Legislature(2003 - 2004)
04/30/2003 08:36 AM House FSH
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
April 30, 2003
8:36 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Cheryll Heinze
Representative Dan Ogg
Representative Ralph Samuels
Representative Ethan Berkowitz
Representative David Guttenberg
MEMBERS ABSENT
Representative Peggy Wilson, Vice Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 281
"An Act relating to a moratorium on entry of vessels into the
Southeast Alaska sport fish charter fishery; and providing for
an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 281
SHORT TITLE:MORATORIUM ON CHARTER VESSEL LICENSES
SPONSOR(S): REPRESENTATIVE(S)WEYHRAUCH
Jrn-Date Jrn-Page Action
04/23/03 1071 (H) READ THE FIRST TIME -
REFERRALS
04/23/03 1071 (H) FSH, RES
04/23/03 1071 (H) REFERRED TO FISHERIES
04/30/03 (H) FSH AT 8:30 AM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE BRUCE WEYHRAUCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the sponsor statement for HB 281.
BLAINE HOLLIS, Assistant Attorney General
Natural Resources Section
Civil Division (Juneau)
Department of Law (DOL)
POSITION STATEMENT: Provided legal information and concerns
pertinent to HB 281.
MARY McDOWELL, Commissioner
Commercial Fisheries Entry Commission (CFEC)
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Provided recommendations and suggestions
pertaining to HB 281.
ROB BENTZ, Deputy Director
Division of Sport Fish
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 281 that the department
supports the recommendations made by DOL and CFEC.
DON JOHNSON
Soldotna, Alaska
POSITION STATEMENT: Spoke on his own behalf in opposition to HB
281, testifying that it would exasperate the situation.
CAROL DOOLEY, Owner
Ketchikan Sport Fishing
Ketchikan, Alaska
POSITION STATEMENT: Testified in strong opposition to HB 281.
ACTION NARRATIVE
TAPE 03-27, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:36 a.m. Representatives Seaton,
Samuels, and Guttenberg were present at the call to order.
Representatives Heinze, Ogg, and Berkowitz arrived as the
meeting was in progress.
HB 281-MORATORIUM ON CHARTER VESSEL LICENSES
CHAIR SEATON announced that the only order of business would be
HOUSE BILL NO. 281, "An Act relating to a moratorium on entry of
vessels into the Southeast Alaska sport fish charter fishery;
and providing for an effective date."
Number 0092
REPRESENTATIVE BRUCE WEYHRAUCH, Alaska State Legislature,
sponsor of HB 281, said this bill would establish a moratorium
on vessels entering the Southeast Alaska sport fish charter
fishery. He told the committee that earlier permutations of the
bill had been introduced by legislators from other parts of the
state and would have been applied statewide, whereas HB 281
reflects a moratorium on charter vessels in Southeast Alaska.
He pointed out that this is not a limited entry program and that
the purpose of the moratorium is to "stop the music on new
entrance into the Southeast charter fishery" and to determine
the number of vessels, the impact on the overall harvest of fish
by different user groups, to determine whether a limited entry
program is desirable, and to make other policy issues regarding
the value attached to a charter permit.
REPRESENTATIVE WEYHRAUCH said that presently the commercial
salmon fisheries and in fact most fisheries in Southeast are
limited entry, and that those permits are fully transferable and
can be sold. He mentioned that the moratorium could be lifted
after the bill's sunset date in 2007. Establishing the
moratorium would allow the Commercial Fisheries Entry Commission
(CFEC) to determine policy implications for the program.
CHAIR SEATON informed the committee that the intention was not
to move HB 281 out of committee at this time.
CHAIR SEATON inquired about the current status of licensing
vessels and asked, "How do we know which vessels are
participating?"
REPRESENTATIVE WEYHRAUCH responded that after paying a $50
annual fee and applying to the CFEC, one receives a triangular-
shaped plaque and a charter number that needs to be placed on
the side of the boat; this indicates that the boat is registered
as a charter vessel.
CHAIR SEATON asked which vessels would be included under the
moratorium.
Number 0550
REPRESENTATIVE WEYHRAUCH replied that it includes everything
from a skiff to a 100-foot yacht.
CHAIR SEATON asked, "Is this a participation year ... or is it
that you've just had a license in the past?"
REPRESENTATIVE WEYHRAUCH replied that it would reflect recent
participation, rather than just having been licensed.
CHAIR SEATON referred to the commercial fisheries' fish ticket
information which demonstrates participation and asked if state
documentation exists to assist in determining participation.
REPRESENTATIVE WEYHRAUCH replied that there are ways to
determine who has a license but said that he didn't know what
data was kept by the state regarding who participates as a
charter boat operator.
