Legislature(1995 - 1996)

02/28/1996 05:13 PM FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HJR 51 - SPORT FISHING GUIDE LIMITED ENTRY                                  
 Number 0063                                                                   
 CHAIRMAN AUSTERMAN noted that HJR 51 had been sponsored by                    
 Representative Joe Green, whose legislative assistant was present.            
 Number 0091                                                                   
 JEFFREY LOGAN, Legislative Assistant to Representative Green,                 
 introduced HJR 51 on behalf of the sponsor, who was in another                
 meeting.  He presented the following statement:                               
 "HJR 51 proposes a constitutional amendment to grant the state the            
 authority to limit entry into the sport fish guide profession.                
 HJR51 is needed because the state's authority to impose such                  
 limits is not clear at this time.  We believe that without a                  
 constitutional amendment, any attempt to limit sport fish guides              
 will surely be followed by litigation.                                        
 "While it is anticipated such limits will be the conclusion of a              
 public process, based on scientific data, HJR 51 does not address             
 the specifics of implementing such restrictions.  HJR 51 simply               
 grants a clear and concise line of authority from the voters to the           
 Number 0175                                                                   
 MR. LOGAN explained that what Alaska had was a "Catch-22"                     
 situation.  The fisheries needed attention, which equated to some             
 type of resource management.  "Resource managers can't take the               
 action they believe is necessary without the authority embodied in            
 the constitutional amendment," he said.                                       
 Number 0233                                                                   
 REPRESENTATIVE SCOTT OGAN noted that he had heard HJR 51 in the               
 House State Affairs Committee and was therefore familiar with the             
 CHAIRMAN AUSTERMAN referred to the rights already in the Alaska               
 Constitution regarding commercial fishing.  He noted there had been           
 discussion about whether a charter boat operator who took clients             
 out and collected money for it was actually a commercial operator.            
 Chairman Austerman mentioned that the constitution, as currently              
 written, did not specify whether a commercial fisherman could be a            
 sport operator; he asked if that was part of the problem.                     
 Number 0307                                                                   
 MR. LOGAN replied, "We believe that is part of the problem."  He              
 directed the committee's attention to a memorandum dated                      
 December4, 1995, from George Utermohle, Legislative Counsel for               
 the Division of Legal and Research Services, Legislative Affairs              
 Agency, to Representative Green.  That memorandum, which was in the           
 committee packets, addressed the problem alluded to by Chairman               
 Austerman.  Mr. Logan referred to the second paragraph, which read,           
 "The courts may construe `any fishery' to include sport fisheries             
 as well as commercial fisheries."  He explained, "We were hoping              
 with HJR51 to clarify `that may.'"                                            
 Number 0361                                                                   
 MR. LOGAN brought to the committee's attention the proposed work              
 draft that had been delivered to committee members' offices that              
 afternoon.  He suggested that draft might address Chairman                    
 Austerman's question.                                                         
 CHAIRMAN AUSTERMAN wondered whether they could just define a sport            
 operator as being a commercial fisherman somewhere in the existing            
 statutes, without having to go through a public election to change            
 the constitution.                                                             
 MR. LOGAN replied that would certainly be a lot simpler and less              
 work, if it would be as effective.  "It's an avenue we'd certainly            
 like to explore," he added.                                                   
 Number 0425                                                                   
 CHAIRMAN AUSTERMAN noted that Representatives Elton and Davis were            
 MARK BUCHNER testified via teleconference from Valdez, indicating             
 he had not had time to review the draft.  He thought the current              
 limited entry program was too restrictive.                                    
 Number 0520                                                                   
 CHAIRMAN AUSTERMAN pointed out that the bill had another committee            
 of referral, the House Judiciary Committee, where additional                  
 hearings would be held.                                                       
 BRUCE BLANDFORD testified via teleconference from Valdez, saying he           
 had been a sport fish guide for about 18 years.  Like Mr. Buchner,            
 he knew too little about the intent of the bill to comment.  He               
 asked, "If the tourism keeps expanding and the number of fishing              
 guides is kept stationary, ... what happens to the increased amount           
 of tourists who want to go fishing that aren't able to find a                 
 Number 0609                                                                   
 ERIC STIRRUP, Owner and Operator, Kodiak Western Charters,                    
 testified via teleconference, voicing strong support for HJR51.               
