a $2 administrative fee for the department. He explained: A survey was undertaken using funds appropriated by the legislature last year and that survey is not totally final yet. There are still drafts going back and forth between DOT and the contractor. But the preliminary estimates are that about 60% of the dip net use area is accessible from the right-of-way. Money for that appropriation is also, as is spelled out in language last year, to publish a brochure and for DOT to go out and put some on-ground marking in to try to indicate where the public right-of-way does access the river and where the private lands are. MR. WILLIAMS said the survey has provided important new information on the land status and confirms a real patchwork of public and private land ownership along the river. People use several very key areas for fishing, camping, parking, and ancillary activities, such as the mouths of O'Brien Creek and Haley Creek, that are private lands or they ask ADF&G questions about the ordinary watermark. He added: So, while we recognize that there are policy issues which [indisc.] in light of this new survey, we believe the best option for 2002 is to retain the fee at $25 and to enter into one-year agreements again with the Chitina and Ahtna Corporations and we've had discussions with them along those lines. We believe that will result in a more orderly fishery and provide both the atmosphere for further discussions on long- term solutions as directed by SB 301 - possible land trades. Those discussions can use the new information from the survey and be able to sit down, hopefully, with private landowners and talk about the various options. Also, the fishery has been impacted by a landslide, which is south of O'Brien Creek, which currently blocks the road. DOT is looking at options for removing that landslide but it's a difficult area. The original landslide was in the last year and then there's been a couple of smaller ones since. It's a very unstable area. They need to get in and do some assessment work. Part of that would be on Ahtna lands and they look forward to working cooperatively with the landowners on those kinds of issues. In summary, we recognize that there's important new information on land status in the area that came with the survey. It is, however, very new information and with the final survey not in yet. The 2002 season is likely to start in mid-June and people will be looking to buy the permits here in the next few weeks. Certainly, by the first of June, people will start to look to buy their permits. We think keeping the fee at $25, having access contracts in place will provide an orderly fishery and will allow us to go forward in a hopefully productive manner this year working towards long-term solutions that would benefit both the state and the local landowners. CHAIRMAN TORGERSON asked if the state is paying the Ahtna Corporation for access to state land. MR. WILLIAMS replied, "It was always recognized that there was some private land. It just wasn't known how much of it is and now the estimate is about 60%, but some of that 40% is pretty important key land." CHAIRMAN TORGERSON asked why ADF&G couldn't configure this to pay the 40% and not 60%. MR. WILLIAMS replied that the discussion has centered around the policy issue of going to the area and access to the fishery, but because of the patchwork ownership pattern, it would be difficult for people to stay off of the private land. With 30,000 to 40,000 people using the fishery, private landowners think people will trespass either knowingly or unknowingly. It's more of a policy call about should there be a fee, not about how much. ADF&G is saying that given the status this year - the need to work on long-term solutions and DOTPF needing time to work on the landslide problem, ADF&G believes the fee should be maintained this year. That would allow everyone to have guaranteed access all along the river. SENATOR ELTON asked whether ADF&G or the Department of Natural Resources (DNR) has been negotiating the access agreement with the corporations. MR. WILLIAMS replied that ADF&G has been negotiating the contracts. SENATOR ELTON asked what his sense is of what will happen to those negotiations if the fee is lowered from $25 to $10. MR. WILLIAMS said the negotiations have been very difficult at the $25 level, which is why ADF&G has not been able to enter into a three-year contract. ADF&G doesn't believe that a $10 fee access agreement would be part of the equation; $10 would be within the maintenance arena. SENATOR ELTON asked what the consequence of having no agreement would be to the people trying to access the fishing spots. MR. WILLIAMS replied that a brochure would be produced and roads would be marked. People would be told they are not allowed to go on to private land, but that they could access the fishery through public land. The fishing takes place below the mean ordinary high