Number 0680
REPRESENTATIVE OGG asked if, by receiving a commercial tag,
charter vessels were considered [part of] the commercial
fishery.
REPRESENTATIVE WEYHRAUCH responded that [the fishery] was not
treated as a commercial fishery, however he mentioned that an
allocation on the salmon harvest exists. He noted that there
was a legal case on the type of gear and operations used by
charter fishermen; it's handled different ways by different
administrative bodies, he said.
REPRESENTATIVE OGG asked if the tag was a commercial tag.
REPRESENTATIVE WEYHRAUCH replied that it was a charter tag
issued by the CFEC.
REPRESENTATIVE OGG asked if a plastic card was involved.
REPRESENTATIVE WEYHRAUCH said, "No, not when they harvest."
REPRESENTATIVE OGG commented that there was a dramatic increase
in the fishery during 1992-1996, but recently participation has
been leveling off. He asked if the logbook data was based on a
voluntary system.
REPRESENTATIVE WEYHRAUCH replied that he wasn't sure whether
this was voluntary.
Number 0824
REPRESENTATIVE OGG explained that the data shows that perhaps 55
to 60 percent of the total amount of people who have these
licenses, and who are registered, are actually filling out the
logbooks. He asked if the market is currently saturated.
REPRESENTATIVE WEYHRAUCH replied that he didn't know.
CHAIR SEATON wondered whether a person who was chartering for
rockfish would also be eligible to charter for other species in
the sport fish charter vessel fishery.
REPRESENTATIVE WEYHRAUCH replied, "I think the intent is
broader."
Number 0914
BLAINE HOLLIS, Assistant Attorney General, Natural Resources
Section, Civil Division (Juneau), Department of Law (DOL)
testified that he wanted to discuss the legal implications and
issues involved with HB 281. He said he would primarily confine
his comments to constitutional issues, while Mary McDowell
[CFEC] would be suggesting amendments and making technical
clarifications.
Number 1046
MR. HOLLIS said that whether or not this is a limited entry
system or a moratorium, it has the effect of limiting access to
these fisheries. Therefore, it raises constitutional
implications under "the common use equal access no exclusive
right of fisheries clauses" in the constitution, which generally
provide broad access to Alaska's fisheries. The question of
whether this is constitutional under the limited entry amendment
is the crux of the constitutional issue. Mr. Hollis asked,
"Does it fall within the ambit of the limited entry amendment?
If it does, it's probably constitutional. If it doesn't, it
probably isn't."
MR. HOLLIS said the first question would be whether the limited
entry amendment applies to these types of fisheries.
Historically, the limited entry amendment has only been applied
in the context of commercial fisheries. Enacted in 1972, it was
primarily intended to apply to the salmon fishery and since that
time has been applied to other commercial fisheries. He said he
is not aware that it has been applied to a sport fishery or a
guided charter fishery. He said that although it's far from
clear, the limited entry amendment is probably broad enough in
scope to cover this because it doesn't contain language that
limits it to any particular type of fishery.
MR. HOLLIS said the question then becomes whether the bill
comports with the requirements of the amendment itself because
the amendment specifies certain purposes that must be achieved.
Those purposes are: resource conservation, avoiding economic
distress [among fishermen] and those dependent upon fishermen
for a livelihood, and efficient promotion of aquaculture in the
state. He told the committee that those are the purposes for
which the legislature is permitted to limit entry into a
fishery.
Number 1196
MR. HOLLIS continued that the Alaska Supreme Court has stated in
a number of cases, that under the limited entry amendment, any
limited entry system must impinge as little as possible on free
access. This principle of least possible impingement stands for
the proposition that access can only be limited if it's
necessary to serve those purposes, previously enumerated, and
only to the extent that it is necessary to serve those purposes.
He said that it's important, whenever entry is limited into a
fishery, to build a factual record that supports those
conclusions because if it's challenged, it will be necessary to
demonstrate to a court that there's a factual basis for the
action that was taken. The factual basis needs to support the
conclusion that it was necessary to limit entry into that
particular fishery and that it was necessary to limit it at "the
level that you did" so that "you're not being more restrictive
than you need to be, either in terms of the number of fisheries
you're limiting or the extent, [or] the number of participants
you're allowing. You need to ensure that, that impingement is
as small as possible to achieve the purpose," he said.
Number 1288
MR. HOLLIS told the committee that historically, the decision of
whether to limit entry into a fishery and the job of building a
factual record to support that decision has been left to the
CFEC. Under the Limited Entry Act, the legislature created a
framework for making those decisions and it includes a record-
building and regulatory process. This legislation would
essentially bypass CFEC and impose a system, and if the
legislature is going to do that, it's important that records
exist so that the DOL can defend this decision to limit entry
into these fisheries. He said, "We're talking about all sport
charter fisheries, both fin fish and shell fish throughout all
of Southeast Alaska," which is a broad area and a broad group of
fisheries.
