Legislature(1997 - 1998)
04/08/1997 01:12 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 34 - NPFMC PROPOSED REGS FOR HALIBUT FISHERY CO-CHAIRMAN HUDSON announced the first order of business was House Joint Resolution No. 34, relating to proposed regulations of the North Pacific Fishery Management Council creating a new discriminatory halibut fishery in Alaska. He called on Ron Somerville to present the resolution. Number 0099 RON SOMERVILLE, Special Consultant to the Leadership of the House and Senate, explained the rationale behind HJR 34. When the Alaska National Interest Lands Conservation Act (ANILCA) passed, the description of areas withdrawn in the conservation units clearly said those units were limited to mean high tide. That was to ensure the federal government did not extend jurisdiction into the state's territorial waters. MR. SOMERVILLE said Title VIII of ANILCA indicates some conditions apply. He referred to Section 815, the limitations and savings clauses, and said there was a list of statutes not affected by ANILCA or this particular section. One was the Fishery Conservation and Management Act of 1976, since amended. The advance notice regulations contain specific language making it clear the proposed preemption, or extension of jurisdiction, did not apply in some waters in Alaska, particularly beyond territorial waters. MR. SOMERVILLE read an excerpt that says "the board's regulatory authority under this provision" would be limited to the territorial limits of the state and not extend to offshore fisheries beyond Alaska's territorial waters. All international treaty obligations of the United States with respect to fish and wildlife and their habits also must be adhered to. He said these make it clear that Title VIII does not extend beyond mean high tide or beyond the "territorial sea." MR. SOMERVILLE advised that in December 1996, the North Pacific Fishery Management Council (NPFMC) received a request to allow legal harvest of subsistence-caught halibut. In checking with the National Marine Fisheries Service (NMFS), there appeared to have been two instances, perhaps more, that led to that. One was the citing of people from villages in the Bering Sea region who had taken home undersized halibut, caught while commercial fishing, for personal use. Under the regulations and laws of the NPFMC and the International Pacific Halibut Commission, that was illegal. In addition, someone in Southeast Alaska had used illegal gear, such as a skate, to harvest for personal/recreational use without having Individual Fishery Quota (IFQ) shares. Number 0425 MR. SOMERVILLE explained why the NPFMC is involved. The International Halibut Treaty created the International Pacific Halibut Commission. As a result of amendments to the Northern Pacific Halibut Act in 1982, the commission became responsible for overviewing and establishing management strategies and quotas for each halibut area, with the NPFMC responsible for adopting regulations, implementing that quota through allocation. MR. SOMERVILLE referred to a newsletter dated February 18, 1997, that lists options from a February 1997 report by the NPFMC Halibut Subsistence Committee. He advised that April 15-19, 1997, the NPFMC will hold a preliminary meeting on this and other subjects, to hear staff evaluations, prepare preferred options and then either send out possible options or do nothing. Their documents indicate a final decision will be made in June, with further implementing regulations placed by 1998. Number 0501 MR. SOMERVILLE referred to the newsletter, which lists three suboptions under Option 2, "Define eligibility for halibut subsistence": "Suboption A. Members of Alaska Native Federally-recognized Tribes with customary and traditional use of halibut. (Subsistence Committee definition) "Suboption B. Alaska rural residents as defined in ANILCA and identified in the table entitled `Alaska Rural Places and Native Groups with Subsistence Halibut Uses,' and will also include other communities for which customary and traditional findings are developed in the future. (ANILCA definition) "Suboption C. Tribal members and non-Native permanent residents of Native villages who have legitimate subsistence needs. (Migratory Bird Treaty Act definition)" Number 0547 MR. SOMERVILLE referred to Option 3 and said the legal gear is somewhat the same as would be allowed with commercial gear. Referring to Option 4, he noted size options were either having no minimum size or allowing some exceptions for retention of undersized halibut taken for commercial purposes in Area 4E, which is the Bering Sea. MR. SOMERVILLE discussed Options 5 and 6, relating to potential