Legislature(1997 - 1998)

04/20/1998 03:40 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE RESOURCES COMMITTEE                                       
                    April 20, 1998                                             
                      3:40 p.m.                                                
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Senator Rick Halford, Chairman                                                 
Senator Lyda Green, Vice Chairman                                              
Senator Loren Leman                                                            
Senator Bert Sharp                                                             
Senator Robin Taylor                                                           
Senator John Torgerson                                                         
Senator Georgianna Lincoln                                                     
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
None                                                                           
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
Alaska Department of Fish and Game Briefing: Public Trust Doctrine             
                                                                               
CS FOR HOUSE BILL NO. 285(RES) am                                              
"An Act relating to suspension or revocation of commercial fishing             
permits, licenses, and privileges; and providing for an effective              
date."                                                                         
                                                                               
     - MOVED SCS CSHB 285(RES) OUT OF COMMITTEE                                
                                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
                                                                               
HB 285 - See Resources Committee minutes dated 3/30/98.                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
Tina Cunning                                                                   
ANILCA Program Manager                                                         
Alaska Department of Fish and Game                                             
P.O. Box 25526                                                                 
Juneau, AK 99802-5526                                                          
                                                                               
Robin Willis                                                                   
Division of Habitat & Restoration                                              
Alaska Department of Fish and Game                                             
P.O. Box 25526                                                                 
Juneau, AK 99802-5526                                                          
                                                                               
                                                                               
Christopher Estes                                                              
Division of Sport Fish                                                         
Alaska Department of Fish and Game                                             
P.O. Box 25526                                                                 
Juneau, AK 99802-5526                                                          
                                                                               
JoAnne Grace, Assistant Attorney General                                       
Natural Resources Section                                                      
Department of Law                                                              
1031 W. 4th Ave., Suite 200                                                    
Anchorage, AK 99501-1994                                                       
                                                                               
Brett Huber, Staff to Senate Resources Committee                               
State Capitol                                                                  
Juneau, AK 99801-1182                                                          
  POSITION STATEMENT:  Explained changes in SCS CSHB 285(RES)                  
                                                                               
Tom Wright, Staff to Representative Ivan                                       
State Capitol                                                                  
Juneau, AK 99801-1182                                                          
  POSITION STATEMENT:  Offered information on SCS CSHB 285(RES)                
                                                                               
Joel Hard, Captain Commander                                                   
Division of Fish and Wildlife Protection                                       
Department of Public Safety                                                    
435 S Valley Way                                                               
Palmer, AK  99645-6494                                                         
  POSITION STATEMENT:  Responded to questions on SCS CSHB 285(RES)             
                                                                               
Bruce Twomley, Chairman                                                        
Commercial Fisheries Entry Commission                                          
8800 Glacier Highway, Suite 109                                                
Juneau, AK 99801-8079                                                          
  POSITION STATEMENT:  Offered comments on SCS CSHB 285(RES)                   
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-31, SIDE A                                                             
Number 001                                                                     
                                                                               
CHAIRMAN HALFORD called the Senate Resources Committee meeting to              
order at 3:40 p.m.  Present were Senators Green, Sharp, Taylor and             
Chairman Halford.  The first order of business before the committee            
was a presentation by the Department of Fish and Game on the Public            
Trust Doctrine.  CHAIRMAN HALFORD informed committee members their             
files contained a copy of a letter sent from the Chair to the                  
Attorney General and to the Commissioners of Natural Resources                 
(DNR), Fish and Game (ADFG), and the Department of Transportation              
and Public Facilities (DOTPF), on the land status, easements,                  
waterway management and related issues.  He has not received a                 
response to the questions in that letter, but ADF&G is present to              
provide information pertaining to some of the questions.                       
                                                                               
TINA CUNNING, ANILCA Program Manager for ADF&G, explained ADF&G has            
had oversight over the activities of the federal agencies since                
1981 to assure that the public's ability to access resources and               
the state's ability to manage resources are protected, consistent              
with the compromise provisions of ANILCA.                                      
                                                                               
ROBIN WILLIS, Division of Habitat and Restoration, ADF&G, stated               
she has worked on the Alaska Native Claims Settlement Act land                 
conveyances for the past five to seven years as well as other state            
land conveyances to the boroughs and municipalities.                           
                                                                               
CHRISTOPHER ESTES, the In-Stream Flow Coordinator with the Division            
of Sport Fish, ADF&G, explained he quantifies the amount of water              
required by fish and wildlife in the rivers and lakes in the State             
in an attempt to protect that amount.                                          
                                                                               
The committee watched a videotape on the Public Trust Doctrine                 
provided by Ms. Cunning, Ms. Willis, and Mr. Estes.  The videotape             
covered the four fundamental points of the Public Trust Doctrine:              
it is common law; it is state law; it is property law; and it is a             
public right.  Although the Public Trust Doctrine is not codified              
in state statute, it is interpreted by judges.  This makes the                 
Public Trust Doctrine very flexible.  The Public Trust Doctrine is             
a right that is available to all citizens, and it creates a                    
property right.  Judicial decisions have held that navigable                   
waters, and the lands beneath them, are the property of the state,             
to be held in trust, therefore it is the responsibility of the                 
natural resource agency to document and to inform when the public              
trust resources are being harmed.  The Public Trust Doctrine is not            
self-enforcing; any individual can invoke his/her rights against               
the Trust.  A Public Trust lawsuit is most effective when used in              
conjunction with existing statutes, and if the suit is lost, only              
the statute is at risk.  Many proponents of the Public Trust                   
Doctrine have called it a sleeping giant because, while the concept            
has been in existence for centuries, it has not been used                      
extensively to protect natural resources.  As the giant awakens,               
citizens have the opportunity to learn more about how to use this              
powerful tool to effectively protect valuable fish and wildlife                
resources.  The videotape went on to inform citizens of ways to be             
effective in protecting the Public Trust Doctrine, such as                     
contacting their attorneys general and educating legislators, and              
discussed ways to get further information on the doctrine.                     
                                                                               
Number 190                                                                     
                                                                               
MR. ESTES noted the videotape is part of a larger series that was              
produced.  He pointed out that Section A of the notebook provided              
to each committee member lists references that deal with the Public            
Trust Doctrine, specific to national interests and Alaska; a list              
of the remainder of the videotape series, and case history from                
throughout the country.                                                        
                                                                               
MS. CUNNING noted the group would refer to the notebook by tab                 
numbers throughout their presentation in an effort to cover a                  
tremendous amount of complex material.  The first sheet in the                 
notebook contains a list of the key points of the Public Trust                 
Doctrine.  As biologists, not attorneys, agency staff apply the                
principles of the Public Trust Doctrine to the best of their                   
ability.  She pointed out Chairman Halford asked Joanne Grace of               
the Department of Law to be available via teleconference to answer             
legal questions related to the Public Trust Doctrine at the end of             
the presentation.  She clarified there is a difference between the             
body of public law that is associated with public trust versus                 
public trust doctrine.  A lot of misuse of those terms occurs.                 
The Public Trust Doctrine addresses water allocation and uses, the             
allocation of habitat needs for fish and wildlife that live within             
the waters, and the public's rights of access on the waters between            
the banks of ordinary high water of waterways which are navigable              
under the federal definition of "navigability."  The public trust              
involves the trustee responsibilities for all public interest laws,            
including fish, wildlife, and mineral resources on all lands and               
waters throughout the state.  Tab A contains all of the resource               
materials.  Tab B contains a memo from Commissioner Rue to                     
Commissioner Shively which explains some problems ADF&G was going              
to have in 1995, due to some budgeting problems within DNR, and the            
impacts that would have on ADF&G as the trustees for fish and                  
wildlife resources.  The consequence of that memo and further                  
discussion in the Legislature prompted by Senator Halford, was                 
emergency funding to assure that active and aggressive monitoring              
of the navigable waters in the state took place.  The funding was              
appropriated to ADF&G, DNR, and the Department of Law, for this                
specific cause.                                                                
                                                                               