MR. HOLLIS said it would also be helpful to include legislative
findings with the bill, such as projections of the fisheries
becoming a certain size, or noting what the anticipated effects
would be on conservation, fish stocks, or economics of the
people involved, if the fishery were allowed to expand.
Number 1465
CHAIR SEATON asked about the number of charter vessels
registered in Southeast from 1982 to 2002. He said there are
several different sets of data, but the set from 1998 through
2002 shows a consistent number of vessels. He wondered, with
the same number of vessels participating over the past five
years, what justification would be necessary in order to limit
participation in the charter industry.
MR. HOLLIS replied that the data showing stability or even a
decline in numbers creates a problem and raises the issue of
whether this is, in fact, necessary. He said that facts
revealing that anticipated growth of the fishery might have
negative consequences either for the stocks or the economics of
the fisheries could provide a basis.
CHAIR SEATON questioned how the moratorium might effectively be
constructed if the number of vessels participating during the
past five years had been inconsistent.
MR. HOLLIS responded that it could be structured a number of
ways, but the overall goal would be to limit participation,
either by the number of vessels or the number of guides. He
said that the permits could be transferable, or given to the
guides rather than the vessels, and that some of these methods
don't raise constitutional issues. Once the threshold has been
met that the limited entry system is necessary for "these
purposes" then there is some flexibility in "how you want to
structure it," he said.
CHAIR SEATON re-phrased his question and asked, "if we have a
stable number of vessels that were participating, and even if
they weren't the same vessels in the last five years, the
program that would be structured would have to, if we determine
that it's necessary to limit the participation basically to that
level ... have some structure in here that wouldn't allow those
permits that participated three years ago to come back in under
this moratorium and participate, which would allow the number to
grow."
MR. HOLLIS replied that this notion was implicit in the idea of
creating some sort of qualification system.
Number 1790
REPRESENTATIVE GUTTENBERG questioned, "Who owns the
constitutional right?" He continued, "If this passes, I can
still fish, I can still take my family out fishing. I can still
take my friends out fishing." He noted that a commercial
charter does not actually harvest fish.
MR. HOLLIS said complaints might come from fledgling charter
operators who want to get into the business; the question is
whether those people would raise the constitutional issue. He
said, "In our view, they would." The court has previously held
that hunting guides have standing under the equal access clauses
of the constitution to challenge limitations on access to guided
hunting and "we don't see any real significant differences
between that and this."
Number 1874
REPRESENTATIVE BERKOWITZ mentioned that with hunting, the
distinction was that the protection of a resource was at stake.
He asked if sport fishing was putting an undue pressure on the
resource, separate from other fisheries.
MR. HOLLIS deferred to ADF&G biologists to answer that question.
REPRESENTATIVE BERKOWITZ emphasized this as an important
distinction because the bill proposes to circumscribe economic
opportunity for individuals. The compelling state interest
allowing for this would be protection of the resource, which was
the basis for limited entry in the commercial fisheries.
CHAIR SEATON requested that Mr. Hollis repeat the three
compelling principles that he alluded to in earlier testimony.
Number 1984
MR. HOLLIS said that to qualify under the limited entry
amendment, any system that limits entry must be narrowly
tailored to serve certain purposes, and those purposes are:
conserving stocks, [preventing] economic distress among
fishermen and those dependent upon them for a livelihood, and
promoting efficient development of aquaculture in the state.
Number 2045
REPRESENTATIVE BERKOWITZ inquired about evidence of there being
current economic distress, given the seemingly five-year stable
period whereby the number of vessels has been maintained, within
about 5 percent.
MR. HOLLIS said this was a crucial question, but deferred to
other witnesses.
CHAIR SEATON questioned the correlation between prevention of
economic distress among fishermen and those economically
dependent upon fishermen, in light of the moratorium possibly
being applied to owners of vessels "who may not ever go on the
water ... Princess Cruise Lines or something."
MR. HOLLIS said he didn't know "if there were any hard and fast
rules there."
CHAIR SEATON asked about moratorium rights, or some kind of
limited entry rights to vessel owners who may not be
participating as fishermen.
MR. HOLLIS said this area wasn't altogether clear, but that if
the notion was to give an "economic windfall" to certain people,
he wasn't sure that this was the type of idea embodied in the
limited entry amendment. The most often cited idea for limited
entry was that the fisheries had become so large, nobody could
make a living, that is to say, "There's only so many fish to be
caught. If you've got too many people trying to catch them,
nobody can make a living."
