Legislature(1995 - 1996)
01/26/1995 05:00 PM House FSH
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON FISHERIES
January 26, 1995
5:00 p.m.
MEMBERS PRESENT
Representative Alan Austerman, Chairman
Representative Carl Moses, Vice-Chair
Representative Gary Davis
Representative Scott Ogan
Representative Kim Elton
MEMBERS ABSENT
none
OTHER LEGISLATORS PRESENT
none
COMMITTEE CALENDAR
Presentation by Paul Seaton, Alliance Against Individual Fishing
Quota (AAIFQ)
WITNESS REGISTER
PAUL SEATON, Representative
Alliance Against Individual
Fishing Quotas
58360 Bruce Drive
Homer, AK 99603
Phone: 235-6342
POSITION STATEMENT: Provided the AAIFQ presentation
SUSAN REEVES, Attorney
601 West 5th Avenue, Suite 500
Anchorage, AK 99501
Phone: 258-6866
POSITION STATEMENT: Attorney for AAIFQ
ACTION NARRATIVE
TAPE 95-2, SIDE A
Number 000
CHAIRMAN ALAN AUSTERMAN called the meeting to order at 5:00 p.m.
He noted for the record Representatives Ogan, Elton and Moses were
present and that a quorum was present.
CHAIRMAN AUSTERMAN introduced Paul Seaton.
REPRESENTATIVE GARY DAVIS joined the committee at 5:01 p.m.
PAUL SEATON, REPRESENTATIVE, ALLIANCE AGAINST IFQs, began his
testimony saying, "I'm a fisherman from Homer. I represent the
Alliance Against IFQs which is a statewide, very informal
organization formed in 1991, when it became very obvious that the
North Pacific Fisheries Management Council was going to pass the
individual fishing quota management option for halibut and
sablefish, even though 93 percent of all the testimony from
Alaskans was opposed to this plan. The halibut fishery was a
predominant driving force behind this and what the council had done
was make a management plan based on the sablefish fishery which is
about 10 percent the size. Then when it came to halibut fishing,
they refused to look at any other options for the halibut fishery,
simply directing it on the mold that they had done for sablefish.
So, that's when the Alliance formed. Coastal communities knew this
would be a very strong detriment, both socially and economically,
to their communities and that's why you'll see in your backup
information, you have a sheet there that lists a number of coastal
communities, Alaska native associations, boroughs, chambers of
commerce. There are 47 different resolutions that were passed
opposing this program. All were ignored by the management of the
council. This represented communities from the furthest in the
south, out to Unalaska. All were ignored totally by the council.
Also, in your packet there is the 1992 resolution by the House of
Representatives that was passed unanimously opposing the IFQ plan.
It was also ignored. The basis for the knowledge that this would
be a very strong detriment to the coastal communities is found in
the `Impact Statement' that the council used to create the IFQ
plan. You just have three pages of this long document. On page
210, `There would be 288 to 376 halibut vessels and 1,500 to 1,900
fishermen, if this plan succeeds.' And these are in comparison to
3,796 vessels and 1,400 fishermen without an IFQ program. So these
were not unintended consequences. These were known and this was to
consolidate this fishery massively. This is why all these
resolutions were passed by these cities and native associations and
the House of Representatives. The other things in there give the
same kinds of information such as on page 212, `As fishermen switch
fisheries or occupations, their living standards may suffer. This
is especially true in communities which offer few alternatives to
fishing. In these communities, especially along the Alaskan coast,
communities could experience reduced income and population.' This
is why these communities asked for social and economic impact
studies to be shared with them before this plan went forward and no
such impact statement would be done by the council, and has not
been done since now. There is a kind of a social impact survey,
the Institute of Social and Economic Research (ISER) survey and in
that, you'll find that 68 percent of the fishermen there, in Table
1, tell you that they don't think that under this plan, this
allocation was done fairly. In figure three, 42 percent of all
fishermen say they're going to be worse off under the plan, 14
percent don't know, and 21 percent think they're going to be the
same but that was before the numbers came out."