 "I think the history book is well written on resource management,"            
 he said.  "Our industry is growing by leaps and bounds.  Our                  
 resources are not growing by leaps and bounds.  And it's time for             
 all of us to face the music."  He expressed preference for limited            
 entry over an Individual Fishing Quota (IFQ) system.  "Let's put              
 the tool on the Board of Fish's plate for them to use limited entry           
 as an option," he concluded.                                                  
 Number 0696                                                                   
 KENT HALL testified via teleconference from Sitka, saying he ran a            
 charter operation there.  "I guess I don't have any strong feelings           
 one way or the other," he said.  "One of the things I'd like                  
 clarified is if the state agrees to a limited entry, will that just           
 be in the state waters?"  For example, he wondered if fishing for             
 halibut more than three miles from shore would be included.                   
 Number 0743                                                                   
 CHAIRMAN AUSTERMAN commented that the bill, as he read it, would go           
 to the voters to change the constitution.  It provided authority to           
 impose a limited entry system on the charter boat operators.  The             
 bill being considered that evening would take the question to the             
 voters to the state of Alaska as to whether they wanted to allow              
 limited entry to take place in the industry, he elaborated.                   
 Number 0790                                                                   
 KEITH GREBA testified via teleconference from Sitka, saying he                
 believed something in the nature of HJR 51 should be done, whether            
 it be through limited entry or a moratorium.  He expressed concern            
 that if the bill was enacted, people might just sign up because               
 they had heard about it and would try to get themselves a license.            
 Mr. Greba suggested looking at some type of point system that used            
 economic dependence as a priority, so that people with time and               
 effort invested in the industry as a means of supporting their                
 families could have a viable future.  He agreed with previous                 
 testimony that something needed to be done.                                   
 Number 0901                                                                   
 JAMES FITZGERALD testified via teleconference from Kenai, saying he           
 was speaking on behalf of his wife, who had begun guiding on the              
 Kenai River the previous year.  His wife was in favor of HJR51 and            
 wished to see some sort of limitation or cap put on it "through               
 attrition."   Every year, he said, a number of guides dropped out             
 for one reason or another; it would not take long to have a cap               
 that way.                                                                     
 Number 0965                                                                   
 GARY HULL testified via teleconference from Kenai, presenting a               
 prepared statement:                                                           
 "I am in favor of limiting the number of guides on the Kenai River.           
 The limited entry permit should be owned by the guide, and the                
 guide should have the right to sell the permit at the termination             
 of his business.  Preference on selecting limited entry permit                
 holders should consider the following:                                        
 "1.  Higher preference for local guides.  The income they derive              
 from guiding is reinvested into our community.                                
 "2.  Higher preference for guides with a substantial financial                
 investment, such as owning their own boat and equipment.  Guides              
 with little or no investment generally work for someone else.  They           
 use boats and equipment owned by others, and are not responsible              
 for advertising and booking clients.                                          
 "3.  Preference given based on number of years a person has guided            
 on the Kenai river and not rivers in other states or areas.                   