MR. ESTES added that the funding led to the legislative audit  that            
reviewed how the state agencies were actually handling the ability             
of the state to provide for the usage of, and access to, those                 
waterways.  He thanked legislators for assistance in that area.                
                                                                               
MS. CUNNING explained Tab C contains a flow chart that lists the               
key points that are part of the application of Public Trust                    
Doctrine for reference.  The Public Trust Doctrine is a national               
body of law, but it is the sovereign responsibility of each state              
to implement it.  It is defined in each state differently.  The                
Green Book is a compilation of case law in all of the states which             
explains a number of different problem areas that have been                    
litigated and how each state has defined the Public Trust Doctrine             
under those arenas.  Key pieces of the Alaska Constitution,                    
statutes and regulations, federal laws, such as ANCSA and ANILCA,              
court decisions, and budgetary decisions, as well as the                       
legislative audit report, affect how the state agencies are                    
implementing their trustee responsibilities.  Tab D contains                   
summaries of Public Trust Doctrine in Alaska.  This law is 2,000               
years old and is the sovereign responsibility of the state to                  
implement.  The summaries contain excerpts from the Alaska                     
Constitution that implement the Public Trust Doctrine.  Section 3              
is the common use provision; sections 13, 14, and 15 address access            
on waters and the exclusive rights preferences related to                      
fisheries; the state statute which defines navigable waters; and               
the legislative intent in 1995 which accompanied legislation that              
basically said thou shalt not interfere or obstruct access on                  
waterways.  The attachments to the summary sheet in Section D are              
the pieces of the Constitution and the statutes in context.                    
                                                                               
MS. CUNNING noted the flip side of the flow chart in Tab C contains            
a sample map which includes public land with a lake, a chunk of                
state land, and a drainage to the ocean, which is a navigable                  
waterway, with conveyed land.  Her job in the ANILCA program has               
been to monitor the federal agencies where the federal lands are to            
ensure that the state's ownership of its navigable waters that go              
through that area is protected, and that the public's rights of                
access on those waterways is protected.                                        
                                                                               
MS. WILLIS said the next phase occurs when land is conveyed to a               
Native corporation or a municipal entity.  It is necessary for the             
state to reserve access at that point.  In most cases, as far as               
ANCSA is concerned, an easement that needs to be reserved needs to             
be on a navigable water as defined by the federal, or at least a               
major water body.  Part of the discussion with Public Trust                    
Doctrine defines the parameters of the navigable waterway and gives            
her the opportunity to reserve those easements.  Additionally, if              
there is an inholding that is a Native allotment or private                    
property of any sort, she has the opportunity to reserve access at             
that point.  It is important to pay attention to the land as it is             
conveyed from the federal to state government and to a private                 
entity, because that is the only time when the state can maintain              
the easements.  Some of the information she needs comes from Mr.               
Estes' water work.                                                             
                                                                               
Number 303                                                                     
                                                                               
CHAIRMAN HALFORD referred to the 17B easement on the sample map                
which goes through an allotment.  He noted 17B was a provision of              
ANCSA.                                                                         
                                                                               
MS. WILLIS said that is correct, and it can only be reserved                   
through an allotment under a different condition: it is not                    
reserved as a 17B easement.                                                    
                                                                               
CHAIRMAN HALFORD agreed, and said the allotment preceded 17B                   
because the same map that created 17B did away with the allotments             
in the short close out time.                                                   
                                                                               
MS. WILLIS said they try to reserve it as a historic trail which               
can be done if it predated the allotment, or, if this was a                    
different kind of an in-holding, they could reserve it.  There are             
some cases now where an allotment is coming in after the fact and              
the rules have changed so that, if this is the only method that was            
reserved across the corporation's land, it can still be reserved               
through the allotment as well.  It does not fit under the 17B                  
definition, however.                                                           
                                                                               
CHAIRMAN HALFORD said essentially, if the allotment was preceded by            
the 17B easement, it is subject to it.  If it was not, it is not,              
and the easement has to be reserved under the old alumni.                      
                                                                               
SENATOR TAYLOR referred to Tab D which contains the sections of                
Alaska's Constitution that provided for the Public Trust Doctrine,             
and asked why the section contains no notation of the Alaska                   
Statehood Act, the Omnibus Act, Presidential Proclamation 32-69, or            
Executive Order 10-85-7, or the 53 submerged lands acts, or the                
Equal Footing Doctrine.                                                        
                                                                               
Number 374                                                                     
                                                                               
MS. CUNNING explained they tried to create a 35 minute presentation            
that highlighted the Public Trust Doctrine pieces and how it works             
within ADF&G.  She informed committee members the group has a three            
hour work session in which it covers all of the different pieces of            
law.  She noted the information she has provided to committee                  
members is a condensed version, and even the constitutional pieces             
she referred to are only some of the pieces that address the Public            
Trust Doctrine.                                                                
                                                                               
SENATOR TAYLOR said he was aware the presentation was to make                  
certain that the public is aware of the Public Trust Doctrine and              
the rights to access that flow from it, but he believes the Public             
Trust Doctrine supersedes the subsistence argument, as well as each            
of the Acts he cited, when incorporated with the Public Trust                  
Doctrine.  He asked if anyone believes that the State of Alaska                
does not own all of the subsurface below the navigable waters.                 
                                                                               
MS. CUNNING asked the Senator if the group could answer that                   
question at the end of the presentation.                                       
                                                                               
SENATOR TAYLOR agreed.                                                         
                                                                               
MS. CUNNING clarified the hypothetical map applies to municipal and            
ANCSA conveyances and other types of land transfers that occur.                
                                                                               
MR. ESTES commented knowing the amount of water that must be left              
in a waterway is just as important in terms of protecting the fish             
and wildlife as ensuring that boats can navigate within that                   
waterway.                                                                      
                                                                               
CHAIRMAN HALFORD asked Mr. Estes to explain how a federal reserve              
water right works.                                                             
                                                                               
MR. ESTES explained a federal reserve water right is a law with a              
legal basis that goes back to the early 1900's when Native American            
reservations were established in the lower 48 states.  The                     
reservations needed to have a livable amount of water to support               
the inhabitants.  From that concept, the need to set aside a                   
certain amount of water for the established purpose, such as                   
national parks, in the rivers on other federal land developed.  In             
terms of how it relates now, the date at which the federal                     
reservation was created establishes what the priority use of the               
water is, as well as the enabling legislation that Congress passed.            
                                                                               