customary and traditional trade of subsistence-caught halibut, in addition to potential barter or sale. He said this raised concerns by legislators. Number 0612 MR. SOMERVILLE said HJR 34 was not designed to take on the whole issue of subsistence. Instead, it says the legislature supports taking halibut for personal consumption, but supports doing so by modifying existing regulations to accommodate it through personal/recreational use, rather than creating a whole new fishery. MR. SOMERVILLE said the concern is the legal authority of the NPFMC to do this. Going through all the documents, including the International Halibut Treaty, the Northern Pacific Halibut Act and the newly adopted Magnuson-Stevens Fishery Conservation and Management Act, there is no mention of legal authority to establish racially discriminatory regulations or those based on residency. That issue is raised in the resolution. MR. SOMERVILLE explained those proposals would conflict with the state constitution if adopted. That would create enforcement problems because the state adopts federal regulations by reference. He believes the state would be unable to enforce regulations in conflict with Alaska's constitution. MR. SOMERVILLE said there is an argument that while legislators, the delegation and the Governor's office continue to look for ways to provide a long-term, permanent solution to the subsistence issue, this sort of action could further polarize people, creating a new controversy that he believes is unnecessary. He advised that they would testify April 16 before the NPFMC on this issue. Number 0869 DICK BISHOP, Executive Director, Alaska Outdoor Council, came forward to testify in support of HJR 34. He specified he was also speaking for the Territorial Sportsmen, a member group of the council. He said HJR 34 addresses many of the most objectionable parts of the halibut subsistence proposals soon to be considered by the NPFMC. First is discrimination on racial grounds or the basis of zip code. Second is adopting unlimited catch of halibut under subsistence, regardless of the size of fish, season, or so forth, "very much like ANILCA's undefined customary and traditional use priority, which has been defined by federal courts as basically `no closed season, no bag limit.'" MR. BISHOP said third is opening the door to commercial sale of yet another so-called subsistence resource. He noted that federal courts have already established that sales of subsistence-caught fish for tens of thousands of dollars are acceptable under ANILCA. Fourth is providing for a new fishery that is bound to compete, to some degree, with existing fisheries, but on a discriminatory basis as far as priority for the use. Fifth is that the same strategy could easily be proposed for other marine resources such as crab. Number 0984 MR. BISHOP said these proposed regulations are not about obtaining food by customary and traditional means. Instead, they are yet another ploy to expand political and institutional approval of special privileges for a racially defined group of people. MR. BISHOP read from page 2 of the Halibut Subsistence Committee report dated January 22, 1997, to illustrate that committee's perspective: "The committee discussed a proposal to include `other rural residents in areas of Alaska with halibut uses.' The committee discussed the opportunities for non-Tribal Alaskans to harvest and concluded that the two-fish-per-day sport fish limit would meet their needs for supplying their families with halibut for food. The determining factor in this conclusion was the stated need to recognize existing, traditional practice at current levels of halibut removals. The management plan for a halibut subsistence program should legalize the current halibut removals and fishing practices by Tribal members." MR. BISHOP said it makes it clear that their view is to narrowly benefit one segment of Alaskans, leaving to the sport fish limitations the opportunities of "non-Tribal" Alaskans to meet their needs to provide food for their families. Number 1073 MR. BISHOP said Alaska is already being socially shredded by controversies over subsistence and Indian country. He urged passage of HJR 34 to discourage the NPFMC from perpetuating this separatism by establishing yet another set of discriminatory rules relating to use of fish and game. Number 1112 RICHARD ANDREW testified via teleconference from Ketchikan in support of HJR 34. A 34-year resident of Ketchikan, he is a commercial fisherman but does not hold any halibut IFQs. He supports HJR 34 because creating a new fishery will further federal takeover of the state's resources. It will also further divide rural