Legislature(2003 - 2004)
02/27/2004 08:52 AM House FSH
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 478-COMMERCIAL FISHING INTERIM USE PERMITS CHAIR SEATON announced that the first order of business would be HOUSE BILL NO. 478, "An Act relating to the issuance of commercial fishing interim-use permits; and providing for an effective date." Number 0085 REPRESENTATIVE WILSON, sponsor, referred to the written sponsor statement and said HB 478 relates to issuance of a commercial fishing interim-use permit. The court of appeals recently held that the Commercial Fisheries Entry Commission (CFEC) lacked authority to issue these interim-use permits in fisheries that they don't have authority to limit. Calling it a housekeeping measure, she said this clarifies that CFEC has authority to issue interim-use permits in these fisheries. This clarification is consistent with the original intent and purpose of the current statute, she said, and is what has been done all along. She deferred to Mr. Homan for further details. Number 0201 FRANK M. HOMAN, Commissioner, Commercial Fisheries Entry Commission (CFEC), Alaska Department of Fish & Game (ADF&G), noting that Jon Goltz of the Department of Law would address legal aspects, said HB 478 is short but has a lot of meaning. For the last 30 years, since the beginning of CFEC, two types of permits have been issued: an entry permit for fisheries that were limited, and an interim-use permit (IUP) for fisheries that weren't. MR. HOMAN explained that a couple of EEZ [Exclusive Economic Zone] fishermen in the halibut fishery came into the state without an interim-use permit probably a couple of years ago and were cited; it went to court, and the Alaska Court of Appeals took a very narrow reading of the statute and said CFEC didn't have authority to issue IUPs for fisheries it couldn't limit. Since the halibut fishery is limited by international agreement, [CFEC] doesn't have that authority. Mr. Homan said this bill is to clarify that the legislature, in the beginning, meant that an IUP could be used for any fishery that was not limited. It is to broaden the language, he said, and to reaffirm that the legislature meant CFEC could issue an IUP for those other fisheries. Number 0482 MR. HOMAN, suggesting [Mr. Goltz] could speak to it further, continued: Apparently, the wording here that ... got the court of appeals' attention was ... in the existing statute it says pending the establishment of a maximum number, and that means pending a limited entry designation; we call it a maximum number, but it means when you limit the fishery. But then it goes on to say that in all other cases the commission will issue interim-use permits for each fishery to all applicants who apply. So, because the fishery is not limited, we give IUPs to anyone for any fishery that has not come under ... limitation. So those two used to, for 30 years, cover all features of ... people who needed permits to sell fish in Alaska. It got a little bit more complicated in 1984, when there was established a landing permit. ... But it had a very narrow focus and was discretionary - it wasn't a mandatory permit - and this was up to the commissioner of [ADF&G] to issue when it arose that [an] EEZ fisherman would come in to state waters and wanted to unload fish that were already limited by the state. Because they were not part of the limited entry permit, they couldn't get a limited entry permit. And they couldn't get an IUP because that fishery was already limited. So there was a dilemma in 1984, and so they established what they call a "landing permit" in those cases, and ... at that time it was only two boats that this applied to. There was a landing permit established at the discretion of the commissioner of [ADF&G] for those cases where a fisherman from outside wasn't able to get an IUP for a fishery because it was already limited internally. ... But this was never used; a landing permit has never been issued. So ... those two fishermen went away, and I don't know what ever happened to them, but they never came back, apparently. Number 0711 MR. HOMAN reiterated that [HB 478] is needed to clarify that CFEC can issue an IUP to fisheries it doesn't limit. However, it's a complex legal matter because the issue is in the supreme court right now; he suggested Mr. Goltz could speak to that. Number 0762 REPRESENTATIVE OGG expressed concern about liability and whether there may be a class of people out there, if this effective date is used, who might say the state didn't have the right to issue these permits and thus they want their money back for that period of time. MR. HOMAN deferred to Mr. Goltz. CHAIR SEATON suggested that may relate to the Carlson case. Number 0881 JON GOLTZ, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, noting that he has worked with CFEC on issues related to this bill for a few months, said the Department of Law agrees this is essentially a technical fix to the statute; the goal primarily is to eliminate the word "pending", which has been interpreted broadly by the agencies since the Act was initially adopted, but has been subject to a narrower constriction by the court of appeals recently. MR. GOLTZ explained that the bill would close the potential loophole that Mr. Homan mentioned whereby there might be some fisheries that are neither subject to a maximum number, so no entry permit can be issued for them, nor pending the establishment of a maximum number, so no interim-use permit can be issued for them. The result would be reduced ability to enforce the fisheries laws and reduced data-collection ability. Therefore, it would be helpful to close this loophole. MR. GOLTZ said he believes, based on his research, that this bill is consistent with the original intent of the law regarding the issuance of interim-use permits, and is especially consistent with the legislature's 1977 decision to eliminate gear licenses. He explained that from statehood until 1977, gear licenses were required for the operation of fisheries gear. They were eliminated in 1977 primarily because it was recognized that they were duplicative of the interim-use and entry permit requirements. Thus the bill is consistent with that. Number 1040 MR. GOLTZ turned to the question posed by Representative Ogg about potential liability. He said the issue has already come up, in the sense that since the court of appeals issued the decision that Mr. Homan mentioned, there have been two class action cases filed against the state. Each alleges that the plaintiffs are owed reimbursement for interim-use permit fees they paid in the past for participation in halibut fisheries; their claims are based on the holding of the court of appeals, which was that CFEC lacks authority to issue interim-use permits in the halibut fisheries because a maximum number of entry permits is not pending in those fisheries. MR. GOLTZ explained that those cases are currently stayed because the court of appeals decision on which they're based has been appealed by the state to the supreme court. If the supreme court accepts the state's argument