 "Since the limited entry permit process will be a lengthy process,            
 I have recommendations that may effectively limit the number of               
 guides in the future.  These things could be implemented easily               
 without congressional action.  They are:  1) registration for the             
 permit must be done in person each year, during the months of                 
 January and February; 2) guides would be required to pay for a                
 three-to-five-year permit, which would demonstrate commitment to              
 the guide industry, and increase the initial investment; 3) every             
 guide, including drift boat guides, should have to belong to an               
 Alaskan-based UA consortium; 4) to qualify for a permit, a person             
 would have had to have fished in Alaska three out of the last five            
 years; this qualification is similar to that of the Assistant Guide           
 Outfitter's license.  I would like to urge the House Fisheries                
 Committee to consider these points.  I request that the committee             
 members support that limited entry permit be owned by the guide, so           
 he can realize some of his investment back at retirement by selling           
 his permit along with his business."                                          
 Number 1127                                                                   
 LANCE DOMONOSKE testified via teleconference.  A Kenai River drift            
 boat guide, he supported HJR 51.  He thought there was a severe               
 problem with growth on the Kenai River.  "I think this legislation            
 would really apply here," he said.  From 1993 to 1994, there had              
 been 45 new Kenai River fishing guides; from 1994 to 1995, it                 
 jumped again by another 71 guides.  "Most of these guys are                   
 concentrated in about 35-40 miles of this river," he explained,               
 saying the total number of guides was approximately 317.  He hoped            
 the local resident guides would be kept in mind.  "We have  a lot             
 of people blowing into town that really don't have a vested                   
 interest in the industry at all," he added.                                   
 Number 1220                                                                   
 BRAD ADAMS testified via teleconference from Kenai, saying he had             
 fished professionally on the Kenai River for the past 12 years.  He           
 strongly supported a limit in the sport fishing industry.  He                 
 indicated it was critical to the industry "to limit ourselves."  He           
 felt it had been needed for several years and wanted to see                   
 something happen "the sooner the better."                                     
 Number 1264                                                                   
 JOE HARDY testified via teleconference from Kenai, saying he was a            
 Kenai River guide.  "I do not support HJR 51," he said.  "We do,              
 however, have a problem with the number of guides working the Kenai           
 River and other areas of the state.  However, we should not create            
 a group of privileged citizens, privileged to have a limited entry            
 guide permit.  The state constitution is fair.  Fish and game                 
 belong to each and every state citizen, with equal opportunity for            
 all to utilize the resources, whether it's commercial or for sport.           
 There are other and better ways to solve the problem."                        
 Number 1300                                                                   
 MR. HARDY listed possible solutions.  He referred to HB 175, which            
 he suggested could be passed to register all guides statewide.                
 Minimum professional qualifications could be established so that a            
 person could not just go in a door and get a license.  The license            
 fee on the Kenai could be raised, for example, to $2,500 a year,              
 with $7,500 a year for nonresidents.  A three-year permit could be            
 required.  The licensing period could be from January 1 to March1,            
 with the requirement of having to apply in person, which would                
 favor local residents but would not disqualify any nonresident who            
 wanted to come get it.                                                        
 Number 1338                                                                   
 MR. HARDY thought all guides statewide should be subject to a drug-           
 testing program.  He said, "there's been some watering down of the            
 Coast Guard regulations for licenses on the Kenai River and we need           
 to go back to what we had before and we need to require a full,               
 uninspected motor vessel license, not a special Kenai River                   
 license."  He emphasized that the problem could be worked within              
 the confines of the state constitution.  "Hunting guides are                  
 regulated," he said.  "There's no reason why fishing guides can't             
 be regulated also under the same guidelines."                                 
 Number 1367                                                                   
 MR. HARDY concluded by saying, "Above all, whatever system we                 
 choose must be fair and give reasonable access to new or aspiring             
 guides and not create a special, privileged class."                           
 Number 1387                                                                   
 ALAN LEMASTER testified via teleconference from Gakona, asking why            
 it was felt there was a need for limited entry or a constitutional            
 amendment for that purpose.  "Do you feel that all the rivers of              
 the state need to be limited entry, or just certain ones," he                 
 asked, "and, if so, which ones?"  Referring to a question posed               
 earlier, he said, "in terms of definition, what is the difference             
 between the sport fish guides and the commercial fisheries as it is           
 noted in our constitution and in our laws?"                                   