MR. SEATON continued, "The lawsuit that was enjoined by the
Alliance Against IFQ, had ten points. I'm not going to go into
those points tonight. The crucial thing for which we're here and
want to talk to the committee about is that we are appealing to the
Ninth Circuit, the findings of the court. And the most important
one tonight is that the District Court ruling extends far beyond
IFQ's into allowing federal regulations to apply inside of state
waters and that's in total contradiction to the Magnuson Act. In
other words, the judges findings said that, `Well, there's no
conflict, you can apply federal regulations in state waters.' The
Magnuson Act says, `Nothing in this act shall be construed as
extending or diminishing the jurisdiction or authority of any state
within it's boundaries.' And of course the boundaries, as far as
fisheries go, are the three mile limit. If any further
clarification was needed, it can be found in the administrative
record of the Magnuson Act where it says, `The federal government
can assert jurisdiction in the waters of any state only in those
limited instances when the state action, or the state's failure to
take action will substantially, as well as adversely, effect the
carrying out of the plan.' There's very specific requirements that
must be met. The majority of the fishery must occur in federal
waters and the action must severely restrict the Secretary's
ability to manage the federal fishery. And that has to be done in
a public hearing and an official secretarial finding. That was not
done. These actions, these federal regulations are going to apply
to state waters without following the dictates of law. What
happened in this case are two things: One is the judge didn't seem
to look at the law. And the other is: The judge found that the
state of Alaska is the only party that has the right to object.
The court found that, as citizens of the state, we do not have
standing to raise the preemption issue. And that's what this is,
it's preempting state management by applying federal regulations in
state waters. And the problem is, some people don't like the word
`precedent,' it's a federal district court ruling and we know
what's going to happen. If they can do it here, they can do it in
any other situation. The judge found that unless the state raises
a conflict, there's no problem with exerting federal regulations.
The only way that a state can exert a conflict, as far as the
district court is concerned, is to take the federal government to
District Court. This is the creeping federalism that you've been
dealing with it all day today and yesterday: The problem of the
federal government taking over fish and game management in state
waters. That was specifically on subsistence, this is the same
issue on the federal takeover of commercial fisheries in the state
of Alaska. We would sincerely hope that the House, or this
committee, would recommend that the Governor use his full resources
to defend the state's exclusive rights to manage the fisheries
within state waters. The (fisheries) transition team, that met
over in Kodiak, one of the things they identified for immediate
action was `to defend the state management of fisheries and prepare
to make legal responses as necessary to maintain state authority of
fisheries.' We hear it from the Governor's Office, we hear it from
the transition team, we hear it from the House and the Senate, the
only problem was that, in court, the state of Alaska had filed an
amicus brief and had raised the problem of this, but there was
nobody from the state in court. And they asked, `Is there anyone
here from the state of Alaska to respond to the preemption issue,
and there wasn't. We really need someone from the state of Alaska,
the Attorney General, to be present and to expand their amicus
brief on the taking over of state waters by the federal government
at the Ninth Circuit Court of Appeals. So that's what I would
really urge you to consider and that's the main thing, why we are
right now with this. There are four points that we're going to
appeal. This is the main one, the important one right now that we
really need the state's help with. The state is the only one that
has standing to raise the issue."
Number 250
MR. SEATON concluded, "I am thoroughly familiar with the IFQ
regulations, if you have any questions on those. The other points
that we're litigating on is the Bellingham issue where the
Secretary, outside of the purview of law, expanded the primary
ports to allow Bellingham and every other state to be landing ports
for fish. That's a technical argument, as well as, without
enforcement you have resource degradation. Not considering the
present participation of individuals and the fact that
administrative convenience was used as the sole reason for giving
all IFQ's to vessel owners, cutting out the crew and others. Once
we say that, administrative convenience is an adequate reason for
taking actions under the Magnuson Act, it's all over. I mean, if
that can be your reasoning for taking action then there's severe
problems for any of the public to have any input at all."