and urban residents. Number 1187 NORMAN COHEN came forward to testify, saying he wanted to correct the record. He said subsistence halibut fishing is not new. It has occurred for probably hundreds or thousands of years along the coast. In addition, the International Pacific Halibut Commission has jurisdiction over halibut. There is no state jurisdiction, nor are state laws affected by this fishery. Furthermore, it has been counted in the numbers of halibut taken by commercial fishermen, sport fishermen and rural Alaskans who have used halibut for subsistence. MR. COHEN said when the commission was created 70 years ago, it neglected to include subsistence-take of halibut as a category. Elsewhere, there have been special allocations to tribes in Canada and Washington, but not in Alaska. The only purpose of this new regulation is to recognize what has taken place, so that people are not subject to enforcement actions for participating in something they have already participated in. He said the commission and the NPFMC recognize they have ignored this problem for 70 years and that it is time to do something about it. MR. COHEN stated that he works with a group of villages "on the west coast" whose residents harvest halibut for subsistence purposes. Number 1370 REPRESENTATIVE BEVERLY MASEK asked whether Mr. Cohen opposes HJR 34. MR. COHEN said he is strongly against it. He reiterated that it does not apply to state law, as halibut is allocated under an international treaty. In terms of who should qualify, he leaves that to the NPFMC. Number 1385 REPRESENTATIVE MASEK responded that reading materials say the state assists in enforcement of halibut regulations and that the Board of Fisheries adopts halibut regulations by reference. She suggested what is being proposed by the NPFMC will create serious enforcement problems throughout Alaska's coastal areas. At best, enforcement abilities will be severely limited. MR. COHEN disagreed that it will create enforcement problems. He believes those have already been created because the use occurs but is not recognized nor regulated. This will legalize something that has gone on for generations. If state Division of Fish and Wildlife Protection officers cannot enforce it, because it turns out to be against Alaska law, then it will simply not be within their jurisdiction. There are NMFS agents stationed throughout the state who are charged with enforcing these regulations, should they pass. Number 1549 CO-CHAIRMAN OGAN inquired what the methods and means of the present fishery are. MR. COHEN replied that for the people he works with, the normal and traditional way of harvesting halibut is using three hooks instead of two; that is all those people are looking for. However, in Southeast Alaska, he understands the experience has been different. Some proposals now before the council relate to distinctions in how halibut are harvested. He estimates, roughly, that a million pounds are taken statewide for subsistence, out of a 60-to-80- million-pound quota for the entire state. He added that it may be much less than that, and he said the Department of Fish and Game (ADF&G) has those statistics. Number 1607 CO-CHAIRMAN OGAN asked for clarification about whether the three hooks were on fishing poles, ground lines or what. He further asked whether someone had not actually won a case in a lower court for having a couple of skates of gear out, claiming to be subsistence halibut fishing. MR. COHEN specified he was saying there is a distinction in how it is done in various areas of the state. "The people who I'm familiar with, and how they use it, it's three hooks on a jig," he said. CO-CHAIRMAN OGAN asked whether Mr. Cohen was not aware of the case he had mentioned. MR. COHEN replied that the people he was speaking for only use three hooks. Others, in other parts of the state, do use skates. "And that was the subject of a citation, and the case was thrown out, as I understand it," he said. Mr. Cohen said the question is what the halibut is used for. The intent is to recognize a traditional method, means and opportunity, not to create an unauthorized commercial fishery. He said after salmon, this subsistence fishery is the second largest in the state. Number 1704 CO-CHAIRMAN OGAN commented, "Maybe the people you are working with want to have three hooks. But under Title VIII of ANILCA, plus what they're talking about here with this North Pacific Fishery Management Council, is they're addressing the outright commercial sale of subsistence-caught halibut. That's one of the issues that's on the table here. And that's what we're trying to oppose here." He stated the belief that Alaska will