HB 511 - DEPOSITS INTO FISH AND GAME FUND Number 0282 CO-CHAIRMAN GREEN brought HB 511 before the committee. REPRESENTATIVE OGAN, sponsor of HB 511, explained the bill originated in response to concerns over inadequate protection of wildlife resources in the state. In light of declining revenues, dry-docked equipment, and lack of enforcement from the Department of Law, HB 511 was designed to help with cases involving commercial fishing violations. "Already, civil fines are being deposited into the Fish and Game Fund," he said. "House Bill 511 adds that criminal fines would also be deposited into the Fish and Game Fund. And the legislature each year will still have to approve the budget and reimburse service agreements." He suggested a good example was the Tyson settlement. REPRESENTATIVE DAVIES asked for clarification on how the Fish and Game Fund worked and whether it was a dedicated fund. Number 0402 REPRESENTATIVE OGAN explained that the Fish and Game Fund was the only dedicated fund, other than funds dedicated by federal law, in the state of Alaska. Monies from various sources, including hunting and fishing licenses, tags, and federal monies, went into the fund, he said. REPRESENTATIVE LONG said it appeared that previous legislation had intended that all forfeitures be deposited to the general fund. Now, the legislature was asking that this be deposited into the Fish and Game Fund, which was originally for licenses, fees, and so forth. "I feel that this may be looking toward a need for a proposition that the voters would have to consider, making it a dedicated fund for the forfeitures," he said. Number 0463 REPRESENTATIVE OGAN indicated HB 511 simply clarified existing law. It was not a constitutional issue, he said. He deferred to Laurie Otto for an explanation. LAURIE H. OTTO, Deputy Attorney General, Criminal Division, Department of Law, read language from the Alaska Constitution, explaining that it helped clarify the general prohibition on dedicated funds. The exception to that prohibition said, "this provision shall not prohibit the continuance of any dedication for special purposes existing upon the date of ratification of this section by the people of Alaska". MS. OTTO said if a dedicated fund existed when the constitution was adopted, funds could currently be dedicated for that purpose. "And so, in this bill, what you see is a continuation of the historical practice of dedicating funds that were related to claims or losses caused by damages to fish and game resources to the state," she said, "which is why, if you look at the language of the bill, you will see that it ... only allows deposit into the Fish and Game Fund of fines and forfeitures in cases where there were violations that damaged or present a threat of damage to the fisheries resource. The Fish and Game Fund was not historically used for game, and it was not historically used just to enforce general regulations in the fishing arena. But if it's related to damage or threat of damage to the resource, it's constitutionally permissible to deposit it in the Fish and Game Fund." Number 0576 MS. OTTO continued, "Now, certainly a past legislature has made a decision in the language that you asked about, to have those monies go into the general fund. But this legislature, as in all appropriation areas, is not bound by actions of past legislatures. You can make an independent determination of where you think those monies should be deposited and you can, as Representative Ogan proposes, change the law to allow those monies to go into the Fish and Game Fund, although, as he said, this legislature, and future legislatures, still retain the ability to decide how Fish and Game Funds will be used. It's an appropriation that you make like every other appropriation." Number 0586 REPRESENTATIVE LONG said, "You're expanding the definition of the original dedication that's happened earlier. That's my concern, is that whatever is relating to a fish product of any kind would be dedicated to this fund." MS. OTTO replied, "You are correct that if it tied it to anything relating to fish and tried to put it in the Fish and Game Fund as a dedicated fund, that would not be permissible, because it is broader than the original dedication." She referred to page 1, line 4, "violations that damage or present a threat of damage", which, she said, was in every section of the bill. "As long as it is narrowed in that way, that is, in fact, what the original pre- statehood fund was used for," she said. "And, therefore, it is a constitutionally permissible action of dedicating those funds in the Fish and Game Fund. You're right, though. If it were anything relating to fish, that would not be acceptable." Number 0700 REPRESENTATIVE DAVIES voiced concerns. For example, there was a certain amount of dedicated motor fuels tax, which he believed to be a nickel, in existence at the time of statehood. He understood that interpretations were that the nickel was dedicated, but that any amount beyond that could not be increased without a vote of the people, as a dedicated fund. "If that understanding and interpretation is correct, it seems like this is a similar sort of a thing," he said, "where we're ... expanding the scope of the amounts of money that would go into the fund. And it would seem like that would require a vote of the people, by analogy of what happened under the motor fuel situation." Number 0714 MS. OTTO responded she did not know about the motor fuel tax. "If, in fact, what happened is that there was a specific amount of money identified in the law as going into the motor fuels tax, I could see that that would be limited," she stated. "But pre-statehood, what happened with [the] Fish and Game Fund, or the predecessor to that, is that any monies were ... dedicated to the furtherance of the protection, rehabilitation, preservation and conservation of the territorial fish and shellfish resources. And any money that came into the state for that purpose could be deposited into the Fish and Game Fund. So, it was not limited by any particular amount of money, as what you're describing with the motor fuels tax. So, pre-statehood, the money that we're talking about would have gone into the Fish and Game Fund." She emphasized that pre- statehood