CHAIRMAN AUSTERMAN thanked Paul Seaton for his presentation.
Number 283
REPRESENTATIVE GARY DAVIS said, "You mentioned that the state had
filed an amicus brief. Have you followed up on that? So they must
have been concerned that they weren't there. Who did that? Which
administration? Why weren't they there?"
MR. SEATON replied, "The Hickel Administration are the ones that
became very concerned on the issue of preemption and we talked to
them quite a bit. They finally decided, it was kind of at the last
minute, that they needed to respond in federal court. Otherwise,
preemption was going to take the state's rights away. The argument
was on the 19th of December. The Attorney General who had written
that opinion was no longer employed there. Also, in the amicus
opinion they were saying, `Well, we're supporting IFQ's, we're
supporting CDQs, but we're opposed to preemption of state
management in state waters, essentially. I don't know why they
weren't there. We were talking to them. I don't think that
anybody was really up to speed. There was quite a bit of confusion
on CDQs, IFQs. The CDQ section, I might say, was being challenged
in our ten points that they were only being allocated to native
communities in Bristol Bay. The judges ruling said that there is
basis for giving that kind of an allocation solely based on
economic and social hardships in any community. So we are not
challenging the CDQ regulations. I don't know if there was a
conflict between people wanting parts of it and not wanting parts
of it. We haven't been able to find out exactly what happened."
Number 320
SUSAN REEVES, ATTORNEY, ALLIANCE AGAINST IFQ'S, interjected saying,
"I want to make sure that you have an accurate picture here. You
asked what the position of the Attorney General's Office was now.
We have spoken to them and they're considering this. They haven't
told us that they won't be involved. They haven't told us that
they will but they are aware that the issue is on appeal and they
are looking at it right now."
Number 333
REPRESENTATIVE KIM ELTON asked, "I haven't seen the full opinion,
and it's probably very difficult to make an interpretation based on
a half a page of an eleven page opinion, but it seems to me that
there's nothing that precludes the state at any time in the future
to raising the issue of state control of its fisheries. He then
referred to last page of the District Court Judge's Findings where
it says, "If the state of Alaska later enacts legislation contrary
to these regulations, in waters not specifically excluded from
coverage, the issue may then be ripe for review," He concluded,
"It seems to me that that means that at anytime in the future, if
indeed there is a conflict between state law and state regulations
and the IFQ Program, that the state can raise the issue at that
time."
MR. SEATON replied, "The big problem is, what this court has
allowed is to say, `Oh, there isn't any conflict, therefore, you
can apply federal regulations.' This could be extended to observer
coverage, to reporting coverage, to taxing coverage. As long as
there's not a problem with taxes, they could extract taxes out of
state waters. They could say, `Okay, we want to have federal
observer requirements on all the vessels in state waters.' There
wouldn't be any conflict there. That's the big problem. What's
happening is that unless there is a significant conflict, this
judge is saying, `There's nothing to review, there's no problem.'
And what the Magnuson Act says is, `The only time that you can
extend federal regulations in state waters is if there is so large
a conflict, that the state regulations prevent the Secretary from
being able to manage the federal fishery. Significantly and
adversely effect the Secretary's ability to manage the federal
fishery. So, by this huge leap, what we've done is we've said,
`Okay, federal regulations can apply to state waters.' That's what
this judge has said. When right now the Magnuson Act says,
`Federal regulations cannot apply in state waters unless the
state's action or inaction so impairs the Secretary's ability that
he can't manage the federal fishery. And they have to make certain
findings are that the majority of the fishery takes place in
federal waters and that this is going to impair the ability of the
Secretary to manage the federal fishery. And he has to make that
a specific finding. Part of this problem becomes, if the state
would later enact legislation contrary to the regulation and then
the federal government would then come in and preempt. Sure, then
it could come back to court. One thing under the Magnuson Act
which is really peculiar is that there is a 30 day window on a
fisheries management plan. When a management plan is passed, you
have to, after it is published in the federal register, you have to
file a lawsuit within 30 days in federal court, otherwise you can
never challenge that fisheries management plan. You can challenge
on a constitutional grounds or something, but you can't challenge
the fisheries management plan."
