SB 301-CHITINA DIPNET FISHING PERMIT SENATOR GARY WILKEN made the following comments about SB 301. The Chitina fishery is one of the largest in the state. Over 10,000 household permits are issued each year with approximately 20,000 to 30,000 Alaska residents participating. Approximately 118,000 salmon are harvested. In December of 1999, the Alaska Board of Fisheries reclassified the Chitina personal use fishery as a subsistence fishery. That designation will have little impact on the way the fishery is managed and it has little to do with the need to secure public access and provide services. Regulations governing the Chitina fishery require people to have a permit issued by the Alaska Department of Fish and Game (ADFG) in their possession. This permit serves as the harvest record. AS 10.05.340 (a)(22) sets a fee for a Chitina personal use dipnet permit at $10. This fee has been in place since 1990. Proceeds from the fee go to the fish and game fund and have been used to pay Chitina and Ahtna Native Corporations for access across their lands and for outhouses and garbage services. An agreement between ADFG and the corporations determines the distribution and services. SB 301 amends existing statute: it renames the Chitina personal use salmon dipnet fishing permit to Chitina dipnet fishing permit and increases the fee from $10 to $25. It changes the name of the permit to remove the words "personal use" as it is no longer a personal use fishery. It changes the fee to coincide with the new agreement reached between the corporations and ADFG. This new agreement is intended to provide for maximum legal public access to the dipnet fishery while minimizing the conflicts between private landowners and the dipnetters at Chitina. In the year 2000 dipnetters will pay $25 for a permit. Since the fishery is now designated as a subsistence fishery, dipnetters will no longer be required to purchase a sport fishing license. In 1999, each dipnetter was required to buy a $15 sport fishing license and a $10 Chitina permit for a total cost of $25. Under this plan only the $25 Chitina permit will be required. Since the Chitina permit is a household permit, families can save under this plan because a family with two adults will pay $25 instead of the 1999 $50 cost. The permit is good for up to 5 family members. Services will be significantly increased and improved over the past. Access to Native lands is more accurately identified than in previous agreements. The process of obtaining a permit will be available through ADFG offices in Anchorage, Palmer, Fairbanks, Glennallen and Chitina. SB 301 will provide better services to the public, make it easier and faster to obtain a permit and decrease management costs to ADFG. Without SB 301, without a change in the name of the permit, ADFG is unable to collect a permit fee because the Chitina dipnet fishery is no longer a personal use fishery. Without the permit fee, funding for services and access will not be available. It is uncertain what the corporations would do with regard to allowing access to the river. Families that plan to go to the river this summer could be faced with a potential conflict. SENATOR WILKEN noted committee packets contain a sponsor statement, an explanation of the 40 year history of the Copper River dipnet fishery, regulations, a letter of support from the Alaska Outdoor Council and an opinion from the Fairbanks Daily News Miner. His staff has been working with ADFG on this issue since December. Number 628 SENATOR TAYLOR asked if ADFG changes the title from "personal use fishery" to "subsistence fishery" whether that means subsistence under state law. SENATOR WILKEN deferred to a representative from ADFG to answer that question. SENATOR TAYLOR asked if ADFG charges for state subsistence fishing permits anywhere else in the state. SENATOR WILKEN deferred to ADFG for an answer. SENATOR TAYLOR commented that this agreement creates an interesting precedent. He noted ADFG has charged an application fee for a personal use permit in the past. He asked if subsistence fishery permits would be subject to the Tier 1, Tier 2 and Tier 3 formula if there are not enough fish to fill the quota. SENATOR WILKEN said he did not have an answer. SENATOR MACKIE asked if the Alaska Outdoor Council was referring to senior citizens in its recommendation that SB 301 be amended to waive the permit fee for Alaskans who qualify for the Permanent Identification Card. SENATOR WILKEN said that is correct and that he supports such an amendment. SENATOR MACKIE asked why that is necessary. SENATOR TAYLOR replied, "Because it is not under the state fishing licensing thing anymore and their card is [indisc.] a permanent license. But you don't have to get a state fishing license to do this." SENATOR MACKIE asked Senator Wilken if he has