 CHAIRMAN AUSTERMAN replied that the bill permitted the state to do            
 limited entry in the sport fish business.  It did not set out any             
 criteria on who, what, why or where.  If the resolution was passed,           
 it would go to a vote of the people to decide whether they wanted             
 to limit the sport fish operator.  At that point, all the                     
 discussion would take place on rules and regulations specifying how           
 the limit would occur.  Chairman Austerman asked if that had                  
 answered Mr. Lemaster's questions.                                            
 Number 1487                                                                   
 MR. LEMASTER replied yes, it did answer the question as far as this           
 particular bill was concerned.  He indicated he wanted to know if             
 it was felt that limited entry was necessary on all the rivers of             
 Alaska and, if not, which fisheries were being addressed.  He                 
 added, "Or do you care at this point?"                                        
 Number 1510                                                                   
 CHAIRMAN AUSTERMAN responded, "We didn't draft this bill.  We are             
 the fish committee that hears the bills that are assigned to us by            
 the speaker.  Representative Green is the one who drafted the bill            
 and feels that it's time to limit the sport fish charter boats,               
 apparently, or he would not have drafted this and presented it to             
 CHAIRMAN AUSTERMAN noted there was a committee substitute before              
 them, version C and asked for a motion to bring that before the               
 Number 1574                                                                   
 REPRESENTATIVE DAVIS moved that the committee adopt for use CS for            
 House Joint Resolution\C, dated 2/28/96.  There being no objection,           
 it was so ordered.                                                            
 REPRESENTATIVE DAVIS referred to testimony by Lance Domonoske                 
 indicating he wanted to see more details.  Representative Davis               
 explained that in a resolution that would go before the voters, as            
 this one would, the question would simply be asked, "Should the               
 state of Alaska adopt statutes and rules and regulations and allow            
 for limited entry of sport fish guides?"  If the resolution passed,           
 it would be on the ballot.  It would then be up to the general                
 public and special interest groups to "go out and sell it," either            
 through committees, associations, task forces or individually.                
 Similarly, anyone opposed to it, as Mr. Hardy was, would also try             
 to bring their viewpoint to the voting public.                                
 Number 1674                                                                   
 REPRESENTATIVE CARL MOSES expressed concern that "how we get into             
 these kinds of situations is because of one part of the state."  He           
 pointed out that in large parts of the state, sport fish guiding              
 was virtually unheard of.  "That's slowly developing," he added.              
 He emphasized there were areas of the state with no problem.  "I              
 have a lot of interest in seeing Adak developed, for instance," he            
 said, "and there isn't a sport fishing guide out there."  He                  
 thought there were two guides in Unalaska, where tourism business             
 was just developing.  "If you create something like this for one              
 part of the state, you do harm to another part of the state," he              
 Number 1716                                                                   
 REPRESENTATIVE DAVIS responded that question had come up during the           
 testimony.  He suggested someone from the Department of Fish and              
 Game could provide an answer.  However, he assumed that if the                
 resolution passed, it would be somewhat on an as-needed basis, for            
 example, on the Kenai.  Representative Davis mentioned attempts to            
 impose restrictions through the Kenai River Advisory Committee that           
 had been "shot down by the Attorney General's office."  "If this              
 did pass, I think it would come up as requested," he said.  "It               
 would not affect areas that do not have a problem and that do not             
 have, even, any sport guides in them.  That would be my                       
 understanding," he stated.  "Whether that's legal or constitutional           
 or not is another question."                                                  
 Number 1780                                                                   
 CHAIRMAN AUSTERMAN emphasized that, with HJR 51, the voters would             
 be asked to establish the right for the state to create limited               
 entry for this purpose.  "It would behoove us as citizens to make             
 sure that, when that's done, it is done in the way we want to see             
 it done," he said.  "I've often envisioned that if they did                   
 something like this, that it would be done by fishing management              
 areas, so that each area would have its own number of permits and             
 they could at least have some kind of control on it."                         
 Number 1907                                                                   
 GERON BRUCE, Legislative Liaison, Office of the Commissioner,                 
 Department of Fish and Game, affirmed that if the resolution were             
 to pass by a vote of the people, it would authorize the Alaska                
 State Legislature to develop a limited entry system for sport fish            
 guides.  "And you then would have to pass subsequent legislation              
 which would actually set up the program," he said.  "And you could            
 design it however you wanted to design it.  It could be statewide             
 or it could be modeled more after the one that exists for the                 
 commercial fishing industry, which is on not only an                          
 administrative-area basis, but also on a species basis.  So, you              
 could design it however you want, but that would be a second step.            
