HCR 22-REGULATION OF FISHERIES [Contains discussion of HB 188.] 8:38:51 AM CHAIR SEATON announced that the first order of business would be HOUSE CONCURRENT RESOLUTION NO. 22, Affirming the legislative intent of state law that the Alaska Board of Fisheries currently has the tools and authority to allocate fishery resources within a fishery based on vessel size class, gear limits, trip limits, and registration areas. [Chair Seaton turned the gavel over to Representative Johansen.] 8:40:01 AM CHAIR SEATON reported that HCR 22 is seeking to clarify the legislative intent of the statutes which are currently used for management guidelines by the Board of Fisheries. He opined that questions will arise as a result of Dean Anderson and Michael Grunert v. State, Board of Fisheries and Chignik Seiners Association (Alaska Supreme Court No. S-10481). He explained that when making a determination, the courts will first review the statutes, and if these are unclear, they will refer to the legislative intent. He stated that HCR 22 addresses the fisheries history. He presented examples of the guidelines the Board of Fisheries uses to determine allocations: time and area closures, vessel size, gear limits, trip limits, and different district and administrative areas. He pointed out that this resolution is attempting to resolve future guideline questions through interpretation of the existing statutes. 8:46:49 AM REPRESENTATIVE JOHANSEN inquired as to the reason a nonbinding resolution is being presented in lieu of HB 188 which has already been passed out of the committee. CHAIR SEATON explained that HB 188 has had numerous proposed amendments and alterations, so he decided to hold the bill in the House Special Committee on Fisheries. He stated that a resolution which addresses the interpretation of current regulations cannot have more pieces added to it. He offered his belief that interpretation of the regulations is the basis for the determinations by the Board of Fisheries. These interpretations have come into question in Grunert. He expressed his belief that identifying the legislative intent of those statutes which are used for the determination basis, will clarify those statutes for the courts. 8:49:15 AM REPRESENTATIVE JOHANSEN commented that he did not remember any discussions of HB 188. REPRESENTATIVE WILSON, sponsor of HB 188, said that the only change was a clarification. She expressed concern with a resolution rather than a bill, although she allowed that a resolution was better than nothing. REPRESENTATIVE EDGMON asked if this concurrent resolution, which is nonbinding and advisory, would be more effective as a joint resolution. REPRESENTATIVE JOHNSON opined that it is no more difficult to amend a resolution than a bill. CHAIR SEATON explained that both a house concurrent resolution (HCR) and a house joint resolution (HJR) pass through both bodies: a joint resolution is used to address advice to the federal government, and a concurrent resolution is used to address state policies. He opined that although a resolution cannot change a judicial decision, it can explain the legislative intent, which the courts may consider. He expressed his belief that the courts have clarified statutory authority in Grunert. REPRESENTATIVE JOHNSON pointed out that a resolution can also be amended, and thus ultimately reflects a legislative intent that is counter to the sponsor's desires. REPRESENTATIVE LEDOUX questioned the possibility of changing a resolution to a bill on the floor of the House, the Senate, or in a committee. 8:56:02 AM BRIAN KANE, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, relayed that a resolution cannot be changed into a bill, although it can be the basis for a bill. REPRESENTATIVE LEDOUX noted that a court usually examines committee records and debates on the floor to determine legislative intent. She asked whether a court would look for the legislative intent from a resolution passed by a legislature that had not enacted the bill. MR. KANE replied that a court is not required to look at any intent unless it determines this would help with the interpretation. He offered his belief that a court could take into account a resolution which states that it is an interpretation of an earlier bill's history. REPRESENTATIVE EDGMON questioned the effect of a house concurrent resolution versus a house joint resolution as an advisory statement. MR. KANE cited a concurrent resolution is an advisory from one body urging action and a joint resolution is a statement from both bodies, though neither is binding. REPRESENTATIVE WILSON asked Mr. Kane for his view on the effectiveness of a resolution reflecting the current House's opinion, as opposed to the legislative intent when the statute was passed. MR. KANE responded that he would need to review the court responses to resolutions. He expressed his belief that the Grunert decision has reflected a different interpretation of the statute, so this legislature's opinion, which speaks more to the statute, might be more influential. REPRESENTATIVE LEDOUX asked if a legislature has ever passed a resolution summarizing legislative intent, and has the court ever considered it. 9:02:41 AM MR. KANE said that he would have to research this. REPRESENTATIVE EDGMON asked if time and area closures were intentionally withheld from HCR 22. MR. KANE responded that he had drafted the resolution as it was requested. He suggested asking the Alaska Department of Fish & Game (ADF&G) or the sponsor for the basis of the choice of categories. REPRESENTATIVE WILSON offered her belief that it will be difficult for the committee to make a decision on HCR 22 until it knows why the resolution is in the committee. She questioned why HB 188 was scheduled but not discussed and suggested hearing it to compare with HCR 22. 