water mark, but access to the other activities, such as camping, is through private land. The private lands would be off limits unless the Native corporations came up with some permitting system of their own. SENATOR ELTON asked if the chances that such a change would be chaotic are very high. MR. WILLIAMS replied that he couldn't predict, but it is possible. SENATOR ELTON said he was trying to figure out a way this could work for everybody and asked the department's reaction to an effective date of January 1, 2003. MR. KELLY HEPLER, Director, Division of Sport Fish, ADF&G, said that is an interesting question because ADF&G and DOTPF certainly want to work with the two corporations on long-term solutions. It then becomes a question of whether they realize the state is serious about this and would come to the table with greater faith than they plan to now. He didn't know, but he thought it would ease some of the concerns Mr. Williams voiced earlier. A final date by the legislature to resolve the issue would send a strong message. CHAIRMAN TORGERSON asked why the Native corporations wouldn't charge their own fees and manage it themselves. He noted the problem of access across private land is not unique to Chitina. He said he didn't understand why there is a big problem and why the state is collecting fees. MR. HEPLER said that access to the fishery is through a patchwork of public and private land ownership. He said the area they are talking about is a fairly small area but a large number of people want to use it at one time. SENATOR WILKEN said it's a mish-mash of ownership. He explained the topography is such that one might have to go across private land in order to get down to the cliffs or the bluffs in order to access some of the state land. He asked Mr. Hepler to point out the landslide area. MR. HEPLER replied that it is about a mile below O'Brien Creek. SENATOR WILKEN asked if Rand Creek and Haley Creek are private or public. MR. HEPLER replied that a lot of it is private and that it's harder to determine the high water mark on a river delta than in other places. SENATOR WILKEN asked if boat access to the river would be available if the O'Brien Creek and Haley Creek boat launches were closed. MR. HEPLER replied if they shut down the Haley Creek boat launch, people would probably have to go to where the bridge crosses. It would be a longer run. SENATOR WILKEN asked if options are available for both parties to look at during the negotiations to start to come to some conclusion or whether they are so far apart that there hasn't been a real discussion. MR. HEPLER replied that discussions have been two-fold. One discussion has been about what an agreement would look like if they come to an agreement this year. The corporations want to have the same agreements they had in previous years. At the same time they have been talking about long-term solutions. The energy is there to come up with something. SENATOR WILKEN asked when the preliminary survey was completed and when the final would be available. MR. WILLIAMS replied that Mr. Swarthout and Mr. Bennett, with ADF&G in Fairbanks, could answer that. SENATOR WILKEN said his intent in this fishery is to have an accessible, productive, safe fishery and he could support a continuation of the $25 fee knowing that this is the end and that next year there will be some agreement between the state and the corporations. He would also consider an effective date. He didn't want to be talking about $18 or $25 and having an inaccessible, unproductive, unsafe fishery for Fairbanks people. CHAIRMAN TORGERSON said he didn't see why they couldn't continue to pay $25 for access across private land and leave the state lands at $10, "and you do that basically by grouping the two and dividing it by the total." MR. WILLIAMS said, "It's one fee that's $25. Out of that, $5 goes to maintenance, $2 to us, $18 to the corporations." CHAIRMAN TORGERSON asked, "Are we maintaining their land, too?" MR. WILLIAMS replied that they pick up trash. CHAIRMAN TORGERSON said he didn't mind paying for access to that land, but he didn't see why the state was paying for the use of its own land. He stated, "According to this, you're paying $18 for use on 60% of the state's land and we're paying an entity that has no control over that. It's our land - if your survey is right." MR. WILLIAMS replied they could assume $15. The $5 service fee is for trash pick up and porta-potties, leaving $10. CHAIRMAN TORGERSON said, according to their figures, 3,800 users don't use the private land, but the state is paying $18 per head for them as if they were. SENATOR ELTON said his understanding is that the $25 fee is per family. CHAIRMAN TORGERSON said that 40% is Native land. He thought it was fair to reimburse them for what the public is using. MR. WILLIAMS said that the 40% and 60% figures don't apply to the number of permits; they apply to the land