 The initial step, and the step that you are contemplating right               
 now, is simply to ask the people of the state whether or not they             
 want to amend the constitution to allow you to develop such a                 
 program in state law."                                                        
 Number 1854                                                                   
 REPRESENTATIVE DAVIS agreed that was the point that would cause               
 people to promote or not promote HJR 51.  The resolution addressed            
 what restraints the legislature would or would not be under in                
 developing statutes.  "There are some questions that I think                  
 everybody needs to feel comfortable with," he said, "before they              
 would want to promote it or not promote.  And, of course, if they             
 don't want to promote it, then they probably don't support the                
 Number 1895                                                                   
 CHAIRMAN AUSTERMAN noted that Representative Joe Green, sponsor of            
 HJR 51, had joined the meeting.                                               
 MR. BRUCE referred to the Commercial Fisheries Entry Commission and           
 said, "that's probably the closest model you have and it's probably           
 a reasonable assumption to think that a system devised for sport              
 fish guides might take that as, at least, some model to start                 
 Number 1992                                                                   
 REPRESENTATIVE DAVIS referred to an earlier question about                    
 jurisdiction outside the three-mile limit.  He asked Geron Bruce              
 whether sport fishing outside that boundary could be limited.                 
 CHAIRMAN AUSTERMAN suggested that might have to do with whether or            
 not there was an Fisheries Management Plan (FMP).                             
 Number 1947                                                                   
 MR. BRUCE responded, "Yes, I think that would be a part of it,                
 whether or not the council had delegated to the state any                     
 management authority."  He added, "You could have a limited entry             
 system, and under that system, people limited could go out and fish           
 in the federal zone, subject to whatever the federal rules were               
 there.  So, it's not an either/or answer.  It's possible but it               
 would depend on the interaction between the state and the federal             
 Number 1962                                                                   
 MR. BRUCE explained what must occur before a fishery goes to                  
 limited entry, using the current commercial system as a model.                
 First, the participants had to request it.  Second, there had to be           
 evidence demonstrating a resource conservation issue was involved.            
 And third, the participants requesting it had to provide                      
 information that CFEC could look at to determine that the                     
 requesting participants were suffering economic distress.  "In the            
 case of the guided sport fishery," he said, "you don't have that              
 kind of information available like you did in the commercial salmon           
 fishery before limited entry came into effect.  And you really need           
 something like House Bill 175 in place in order to provide that               
 kind of information base, before you could really answer those                
 kinds of questions and go to a limited entry system, even if you              
 had the constitutional authority."                                            
 Number 2023                                                                   
 REPRESENTATIVE JOE GREEN asked, under that scenario, what sort of             
 time period Mr. Bruce anticipated would be required if the                    
 resolution passed and was deemed desirable.  He wondered if Mr.               
 Bruce was talking about a year, five years, or how long.                      
 Number 2034                                                                   
 MR. BRUCE replied that he could only guess.  He indicated he would            
 defer to Frank Homan from the Commercial Fisheries Entry Commission           
 (CFEC) for an answer.  "Just my own personal guess would be that              
 you would be looking at, probably, no less than two or three years            
 and maybe as long as five years," he said.                                    
 Number 2078                                                                   
 FRANK HOMAN, Commissioner, Commercial Fisheries Entry Commission,             
 indicated that Geron Bruce was correct.  "The current limitation              
 system that we use for commercial fisheries requires us to look               
 back at least four years," he said, explaining that was the normal            
 period of time, although it could be longer.                                  
 Number 2108                                                                   
 REPRESENTATIVE GREEN asked if, in looking back, data already there            
 could be used or whether they would start from ground-zero to                 
 establish data.  "There's bound to be a significant amount of data            
 on escapement, catch and all that sort of thing in certain                    
 fisheries now," he said.                                                      
 Number 2120                                                                   
 MR. HOMAN replied that the way it worked now was using existing               
 data.  "The benefit in the commercial fisheries is that we are able           
 to use fish tickets for past catches and harvest levels," he said.            