language available for a proposed amendment. SENATOR WILKEN said the Division of Legal Services is working on proposed language and that the bill could be amended in the next committee of referral. SENATOR TAYLOR asked Senator Wilken if he is aware of any other place in the state where a Native corporation charges people a fee to participate in a subsistence fishery. SENATOR WILKEN said he is not but ADFG may be. Number 800 MR. KEVIN DELANEY, Director of the Division of Sport Fish, ADFG, stated his division carries out the management of the Chitina fishery, regardless of the fishery's name. He noted Mr. Mac Minard, the Regional Supervisor for the Copper River-AYK area, is participating via teleconference. He noted Mr. Minard was closely involved in the negotiations. SENATOR TAYLOR asked about the distinction between a subsistence permit and a personal use permit and why ADFG changed the designation. MR. DELANEY replied the Chitina fishery is over 100 years old and, during that time, because of statutory and regulatory changes, it has been named a subsistence and personal use fishery. It was designated as a personal use fishery in the mid 1980's based on a Board of Fisheries' decision. In December of 1999, the Board of Fisheries, in response to a proposal, made a finding that customary and traditional use of salmon occurs at that site, thus, the name shifted back to a subsistence fishery under state law. SENATOR TAYLOR noted it is his understanding, in his district at least, that the subsistence taking of sockeye salmon requires a personal use permit. He asked why different areas have different classifications. MR. DELANEY replied the classifications in Southeast are somewhat confusing because there are both personal use and subsistence fisheries for salmon. To save everyone a headache, ADFG issues permits in Southeast as combination personal use/subsistence permits; people are then required to participate under the rules that govern a particular site. He noted, for the participants, there is essentially no difference. The same is true for Chitina as all Alaskans are able to fish there. In this particular case, a fee has been established to provide products and services, such as garbage disposal and practical and legal access across private lands. It is not so much a license to participate in a subsistence fishery as it is a charge commensurate with the products and services delivered. He noted it is the only place he is aware of in the state where such an arrangement exists. MR. DELANEY explained that ADFG came to this arrangement after a decade of turmoil and confusion. 10,000 people per year fish that site and, with the addition of family members, 25,000 people may visit that site in a year. In addition, the area consists of a patchwork of public and private land with an ill-defined DOTPF right-of-way running through it. To remedy the problems, ADFG sat down with the landowners and the Chitina dipnetters in the early 1990's to explore solutions. At that time the dipnetters came to the legislature and asked for the original permit. Since then, more people are fishing that area and the cost of products and services has increased prompting ADFG to meet with the dipnetters, landowners, and Senator Wilken's staff. SB 301 is the result of those meetings. SENATOR TAYLOR expressed concern about setting a precedent in state law that other private parties may look to and use to their advantage in charging fees to people who want to participate in subsistence/personal use fisheries or hunts. He noted he wants to make sure to preserve the activities that have been occurring on the Chitina for 100 years. He referred to Mr. Delaney's statement that the Chitina fishery is open to all Alaskans and asked if, by classifying the Chitina dipnet fishery as a subsistence fishery that, the salmon run is inadequate to meet the projected take from this fishery, it could be classified by ADFG as a Tier 1, Tier 2, or Tier 3 fishery, thus limiting those Alaskans who can participate. MR. DELANEY replied, "Mr. Chairman, Senator Taylor, you could get there under state law. That's a possibility. This particular case - in recent years the total return to the Copper River in the numbers of sockeye salmon has been 1 million - 2 million fish. The end river goal, which includes spawning escapement and fish allocated to the personal use and/or subsistence fisheries, has been in the neighborhood of about 500,000. The remainder is the commercial take on the Copper River delta, a very valuable fishery. It's been an extremely successfully managed system. To get down to that Tier 2 type of a situation, you'd have to see about a 75 percent decrease in the run. It's Mother Nature - it could happen but there's quite a bit of surplus at the present time, but it's possible under state law you