MS. CUNNING informed committee members the next tab in the                     
notebook, Tab E, contains two Alaska Supreme Court decisions that              
specifically address some issues currently before the Legislature.             
The first case is 14 pages of the Ostrosky decision, the second                
case contains excerpts from the Holland decision (the Fish                     
Initiative decision).  On page 16 of the Holland decision, the                 
Supreme Court specifically addressed the authority and                         
responsibility of the state to control naturally occurring fish,               
which gives the state property-like interests in these resources.              
For that reason, naturally occurring salmon are, like other state              
natural resources, state assets belonging to the state which                   
controls them for the benefit of all of its people.  In a                      
concurring attachment to this decision, Judge Compton explains what            
he believed the Commissioner's, Board's and Department of Fish and             
Game's roles are related to the Trust responsibilities for                     
management of fisheries and wildlife in Alaska.  He says, "In my               
view, an initiated law is clearly inapplicable to the allocation of            
a resource reserved to the people for their common use.  This is               
particularly so when the state holds the resource in trust for all             
of the people of the state.  The people as beneficiaries of this               
trust cannot dictate to the trustee the manner in which the trust              
is to be administered...."  Judge Compton goes on the explain the              
unique trust responsibility of the Commissioner and the Boards.                
The Ostrosky decision is the limited entry decision in which the               
state adopted a constitutional amendment which established a                   
preference within one of the user groups. Section 15 of the                    
Constitution had been amended, which set up a conflict with Section            
3, the common use provision.  The court dealt with this very                   
clearly and laid out the criteria under which the public can amend             
its constitution, where the Supreme Court will uphold that                     
constitutional amendment, and when that can be upheld even when                
there is a tension between Section 3 and Section 15.  The green                
book talks about some of these types of difficulties in other                  
states.  The Alaska Supreme Court tends to review what is going on             
in other state supreme court decisions regarding implementation of             
the Public Trust Doctrine because Alaska has a relatively small                
body of case law.                                                              
                                                                               
CHAIRMAN HALFORD asked why Judge Rabinowitz dissented on the                   
Ostrosky case.                                                                 
                                                                               
Neither MS. CUNNING nor JOANNE GRACE of the Department of Law  were            
able to recall the contents of the dissenting opinion.                         
                                                                               
CHAIRMAN HALFORD commented Judge Rabinowitz started out with the               
McDowell case, which was based on it not being a fundamental right.            
By the time the court heard the Kenaitze case, Judge Rabinowitz was            
on the majority side accepting a fundamental right, and then going             
forward with the other standard of review.  Following his process              
could be instructive.                                                          
                                                                               
MS. CUNNING responded they try to review only the final judicial               
opinion for guidance.  She explained the item under Tab F is a                 
generic letter used to respond to public inquiries regarding                   
activities on waterways.  An intensive number of conflicts are                 
occurring across the state as land patterns change.  Property                  
owners believe they have certain rights related to access on the               
waterways and fishing and hunting within those waterways.   The NAV            
team, which is made up of DNR, ADF&G, and DOL, reviews the land                
status in each case, and tries to identify correct access and                  
activities on those waterways, and responds back to the individual             
members of the public.  The generic letter was provided to                     
committee members as an example of the kinds of answers that can,              
and cannot be given.  In some cases, state statutes are not clear              
in defining the public's rights on the waterways.  Tab G contains              
two recent publications by a private attorney in Alaska who has                
specialized in Public Trust and Public Trust Doctrine issues.  She             
reminded committee members there is a difference in the case law               
which accompanies Public Trust Doctrine versus the general public              
trust laws.  Tab H contains additional background materials related            
to how the departments work with each other and some of the                    
materials each has produced in the last year.                                  
                                                                               
MR. ESTES described an illustration that provides the basis for                
defining where the Public Trust Doctrine would apply, which is                 
below the ordinary high water line.  The Public Trust Doctrine                 
applies to the submerged lands as well as the waters that cover the            
submerged lands.  If those areas meet the federal definition of                
navigability, then the state would own the submerged lands and                 
would have a duty of supervision with respect to public trust uses.            
                                                                               
CHAIRMAN HALFORD noted most times of the year there is probably                
significant shoreline on either side that is state owned.                      
                                                                               
MR. ESTES said it would depend upon the geometry of the channel,               
but there could be areas in which that is correct.                             
                                                                               
Number 502                                                                     
                                                                               
MS. WILLIS discussed the generic letter used to respond to public              
inquiries about conflicts on rivers.  One area that was                        
particularly problematic was the Karluk River, and as a result a               
brochure was created to inform the public of where public and                  
private property is located, where easements have been reserved,               
what uses are allowed on the easements, and how they are to be                 
used.  The brochure also contains answers to commonly asked                    
questions, and contact names for application for use of easements.             
                                                                               
MS. CUNNING pointed out the brochure was the product of an                     
extensive amount of work and meetings with private upland owners to            
ensure that they agreed with the presentations given on both the               
map and the narrative.  The process was beneficial for everyone as             
they came to an understanding of the uses allowed on navigable                 
waterways as well as the rights of private property owners.                    
                                                                               
MS. WILLIS stated a similar approach was used for another area of              
contention this last year, the Chuitt River which had borough                  
property, utility lines, subdivisions, and in holdings that were               
old homesteads.  A similar write up was produced explaining legal              
use of the area to be distributed to keep people from trespassing              
on private upland property.                                                    
                                                                               
MS. CUNNING noted the narrative for the Chuitt River brochure is in            
draft form.                                                                    
                                                                               
CHAIRMAN HALFORD stated the road that goes to the Southwest on the             
Chuitt River map appears to be public except for one parcel which              
appears to be private.  He asked what the benefit is to a public               
road that has + mile of private closed road in the middle of it.               
                                                                               
MS. WILLIS replied to date, the owner of the private property is               
amenable to allowing the public to use it.  Discussions with the               
residents of Beluga about helping to subsidize a new road on                   
borough property has not been successful to date.                              
                                                                               
CHAIRMAN HALFORD asked if that road was constructed after the                  
property went to patent, so it is patented land with no easement on            
it.                                                                            
                                                                               
MS. WILLIS said that is correct; it is a very old patent that had              
no easement on it.  The individual who currently owns the land is              
trying to decide whether to charge people for its use.                         
                                                                               
CHAIRMAN HALFORD asked about the other private section up the river            
between mile 7 and mile 9.                                                     
                                                                               
MS. WILLIS replied that section was an allotment for which DNR                 
negotiated with the Tyonek Native Corporation for a different                  
easement to go around the allotment to prevent a conflict.  The                
easement would be a continuous  17B easement, but that portion has             
not been constructed.  At present, it is not a thoroughfare so                 
travelers have to got through the allotment at the discretion of               
the allottee.                                                                  
                                                                               
CHAIRMAN HALFORD asked if that allotment preceded the construction             
of the road as well.                                                           
                                                                               
MS. WILLIS said that was correct.                                              
                                                                               
MS. CUNNING informed committee members the only other map in the               
packet is the Arolik River on which conflicts are increasing.                  
People fly into Arolik Lake which is within the exterior boundary              
of the federal conservation system unit within the Togiak Refuge.              
                                                                               
CHAIRMAN HALFORD asked if that is state navigable water.                       
                                                                               
MS. CUNNING said she believes it is.                                           
                                                                               
CHAIRMAN HALFORD asked if it predated the refuge.                              
                                                                               