 "So, we have fish tickets for every commercial fisherman who has              
 harvested fish in Alaska.  Unfortunately, with the sport fish area,           
 we don't have that data that defined.  As Geron mentioned, House              
 Bill 175 gives a framework for gathering that kind of information."           
 Number 2153                                                                   
 REPRESENTATIVE GREEN said, "We see published figures, though, of              
 numbers of fish, by species, in certain areas, probably those areas           
 that are most susceptible to needing this kind of assistance."  He            
 asked if those historical figures would not be appropriate or                 
 adequate to use for this.                                                     
 Number 2168                                                                   
 MR. HOMAN replied there were gross figures developed by Department            
 of Fish and Game biologists.  "I can't speak to the details of how            
 they do that," he explained, adding, "but I don't believe that                
 they're defined to the individual fisherman, as ... commercial                
 fishing is."  He indicated the harvest level for commercial fishing           
 was identified to specific harvester.  "I don't believe that                  
 information is available on the sport fish side," he added.                   
 Number 2201                                                                   
 REPRESENTATIVE GREEN expressed confusion, saying, "If there were a            
 certain number of fish in there and there are a certain number of             
 guides now, there isn't an analogy that would be useful to say that           
 we either are approaching, we've exceeded, or, to some degree, say            
 there is a necessity to, in this fishery, limit, but maybe over               
 here, it's just getting close and maybe in the next five years                
 we've got to do it.  It seems you can do that on historical                   
 Number 2233                                                                   
 MR. HOMAN responded, "You're correct in looking at the total catch            
 in an area.  And if -- the Kenai is one that's popular now -- it              
 was determined that the number of salmon taken in the Kenai area              
 was exceeding a number that could potentially develop into a                  
 resource conservation problem and/or causing economic distress                
 amongst the fishermen, then you could look at a limited entry                 
 system."  He explained that on the commercial side, the CFEC looked           
 at the number of participants that had been in the fishery the last           
 four years.  That established a maximum number, which was the                 
 highest number that had participated in any one year.  "But over              
 the four-year period that we look at, there are many more fishermen           
 than that," he pointed out.  On the commercial side, they looked at           
 fish tickets from all participants.  Individually, the participants           
 were then ranked against each other and the line drawn when they              
 reached the maximum number established.  "So, that's why you need             
 to specify the harvest to the individual," he said, "so that they             
 can be properly ranked amongst all the other individuals."                    
 Number 2299                                                                   
 REPRESENTATIVE DAVIS referred to commercial tickets and suggested             
 the king salmon tags "would be a similar guide in this respect."              
 MR. HOMAN agreed that would be one source of information.  "And I             
 don't know, specifically, if that's identified to the sport license           
 holder or to the sport guide operator," he said.  "That's something           
 that would have to be looked at."  He added, "at this point, what             
 happens in the commercial side is not necessarily what would happen           
 on the sport fish side.  And as you indicated, this resolution is             
 only allowing the state to develop a system."  Mr. Homan noted that           
 if this passed by public vote, legislation would be developed.  He            
 pointed out that the opportunity to design the program specifically           
 would come at that point.  "And you could include the whole state             
 or sections of the state or a particular species," he said.  "You'd           
 have complete flexibility with legislation, if it was authorized by           
 this resolution.  All of the concerns that were brought up today              
 could be ironed out during the legislative process."                          
 Number 2365                                                                   
 REPRESENTATIVE KIM ELTON mentioned that, as an example, the state             
 could limit the number of liquor licenses and used to limit the               
 number of big game guides.  He pointed out they were talking about            
 a common property resource.  However, they were not denying access            
 to that resource.  Instead, they were talking about denying a guide           
 a business practice or license that would allow a person to operate           
 as a guide.  He asked for clarification on the difference and why             
 a constitutional amendment was needed.                                        
 Number 2417                                                                   
 CHAIRMAN AUSTERMAN said, "It sounds to me like we'd have to                   
 research back to what they did in the '70s, when they passed the              
 original limited entry."                                                      
 MR. HOMAN said in order to limit the number of sport fish guides,             
 constitutional authority was needed.  He suggested there could not            
 be unlimited access to that fishery except for the number of                  
 permits.  If those were freely transferred, as occurred on the                
 commercial side, anyone could buy a permit and enter the fishery.             