status. CHAIRMAN TORGERSON asked if the $100,000 survey only shows who owns the land. MR. WILLIAMS replied yes. CHAIRMAN TORGERSON asked if they know how many people go over the private land. SENATOR WILKEN asked Mr. Ralph Swarthout, Northern Regional Director, DOTPF, to go over the survey process. Mr. Swarthout indicated that Mr. John Bennett would go over it. MR. JOHN BENNETT, Right-of-way Chief, DOTPF, said he was the contract manager and took the task from ADF&G. He did a professional services agreement with a survey company out of Anchorage called Crazy Mountain Joint Venture. The company was tasked with mapping the location of the Copper River Highway right-of-way because DOTPF had no information on that. He explained: They prepared an as-built survey of the centerline geometry from the Copper River Bridge on McCarthy Road through Chitina down to Haley Creek. The next task was to determine as best they could the ordinary high water line on the Copper River along that stretch - basically so we could determine the relationship between the edge of the right-of-way, which is 150 feet on each side of the center line of the Copper River Highway and the ordinary high water line, therefore, being able to determine in what areas you could actually go from the road right-of-way to the state owned lands below the high water lines without getting into a trespass situation. The survey was commenced sometime in the fall of last year. I don't have the dates with me. The mapping was done over the course of the winter. We have one task left to perform, but we had deferred it after the annual Chitina Dipnetters meeting when we found out that it's our understanding that we're going ahead with the status quo on the permit fee…. With the milepost markers and the map we intend to publish in a brochure and give to each dipnet permittee, they will be able to walk or drive down the road, look at the milepost markers and determine if they're at a location where they can go directly to the water without being in a trespass situation. SENATOR WILKEN asked him when the survey was completed. MR. BENNETT said the fieldwork was completed late last fall. He explained: The milepost markers will either be completed this fall or, if this bill passes, we're going to have to scramble out there and do it this week. SENATOR WILKEN asked if he had a preliminary report on what the survey shows as far as what is public and what is private. MR. BENNETT replied that he had a map that was just delivered by the survey contractor yesterday and he didn't know if Mr. Williams had received copies of what he plotted out. MS. SUE ASPELUND, Executive Director, Cordova District Fishermen United (CDFU), opposed the reduction of the fee this year because the timing is inappropriate given the lateness, relative to how soon the fishery should commence for the prosecution of an orderly fishery. In addition, because resource management can be costly, CDFU encourages future discussion of using a fee similar to this one to reimplement much needed in-season reporting requirements in the future for the Chitina dip net fishery. MR. BRUCE CAIN, Executive Director, Native village of Eyak, said the original Copper River railroad right-of-way was 100 ft., not 300 ft. as is proposed, and it was only valid as long as it was used as a railroad. MR. JOSEPH HEART, resource manager, Ahtna Incorporated, said he is also the Chairman of the Land Committee for Chitina Native Corporation as well as the Vice President of the Corporation. He is one of the main negotiators on behalf of the Native corporations with ADF&G. He stated, "Ahtna and Chitina, both, do not support the passing of SB 366." He said that both corporations have been cooperative. However, they feel strongly that when the state invites people to use the resource and invites them to come near or across their property, the land rights need to be protected or an agreement needs to be worked out to compensate for the impacts, like trash collection, tree cutting, fire rings, etc. He said hardly anyone lives in Chitina and the only time large negative impacts occur is when the fishery is operating. He has been working with Commissioner Rue and others and believes the fee should be left in place this year so they can address a lot of the issues, like the right-of- way the state has on 60 % of the land for access to the river and the intent of that. SENATOR ELTON said the previous testifier suggested that the right-of-way ought to be 50 ft. from the centerline and the department has testified that it is using 150 ft. in each direction from the centerline. He asked Mr. Heart what their stance is on that. MR. HEART replied that the original right-of-way was in place for the railroad and it was 100 ft. In the 1980s, when Chitina Corporation started charging people to cross its land, DOTPF realigned the highway access and that's how this agreement came into being. At that