MS. CUNNING replied it does not matter if it predated the Refuge or            
not because it is a navigable waterway.  People land on the lake               
and float out of the Refuge.  Once out of the Refuge, there are                
long pieces of the river bottom that have been conveyed to the                 
private upland owner.  People that float this waterway believe they            
are on a navigable waterway, participating in the boating and                  
fishing activities allowed under the Public Trust Doctrine.  The               
upland owners, because perhaps they erroneously have been conveyed             
the submerged land, believe they can control the access on the                 
waterway.  The conflicts in that area are increasing as a result.              
In this particular case, the NAV team tried to make a presentation             
to the affected upland owner, explaining that if they are coming               
under the ANCSA conveyance process and they erroneously got                    
submerged lands that are navigable waterways, it is to their                   
benefit to request BLM to reassess the waterway and take out the               
portion of submerged land under the waterway, and acquire that                 
additional acreage in upland acreage.  At some point in the future,            
the state will sue to quiet the title to its navigable waterways.              
If it is after the conveyance process is completed and their land              
selections are signed off on, they will simply lose that acreage.              
The Public Trust Doctrine activities are fairly clearly protected              
under the Doctrine, Alaska Constitution, and Alaska statutes.                  
                                                                               
CHAIRMAN HALFORD said he would like to come back to the maps and               
the generic letter that the NAV team sends to respond to inquiries.            
                                                                               
TAPE 98-31, SIDE B                                                             
                                                                               
CHAIRMAN HALFORD said at some point, people on both sides of this              
equation, believing they are right, will resort to force to protect            
those beliefs.  The worst kinds of conflict are the kinds in which             
both sides believe they are morally right.                                     
                                                                               
MS. CUNNING said most states look to their case history, some look             
to redefining their legislation that implements the Doctrine                   
rights.  The public's rights under the Doctrine, for boating,                  
navigation, commerce, and fishing, are clearly laid out.  Two                  
things can be done if there is insufficient case history: the state            
can clearly lay some of those pieces out in legislation or private             
individuals will end up going to court.                                        
                                                                               
JOANNE GRACE, Assistant Attorney General, added the dilemma the NAV            
team faces in writing this type of letter is that it wants the                 
public to understand the status of the law, which is that the                  
public has a right to use waterways regardless of who owns the bed,            
even when there is no court-determined navigability designation.               
Even though the public's right to use the waterways regardless of              
ownership, it is not clear exactly what that means.  Because                   
Alaska's constitutional provisions so strongly protect the public's            
right to use, it also includes incidental use of the beds, and they            
do not want to make that representation to the public without                  
having a court decision or some tangible basis to back up that kind            
of statement.  The approach has been to at least explain to the                
public what the status of the law is, and if an individual wants to            
pursue their case, he/she will do so knowing there may be some                 
legal conflict involved.                                                       
                                                                               
CHAIRMAN HALFORD stated his concern is the basic principle that                
when one is right, he/she has the ability to defend their case in              
the use of something.  He noted these people are not going to                  
court, they may use violent confrontation at some point.  He asked             
what the state is doing about curing the problem.                              
                                                                               
MS. GRACE responded in terms of the letter, the NAV team is trying             
to give people all of the information in order to avoid conflict.              
She pointed out the letter informs people how the NAV team                     
interpreted the law, and how the private upland owners interpret               
the situation, so that the individual can choose to avoid  conflict            
by getting permission from the upland owner.                                   
                                                                               
CHAIRMAN HALFORD asked if a family is camping on what is obviously             
land below high water and they are confronted by an upland owner               
who is telling them they have to leave, how do the State Troopers              
and Village Public Safety Officers respond if the family refuses to            
leave.                                                                         
                                                                               
MS. GRACE stated she cannot answer the question, but repeated the              
point of the letter is to inform the public so that they can avoid             
that situation unless they are ready to get involved in that kind              
of confrontation.  The State Troopers would react according to how             
well informed they are about the rights of the public, but without             
some kind of legal determination of ownership and the public                   
rights, she does not know what the State Troopers would do to                  
resolve the situation.                                                         
                                                                               
MS. CUNNING said that situation occurred at the Chuitt River.  The             
NAV team was able to get land status information to the Village                
Public Safety Officers and State Troopers.  They took a look at the            
information and thought the public's right of access was clear.                
Even though a portion of the riverbed was conveyed, they would not             
charge people with trespass.  If a person pulled a gun on another              
on the waterway, that individual would be guilty of other                      
violations under state law.                                                    
                                                                               
CHAIRMAN HALFORD questioned whether there is a statewide policy                
that provides some kind of training to State Troopers and Village              
Public Safety Officers so that they have information for their                 
areas.                                                                         
                                                                               
MS. CUNNING replied the NAV team talked about that kind of                     
education outreach but they are swamped with making assertions on              
ownership and have not made a big effort to educate beyond the                 
short briefings they are providing to interested parties statewide.            
                                                                               
CHAIRMAN HALFORD asked what is happening with regard to transfers              
at this point.  The DNR working group was successful but was                   
dropped and the Legislature had to appropriate funds.  He asked if             
conveyances are being reviewed by someone right now who is making              
comment on every conveyance regarding public access and interests.             
                                                                               
MS. CUNNING said two of the staff people look at all of the                    
conveyance documents.  When it comes to the determination of                   
navigability, that is not really included within the conveyance                
document unless an access easement is strictly based on that                   
determination at that time.                                                    
                                                                               
CHAIRMAN HALFORD said from navigable water to public property is               
the definition of why a 17B easement is needed.  He asked if she               
was assuming that everything that could be navigable, is navigable,            
in her request for 17B easements.                                              
                                                                               
MS. CUNNING said yes, but as far as the federal determination of               
navigability and those parts of meandering and surveying and title             
ownership, that is not done within the conveyance process.  It is              
done prior to the actual ground survey and the patenting process.              
                                                                               
CHAIRMAN HALFORD asked if, in this process, after they make a                  
request for 17B easements they get to review whether the easement              
was granted and to complain if it was not.                                     
                                                                               
MS. CUNNING said they get to see if it was granted, and if it was              
not, they can protest or appeal, which they do if it is in an                  
important area with historical use.                                            
                                                                               
CHAIRMAN HALFORD asked if 17B easements require historical use.                
                                                                               
MS. CUNNING said it is called, in the register, present existing               
use, but that was defined as of December 1976.  If they are going              
to appeal the lack of the reservation, then they frequently have to            
include finding people or individuals who have used that area                  
during that time period.                                                       
                                                                               
SENATOR LEMAN asked what happened in December of 1976.                         
                                                                               
MS. CUNNING said a court decision was made at that time.                       
                                                                               
SENATOR LEMAN said he recently saw that date on something else, and            
he could not recall the passage of a major piece of legislation at             
that time.                                                                     
                                                                               
MS. CUNNING clarified it was the date of a court decision.                     
                                                                               
CHAIRMAN HALFORD added it was probably a court case based on the               
1971 act.                                                                      
                                                                               
CHAIRMAN HALFORD asked Ms. Cunning if Alaska has a lot of wrongly              
conveyed navigable water beds, and conflicting state and federal               
determinations as to navigability, how Alaska can avoid 237 years              
of legal cases, stream by stream, across the state.                            
                                                                               
MS. CUNNING said a number of states took action similar to what                
Chairman Halford asked for at the last Senate Resource Committee               
hearing.  Those states actually asserted that the state owned                  
navigable waterways based on its definition of "navigability".  She            
noted there is interesting associated case law which the committee             
might want to review.  She added questions have come up during the             
presentations she has given.  For example, under the public trust              
pieces of activities allowed on navigable waters under Alaska                  
statute, it says, "...these activities that are allowed on these               
waterways include trapping...."  She questioned whether a trapper              
would be allowed up a frozen waterway to set traps even though the             
submerged land may have been conveyed to a private upland owner.               
                                                                               