 TAPE 96-8, SIDE B                                                             
 Number 0007                                                                   
 MR. HOMAN explained there was a clause in the constitution that               
 said fish and wildlife were open to all.  "That was why the limited           
 entry constitutional amendment for commercial fish was passed in              
 '72," he said, "because before that, they couldn't restrict the               
 Number 0026                                                                   
 REPRESENTATIVE DAVIS clarified that Mr. Homan was referring to                
 commercial fishers.   He then added, "if we designated guides as              
 commercial fishers, then they'd fall into the authority already               
 vested in the constitution."                                                  
 REPRESENTATIVE SCOTT OGAN said, "On that point, we formerly had the           
 big game commercial services board, which regulated the commercial            
 use of hunting and fishing ... and there wasn't a limit on the                
 number of guides."  He referred to the Owsichek case involving              
 whether a guide could own a usage area.                                       
 REPRESENTATIVE ELTON asked whether that board limited the number of           
 guides in an area.  "For example," he said, "do they limit the                
 number of bear hunting guides in Southeast Alaska?"                           
 Number 0074                                                                   
 REPRESENTATIVE OGAN replied, "No, they limited the amount of areas            
 that they could hunt in and restricted them to three areas, but               
 there was no limit on amount of guides that could actually use the            
 area.  They had to register and the way they managed the resource,            
 if there was an over-harvest, they would use things like a drawing            
 hunt or a registration hunt, or adjust seasons and bag limits.  But           
 constitutionally, you can't limit the amount of guides in an area             
 at this point."  He added, "It might be an appropriate thing to               
 address, constitutionally, at some point, maybe with this bill."              
 Number 0107                                                                   
 STEPHEN WHITE, Assistant Attorney General, Natural Resources                  
 Section, Civil Division (Juneau), Department of Law, indicated that           
 Representative Ogan had at least pointed to the answer to                     
 Representative Elton's question.  He referred to the 1988 Owsichek          
 decision in the supreme court.  That decision said that the equal             
 access clauses, which included the common use clause and the other            
 clauses of Article VIII, protected equal access to the resource by            
 guides as well as by people actually taking the resource.  Thus,              
 the clauses had to be amended to allow limited entry for guides as            
 well as for fishermen, hunters or other groups that might be                  
 Number 0145                                                                   
 REPRESENTATIVE ELTON asked, "What about the back door suggestion,             
 where you change the designation of a lodge owner or a charter boat           
 guide to a commercial user?"  He further asked, "Can you do that              
 statutorily without the need of a constitutional amendment?"                  
 Number 0160                                                                   
 MR. WHITE thought that was not feasible because essentially that              
 would, by statute, change a provision in the constitution.  He                
 explained that the exception in the constitution allowing limited             
 entry into commercial fisheries spoke about fisheries and                     
 fishermen.  It was adopted in the context of distress and problems            
 in a commercial fishery.  "If you would go in and attempt to define           
 fish and fishermen as guide operators, you'd essentially be                   
 amending the constitution by statute," he stated, "and I think                
 that's real problematic.  In other words, when it was adopted, it             
 was anticipated that it was commercial fishing, fishermen and                 
 fisheries.  One of the problems with just taking that language now            
 and trying to interpret it, broad enough to cover guides - sport              
 fishing guides - is it just begs for people to challenge it under             
 the constitution and we're going to be tied up in court for a long            
 time.  This is the cleanest, easiest way to get to the result that            
 people want."                                                                 
 Number 0220                                                                   
 REPRESENTATIVE DAVIS thought there was no question that the intent            
 of that constitutional amendment was to deal with commercial                  
 fishermen with big boats out in the water catching a lot of fish.             
