Legislature(2009 - 2010)BARNES 124
03/08/2010 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HJR49 | |
| SJR22 | |
| HB306 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HJR 49 | TELECONFERENCED | |
| + | SJR 22 | TELECONFERENCED | |
| + | HB 306 | TELECONFERENCED | |
| + | TELECONFERENCED |
SJR 22-FEDERAL PREEMPTION OF SALMON MANAGEMENT
2:36:01 PM
CO-CHAIR NEUMAN announced that the second order of business is
CS FOR SENATE JOINT RESOLUTION NO. 22(RES), Opposing litigation
that seeks to eliminate the Kenai, Kasilof, and Chitina sockeye
salmon personal use dip net fisheries. [Before the committee
was HCS CSSJR 22(FSH).]
2:36:46 PM
SHARON LONG, Staff, Senator Charlie Huggins, Alaska State
Legislature, paraphrased from the following written sponsor
statement [original punctuation provided]:
This resolution takes aim at lawsuits filed in the US
District Court of Alaska, one by the United Cook Inlet
Drift Association (UCIDA) and other by Herbert T.
Jensen. The complaints by this commercial fishing
group and an individual, calling for a return of
federal management, are an affront to the State of
Alaska. Please, do not forget, here in the afterglow
of our yearlong celebration of 50 years of statehood,
it was a colossal failure of federal salmon management
that was a major driving force behind the statehood
movement. Hopefully, no one wishes to return to such
a regime.
UCIDA is an association of both resident and non-
resident commercial fishers who participate in drift
gillnet salmon fisheries in the inlet. Remarkably,
they can keep, for their personal use, an unlimited
number of fish from their commercial catch. Their
goal is to have the state-managed personal use dip net
fishery declared unconstitutional and be pre-empted by
federal law. This resolution seeks a fair shake for
Alaskans who fish, without commercial gear, with
simple dip nets, to feed their families. It asks the
governor to intervene in defense of our state's
authority to manage its own fisheries in a responsible
manner.
MS. LONG noted the parties are actively filing motions and
briefs and last month the plaintiffs moved to go forward to oral
arguments even though the U.S. Department of Commerce National
Marine Fisheries Service (NMFS) has responded to petitioners
that under the Magnuson-Stevens Fishery Conservation and
Management Act it lacks any authority to regulate the state's
personal use fishery conducted predominantly within state
waters. In this regard, she called attention to page 11 of the
NMFS letter contained in the committee packet. She said SJR 22
asks UCIDA to drop the lawsuit and the attorney general to
intervene on the state's behalf should the lawsuit go forth.
2:39:56 PM
CO-CHAIR NEUMAN understood the two lawsuits - one by the United
Cook Inlet Drift Association and one by Herbert T. Jensen - seek
to eliminate the personal use dip net fishery.
MS. LONG responded yes, the plaintiffs would like for the
association's non-resident members to be able to participate in
Alaska's resident-only personal use fishery. The plaintiffs
want the personal use fishery for Alaska's residents to be
declared unconstitutional and thereby open it up.
2:40:40 PM
CO-CHAIR NEUMAN read page 2, lines 24-28, of the resolution
which states that "members of the United Cook Inlet Drift
Association, including all nonresidents, are allowed an
unlimited bag limit". He understood from this language that
UCIDA members can keep salmon for personal use that are caught
during the commercial fisheries.
MS. LONG replied yes. She called the Alaska Department of Fish
& Game to verify this and was told that it was accurate. In
further response, she said the fish must be claimed on the fish
tags, as is done by residents on their personal use tags.
Additionally, for commercial fishermen in this fishery, the
personal-use take is unlimited.
CO-CHAIR NEUMAN inquired whether there is a limit on the amount
of salmon that a resident Alaskan can keep for personal use.
MS. LONG answered she does not know and deferred to Mr. Kane.
BRIAN KANE, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, said he
would have to look through the regulations in this regard as he
does not believe fishing limits are put in statute. The
regulations might be different for different areas, he added.