Number 2202
REPRESENTATIVE WEYHRAUCH asked if a moratorium program, similar
to the one established in this bill, had ever been challenged in
Alaska.
MR. HOLLIS said that there had been a moratorium for the charter
fleet on the Kenai which recently came under challenge and was
withdrawn. He said he was not aware of one that had actually
gone to court.
REPRESENTATIVE WEYHRAUCH asked if one has been challenged that
had reached a decision.
MR. HOLLIS replied, "Not that I know of."
REPRESENTATIVE WEYHRAUCH asked, regarding any cases discussing
limited entry, if any of those cases deal with a moratorium that
was imposed prior to the limited entry program in that fishery.
MR. HOLLIS replied, "Not that I know of."
REPRESENTATIVE WEYHRAUCH said, "So there is no case, as I
understand, that says the legislature needs to establish a
record before establishing a moratorium program."
MR. HOLLIS said he wasn't aware of a case that said that,
specifically.
REPRESENTATIVE WEYHRAUCH asked, "A limited entry program is
different from a moratorium program, isn't that correct?"
Number 2271
MR. HOLLIS responded, "Not in my view, no." He said that in his
view, any system that limits access to a fishery, whether it's
called a limited entry system or a moratorium is by its nature,
a limited entry system because it limits who can participate to
a certain specified group.
REPRESENTATIVE WEYHRAUCH asked if there were any state or
federal cases that support Mr. Hollis's view.
MR. HOLLIS responded, "Not that I know of."
MR. WEYHRAUCH asked if the phrase "limited entry" appeared in
the bill.
[Mr. Hollis's reply was indiscernible.]
MR. WEYHRAUCH said, "It does not appear."
MR. HOLLIS replied, "Not that I've seen."
Number 2303
MR. WEYHRAUCH said, "It's not a limited entry bill; this is a
moratorium bill, isn't that right?"
MR. HOLLIS replied, "That is the way it is denominated."
MR. WEYHRAUCH said he wanted that clear on the record.
Number 2319
REPRESENTATIVE OGG said he wanted to explore the constitutional
issue regarding economic distress to fishermen or those
dependent on fishermen. He said, "We're dealing with people who
can say that they're not fishermen because they don't actually
fish. The sport charter guy provides a platform." He asked if
a moratorium or limited entry had ever been applied to people
who don't actually fish.
MR. HOLLIS replied that this is the only instance he's aware of,
other than the instance in the Kenai, where there was an attempt
to limit entry into the charter sport fishery. He referred to
the instance made to limit hunting guides, whereby
constitutional issues came into play.
REPRESENTATIVE OGG commented that the Limited Entry Commission
has established a system that deals with these sorts of issues
and takes care of gathering records and factual information. He
mentioned that if the legislature were to do this, it might take
a long time.
MR. HOLLIS noted that records could be put together after the
fact, but it would be best if it was done as part of the
process. He reiterated that it would also be best if
legislative findings could be included in the bill because that
would make HB 281 much more defensible.
Number 2449
REPRESENTATIVE OGG said he didn't really want to go down that
road, and asked if a simpler avenue might be for the legislature
to make a definitional statement that "sport charter vessels are
a commercial fishery." He wondered if that route were taken,
whether everything else could be decided through the Board of
Fisheries and the Limited Entry Commission, because then, those
issues would be taken up by the experts.
MR. HOLLIS replied that moving this issue to CFEC was an
alternative approach. A definitional change might work but he
said he would need to review the statutes.
REPRESENTATIVE OGG suggested that further analysis be done on
making a definitional change or on authorizing CFEC.
CHAIR SEATON clarified that previous legislation allowed, for
the first time, for limited entry permits to be assigned to
vessels; these two cases involved the Weathervane Scallops and
Korean Hair Crab fisheries.
Number 2594
REPRESENTATIVE SAMUELS asked if, during the moratorium, ADF&G
would evaluate whether there was a shortage of the resource.
REPRESENTATIVE WEYHRAUCH replied that research would have to be
conducted, and that even though there was an automatic effective
date, the prelude to this was, "again, to stop the music, see
where this is, see what the impacts of this charter fishery is
on the resource and on those fishing," and this would involve
collection of that data.
REPRESENTATIVE SAMUELS asked if there were examples of
moratoriums, other than the Kenai River.
MR. HOLLIS said he wasn't aware of any, but perhaps
Representative Weyhrauch was aware of others.
REPRESENTATIVE BERKOWITZ asked if there was a corresponding
federal fisheries issue that involved stellar sea lions.