 He asserted that fish guides taking five or six people out were               
 commercial fishermen.  "And I think the fishery that they're                  
 fishing in is a commercial fishery," he said.  "But when you get              
 back to the intent of the limited entry as it is in the                       
 constitution now," he said, "I think it does fall out as a                    
 different story."                                                             
 Number 0251                                                                   
 MR. WHITE said, "We looked back through the legislative history of            
 when this came before the voters in the legislation in 1972 and               
 there was no testimony ever discussing guides in any capacity.  It            
 was all commercial fishermen.  So, looking back to what the people            
 thought they were adopting at that time, it would be problematic              
 now, even if we now know that it is a problem that does include               
 Number 0269                                                                   
 CHAIRMAN AUSTERMAN responded, "But in 1972, we didn't really                  
 realize that there was going to be half the state living on one               
 river system, basically."                                                     
 MR. WHITE said, "And if you do it by statute instead of                       
 constitutional amendment, we'll try to defend it."                            
 Number 0278                                                                   
 REPRESENTATIVE ELTON referred to the constitutional amendment                 
 approved in the early 1970s and pointed out it did not say                    
 "commercial fishermen," but rather, "fishermen and those dependent            
 upon them for a livelihood."  He said he assumed "them" referred to           
 fish or the fish resources.  "It seems to me that language fits,              
 almost exactly, a Southeast Alaska troller or a charter boat                  
 operator," he said.  "I appreciate the position you're in, and I              
 would certainly be the first one that would guess that you're                 
 absolutely correct that somebody's going to challenge it in court             
 if, in fact, we did try to do it statutorily."                                
 Number 0317                                                                   
 REPRESENTATIVE GREEN commented, "I'm the sponsor of the bill but I            
 still have heartburn with the whole concept when I read that this             
 does not restrict the power to limit entry into any fishery for               
 purposes of resource conservation - which certainly is a fact that            
 we have a problem with - or prevent economic distress among                   
 fishermen.  And we have that," he said.  "There's a significant               
 economic distress among fishermen, assuming fishermen are                     
 professional fishermen, or as well as personal use, and dependent             
 upon them for a livelihood.  It seems to me, even without this                
 modification, that a strong case could be made that this does, in             
 fact, allow for limited entry among sports fish guides."  He asked            
 Mr. White, "What would your opinion be if you were asked to defend            
 this, that there is, for some reason now, a limit imposed and                 
 somebody challenged it in court, would you be willing to defend,              
 without these underlying portions of this?"                                   
 Number 0380                                                                   
 MR. WHITE asked, "Without changing it?"                                       
 REPRESENTATIVE GREEN replied, "Just the way it is, without these              
 MR. WHITE replied, "after exhaustive research, we came to the                 
 conclusion it was totally equivocal."  He added, "It was unclear              
 either way and we would certainly defend it."  He said he could not           
 predict what the result would be because the history of the clause            
 did not indicate either way.  Although a good-faith effort would be           
 made to defend it, the whole issue would be tied up in court for a            
 long time.  "And if you want to avoid that, the easiest thing is to           
 amend the constitution," he concluded.                                        
 Number 0399                                                                   
 CHAIRMAN AUSTERMAN responded that had been one reason he had                  
 discussed defining commercial fisherman under statute to include              
 the sport operators.  He thanked Mr. White for his comments and               
 noted that the bill's next committee of referral was the House                
 Judiciary Committee.                                                          
 Number 0420                                                                   
 REPRESENTATIVE OGAN moved that CSHJR 51 move out of committee with            
 individual recommendations and attached fiscal note.  There being             
 no objection, it was so ordered.                                              
 Number 0442                                                                   
 REPRESENTATIVE ELTON said, "I don't object because I think it does            
 need to move on.  And I want to commend the sponsor because I think           
 we're beginning to address an issue that is extremely important."             
 He referred to earlier testimony about the need for data and said             
 he hoped that would increase support for HB 175, which began to               
 provide that data and to allow intelligent decisions to be made on            
 this constitutional amendment and other issues.  "I'm looking at              
 this as a pair," he said.  "But I'm not sure we can get to where              
 you want to go until we get the data that is in HB 175."                      

Document Name Date/Time Subjects