lose its resource if that happens. MR. COHEN replied that he and the people he works with adamantly oppose commercialization of halibut from the subsistence fishery. He believes that would be an excellent recommendation from the legislature to the NPFMC, that they prohibit commercialized use of this resource. Number 1757 REPRESENTATIVE JOE GREEN asked whether Mr. Cohen had read the resolution. MR. COHEN replied he had awhile ago but had not planned on testifying that day. REPRESENTATIVE GREEN said three things concern him. He referred to the first, second and fifth "Whereas" sections, addressing the proposed NPFMC options that would provide a discriminatory preference based on race and residency, and including the possibility of commercial sale of subsistence-caught halibut. He stated concern over having the state sanction that. It borders on a sensitive issue the state has been trying to resolve for quite some time. To have a federal agency give preference to certain classes of Alaskans would undermine all efforts to defend the state constitution and try to resolve this amicably. He stated, "So there is a significant difference, I would suggest, between having had it happen, if in fact it has over 70 years, and for the state to sanction it. And so, in that regard, it seems to me that we, in order to defend the constitution, would have to be opposed to that and support this resolution." MR. COHEN responded that nothing here affects the state government, its constitution or its laws. It is regulated under an international treaty and federal law. And it is not a federal law that only came into place because the state is out of compliance with ANILCA, because ANILCA does not apply to the halibut fishery. Because halibut has a limited-entry system through the IFQ program, there is more enforcement. They just want to fix a problem that people have ignored for so many years. Number 1920 REPRESENTATIVE GREEN said his concern is not between two and three hooks. Rather, it is between types of people who have preference. While it may not be under ANILCA and it may be beyond state jurisdiction, for the state to sit idly by and permit that is the first step in "a run on the state constitution." He said as Mr. Cohen had testified earlier, this does get into state waters, which is an issue of the state. MR. COHEN disagreed. As he understands it, because it is an international treaty, the state has the same role both inside and outside the three-mile limit. Number 1962 REPRESENTATIVE GREEN said there is a preferential portion that violates the state constitution. The state cannot sit idly by on that issue. The legislature is duty-bound to defend the constitution. MR. COHEN replied that if the state's position is that everybody needs to be treated exactly the same in this fishery, then the lowest common denominator should not be the two hooks and two fish a day. Rather, it should be the activity that takes place and has taken place for thousands of years on the resource, whether it was in Western or Southeastern Alaska. MR. COHEN suggested changing the sport fishing rules to be the same as these traditional practices, if the legislature wants to support subsistence halibut fishing and those who do it. Number 2043 REPRESENTATIVE RAMONA BARNES asked Mr. Cohen to define the present rules. MR. COHEN replied, "The rules are two hooks, two fish a day." REPRESENTATIVE BARNES asked who set that rule. MR. COHEN said the International Pacific Halibut Commission. REPRESENTATIVE BARNES asked for whom it was set. MR. COHEN said it was for people who sport fish. Number 2081 REPRESENTATIVE BARNES asked what the rules are for subsistence users today. MR. COHEN replied there are none. REPRESENTATIVE BARNES stated her understanding that this would be a new subsistence fishery. MR. COHEN responded that it would be a new subsistence fishery in name, but they already count these fish in terms of setting the overall quota. They just ignore how it is caught. Number 2094 REPRESENTATIVE BARNES said, "Two fish a day, though." MR. COHEN replied, "No, no. Whatever they catch." REPRESENTATIVE BARNES referred to the new fishery that would be recognized. MR. COHEN said it is an existing fishery that would be recognized as a new category. Number 2145 REPRESENTATIVE BARNES asked how many people would qualify. MR. COHEN said it depends on which system the NPFMC picks for who qualifies. There are several options before them. He guessed the number would be 10,000 or less. REPRESENTATIVE BARNES asked whether presently one million pounds is being taken for subsistence harvest. MR. COHEN said he does not know, nor should he have guessed. Similarly, he does not