REPRESENTATIVE ELTON said, "But I'm reading this as saying, `There
is no problem unless there's a problem in the future and if there's
a problem in the future, the state then has standing to address it
in federal court.' You're saying, `Why not address it now so that
there's never a future problem.'"
MR. SEATON replied, "What this court is saying is, `There is no
problem, unless there's a conflict.' The law, the Magnuson Act
says, `Nothing in this act allows the federal government to extend
its jurisdiction into state waters, unless there is a conflict, and
that conflict has to be so severe that it impairs the Secretary's
ability to manage the federal fishery. Then the Secretary, under
very specific conditions in the Magnuson Act, can preempt state
management. What this judge has said is that, `Without any
conflict, without any preemption, federal regulations can apply in
state waters. That means it's going to happen all the time because
it's much easier for the feds to pass a regulation going right up
to the shore and talk about all of the fish. What else they did in
this is they preempted, effectively, state management because they
allocated 100 percent of the total allowable catch (TAC) to the IFQ
fishery. The state fishery can still occur but there's no fish to
catch, because they've allocated 100 percent under these
regulations of the total allowable catch to the IFQ fishery. It's
going to be a huge problem. What does the state do? Does the
state close its waters and say, `Oh well, you can't catch any IFQ
or non-IFQ fish here.' Because a person without any IFQ's can fish
in state waters. A state vessel (which) doesn't have a federal
fisheries permit can go out and fish in state waters. But there's
no fish to catch unless you go beyond the biological limit because
the total allowable catch, under these regulations, has been given
to the federal IFQ fishery. So, there's huge problems when you
allow these federal regulations to be applied to state waters.
Biological problems as well. State management doesn't know what to
do. They don't know whether to open the fishery or close the
fishery. If they open the fishery, there's going to be fish taken
that aren't counted in the TAC because the federal regulations
allocate all of the fish personally to people with IFQ's and yet
you're going to have this other fishery occurring. If the state
says, `Oh, we can't have that,' they have to close the waters and
those federal permits can't be used in state waters, because the
waters are closed. So people who fish in small boats and fish in
close are going to be, `Oh what do we do, well we sell out or go
out where it's dangerous.'"
Number 451
REPRESENTATIVE SCOTT OGAN thanked Mr. Seaton and committed to study
this issue further.
REPRESENTATIVE DAVIS said, "It is my understanding that this whole
thing came about because of a perceived need to control the harvest
of certain species. Was that a valid concern? Would these species
get over harvested?"
MR. SEATON said, "It was a totally invalid concern. These fish are
now, and they will be in the future, harvested on a quota basis.
In other words, the amount of fish is set each year as to how much
will be caught and this an economic allocation issue. It had
nothing to do with the biological health of the resource."
CHAIRMAN AUSTERMAN said, "I would suggest maybe that either myself
as chairman of the committee, or this committee itself, encourage
the Governor to take a hard look at the issue to see whether we
should be back in court."
Number 473
REPRESENTATIVE DAVIS said, "I would appreciate that. It sounds
like he's looking at it. It would be nice to inquire at his office
and find out when and if he does make a decision, if he'd let you
know and then you could copy us on that."
REPRESENTATIVE ELTON said, "If you do that, you may wish to ask
about the other facets of the issue. You heard about the socio-
economic impact, but it would be interesting to know about the
market and safety impacts also before we have that discussion."
Number 485
CHAIRMAN AUSTERMAN thanked his guest and adjourned the meeting at
5:27 p.m.
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