2:42:48 PM
CO-CHAIR NEUMAN offered his belief that the limit for the
Chitina River is 30 salmon per household and 15 for a single
person, and that on the Kenai River the maximum is 45-50 salmon
per household.
REPRESENTATIVE OLSON said he believes it is 25 salmon for the
head-of-household and 10 for each additional family member, but
no limit on family members.
CO-CHAIR NEUMAN summarized the discussion by noting that a
commercial fisherman can take an unlimited bag amount [for
personal use], while Alaskans taking salmon for personal use
have a limit; both must report the amount taken.
MS. LONG nodded yes.
2:44:23 PM
CO-CHAIR NEUMAN surmised the goal of SJR 22 is to challenge the
two lawsuits.
MS. LONG responded yes.
MS. LONG, in response to Representative Guttenberg, explained
that the housekeeping changes made to the resolution included
updating of the names of the governor and U.S. Secretary of
Commerce.
2:45:06 PM
REPRESENTATIVE P. WILSON inquired why non-residents are being
allowed subsistence privileges that are meant for residents.
MS. LONG replied this was the serious question that was the
genesis of SJR 22. She clarified that it is a personal use
fishery, not subsistence.
REPRESENTATIVE P. WILSON asked what the difference is between
personal use and subsistence.
MS. LONG answered that while she cannot do a great job of
describing subsistence, she knows that the first priority in the
allocation of fish is for subsistence purposes and the second
highest priority is the personal use fishery.
2:46:16 PM
REPRESENTATIVE P. WILSON inquired whether personal use is a
guise for fishers to take more commercial catch, given that the
amount for personal catch is unlimited.
MR. KANE, at the request of Co-Chair Neuman, first addressed
Representative P. Wilson's earlier question about the difference
between personal use and subsistence fishing. He read the
following from AS 16.05.940 [original punctuation provided]:
"personal use fishing" means the taking, fishing for,
or possession of finfish, shellfish, or other fishery
resources, by Alaska residents for personal use and
not for sale or barter, with gill or dip net, seine,
fish wheel, long line, or other means defined by the
Board of Fisheries;
"subsistence fishing" means the taking of, fishing
for, or possession of fish, shellfish, or other
fisheries resources by a resident domiciled in a rural
area of the state for subsistence uses with gill net,
seine, fish wheel, long line, or other means defined
by the Board of Fisheries;
2:47:59 PM
REPRESENTATIVE P. WILSON reiterated her question about why non-
residents should be allowed subsistence privileges that are
meant for Alaska residents.
MR. KANE responded he does not know why that is allowed.
MS. LONG said that, personally, she has not ascribed motive as
to why the plaintiffs are seeking this. However, she related
that the defendant's have interpreted this "as UCIDA seeking a
greater allocation of salmon for its members and a lesser
allocation for, among others, Alaska residents." Therefore, the
defendant's interpretation was the same as the sense of
Representative P. Wilson's question.
2:49:22 PM
CO-CHAIR JOHNSON said he thinks what is being talked about is
priority use and the plaintiffs are asking that the commercial
use be elevated to the same priority level as personal use.
REPRESENTATIVE SEATON pointed out that there is a priority usage
for subsistence, but not a designation of priority use among the
other uses for Alaska fisheries. Under current Alaska law, a
personal use fishery is essentially like a sport fishery, but
with different gear. This is not a priority situation; rather,
this is asking for non-residents to be able to use personal use
fisheries the same as the others. He clarified that it is not
an unlimited catch available to members of the Upper Cook Inlet
Drift Association because there are limited days and times for
the commercial fishery; it is limited to their legal commercial
catch. This legal commercial catch must be reported and the
fishermen can choose whether to sell, donate, distribute, or
keep that catch for their own personal use.
2:51:40 PM
CO-CHAIR NEUMAN said there is concern about this issue across
Alaska.
REPRESENTATIVE TUCK added to Representative Seaton's statement
by reading the following written testimony from commercial
fisherman Matt Donohoe of Sitka [original punctuation provided]:
Commercial fishermen cannot keep all the fish they
want. They can choose to keep some or all of their
commercial catch and not sell it. They cannot keep
fish when their commercial fishery is closed.