know about the 10,000 figure. REPRESENTATIVE BARNES asked, if it turns out to be 10,000 people, how many pounds that is per person. Number 2197 MR. COHEN said it is 100 pounds of halibut per person, but he believes that is probably high. REPRESENTATIVE BARNES referred to 10,000 people at 100 pounds. She asked whether Mr. Cohen thinks each of those people eats 100 pounds of halibut per year. MR. COHEN said he does not know the numbers. He believes there should be no sale of halibut involved with it, and that it should be truly a subsistence fishery, used for food. He strongly supports the legislature stating that to the NPFMC. Number 2241 REPRESENTATIVE BARNES referred to a section on hook-and-line gear with a maximum of 60 hooks. She said testimony had been about three hooks. She asked how many fish could be caught on 60 hooks. MR. COHEN said he assumed 60. However, at least for the people he had been working with, three hooks is fine. They are not looking to use 60-hook skates. He said there are regional differences in Alaska that the council will have to deal with in deciding what kind of gear to allow. The NPFMC would take testimony and make a decision. REPRESENTATIVE BARNES referred to Representative Green's remarks on the state constitution. She asked whether Mr. Cohen did not believe that, regardless of whether this falls under state jurisdiction, it still flies in the face of the state constitution because it would be a special-use fishery. MR. COHEN responded that this is authorized and regulated under federal law and an international treaty, and it has nothing to do with Alaska's constitution. Number 2369 DEAN PADDOCK came forward to testify in support of HJR 34. For the past six years, he had devoted five weeks or more, with no remuneration, to "sitting around the table with some 20 other people in an advisory capacity to the North Pacific Fishery Management Council." MR. PADDOCK expressed concern about the proposals before the NPFMC. He said Alaska is at an important crossroads, with great potential for divisiveness. He regrets that immensely. He also dreads having to consider this at the NPFMC, because it comes at a bad time. He plans to ask the advisory panel to table this issue. The state is faced with issues of subsistence and sovereignty, apart from halibut. He agrees with Mr. Cohen that because halibut is managed by the federal government, they have jurisdiction. However, he believes the state has a great deal at stake here. TAPE 97-38, SIDE B Number 0006 CO-CHAIRMAN HUDSON asked if there were further testifiers, then closed public testimony. Number 0022 REPRESENTATIVE BARNES made a motion that HJR 34 move from the committee with individual recommendations and a zero fiscal note. She asked unanimous consent. Number 0036 REPRESENTATIVE REGGIE JOULE objected for discussion, saying he opposes HJR 34 but shares concerns regarding commercial use of that subsistence resource. He concluded by saying it is not creating a new fishery but recognizing a fishery that has been there forever. REPRESENTATIVE BARNES said she believes if this fishery has gone on forever for personal consumption, personal consumption should be allowed. However, if it is being commercialized, she opposes that. She further wants everyone, not just people of one race, to be able to participate. REPRESENTATIVE JOULE withdrew his objection. Number 0199 REPRESENTATIVE BILL WILLIAMS objected for discussion. He said this is a good example of what the subsistence issue will do to the state until it is taken care of by everyone getting together to fight the federal takeover. "We have to settle this subsistence issue before we tear ourselves apart," he stated. He asked the committee to help him ensure the subsistence issue is a priority of the House majority. REPRESENTATIVE FRED DYSON concurred. Number 0255 CO-CHAIRMAN OGAN objected to the motion for voting purposes. CO-CHAIRMAN HUDSON acknowledged the request for a vote. He said he understands what Representative Williams is talking about. He agrees all players must come to the table to eliminate the fear arising whenever someone proposes a potential new fishery, for example, based on the basis of race or region. He stated his readiness and willingness to participate with all members of the House and Senate to try to find an Alaskan solution. Number 0324 CO-CHAIRMAN HUDSON requested a roll call. Voting to move HJR were Representatives Masek, Barnes, Dyson, Green, Williams, Ogan and Hudson. Voting against it was Representative Joule. Representative Nicholia was absent. So HJR 34 moved from the House Resources Standing Committee.
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