dedicated funds were analyzed by what would have happened, pre-statehood, had the money come into the state. "Pre- statehood, the money that is identified in Representative Ogan's bill would have gone into the Fish and Game Fund," she concluded. Number 0779 REPRESENTATIVE OGAN offered to clarify the intent of the bill. He referred to Section 1, relating to purpose. He said "fisheries law enforcement activities" would include possibly funding equipment to apprehend violators and funding Department of Law personnel who would specialize in such cases. The Tyson case had resulted in a $4.1 million settlement. "There may be other violations of this sort going on, that are not being caught just because we ... don't have the resources to do it," he suggested. Number 0850 REPRESENTATIVE DAVIES said he did not disagree with the purpose. However, he was concerned about the general prohibition against dedication of funds in Alaska's constitution. "And every time we do that, we increase the scope or increase the amount or add another dedication of funds, it makes me nervous," he said, "because the folks that drafted our constitution recognized that ... every time you do that, you limit the scope of a succeeding legislature to have an adequate array of tools to deal with problems that are presented to them at the time. While it is true that the legislature appropriates the money ... out of the fund, the ... purposes for which it can be appropriated are limited by the terms of the dedication of the fund, so they couldn't appropriate it for general public safety on the highways, for example." He emphasized it was a constitutional concern. REPRESENTATIVE DAVIES indicated another way to solve the problem would be to adequately fund the Department of Law and the Division of Habitat and Restoration in the Department of Fish and Game. "While we may disagree on the mechanisms for doing that, I think that that's what needs to be done," he said, voicing his preference to fund it through the operating budget by looking to other revenue sources. Number 0944 MS. OTTO said, "Everybody, I think, who looks at the situation acknowledges that we're not adequately pursuing commercial fishing violations, particularly ones that damage the resource, that there appears to us to be both a significant number of violators who are really damaging one of our really most important renewable resources, very important to the economy of the state, but also, that we're not capturing the fines and forfeitures because we don't have the resources to dedicate to it. And I think that essential to understanding what is trying to be done with this bill is realizing that we are, in fact, creating a new revenue stream into the Fish and Game Fund, money that's not being captured right now, that most of the money isn't money that's being diverted out of the general fund and put into the general fund. It's mostly money that's not being captured right now." Number 1052 DEAN PADDOCK, Bristol Bay Driftnetters Association, testified in support of HB 511, saying, "This association has always supported the conduct of an orderly fishery. We believe strongly in the protection of the resource. But there's another element ... and that is the need to provide a level playing field between the participants in the fishery." He suggested that nowhere else in Alaska was that as important as in Bristol Bay, where large numbers of fishermen competed for large numbers of fish. MR. PADDOCK indicated Bristol Bay enforcement was the single largest operation carried out by the Division of Fish and Wildlife Protection in the Department of Public Safety. Members of his association, wanting to ensure enforcement presence in Bristol Bay, had suggested supplementing funds by instituting a statutory assessment on every license sold there. "As it is now, when the enforcement money runs out, they're gone," Mr. Paddock. "Maybe there'll be a fly-over by a plane, but the boats, the skiffs, the surveillance, it's gone. And then, when that happens, the orderly fishery deteriorates and we've got people fishing further and further outside these lines." He advocated a "user pay" concept. He concluded by saying he thought this situation applied elsewhere in the state, as well. Number 1300 CO-CHAIRMAN GREEN asked if there was further comment and closed the public testimony. REPRESENTATIVE AUSTERMAN mentioned a letter received from Larry VanderLind from the Committee to Prevent Illegal Salmon Fishing in Bristol Bay. Mr. VanderLind indicated that with 1900 drift permits in the Bristol Bay area, the fishermen themselves would like to impose a $250 surcharge, which would total approximately $475,000 per year. That committee had criteria for involvement in setting regulations and policies on how the enforcement would be done, and to ensure it was done correctly, Representative Austerman added. REPRESENTATIVE OGAN closed by saying, "They're not doing an adequate job. I understand people's concerns with this bill." He referred to Section 1 and said to the extent permitted by applicable state and federal law, this would operate within parameters of existing law. "If you look, starting from the East Coast and work your way around, Alaska's one of the last great fisheries in the world, and certainly in North America," he said. "And if we don't do an adequate job of protecting the resource, we will be paying dearly for it in the future." CO-CHAIRMAN GREEN referred to Representative Davies' concern about dedication. He asked if Representative Ogan believed the legislature would be operating within its purview and its constitutional rights. REPRESENTATIVE OGAN replied yes. He added that they had heard qualified testimony that day asserting that fact. Number 1473 REPRESENTATIVE AUSTERMAN moved that HB 511 move from committee with accompanying fiscal notes and individual recommendations. REPRESENTATIVE LONG objected. CO-CHAIRMAN GREEN asked for a roll call vote. Voting for moving HB 511 were Representatives Austerman, Kott, Ogan, Williams and Green. Voting against it were Representatives Davies and Long. Representative Nicholia was present via teleconference and did not vote; Representative Barnes was absent. Co-Chairman Green noted that HB 511 moved from the House Resources Committee.