time, everyone knew the right-of-way was 100 ft. The state courts decided the right-of-way was 150 ft. Their paperwork still shows it as a 100 ft. right-of-way. Native allotments on that same road show a 100 ft. right-of-way on their titles. They feel it should still be a 100 ft. right-of-way. SENATOR ELTON asked his opinion of an amendment that would provide an effective date some time after this summer instead of immediately. MR. HEART said for this year a later effective date would be okay if the state is willing to work out some of the issues. MR. TOM TALBY, ADF&G, Glennallen, said he was available to answer questions. MR. MIKE TINKER, Fish and Game Advisory Committee, said: There are about 5,000 netters in the Dip Netters Association that live in the Fairbanks-Delta Junction- Nenana area. There are 5,001 in the Mat-Su area. So, to talk about this as a Fairbanks issue is not correct. About a year and a half ago, the Board of Fisheries found that the Chitina dipnet fishery was a subsistence fishery. This fee makes it the only subsistence fishery in the State of Alaska that we charge for. Fifty miles up the road from Chitina, Ahtna maintains a fee schedule for access to the Gulkana and other waters and both collect the fee themselves for trespass over their property and maintains a protection force or an advisory force for people who want to find out where to get a permit or that might be trespassing. The fact that the state should continue to do this for them at Chitina is just ludicrous. Discussions that they're talking about now and they're worried about having for the next year, and the next year, have been had for the last five or six years with the fee going up. It's time to end it. Our constituents on the Advisory Committee and our constituents here in Fairbanks really don't feel there should be any fee at all unless you are going to start to require subsistence fishermen statewide to buy a simple general fishing permit as they would a hunting permit to go hunting. Going to $10 is certainly a jump in the right direction and allows the services that could be there. You might ask Mr. Hepler how we got to this point. My letters to some of you and to him started in late February and that was after a month of discussions here in Fairbanks. Before that he was all for doing away with the fee schedule until the commissioner got a letter from Ahtna in mid- March, which he and the other fishery guys didn't get until April and now all of a sudden it's a crisis. MR. TINKER said the issue is whether or not we're going to charge a fee for the subsistence fisheries.   TAPE 02-28, SIDE B MR. STAN BLOOM, President, Chitina Dip Netters Association, said last year they supported raising the fee to $25 but the survey now shows that 60% of the land is on one side of the river. This fee does not cover anybody who goes on the other side of the river or in a boat. He pointed out: So, you should do away with the fee that pays the Native corporations for trespass. If they want to put up posted signs and they want to charge a fee, let them do it. It's hard enough paying for our services. We're the only group that pays for our own services in the state. When you go to the Kenai you don't pay $10 so you can use a toilet or have someone pick up the trash. The state does that. The state should do that in this case… He said that all subsistence users are required to have a state hunting license. No subsistence user is required to have a state fishing license. It's ludicrous to let all of us people fish free when you must manage the fishery. I say drop the word 'sport' out of paragraph 1, charge everybody $15 for a fishing license, use that money to provide the services and put it in DNR. Let me tell you, Fish and Game doesn't have to make a contract for toilets and for trash pick up. I took pictures of the toilets last year that would gag a maggot. The trash was piled up so high that when I pulled up with my truck that says "Chitina Dipnetters" on it, three guys went out and started piling trash bags into a pick up truck to haul them away before I took a picture of it. Fish and Game is not the person to handle services. Put it in DNR or DOT or somebody that's got some kind of expertise in that kind of stuff and let Fish and Game go out there and count little fishies and do what biologists do. I say do away with the permit fee period, make everybody have a fishing license and the state provide services just like they do on the Kenai or any other place they hold a fishery… MS. LISA HARBO said she fished the Chitina Dipnet fishery with her family since she was a kid and opposes the permit fee that they pay for several reasons. One is that no other subsistence fishery in the state requires a fee. In the federal fishery for the Chitina sub district in the same area, people are paying no fee and have higher limits. She also didn't think they should have to pay a trespass fee when