REPRESENTATIVE WEYHRAUCH answered that there had been a
moratorium on fisheries in the Bering Sea that was overtaken by
other programs. The state imposed a moratorium on vessels in
the Bering Sea crab fishery, in particular, the Korean Hair Crab
and the Weathervane Scallops fisheries. He told the committee
that bills had previously been introduced to establish
moratoriums on charter vessels, statewide, perhaps by [former]
Representative [Alan] Austerman. There was also a discussion of
a moratorium or limited entry on vessels in the Kenai area,
involving a dispute over fresh water with DNR.
CHAIR SEATON pointed out that distinctions needed to be drawn
between federal fisheries management that doesn't have the
constraint of Alaska's constitution, and state management and
state waters which are constrained by equal access and limited
entry.
Number 2736
MARY McDOWELL, Commissioner, Commercial Fisheries Entry
Commission (CFEC), Alaska Department of Fish & Game (ADF&G),
testified that the concern which generated interest in this bill
and the desire for tools to control charter growth in some areas
in Alaska, if and when it's needed, was understandable. She
mentioned that CFEC had not been consulted in the drafting of HB
281 and neither were ADF&G or DOL, to her knowledge. She said
that over the past 10 years, attempts at developing effective
tools have been made and have included mandatory reporting of
charter activity, legislation to establish a charter
occupational licensing system, and proposed constitutional
amendments.
MS. McDOWELL reported that although none of those pieces of
legislation have made it very far, there is merit in these
approaches being taken as a first step because of providing data
upon which to formulate a program in the future. She said while
HB 281 is well intentioned, "if we try to leap-frog over those
initial steps, ... any efforts at doing a moratorium or a
limitation will be risky and subject to challenge and could
unintentionally actually do harm to the charter fishery and the
development of fisheries statewide."
Number 2837
MS. McDOWELL continued that while this is called a moratorium,
for all practical purposes it creates a limited entry system,
with transferable permits for value. Although it has a sunset
provision, once these privileges are granted and start to
transfer among people, this creates a constituency to extend or
repeal that sunset date or to create some kind of permanent
limitation to ensure continued use privileges for those who get
in under the moratorium. She explained that this goes beyond
the scope of any moratorium in commercial fisheries. She said
that language in the bill indicates that the tabs are not
transferable for value, but other language in the bill indicates
that a vessel with a use privilege attached to it has an
increased value, which seems to value the tab in a transfer.
She said, as indicated by DOL, the practical application would
be similar to a limited entry program and would need to be
administered along those lines.
Number 2896
MS. McDOWELL continued that one general concern was that the
bill itself could generate a rush into the charter industry. Up
until the effective date of the bill, any participation would
count towards being grandfathered into these permits. She said
that even if the bill never passes, any indication of its
movement is a little bit risky in terms of encouraging an influx
of new vessels, which could harm the very industry which is
seeking protection.
MS. McDOWELL said that even if the bill passes, it allows tabs
to be transferred to different vessels during the moratorium
without any size restrictions. She explained that one could be
grandfathered in with a 16-foot skiff and transfer this to a 50-
foot vessel. She pointed out that in Southeast, there is a six-
line limit on charter fisheries; one can't have more than six
lines in the water at a time. That provides some constraint,
but of course, the bigger the vessel, the better the capability
to take all six passengers and to fish in rough weather as well.
The fact that there are no vessel capacity restrictions for
these transfers indicates that you couldn't fully contain the
size and fishing power of the fleet through these measures.
Number 2958
MS. McDOWELL said that DOL did a good job of explaining the
legal and constitutional issues. From a practical standpoint,
HB 281 would involve an enormous amount of monitoring and
implementation by CFEC.
TAPE 03-27, SIDE B
Number 2963
MS. McDOWELL continued that the goal [of a moratorium] would be
to "get a lid on" and to maintain the current numbers, but with
the current open access system, ADF&G figures that participation
levels have been stable or have slightly declined in Southeast.
She said that within those numbers there is a high turnover
rate; people are "coming and going." Given that situation, the
effect of implementing a moratorium or a limitation would be
like a freeze, and would thereby be "stopping the music in a
game of musical chairs," she said.
MS. McDOWELL pointed out that if the legislature decides that
restricting access is necessary and is justified for the
Southeast charter fishery, the "least impingement" issue would
still need to be addressed, as it is not only a constitutional
issue but is also a socioeconomic issue because HB 281 would
freeze areas in all of Southeast, not just in significant areas
of growth where public concern has been identified.