CHAIRMAN HALFORD asked what the answer is to that question.                    
                                                                               
MS. CUNNING said they do not have an answer.                                   
                                                                               
MR. ESTES said Alaska is in its infancy in terms of applying these             
concepts as well as testing how the Alaska Constitution and state              
laws apply to this topic.  The state agencies are essentially                  
beginning with the educational process, so that they can look at               
all of the options they have so that they can provide the answers              
to Chairman Halford's questions in his letter and the Legislature              
can choose among ideas to take action.  He also suggested the                  
Committee might want to contact some of the nation's foremost                  
experts in this area because, although each state applies the                  
public trust doctrine in an individual manner, the law is still in             
its evolutionary stages.                                                       
                                                                               
MS. CUNNING remarked other states are envious of language in                   
Alaska's Constitution and statutes, yet they have more case law                
that defines what the public trust doctrine rights are.   She                  
repeated it is worth reviewing case law from other states to assess            
what Alaska does and does not have in statute, and where the                   
problems are occurring, so that Alaska can head off a long history             
of court cases.                                                                
                                                                               
MR. ESTES added Alaska has a different hydrologic climate, in terms            
of the duration of time the areas are frozen and its overall                   
climate, and many other state's histories are based upon a                     
different climatic situation.  Alaska may have the opportunity to              
advance the definition used elsewhere to definir what is navigable.            
                                                                               
CHAIRMAN HALFORD stated avoiding court cases is a worthy goal but,             
more importantly, the state needs to solve definitional problems to            
avoid horrible situations in which people are getting killed for               
doing what they thought was right.  He noted he thought questions              
should be asked of the Department of Public Safety.                            
                                                                               
MS. CUNNING said the Public Trust Doctrine only applies between the            
banks of ordinary high water unless there is specific court action             
that allows it to go upstream or up on the banks.  There have been             
some instances in other states where activities occurring in                   
uplands were affecting the water supply and the Doctrine was able              
to be used to protect the water supply.  The Doctrine does not                 
apply all over the entire State of Alaska.  It only applies between            
the ordinary high water marks.                                                 
                                                                               
CHAIRMAN HALFORD asked if it applies after something like a Forest             
Practices Act has been enacted that creates a watershed protection             
area around a stream that has significant value.                               
                                                                               
MR. ESTES replied the Public Trust Doctrine applies to those areas             
between the ordinary high water of waterways that are defined as               
being navigable under the federal definition which is a key point.             
                                                                               
CHAIRMAN HALFORD asked if the Public Trust Doctrine applies to the             
state definition even if it is successful.                                     
                                                                               
MR. ESTES answered the state has its own definition of public trust            
as a police power that is parallel to, but not the same as, the                
Public Trust Doctrine.  In the case of the Forest Practices Act,               
the Public Trust Doctrine would be parallel to that Act on                     
navigable waters.  Should the Forest Practices Act not provide the             
desired protection in a navigable waterway, one might be able to               
invoke the Public Trust Doctrine.                                              
                                                                               
MS. CUNNING added the Doctrine applies to the tidelines.                       
                                                                               
CHAIRMAN HALFORD asked if it applies to whatever the state                     
territorial water is.                                                          
                                                                               
MR. ESTES said that is correct.                                                
                                                                               
SENATOR TAYLOR asked if anyone in the room did not believe that the            
state owns all of the land under the navigable waters.  He noted               
according to the decision in the Dinkum Sands case, written by                 
Sandra Day O'Connor, he believes the state does.                               
                                                                               
MS. CUNNING said no one disagrees the state owns the water and the             
fish that swim within it.                                                      
                                                                               
SENATOR TAYLOR asked how, then, can the federal government attempt             
to regulate Alaska's fish and waters.                                          
                                                                               
MS. CUNNING suggested Senator Taylor look at page 316 of the green             
book which describes the sovereignty issues between the state and              
federal government.  It discusses where federal supremacy applies              
if there has been special federal legislation that modifies the                
state's traditional role, such as the Marine Mammal Protection Act             
or the Endangered Species Act.                                                 
                                                                               
MR. ESTES added that in the Public Trust Doctrine videotape series             
some of the concepts raised by Senator Taylor are addressed.                   
                                                                               
SENATOR TAYLOR asked if that is for the protection of species.                 
                                                                               
MS. CUNNING replied each of those pieces of federal legislation has            
its own purposes.                                                              
                                                                               
MS. GRACE commented in terms of state ownership of the resources,              
the Alaska Supreme Court did refer to the fish as being state                  
resources for purposes of a prohibition on an initiative allocating            
resources.  The United States Supreme Court, however, has held that            
the state does not own the fish in the sense of owning property.               
The state has a trust duty to manage the fish for the benefit of               
the public.  That is constitutionalized in the state constitution              
in the Common Use Clause and other provisions.  The supremacy                  
clause of the United States Constitution says that federal law                 
shall be the supreme law of the land, anything in the constitution             
or laws of the state to the contrary notwithstanding.                          
                                                                               
SENATOR TAYLOR questioned whether federal law preempts the Alaska              
Constitution on the Public Trust Doctrine.                                     
                                                                               
MS. GRACE replied the Public Trust Doctrine says the state has the             
obligation to manage navigable waters for the benefit of the public            
for fishing, navigation and commerce.  The public trust obligation             
that the state has to manage fisheries for the common use of all               
people is a state constitutional obligation.  The common law public            
trust doctrine is also in Alaska's constitution under Section 3.               
The supremacy clause expressly states that it preempts state                   
constitutional law.                                                            
                                                                               
SENATOR TAYLOR said he does not question that aspect, but asked how            
the federal government can have supremacy or jurisdiction over a               
subject matter that they no longer possess.  There was a total and             
complete conveyance of the tidelands and the navigable waters from             
Congress to the people of the State of Alaska upon statehood.  That            
is why the state is the trustee.                                               
                                                                               
MS. GRACE indicated had Congress conveyed the resources to the                 
state in a property sense, that argument might be viable, but a                
state constitutional law sets the state up as a trustee with an                
obligation to manage the resources for the benefit of the people.              
Nothing in the U.S. Constitution would prohibit Congress from                  
regulating fisheries management.                                               
                                                                               
SENATOR TAYLOR asked if he was misreading the Alaska Omnibus Act               
which conveyed any property or interest in property owned or held              
by the United States in connection with fish and wildlife                      
management to the State of Alaska.                                             
                                                                               
MS. GRACE thought the Submerged Lands Act, which was incorporated              
in the Statehood Act, has even stronger language that appears to be            
a transfer of the fish themselves, but the U.S. Supreme Court has              
held that the state does not own those resources in any legal                  
sense; it has a trust obligation in managing them.                             
                                                                               
SENATOR TAYLOR agreed and said that trust obligation was conveyed              
to the Alaska Legislature and the courts.                                      
                                                                               
MS. GRACE maintained it is conveyed in a federal law to the extent             
that Congress passes a law that permits the state to manage                    
fisheries.  Congress can later amend that law which it would                   
presumably argue it did in ANILCA.                                             
                                                                               