they can cross a public easement path and didn't think their legal rights to dipnet should be tied to the trespass fee payments. MR. HERB SIMON said he is testifying as a private individual from Nelchina whose family has been there since after World War II. He agreed with the gentleman from Fairbanks who suggested requiring a state license instead of fooling with the dipnet fee. He would like to believe that the negotiations have been in good faith, but apparently that isn't the case. He thought they should get a kick-back because they have been paying this fee for years and there is public access and the same fees are not being charged for access in other places. MR. DICK BISHOP, Alaska Outdoor Council, supported SB 366 and suggested attaching a sunset provision to the $10 fee so it could eventually be removed. People have noted that it is the only fee on a subsistence fishery in the state and they feel that is not appropriate. He added: We agree with the rationale that the fee should be reduced at this time. The whole point of the several- year dialogue here has been to identify and provide the public access, relieve the public of the problem of trespassing and relieve the state of the obligations of negotiating contracts to cover potential trespass and make it possible for people to access that fishery on the public lands that are available to access it…We would like to see if there needs to be a fee to cover the cost of services there such as trash and waste disposal. Then it should be under a different guise and not as a subsistence fishing permit fee. It should perhaps be a service fee and normally those things are handled through a general fund appropriation to another department… CHAIRMAN TORGERSON said the committee was working on amendments as they talked, but a quorum of the committee wasn't present, so he would hold the bill. CSHB 287(FIN)-EXEMPT ENTRY PERMITS FROM CREDITOR CLAIMS  CHAIRMAN TORGERSON announced CSHB 287(FIN) to be up for consideration. REPRESENTATIVE DREW SCALZI, sponsor of HB 287, explained this very simple bill exempts limited entry permits from claims of creditors, except the Commercial Fisheries and Agriculture Bank (CFAB) and the Child Support Enforcement Division (CSED). This bill will give added protection to the state's position that it is in the best interest of the state that permits be non-lienable to other entities so the state can retain its fishing harvest privileges. CHAIRMAN TORGERSON asked if it will stop the IRS from taking permits. REPRESENTATIVE SCALZI replied yes. MS. MARY MCDOWELL, Commissioner, Commercial Fisheries Entry Commission (CFEC), indicated support of the bill. CHAIRMAN TORGERSON announced an at-ease until members could return. TAPE 02-29, SIDE A  SB 366-CHITINA DIP NET FISHERY PERMIT FEE  CHAIRMAN TORGERSON announced that the committee would take up SB 366 again, as a quorum was now present. SENATOR WILKEN moved to adopt Amendment 1 to replace $25 with $0 in Section 1, to change the effective date to 1/1/2003 in Section 2, and to add a new Section 3 that says, conceptually, the Department of Fish and Game will report to the legislature the final results of the Chitina fishery access negotiations by February 1, 2003. There were no objections and Amendment 1 was adopted. CHAIRMAN TORGERSON asked if there was any objection to moving the bill. SENATOR WILKEN reiterated that it is important to have a safe, productive and accessible fishery at Chitina this year and that, "By this time next year, we'll have this problem fixed." There were no objections and CSSB 366(RES) moved from committee. CSHB 287(FIN)-EXEMPT ENTRY PERMITS FROM CREDITOR CLAIMS  CHAIRMAN TORGERSON announced CSHB 287(FIN) to be back before the committee. MS. SUE ASPELUND said that the Cordova District Fishermen United does not support the House Finance CS to HB 287 and urged members to consider reinstating the CS that came out of the House Fisheries committee. She surmised, "If the intent of the legislation really is to protect fishermen from the claims of creditors, it seems foolhardy to support the gutted version that came out of House Finance." SENATOR WILKEN moved to pass CSHB 287(FIN) from committee with individual recommendations and attached fiscal notes. There were no objections and it was so ordered. HB 447-COM FISH & AGRICULTURE BANK INTEREST RATE  CHAIRMAN TORGERSON announced HB 447 to be up for consideration. He reminded members they had already taken testimony on HB 447 and had received conflicting legal opinions from different folks. He suggested the bill should probably go to the Senate Judiciary Committee for review, but it did not have a referral. SENATOR WILKEN moved to pass HB 447 from committee with individual recommendations and attached fiscal note. There were no objections and it was so ordered. There being no further business to come before the committee, CHAIRMAN TORGERSON adjourned the meeting at 5:03 p.m.