MS. McDOWELL told the committee that CFEC has experience with
legal pitfalls and logistical issues, since it has limited 66
commercial fisheries over the last 30 years. Ms. McDowell
referred to the overview of the limited entry program that she
presented to the House Special Committee on Fisheries [meeting
of January 29, 2003]. She said that a legal framework, the
Limited Entry Act, was established, and the Limited Entry
Commission is the administrative agency that reviews certain
fisheries and areas and decides if limited entry is justified
and legally defensible, and if so, proposes a limited entry
system for that particular fishery in that particular area.
This is followed by the public hearing process.
Number 2798
MS. McDOWELL said that HB 281 proposes a different approach to
this generic framework. She referred to fundamental principles
that were built into the limited entry system by the
legislature, for commercial fisheries. One is that the permits
are issued to the skippers, not to the vessels' owners; permits
go to individuals, not to entities or corporations. She said
that there is one exception, which is the bill that passed last
year for the Bering Sea fisheries, which are very small. The
moratoriums in those fisheries amount to twelve boats in one
fishery and twenty-five boats in the other. A permit limitation
has been proposed but hasn't yet been done.
MS. McDOWELL continued by saying that HB 281 is a dramatic
departure from the principle that's been applied to the 66
fisheries that have been limited, to date. The privileges would
go to the owners of the vessels, whether or not they run those
vessels and whether or not those owners are companies or people.
She said that in commercial fisheries, a person could
grandfather into no more than one permit in a given fishery,
whereas under this bill, a given entity could grandfather into
many permits which would then be transferable. She continued
that under commercial limited entry, even after the initial
limitation, a person could only hold one permit in a given
fishery. The legislature made an exception so that salmon
fishermen could hold a second permit for the purpose, not of
use, but of consolidation. This difference of approach allows
for an entity being grandfathered in, buying other permits, and
potentially controlling the charter fishery in an area if that
was desired and affordable.
MS. McDOWELL said that even as a moratorium, this establishes a
pattern of granting use privileges that would be tough to
reconstruct after four years. She said it allows for new
participants, both humans and vessels, to get into the fishery
over the course of the moratorium, and it would be tough to go
back and create another structure; flexibility to use other
structures at a later date could be lost.
Number 2650
MS. McDOWELL continued that from the agency's standpoint, there
was concern over the large amount of CFEC time and resources
that would be necessary for implementation. Over 650 vessels
were participating last year in the first of the two qualifying
years, so this limitation action would be one of the largest
that CFEC has undertaken in 25 years - to look at one fishery
and deal with that number of applicants. A new computer system
would need to be set up to track vessel ownership, transfers,
and so forth, because a framework has not already been
established to run the program.
Number 2585
MS. McDOWELL said that in commercial fishery limitations, about
10 to 50 percent of all applicants raise claims that require an
appeals process. In commercial fisheries, fish tickets are
filled out, and a disinterested third party reviews state
records to determine who had actual participation. In these
fisheries, the operators fill out logbooks; having never dealt
with this form of data, it's not known whether there will be
inconsistencies or problems with that data, or at what point
this will require an appeals process. Spelling out an appeals
process is something that needs to be added to the bill. She
said that if state records don't show adequate participation,
people have the right to be granted an appeals process. She
commented that CFEC doesn't know what the burden of appeals
would be.
MS. McDOWELL said that since the 1980s, 25 percent of CFEC's
staff has been lost due to budget cuts. A small fiscal note was
submitted but it doesn't really address the impacts on CFEC
because most of the impact will be on the agency's experienced
staff such as those involved with licensing or adjudication.
Number 2478
MS. McDOWELL concluded by saying that while CFEC has concerns
regarding administering the program, and believes that there are
other more effective and legally defensible approaches to
dealing with the growth in the charter fishery. The commission
takes direction from the legislature and will do its best to
implement whatever is decided upon. If HB 281 is pursued as an
approach, some aspects need to be clarified. She referred to
the committee packet containing notes on specific amendment
areas in the bill. She also mentioned setting up an
adjudicatory process and addressing the question of having the
authority to charge fees for annual renewals.
Number 2388
CHAIR SEATON asked if the mandatory logbooks applied to all
charter fisheries in Southeast or just to the salmon fishery.
MS. McDOWELL indicated that this was applicable to saltwater
fisheries.
CHAIR SEATON asked if this also applied to shellfish.
MS. McDOWELL replied that the logbooks don't have a category for
shellfish, but deferred to the Division of Sport Fish to better
answer the question.
CHAIR SEATON asked if CFEC could generate the turnover rates
from the last five years.
MS. McDOWELL replied that the Division of Sport Fish could
provide that information. She clarified that the commercial
vessel licenses issued by CFEC are done on behalf of ADF&G. The
ADF&G requires a commercial vessel license if one is involved in
the charter fishery, similar to CFEC's requirement for
commercial fisheries. Since CFEC is already set up for this,
the commission administers the program for ADF&G. People apply
for a charter vessel license and are issued the same kind of
license that a commercial vessel gets. At that point, to
operate in the charter fisheries, the applicant must go through
ADF&G to register as a charter operator. Part of the problem of
administering this requires that tabs be issued to the owners of
vessels, yet "we don't actually record who owns the vessel."