SENATOR TAYLOR indicated he had a brief he would distribute to the             
members of the NAV team and he would like their individual                     
responses to it regarding its logic and errors.  He noted he does              
not believe that Congress can unilaterally pass a law that abridges            
and denies the obligations that it incurred with the people of this            
state at Statehood.  He added the property clause does not extend              
to fish under any interpretation he is aware of.  Neither the                  
federal nor state government own the fish, but the state has the               
trust obligation to protect and utilize those fish in a non-                   
discriminatory fashion.  He emphasized he is unaware of any trust              
law in which the trustee can decide to allocate some portion of the            
trust to one group of beneficiaries, and deny it to another.                   
                                                                               
MS. CUNNING stated that is clearly discussed in the Ostrosky                   
decision.                                                                      
                                                                               
Number 253                                                                     
                                                                               
SENATOR LINCOLN asked who wrote the brief distributed by Senator               
Taylor.                                                                        
                                                                               
SENATOR TAYLOR said a whole series of people have worked on it,                
Ralph Seekins and Lynn Levengood being among them.                             
                                                                               
CHAIRMAN HALFORD noted a lot of questions remain, and the committee            
needs to pursue this issue, at least with regard to minimizing on              
the ground conflicts and legal conflicts.                                      
                                                                               
MR. ESTES urged committee members to review the other videotapes in            
the series as it is making a big impact on other states.  He also              
reminded committee members that the Public Trust Doctrine is common            
law which is judge-made law, as opposed to legislative law, so its             
future is more uncertain.  The more informed policy makers are, the            
more likely it is that judicial decisions will be made that move               
Alaska in the right direction.                                                 
                                                                               
SENATOR TAYLOR commented that one way that the common law countries            
handled the very same problem by referring to it as the Queen's                
Chain.  The property that is within one chainlink back from the                
cutbank of a river is available for the public to traverse in the              
utilization of fishing.                                                        
                                                                               
CHAIRMAN HALFORD thanked NAV team members for their efforts and                
responses.                                                                     
                                                                               
                                                                               
      CSHB 285(RES) am - COMM. FISH PERMIT/LIC. REVOCATION                     
                                                                               
SENATOR GREEN moved to adopt SCS CSHB 285(RES), version Q, as the              
working document of the committee.  There being no objection, the              
motion carried.                                                                
                                                                               
BRETT HUBER, Senate Resources Committee Aide, discussed the changes            
made in the committee substitute as follows.  First, he noted on               
page 2, line 9 of the committee substitute, the number 4 was                   
handwritten in.                                                                
                                                                               
The first change in the committee substitute is on page 2 in the               
listing of violations and points.  Several two point violations                
appeared in the original version of the bill.  The committee                   
expressed concern that those violations could occur erroneously,               
therefore those two point violations were removed from the                     
committee substitute.                                                          
                                                                               
The second change is also on page 2.  The original bill provided               
that an offender who admitted to an offense and paid the fine,                 
would be charged with a violation rather than a misdemeanor, and               
would get half the amount of points.  That provision was removed               
because it provided an incentive to purposely violate since it                 
could make economic sense in.  By merely paying the violation, one             
could reduce his/her points by half, which only made the cost of               
doing business a little higher.                                                
                                                                               
The next change on page 3 removed a provision that allowed a two-              
point reduction in the total cumulative points for every 12-month              
period that a permit holder went without another violation.                    
                                                                               
The fourth change is on line 25, and adds subsection (b).  This                
provision says a permit holder whose privilege has been revoked may            
not engage in the fishery either as a crew member or renting of the            
boat to be used in the same fishery from which he/she is suspended.            
The concern with that provision was the scenario in which several              
family members work one permit, through transfers, so that                     
provision would limit the economic association with the fishery if             
the person's permit was suspended.                                             
                                                                               
The final change is on page 4, line 12.  Basically, the bill                   
disallows emergency transfer of a permit if a person's privileges              
were suspended, but there is a loophole in that if someone had 10              
points and was charged with another six point violation, a person              
could do an emergency transfer of the permit before the six point              
violation was adjudicated.  This provision disallows emergency                 
transfers if one has pending violations that would total more than             
the allowable points.                                                          
                                                                               
CHAIRMAN HALFORD summarized the two basic areas of change as: the              
way to stop the family members with the economic association crew              
member license and the emergency transfer provision; and how the               
points are counted.  The minor violations that have no economic                
impact on the fisherman were removed.  The permit holder not                   
present violation was dropped from six points to four points                   
because that is a nebulous area.  And, the provision that removes              
two points for being good was deleted.  He commented he was                    
originally interested in tying the bill back to the permit.  He met            
with the Division of Investments' and CFAB staff and they pointed              
out many problems associated with that approach.  If this bill does            
not work after a few years, he would like to readdress that                    
approach.  He noted that using a market approach by devaluing                  
permits with points against it would provide a strong disincentive.            
                                                                               
MR. HUBER stated one open question remains, that being who is                  
charged if a permit holder is on board asleep and another crew                 
member commits a violation.  He noted that Mr. Hard from the                   
Department of Public Safety (DPS)was on teleconference and would               
respond to questions.                                                          
                                                                               
CHAIRMAN HALFORD said that kind of situation happens when a permit             
holder is hired by a boat owner.  If the only person who gets                  
charged is the permit holder, even though the boat owner committed             
the violation, the boat owner can just hire a different permit                 
holder the next season.  He asked Mr. Hard whether DPS only cites              
the permit holder or does DPS cite the operator if the operator and            
permit holder are in a partnership and the operator makes the                  
decisions.                                                                     
                                                                               
MR. JOEL HARD, Division of Fish and Wildlife Protection, replied               
DPS cites both when it can clearly tie the two.                                
                                                                               
CHAIRMAN HALFORD asked if this bill can then apply to a person who             
does not hold a permit.                                                        
                                                                               
MR. HARD said that is correct.                                                 
                                                                               
CHAIRMAN HALFORD asked the sponsor's staff to comment on the Senate            
Resources SCS.                                                                 
                                                                               
TOM WRIGHT, staff to Representative Ivan, stated Representative                
Ivan is concerned about eliminating half-points for violations.                
The main concern is that two types of violations exist: a                      
misdemeanor is committed if there is intent to commit an offense as            
opposed to a violation in which a permit holder might drift into               
closed waters while asleep at the wheel.  The sponsor believes the             
half-points for violations should remain in effect.  Representative            
Ivan's second concern is the elimination of the two point reduction            
for no violations within a one year period after a conviction                  
because it provides incentive to keep one's record clean.                      
                                                                               
CHAIRMAN HALFORD asked what the ratio of violations versus                     
misdemeanors is.  He noted he understood that in all but the most              
obvious cases, offenses are charged as violations because intent               
must be proved, which is difficult to do.                                      
                                                                               
MR. HARD replied in most cases, the criminal act is charged as a               
misdemeanor initially, and for reasons of convenience at the                   
prosecutorial stage, many are reduced to violations where the                  
burden of proof is reduced.  There is an incentive for defendants              
to quickly adjudicate the matter through the lower penalties.                  
DPS's position is that by getting too tough, it threatens its                  
ability to enforce the regulations.  When costs become so great or             
threatening to fishermen, more intense and regular defenses will               
result, and they will undoubtedly take DPS officials out of the                
field to answer those defenses.  DPS does not want to encourage                
that and would like to see the violation point schedule retained.              
                                                                               
CHAIRMAN HALFORD asked if Representative Ivan would like to see the            
point schedule be doubled for violations versus misdemeanors.                  
                                                                               
MR. HARD asked for further clarification.                                      
                                                                               
