HJR 34 NPFMC PROPOSED REGS FOR HALIBUT FISHERY  CHAIRMAN HALFORD announced HJR 34 to be up for consideration. REPRESENTATIVE ALAN AUSTERMAN said that this resolution was introduced because of the actions the North Pacific Fisheries Management Council (NPFMC) was taking to create a halibut subsistence program. A number of them felt a program wasn't needed and they are asking them not to implement it. The criteria in their first proposal is quite discriminatory and bringing the subject up now and creating regulations referenced to subsistence halibut would create more of a gridlock in trying to solve the current subsistence problems. CHAIRMAN HALFORD said the background is that someone was a little overzealous in enforcement. REPRESENTATIVE AUSTERMAN agreed and added that a native group requested the Council to put together subsistence regulations for halibut. CHAIRMAN HALFORD asked if there wasn't another way to handle this without creating all these problems. He didn't think they said enough in the resolution about other ways to do it. REPRESENTATIVE AUSTERMAN said the Council put a subcommittee together to come up with this proposal. SENATOR TAYLOR wondered what basis they used for the numbers. Number 444 MR. DICK BISHOP, Executive Director, Alaska Outdoor Council and Territorial Sportsmen of Juneau, Inc., supported HJR 34 which addresses many of the most objectionable parts of the proposed halibut subsistence proposal soon to be considered by the North Pacific Management Council. Some of these include discrimination on racial grounds, or on the basis of zip code, and adopting the unlimited catch of halibut under subsistence regardless of size, etc. - very much like ANILCA's undefined customary and traditional use priority. It is reopening the door to commercial sale of another so called subsistence resource. Federal courts have already established under ANILCA that sales of subsistence fish for tens of thousands of dollars are o.k., and although this is a different matter, the precedents that have been established in federal court are likely to be significant. Furthermore, it provides for a new fishery that is bound to compete with existing fisheries, but on a discriminatory basis; and finally the same strategy could be easily proposed for other marine resources such as crabs. MR. BISHOP said it is important to recognize that these proposed regulations, looking at the table of catches, are not about obtaining food by customary and traditional means. Instead they are yet another ploy to expand political and institutional approval of special privileges for a racially defined group of people. He read a quote from the committee's report on dealing with non- tribal Alaskans: "The committee discussed a proposal to include `other rural residents in areas of Alaska with halibut uses.' The committee discussed the opportunities for non-tribal Alaskans to harvest halibut and concluded that the two fish per day sport fish limit would meet their needs for supplying their families with halibut for food. The determining factor in this conclusion was the stated need to recognize existing traditional practice at current levels of halibut removals. The management plan for halibut subsistence programs should legalize the current halibut removals and fishing practices by tribal members. Expansion of subsistence harvest to nontraditional users may create resource concerns within the IPHC regarding increased levels of halibut removals and localized depletions in some rural and urban communities." MR. BISHOP said that it's apparent that the committee felt that for non-tribal people the standard of sport fishing was adequate, but for tribal members it was not. This State is already being socially shredded by controversy over subsistence and Indian country and we don't need another discriminatory rule relating to the use of fish and game. He said they would support changes in the personal use or sport fishing rules rather than establishing a new fishery. Number 493 SENATOR TAYLOR agreed with his comments and said many of them have been frustrated for years about the personal use aspect of halibut on the grounds that a boat out there fishing for them can't take an undersized fish that's dead or dying and utilize it for their own consumption without running serious risks of prosecution. He asked if the NPFMC believe they are mandated by federal law (ANILCA) to bring about this change. MR. BISHOP said he couldn't answer that, but was sure it didn't fall under the requirements of ANILCA. SENATOR TAYLOR asked if this wouldn't be an extension of ANILCA even into waters beyond federal jurisdiction. MR. BISHOP replied that his understanding is that it does not fall within the purview of ANILCA. Number 519 MR. RON SOMMERVILLE, Senate and House leadership, said that ANILCA specifically excludes the Magnuson Act; it specifically limited the impacts of ANILCA to mean high tide although the advance notice of rule making indicates that the secretary might be able to extend their jurisdiction into adjacent State waters if there was an impact on subsistence. MR. SOMMERVILLE pointed out that two cases led to this; one at Toksook Bay and the use of skates by a resident of Angoon for taking halibut for personal use in May (for drying). Before IFQs were distributed this was the practice. Speaker Phillips requested that they look at existing regulatory structure to accommodate some of those uses and one suggestion was to legally allow for the retention of undersized halibut to 4E, a specific area of the State where it has been a consistent problem. They could also allow the use of one skate of a certain size for taking of personal use in May in specific areas of the State. He's note advocating this, but it is conceivable. The commercial people on the Council expressed real concerns about that. The Council agreed to go forward with the two options of doing nothing and what is in their packet. A third alternative was a result of Speaker Phillips request. These will be analyzed in preparation for the June 14 meeting in Kodiak. MR. SOMMERVILLE said they are hoping to have an opinion as to whether the Council has the authority to discriminate based on race. Number 569 CHAIRMAN HALFORD asked how the State would enforce it with our Constitution, if they choose to define a violation of law racially. MR. SOMMERVILLE replied that the International Treaty on Halibut preempted the State on halibut. He said their legal opinion would be as good as his and it doesn't appear that the State could. CHAIRMAN HALFORD said that apparently the Council feels obligated to go forward with something and asked what is the best message to put the most reasonableness into whatever approach is taken. MR. SOMMERVILLE responded that he couldn't suggest any wording changes to the resolution and he would pass it out as it is. SENATOR TAYLOR said he was surprised that no one was here to oppose the resolution. TAPE 97-29, SIDE B MR. SOMMERVILLE said they have a letter from Toksook Bay opposing SJR 34. MR. RICK LAUBER, President, NPFMC, commented that the letter from Speaker Phillips and President Miller had some impact on the Council; and the attorneys are working on the answers to the legal questions. At this stage the public has not had an opportunity to comment on this issue formally and it is their practice to allow that. At their meeting in June in Kodiak the Council could do any one of the things or a combination of the alternatives or options. They cannot expand beyond what was analyzed. SENATOR LEMAN moved to pass HJR 34 with individual recommendations. There were no objections and it was so ordered.