9:05:14 AM CHAIR SEATON said that the resolution is in response to both the Grunert decision and the possibility of a legal challenge to the historical determinations for fisheries. He said he would include time and area closures if the Department of Law (DOL) believes it will be helpful. He allowed this was not meant to be a definitive list for all the types of management tools for the ADF&G or the Board of Fisheries. REPRESENTATIVE JOHANSEN asked if HB 188 was ever discussed by the committee. CHAIR SEATON expressed his belief that the committee did discuss the bill. REPRESENTATIVE EDGMON commented that HB 188 engendered a lot of controversy within his constituency. 9:09:52 AM CHAIR SEATON opined that there were three hearings on HB 188, and a sponsor substitute was later offered. KIP [KEVIN] THOMET said that he supports HCR 22. He expressed his concern with giving more tools to the Board of Fisheries. ALEXUS KWACHA allowed that he supports HCR 22, but not HB 188, as he feels there needs to be a clear direction. He said that he favors giving tools to the Board of Fisheries, but not loopholes of interpretation for the board to go in another direction. He noted that he also supports HB 134. JULIE KAVANAUGH reported that she supports HCR 22 because it affirms the intent of the state law to provide the Board of Fisheries the necessary tools and authority to allocate fishery resources. She noted that fishery resources are managed for all Alaskans and for conservation. She asked that the Board of Fisheries only implement and extend those management regimes consistent with active participation and individual access rights. She said that she supports the Board of Fisheries ability to manage these allocations. She suggested that the committee add language to HCR 22 supporting "active participation access" and "access only be granted to an individual." CLEM TILLION, Aleut Enterprise Corporation, related his understanding that HCR 22 would allocate 50 percent of the state water fishery to vessels under 60 feet, because he believes that without this allocation Alaska will no longer have a local resident fleet. CHAIR SEATON pointed out that page 2, line 18, states that it is not necessary that 100 percent of the allocation be for one specific vessel size class. 9:19:03 AM MR. TILLION confirmed that he will support HCR 22 if it will protect the Alaska-based small boat fleet. JAMIE ROSS, Chignik Seafood Producers Alliance, conveyed his belief that this resolution will do nothing to solve the problems in the state fisheries. 9:26:06 AM GREG COOK, Attorney, Chignik Seiners Association; Chignik Seafood Producers Alliance, testified that in 30 years of practicing fisheries law in Alaska, he does not recall a case in which a court has looked to subsequent legislation for interpretation of a pre-existing statute. He opined that the effect of this resolution on any court action will be "virtually nil;" for there to be any influence on the court, the committee would need to adopt a statute, not a retrospective resolution. REPRESENTATIVE LEDOUX expressed concern that HB 188 would become a vehicle for the addition of the Chignik associations. She asked if Mr. Cook would commit for his clients that they would not be added to HB 188. MR. COOK said that there was nothing he "could say or do that would effectively shackle any member of the legislature in exercising their legislative duties." He said he could not commit this for his clients. REPRESENTATIVE LEDOUX posed a scenario in which a legislator requested adding the Chignik associations to HB 188. She asked if Mr. Cook would go to the legislator and ask for the Chignik associations not to be added to the bill. MR. COOK said that he cannot say what a client is going to ask. 9:32:06 AM JOHN HILSINGER, Director, Division of Commercial Fisheries, Department of Fish & Game (ADF&G), relayed that ADF&G supports HCR 22. REPRESENTATIVE LEDOUX asked Mr. Hilsinger whether ADF&G believes HCR 22 will have any effect. MR. HILSINGER responded that ADF&G has also questioned as to whether a court will place stock in a retroactive resolution but regardless, ADF&G does support the intent of the resolution. REPRESENTATIVE WILSON asked if a legal representative for ADF&G would conclude that the resolution accomplishes what is necessary. MR. HILSINGER replied that the ADF&G legal representatives believe that HB 188 would be more effective, but they support HCR 22 in lieu of the bill. TERESA PETERSON said that HCR 22 clarifies the intent, but that she opposes HB 188 as it leaves open the possibility for management policies that are contrary to the limited entry system. She offered her belief that HB 188 allows the possibility of absentee ownership and benefits to non- participants of the fishery. She strongly advocated that active participation be a requirement for coastal fishing permits. 9:37:19 AM REPRESENTATIVE JOHANSEN closed public testimony. REPRESENTATIVE LEDOUX said that she supports HCR 22. She offered her belief that the need for this resolution highlights an endemic structural problem in the legislature. She observed that all too often when a bill arrives on the House floor, an addition is made that was not discussed in the committee. 9:39:26 AM CHAIR SEATON expressed his belief that when things are unclear in a statute, the interpretation of broad general powers is meaningful. He opined that HCR 22 provides meaningful interpretation to the legislature and to the Board of Fisheries. He offered his belief that the courts will take notice and this resolution "can get us to where we want to go." 9:41:26 AM REPRESENTATIVE WILSON reported that HB 188 was scheduled three times, but only heard once. She offered her belief that HCR 22 will be meaningless. 9:42:25 AM REPRESENTATIVE LEDOUX moved to report HCR 22 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCR 22 was moved out of committee.