in that case, it will address the main issue that the agencies and the Department of Law have. Nonetheless, he said, [the department] believes this bill is desirable because it eliminates any ambiguity about the scope of interim-use permits, and would conform the language of the statute a little closer to the way it has been interpreted and applied for 30 years. Number 1178 MR. GOLTZ addressed the effective date, saying he wasn't aware of any implication it would have on either the pending class action cases for reimbursement or any other case that somebody might bring. Explaining that the Department of Law maintains that the [Alaska] Court of Appeals decision is based on an erroneous interpretation of the current statute, he added: We don't believe that the term "pending" was intended to be as restrictive as the court of appeals interpret it to be in the scope of application for interim-use permits. So ... we actually would take the position, I believe, that this bill and the current language effectively mean the same thing as to the scope of the issuance of interim-use permits. It's just that this bill makes it a little clearer and, hopefully, avoids the result that we are living under currently with the court of appeals [decision]. Number 1275 MR. GOLTZ, in reply to a question from Representative Ogg, said he hadn't analyzed how a retroactive effective date would affect [those pending court cases]. REPRESENTATIVE OGG suggested perhaps the situation could be rectified through a legislative Act and then there'd be no need to go through the courts. MR. GOLTZ, in response to Chair Seaton, agreed to do an analysis. In reply to Representative Guttenberg, he explained that he'd submitted the [appeal] briefing to the supreme court at the end of January and that the respondents' briefing is awaited. "I think we have a good position in that case," he remarked. In further response, he said this bill has no direct bearing on that case, but if it passes this session, it likely will be mentioned during an oral argument as an expression of the state's reaction to the court of appeals decision. REPRESENTATIVE GARA requested that Mr. Goltz also provide an opinion on the constitutionality of a retroactive provision. MR. GOLTZ said he'd incorporate it into his analysis. Number 1496 CHAIR SEATON observed that the landing permits that Mr. Homan discussed were generated to look at the question of fisheries outside of state waters; a number of fisheries might have vessels operating totally outside of state waters. He asked whether clarification is needed that this interim-use permit also acts as a landing permit for fish coming into state [waters], instead of necessarily for fisheries that are controlled by the state. MR. GOLTZ said it's a good question. The extent of state control over fisheries, both within and especially beyond state waters, is complicated and varies from fishery to fishery. For example - and to show that halibut isn't the only fishery that this bill would apply to - he said the state currently manages many of the crab fisheries that occur in the EEZ, in federal waters adjacent to state waters, through a complex relationship with the federal fishery managers. He continued: But we do require interim-use permits for many of those fisheries, even though they exist outside state waters. There are statutes that require a CFEC permit for a person to land or deliver or sell fish in the state waters. And that would apply to somebody who legally harvested fish outside of state waters without an interim-use permit but then brought them into state waters for landing. There also, in fact, is a CFEC regulation that says that anybody who possesses fish for a commercial purpose in state waters has to have either an entry or interim-use permit to authorize ... that possession. So I think that with those statutes and that regulation currently in effect, ... the result is that anybody who is operating in a commercial fishery inside state waters, even if this ... harvesting actually took place in federal waters, is subject to this permit requirement. Number 1685 CHAIR SEATON recalled harvesting tuna outside the EEZ and attempting to get a CFEC permit; CFEC didn't and wouldn't issue a permit and had said it had no way to do that in international waters; ADF&G didn't want any fish tickets; and he'd had to pay landing fees to the Department of Revenue. Noting that fishermen are starting to bring tuna into Kodiak or Homer from international waters, for example, Chair Seaton highlighted the need to ensure that there aren't any loopholes in the bill so another bill isn't required. He asked Mr. Goltz to look at it carefully in this regard. MR. GOLTZ agreed, but said CFEC has a fair bit of discretion to determine what is a fishery, which has an impact on determining when a permit is required for a particular fishery. Number 1896 PAUL SHADURA, President, Kenai Peninsula Fishermen's Association, testified in support of this change to make it easier for CFEC to issue interim-use permits. He asked whether this will allow CFEC to issue permits for yet-to-be-classified commercial-use fisheries. CHAIR SEATON requested clarification. MR. SHADURA said he sits on the board for the Kenai River Special Management Area, and though he doesn't represent that board, it is dealing with contentious issues relating to guide restrictions in Kenai and other areas, predominantly on the Kenai River. In some of those discussions and in discussion of another bill introduced by Representative Heinze, he said, "We were trying to wrestle with different ways that possibly the guide industry could be accommodated with some kind of limitations based on CFEC regulations." He added that with the change in this language, it allows a little more flexibility. Acknowledging that other questions are involved with this, he said this is something he wants to bring back to "the working committees that will be conducted here in the next month, with the possibility of maybe some changes in this language that would help facilitate, possibly, some guide limitations." Number 2018 CHAIR SEATON, saying he didn't want to get into the crux of the other bill that was alluded to, asked Mr. Homan to address whether there would be a need in that kind of circumstance to put anything in [HB 478] to address that issue. MR. HOMAN, asking that Mr. Goltz assist if he was still on teleconference, related his understanding that with the ability to issue an interim-use permit, CFEC would be able to cover all commercial fisheries. He said he believed the answer, therefore, was that if it's a commercial fishery, CFEC would have authority with [HB 478] to issue those permits. REPRESENTATIVE OGG declared a conflict as a halibut permit holder. REPRESENTATIVE WILSON objected [to his removing himself from voting on the bill]. CHAIR SEATON announced that he'd have the same conflict, as others on the committee might. REPRESENTATIVE OGG objected [to Chair Seaton's removing himself from voting on the bill]. [HB 478 was held over.]
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