CO-CHAIR NEUMAN opened public testimony.
2:53:09 PM
ROD ARNO, Executive Director, Alaska Outdoor Council (AOC),
stated that the Alaska Outdoor Council represents over 10,000
Alaskans statewide who participate in dip net fisheries and
harvest wild food. He said AOC supports passage of SJR 22. The
state constitution provides that Alaskan individuals are
obligated to respect the rights and protections of other
Alaskans. The personal use fishery was established in 1982 to
provide an opportunity for non-Copper River Basin residents who
had lost their priority to dip net for salmon at Chitina because
the Board of Fish and the Board of Game had adopted a rural
priority. He related that the AOC is in currently in court
trying to make sure that that dip net fishery on the Chitina is
not a personal use fishery, but a subsistence use fishery, which
would give it a priority to Alaska residents who choose to
gather a wild food harvest. In response to Co-Chair Neuman, he
added that fish caught in a personal use fishery cannot be sold
commercially.
CO-CHAIR NEUMAN closed public testimony after ascertaining no
one else wished to testify.
2:56:39 PM
MS. LONG, in response to Representative Tuck, stated that two
lawsuits have been filed.
CO-CHAIR NEUMAN, in response to Representative Tuck, pointed out
that the resolution does address the lawsuit filed by Herbert T.
Jensen and this can be found on page 1, line 15.
REPRESENTATIVE SEATON posited that the lawsuit may have been
entered into with the idea of restricting a dip net fishery
because the dip net fishery has expanded exponentially in Cook
Inlet, with hundreds of thousands of fish now being taken
annually and possibly exceeding the commercial catch. The
problem is the way the lawsuit is written. He referenced the
language on page 1 of HCS CSSJR 22(FSH), lines 12-13,
"requesting the court to declare that the state-authorized
resident-only salmon fisheries are unconstitutional" and said he
thinks a court is not going to say to close down the fishery.
He thinks the probable logical thing is that the state would
then say the fishery cannot be restricted to residents only,
which would mean that it would greatly expand the personal use
fishery. For this reason, he appreciates the resolves that ask
for withdrawal of the lawsuits. He said he thinks state
management is much preferable to federal management and it is
perfectly legitimate to have a resident-only personal use
fishery. Therefore, he supports the resolution.
CO-CHAIR NEUMAN disagreed that the personal use catch is close
to the commercial catch.
3:00:15 PM
REPRESENTATIVE TUCK pointed out that the State of Alaska is a
party in the Jensen lawsuit. He asked whether the state is on
the same or opposite side of Mr. Jensen's lawsuit.
MS. LONG responded the state is opposing Mr. Jensen's lawsuit.
REPRESENTATIVE TUCK offered his concern about hindering people's
seventh amendment right to go to court. He agreed that Alaskans
should have priority to the state's fisheries and said he enjoys
dip netting to provide fish for his family. He encouraged the
attorney general to continue fighting this on behalf of
Alaskans. However, while he opposes this type of lawsuit, he
asked rhetorically whether the legislature through resolutions
should be telling people to drop lawsuits.
3:03:04 PM
CO-CHAIR JOHNSON moved to call the question.
REPRESENTATIVE TUCK objected and said he has an amendment he
would like to offer.
CO-CHAIR JOHNSON withdrew his motion to call the question.
3:04:10 PM
REPRESENTATIVE TUCK moved Conceptual Amendment 1 to add
"continue to" after the second "to" on page 3, line 27.
CO-CHAIR JOHNSON objected and said he does not want to send the
message that the legislature is going to oppose all lawsuits,
those particular lawsuits, or additional lawsuits once those are
done.
CO-CHAIR NEUMAN pointed out that there are wildlife management
lawsuits and others that he would like the state to continue
opposing.
REPRESENTATIVE TUCK withdrew Conceptual Amendment 1.
3:07:17 PM
CO-CHAIR JOHNSON moved to report HCS CSSJR 22(FSH) out of
committee with individual recommendations and the attached zero
fiscal note. There being no objection, HCS CSSJR 22(FSH) was
reported from the House Resources Standing Committee.
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