CHAIRMAN HALFORD explained the bill cut the point schedule in half.            
All of the points would have to be doubled to have any effect on               
violations.                                                                    
                                                                               
TAPE 98-32, SIDE A                                                             
                                                                               
MR. HARD said under the current draft, the points are aimed against            
the misdemeanant.                                                              
                                                                               
CHAIRMAN HALFORD explained that is correct because otherwise, it               
takes four of the worst violations at six points within a three                
year period to have any impact at all.  Former Deputy Commissioner             
Swackhammer made a major push to catch violators.  Some people had             
three or four violations within one fishing season but the fines               
the violators paid were written off as a cost of doing business.               
Chairman Halford said he is concerned that if we go all of the way             
back to half the points, the schedule will never apply to anyone.              
                                                                               
MR. HARD stated DPS is in its second fishing season of having a                
district attorney who clearly oversees all of its commercial                   
fishing cases, primarily in the Bristol Bay area.  DPS believes it             
will not see those sorts of reductions that it has seen in past                
cases, or at least there will be more argument against the                     
reductions in court.                                                           
                                                                               
CHAIRMAN HALFORD said he can understand the incentive to encourage             
people to go down the scale, but he hates to give them half of the             
points.  He questioned whether there is anything in between that               
still provides incentive to not contest, without making the                    
schedule out of reach.                                                         
                                                                               
SENATOR TAYLOR stated he has been frustrated by the gross numbers              
of violations in the Bristol Bay fishery.  He noted ADF&G has had              
the ability to enforce those lines and do it in such a way that it             
would have significant impact upon violators since day one.  ADF&G             
has always had the right to forfeit a vessel.  Instead, it does not            
opt to do that although it forfeits airplanes on guides frequently.            
He stated the Legislature passed legislation that created the                  
violation approach which brings DPS a lot more revenue off of a                
whole bunch of cases it did not want to have to try.  They write               
the cases up as misdemeanants assuming 90 percent will plead out               
and not go to trial. Senator Taylor stated the Legislature needs to            
make a philosophical decision about whether the state is going to              
get serious about patrolling for violators in that area.  He said              
there should be some notification requirement for fishermen who are            
in the process of crossing into a closed fishing area because of               
engine failure or other uncontrollable situations so that those                
fishermen do not get cited for violations when circumstances were              
beyond their control.                                                          
                                                                               
CHAIRMAN HALFORD questioned whether cutting the points in half for             
a first violation, but not for the second one within a 36 month                
period, no matter whether it is a misdemeanor or a violation.  He              
stated he wants to give DPS and the prosecution the incentive to               
plead out because it is a practical application that has a                     
deterring effect.                                                              
                                                                               
Number 143                                                                     
                                                                               
SENATOR LINCOLN commented this bill will apply to all of Alaska,               
not only Bristol Bay, and she is concerned that a person could                 
easily get 12 points in one season for doing something erroneously,            
which is not the intent of the bill.  She discussed a situation her            
cousin found herself in when someone used her set net without her              
knowledge.  She was then forced to go and pick the net up which was            
in closed waters.  Her second concern is if this bill is enacted,              
more violators will challenge their citations and  the fiscal note             
should not be zero.                                                            
                                                                               
CHAIRMAN HALFORD said, as Senator Taylor pointed out, this bill                
will create another tool and DPS does not even use all of the tools            
it has.   He thought providing the flexibility to be lenient on the            
first violation would work.  He asked Mr. Hard if a fishermen had              
a net in the water in a closed area, whether that fishermen would              
be charged with fishing in closed waters or fishing out of season.             
                                                                               
MR. HARD said it would be a closed waters citation and would not be            
both.                                                                          
                                                                               
CHAIRMAN HALFORD said that is why the two point violations were                
removed because those types of violations do not make fishermen                
money, they were usually mistakes.                                             
                                                                               
SENATOR LINCOLN asked if DPS would cite a violator for both fishing            
with gear not allowed in the fisheries and for possessing                      
prohibited size fish, which would add up to 12 points.                         
                                                                               
CHAIRMAN HALFORD said he was sure there were some combinations.                
                                                                               
SENATOR LINCOLN questioned whether the maximum could be six points             
for one incident.                                                              
                                                                               
CHAIRMAN HALFORD asked Mr. Hard to address that question.                      
                                                                               
MR. HARD replied each case is evaluated on its individuality by the            
trooper's assessment.  In cases where someone has committed an                 
egregious violation and multiple violations, multiple citations                
could be issued and boats could be seized as well.  Regarding the              
scenario described by Senator Lincoln, he did not believe multiple             
citations would be issued.                                                     
                                                                               
CHAIRMAN HALFORD asked Senator Lincoln what happened in her                    
cousin's situation.                                                            
                                                                               
SENATOR LINCOLN said she did not know what happened, she assumes               
her cousin paid the fine.                                                      
                                                                               
SENATOR LEMAN remarked the gear was stolen.                                    
                                                                               
SENATOR LINCOLN stated the state troopers do no know that.  Her                
cousin was cited for fishing in closed waters.                                 
                                                                               
CHAIRMAN HALFORD suggested including a provision that decreases the            
number of points by half for the first violation.  That would                  
provide an incentive to plead out and take some of the load off of             
the criminal justice system, but it still strengthens the schedule             
against major violators.                                                       
                                                                               
Number 245                                                                     
                                                                               
MR. WRIGHT stated he would have to speak to the sponsor, but did               
not see anything wrong with that approach at first blush.  He asked            
whether that would apply to a second violation for the same                    
violation or for any violation.                                                
                                                                               
CHAIRMAN HALFORD clarified the first time, no matter what the                  
violation is, the offender gets half the amount of points.  The                
second time the offender gets any violation, the full number of                
points would be assessed.                                                      
                                                                               
CHAIRMAN HALFORD said the other question that remains is in regard             
to the provision that gives two points back for each year a                    
violator gets no citations.                                                    
                                                                               
SENATOR TAYLOR stated some years ago he and Judges Hornaday and                
Keane traveled all over the state and held hearings about the topic            
of fish and game violations and disparate sentences, meaning                   
sentences that were dramatically different for the same offense.               
The three judges recommended to the Supreme Court that a few more              
people needed to be involved in the sentencing process at the                  
district court level, and that the judiciary needed to be better               
educated about what was a meaningful violation.  The Judiciary                 
disregarded the recommendations.  Senator Taylor stated ADF&G                  
commits just as many errors as does the other side.                            
                                                                               
SENATOR GREEN moved to adopt a conceptual amendment dealing with               
first violations at half points.                                               
                                                                               
SENATOR TAYLOR clarified the amendment should specify within a 36              
month period.  He asked if the points are reinstated if a second               
violation occurs.                                                              
                                                                               
CHAIRMAN HALFORD explained if a person commits a first violation,              
not a misdemeanor, he/she will receive half of the points.                     
                                                                               
CHAIRMAN HALFORD stated there being no objection to the adoption of            
the conceptual amendment, the motion carried.                                  
                                                                               
Number 338                                                                     
                                                                               
CHAIRMAN HALFORD stated there was a question on the two points per             
year of no violations.  The sponsor was concerned about that                   
provision.  Chairman Halford said he would like to make the bill as            
strong as possible but does not want to make it unworkable.  He                
clarified the bill allowed two points every year.                              
                                                                               
MR. HUBER said that was correct, two points every year from the                
date of the last conviction.  It was modeled after provisions in               
the drivers' license program.                                                  
                                                                               