Data on ownership is not solid because often the user of that
vessel is the one who does the licensing.
CHAIR SEATON asked if ADF&G would have "a better handle on
this."
MS. McDOWELL confirmed that ADF&G could address comments related
to the logbooks.
Number 2271
REPRESENTATIVE SAMUELS asked if a moratorium had been done
regarding a dive fishery.
MS. McDOWELL answered yes, that the legislature enacted a
moratorium in the commercial dive fishery in Southeast in 1996.
It was a four-year moratorium and the CFEC subsequently did a
limited entry program in each of the dive fisheries.
REPRESENTATIVE SAMUELS asked if evidence of pressure on the
resource had led to the moratorium.
MS. McDOWELL replied, "yes, and I believe the legislature built
a record." She said the numbers in those fisheries were
skyrocketing.
Number 2230
REPRESENTATIVE OGG questioned what prohibits CFEC from receiving
an inquiry from people currently in the industry, asking the
commission to go through the analysis and adopt a limited entry
fishery program.
MS. McDOWELL said that the first few sections of the Limited
Entry Act refer to the purposes of the commission. It would be
the prerogative of the legislature to create a similar
structure, either by amending CFEC's statutes so that CFEC would
do this in commercial and charter fisheries, or to create a
separate limited entry for charter fisheries. Currently, CFEC's
statute is specific.
CHAIR SEATON wondered if there was a problem involved with the
idea of charter operators not being the actual fishermen and
asked how this "fell within the regulations."
MS. McDOWELL replied that this was a legal issue that might be
raised in a challenge. Regarding the constitutional amendment
referring to economic distress among fishermen, under the
constitution, the people doing the charter operation are
fishermen. The DOL's analysis has recently been that as long as
the limitation met all of the requirements, you "might be able
to make that fit." In the past, the legislature's own counsel
has been that "it would get struck down" if the limited entry
constitutional amendment was applied to charter fisheries.
CHAIR SEATON said his concern was that the number of vessels
would be limited although there would be no limit on the number
of people being taken out on the boats: Therefore, "We're not
really limiting the number of fishermen on the grounds," he
said.
MS. McDOWELL replied that there would be a six-line limit
imposed by the Board of Fisheries.
Number 2066
ROB BENTZ, Deputy Director, Division of Sport Fish, Alaska
Department of Fish & Game (ADF&G), testified that he was
speaking for the department as well as the division, as HB 281
had been discussed with the commissioner. He said, "We agree
with and support the concerns and recommendations voiced
previously by DOL and CFEC;" this bill was not a response to
providing for "the protection of the resource." He said [HB
281] was seen as a result of competition for the resource,
noting that there have been allocation conflicts between the
charter groups and commercial groups, and more recently there
have been conflicts between the charter groups and non-charter
anglers. The level of conflict varies between ports, he said.
MR. BENTZ continued that there are only two species of marine
fish at this time in Southeast with allocations assigned: king
salmon and lingcod. The Board of Fisheries has adopted a
region-wide king salmon management plan and in most cases the
various user groups stay within that allocation. Lingcod have
been allocated between the sport and commercial user groups,
with a management system devised by the department. He said the
department views this issue as an allocation rather than a
conservation issue.
NUMBER 1868
MR. BENTZ said that regarding the issue of economic distress and
turnover, "I can't answer whether there's economic distress or
not; I don't know the criteria." But, he said he did know that
there is a large amount of turnover which varies by port, with
the larger ports having higher turnover rates. He said that
regarding the charter vessel logbook, a mandatory statewide
program went into effect in 1998, and the charter business owner
is required to register. Operators of the vessels, if different
from the owners, are required to register on an annual basis.
Logbooks are required for each charter vessel in saltwater, not
in fresh water, and not for vessels-for-hire without an
operator, he explained.
REPRESENTATIVE WEYHRAUCH asked if charter boat data was
collected from the owner and the operator of the vessel.
MR. BENTZ replied that the owner or agent of the owner "comes in
and gets the logbooks," not the operators.
REPRESENTATIVE WEYHRAUCH asked if the owner and the operator
were treated differently.
MR. BENTZ confirmed this to be the case.
REPRESENTATIVE WEYHRAUCH said that CFEC had expressed concern
that it's "the skipper that mattered," and he asked if this was
correct.