SENATOR LEMAN remarked according to the fiscal note there are 600              
to 800 convictions per year.  He asked the number of permit                    
holders.                                                                       
                                                                               
MR. WRIGHT replied 12,000.                                                     
                                                                               
SENATOR LEMAN noted five per cent of permit holders are violators.             
He noted he has been fishing for 40 years and has no accumulated               
points.  He emphasized a person has to be a nasty violator to                  
accumulate points.                                                             
                                                                               
CHAIRMAN HALFORD stated there did not appear to be committee                   
support to put back in the two points.                                         
                                                                               
SENATOR LEMAN thought it was unnecessary.                                      
                                                                               
MR. WRIGHT said once a violator gets 12 points, he/she is stuck                
with the 12 points forever.                                                    
                                                                               
CHAIRMAN HALFORD clarified it is for three years.                              
                                                                               
Number 374                                                                     
                                                                               
BRUCE TWOMLEY, Chairman of the Commercial Fisheries Entry                      
Commission, brought the committee's attention to page 4, lines 12-             
16.  The first part of Section D relates to not doing emergency                
transfers when a permit is suspended or when enough points have                
been accumulated.  The last part relates to denying emergency                  
transfers when charges are pending  charges, that might lead to a              
suspension, would have the effect of prohibiting the transfer,                 
although he/she might chose to defend himself and became disabled              
while fishing.                                                                 
                                                                               
CHAIRMAN HALFORD said that interpretation is rare but possible.                
                                                                               
SENATOR LEMAN suggested making an exclusion for medical transfers.             
                                                                               
CHAIRMAN HALFORD noted that is what emergency transfers are usually            
for.  He stated that would take three violations.  With the                    
amendment just adopted, no first violation will carry more than                
three points, therefore it will take a third violation to                      
accumulate 12 points.                                                          
                                                                               
SENATOR TAYLOR said it depends on whether the charge is a violation            
or a misdemeanor.                                                              
                                                                               
CHAIRMAN HALFORD remarked misdemeanor convictions require proof of             
intent.                                                                        
                                                                               
COMMISSIONER TWOMLEY suggested including an exception for a bona               
fide medical emergency.                                                        
                                                                               
CHAIRMAN HALFORD asked what the other reasons are for an emergency             
transfer.                                                                      
                                                                               
COMMISSIONER TWOMLEY replied special sessions for legislators, but             
the biggest category is medical.                                               
                                                                               
SENATOR LEMAN suggested making an exception for life threatening               
circumstances.                                                                 
                                                                               
CHAIRMAN HALFORD suggested including a time limit.                             
                                                                               
COMMISSIONER TWOMLEY suggested including a physically disabling                
medical emergency exception.                                                   
                                                                               
CHAIRMAN HALFORD questioned the result of allowing an emergency                
transfer for a 30-day period only, which could be the entire                   
Bristol Bay season.                                                            
                                                                               
SENATOR TAYLOR did not think that would work well in Southeast                 
because the seining season lasts for 90 days.  He stated in the                
three brothers situation, the license would have to be sold.                   
                                                                               
SENATOR LEMAN thought it is quite unlikely that this circumstance              
is going to happen.                                                            
                                                                               
                                                                               
The committee took a brief at-ease.                                            
                                                                               
CHAIRMAN HALFORD suggested deleting lines 12-16 on page 4.                     
                                                                               
SENATOR TAYLOR so moved.  There being no objection, the motion                 
carried.                                                                       
                                                                               
MR. WRIGHT asked, on the point system where a permit holder                    
accumulates 12 or more points during a 36-month period, his/her                
license is suspended for one year.  If a permit holder gets 16 or              
more points during a 48-month period, the suspension is for two                
years, and if 18 or more points during a 60-month period, the                  
suspension is for three years, how that will work if the points are            
dropped after 36 months.                                                       
                                                                               
CHAIRMAN HALFORD explained the points do drop off but not until the            
end of the 60 month period.                                                    
                                                                               
SENATOR GREEN clarified three years are rolling.                               
                                                                               
Number 490                                                                     
                                                                               
MR. HARD said, "If they don't just go away, what happens is from               
the time a person is cited, you go back 12 months, 36 months, or 48            
months, and if there are no other violations within that period,               
that's how it's factored.  Actually when I looked at it that way I             
thought that dropping the points was probably redundant to this                
system anyway."                                                                
                                                                               
MR. WRIGHT thanked Mr. Hard, and noted if a person is clean for                
five years, they are starting over again.                                      
                                                                               
Number 526                                                                     
                                                                               
JERRY MCCUNE stated if people live way out in a village and have no            
other way to make a living, they would put themselves out of                   
business by doing away with their permit, but the bill should not              
prevent them from crewing for the season.                                      
                                                                               
CHAIRMAN HALFORD remarked that person got him/herself into that                
position by a serious string of violations.                                    
                                                                               
SENATOR TAYLOR asked if the crew members get cited along with the              
captain.                                                                       
                                                                               
CHAIRMAN HALFORD said not necessarily.  He asked Mr. Hard if crew              
members who are not making the operational decisions are generally             
cited.                                                                         
                                                                               
MR. HARD said not generally.                                                   
                                                                               
CHAIRMAN HALFORD asked if crew members are cited if it looks like              
they are running the operation.                                                
                                                                               
MR. HARD said that is correct.                                                 
                                                                               
SENATOR TAYLOR noted everyone on a boat in Southeast Alaska is                 
charged with the same offense.                                                 
                                                                               
Number 526                                                                     
                                                                               
MR. MCCUNE suggested prohibiting the permit holder from crewing on             
his or her own boat.  He stated his intent is not to defend repeat             
violators, but to recognize the fact that in some villages there is            
no other kind of work.                                                         
                                                                               
CHAIRMAN HALFORD suggested having the bill pertain to a permit                 
holder or person in charge of the boat.                                        
                                                                               
MR. HARD said he thought Mr. McCune was trying to get at the                   
individual permit holder out in Western Alaska, who by virtue of               
poor fishing, loses his permit.  Then, his only course of income is            
to become a crew member on another person's boat.  He thought the              
bill might be too harsh in that circumstance, but not in the                   
circumstance referred to by Chairman Halford.                                  
                                                                               
CHAIRMAN HALFORD stated they pose two different questions, and the             
committee might be trying to go beyond where it can reach.                     
                                                                               
MR. WRIGHT noted there might be circumstances where the skipper is             
operating the boat but it does not appear that way, which could                
cause a lot of confusion in the courts.                                        
                                                                               
MR. TWOMLEY indicated the state has very tight records regarding               
who is a permit holder.  Crew members hold licenses, but there is              
no way of knowing what boat they were on and following their                   
progress through a fishery.                                                    
                                                                               
CHAIRMAN HALFORD commented that he thought the way it is drafted               
works because also the person you are worried about as a crew                  
member doesn't have a permit anyway.                                           
                                                                               
Number 568                                                                     
                                                                               
There being no further testimony on HB 285, CHAIRMAN HALFORD                   
requested a motion on the legislation.                                         
                                                                               
SENATOR TAYLOR moved SCS CSHB 285(RES) and the accompanying fiscal             
note  be passed out of committee with individual recommendations.              
Hearing no objection, it was so ordered.                                       
                                                                               
There being no further business to come before the committee, the              
meeting adjourned at 6:00 p.m.                                                 

Document Name Date/Time Subjects