Number 1696
MR. BENTZ replied that there is no standard pattern. He
explained that in some cases, the owner will pick up 10 logbooks
for a lodge and issue those to 10 operators. The operators fill
out the logbook because the information needs to be filled out
before the fish are offloaded. In some cases, the operators
sign the bottom of the logbook form on a weekly basis. In other
cases, the owner signs all 10.
REPRESENTATIVE WEYHRAUCH surmised, "It's different in this
fishery ... where you're dealing with owners and operators, not
just a skipper of the vessel".
MR. BENTZ indicated agreement with Representative Weyhrauch's
assessment.
REPRESENTATIVE WEYHRAUCH continued, "So we have already
established ... that there is a difference, and you do know the
operators and owners sometimes are different than in the regular
limited entry programs for commercial fisheries. Is that
right?"
MR. BENTZ concluded by saying that a myriad of different
situations occur. For example, some operators who have more
clients than expected may lease boats, or may lease a boat and
lease a skipper with it.
CHAIR SEATON interjected and announced that testimony would be
taken from people who would not be able to testify at the next
House Special Committee on Fisheries meeting.
Number 1519
DON JOHNSON, representing himself, testified that pre-existing
law affects this bill. He referred to the Alaska Supreme Court
case, Rutter v. Alaska Board of Fisheries, August 7, 1998. Mr.
Johnson cited Sec. 16.05.940(29) which reads in part:
"sport fishing" means the taking or attempting to take for
personal use, and not for sale or barter, any fresh water,
marine, or anadromous fish by hook and line held in the
hand, or by hook and line with the line attached to the
pole or rod, which is held in the hand or closely attended,
or by other means defined by the Board of Fisheries.
MR. JOHNSON continued, saying although charter vessel operators
may be engaged in commercial activity, that of guiding sport
fishing, the fish are taken for personal use and not for sale or
barter. As the law now stands in Alaska, charter vessel
operators acting as guides for sport fishers are involved in a
sport, not a commercial taking of fish. Therefore, the
provisions of Sec. 16.43.140 and the Limited Entry Act are not
implicated.
Number 1377
MR. JOHNSON summarized that what's being said is, "These guys
are not commercial fishermen; therefore, the Limited Entry Act
doesn't come into play." He said he agrees with DOL that a
moratorium and limited entry are the same, whether it lasts for
10 minutes or 10 years. He said the designation of [sport
fishermen] as commercial fishermen and grafting them into the
Limited Entry Act would be similar to when the state attempted
to define hunting guides as limited entry participants; this was
found to be unconstitutional. He said what was called for was a
vote of the public. He agreed that addressing HB 281 would
encourage people to "jump into this industry," thereby
exasperating the problem.
Number 1254
CAROL DOOLEY, Owner, Ketchikan Sport Fishing, testified that her
business serves the cruise line industry by providing four-hour
charters. She said in 2003 the fleet will consist of 23 boats,
which predominately fish the Terminal Hatchery area at Mountain
Point, south of Ketchikan. She said her company brings in over
$1 million annually to the local economy and provides over 25
full-time jobs. Clients spend thousands of dollars on custom
processing services as well. She said that even with these
sizable contributions, the charter fishing business has always
been a "break-even business for her family and charter boat
owners." She said the cruise line industry is planning for
continued growth in Alaska, and she has been planning to grow
along with them. She reported that a 30-slip marina was being
built for her company's use and that in the next five years the
plan is to expand to a 30-boat fleet. She pointed out that with
a moratorium, those plans for expansion to which the business
has already committed will not be able to happen.
Number 1163
MS. DOOLEY said that HB 281 would likely devastate her company,
a company built by her parents years ago; this was the first
company to offer charter fishing to the cruise line companies,
and is not a new operation "just setting up shop." She said
that other companies, similar to hers, would be unfairly
affected by this bill. She said that she knows of two companies
in Ketchikan, one in Sitka, one in Skagway, and one in Juneau
that provide charters to the cruise line industries and that
will most certainly lose millions of dollars that would
otherwise go to support the local Southeast economy.
MS. DOOLEY asked, "Can we really afford, at times of economic
losses in the timber and commercial fishing industries, to
stagnate ourselves in the only growth sector we have, the
tourism charter fishing industry?" She continued, "Our money
fish is humpies and there is certainly no shortage of humpies
around here! We catch a handful of kings each year ...
companies like mine who are harvesting predominately humpies,
bring in millions ... to local Southeast economies and we are
not impacting areas with a high abundance of treaty fish ...
this bill encompasses innocent Alaskan businesses and charter
boat operators who are not adversely impacting the fishery
resource."
CHAIR SEATON indicated HB 281 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at
approximately 10:00 a.m.
| Document Name | Date/Time | Subjects |
|---|