could get there." SENATOR MACKIE commented that is the case right now, with or without SB 301, because the Board of Fisheries has to review that every year. MR. DELANEY agreed. SENATOR MACKIE noted that the agreement between ADFG and the Native corporations was announced only four days ago. MR. DELANEY stated the Chitina organization finally signed the agreement a few days ago. SENATOR MACKIE referred to the precedent mentioned by Senator Taylor and remarked that this agreement is not being established in statute. He commented that he is well aware that every Native corporation in the state is dealing with issues of access and waste. This agreement appears to be well thought out and accommodates the interests of both the public and private landowners. He asked if ADFG is aware of any outstanding issues that have not been addressed in this agreement. Number 1383 MR. DELANEY said he is sure there are but he considers them minor. There is still a question of whether or not it is necessary to enter into an agreement when some state land is available. Again, that area is a maze of titled property, rights-of-way, state land and private Native corporation land. Theoretically, there is a place where people could come off of state land and enter navigable water. ADFG is looking at this as a package deal and as an opportunity to facilitate legal and practical access and to take care of waste and garbage. SENATOR MACKIE added that the agreement provides for the traditional areas of access and means of access with the blessing of the landowners. MR. DELANEY admitted that during negotiations some of the dipnetters wanted additional lands on the West side of the river. Those lands are more culturally and historically sensitive to the Native corporations. In addition, the Native corporations wanted a higher fee. SENATOR TAYLOR asked what portion of the fee will go to the corporations. MR. DELANEY replied the permit costs $25; ADFG will get $5 to take care of services, $18 will go to the Native corporations for access, and the remaining $2 will be used by ADFG for administrative overhead. SENATOR TAYLOR asked if members of that Native group will be required to purchase the permit. MR. DELANEY said they will. SENATOR TAYLOR asked if the Native corporations will get about $360,000. MR. DELANEY said they will get about $180,000 to $200,000. SENATOR TAYLOR repeated that establishing this precedent of earning $180,000 to let people walk on one's land to participate in a subsistence fishery is very interesting. He hopes the next time a subsistence fishery is established, the nearby landowners do not have to be paid off before Alaskans can participate in their natural and cultural heritage. CHAIRMAN HALFORD asked how far the road goes South on the old right-of-way. MR. MAC MINARD, Regional Supervisor for the Division of Sport Fisheries, replied the agreement will extend from the O'Brian Creek campground to Haley Creek, a distance of about five miles. The road continues beyond that point but the area under discussion is about five miles. CHAIRMAN HALFORD asked if the road continues South of Haley Creek and, if so, how far. MR. MINARD said about 15 to 20 miles. CHAIRMAN HALFORD said, according to a map of the land ownership of the area, the 300 foot right-of-way looks like about half of the river frontage shown between O'Brian Creek to Haley Creek. MR. MINARD said it is conceivable that along the right-of-way, there are numerous locations where, within 150 feet of the centerline, you could be into the river, but the court decision that established the right-of-way was unclear as to what activities are allowable and exactly where the right-of-way is. CHAIRMAN HALFORD asked if the right-of-way is under its original ownership or whether it is a right-of-way under another underlying patent - the railroad. MR. DELANEY replied it is the right-of-way for the Copper River Railroad. CHAIRMAN HALFORD asked if the right-of-way is an easement or state land. MR. DELANEY said his understanding is that it is based on those events that led up to the original agreement with Chitina and Ahtna in about 1993 and that the right-of-way is an easement. From the center line of the road, the easement is 150 feet on either side. It is not surveyed and, theoretically, if the road were to move the easement would move with it. Portions of the road have been moved. When this was being discussed for the first time in 1992, a choice had to be made: either the corporations or the state would have to pursue the right-of-way questions as a legal matter to determine exactly what can be done and where - a win-lose situation - or the parties could enter into an agreement and leave some uncertainty on the table. The legal questions remain regarding exactly where the right-of-way lies in relation to the road as well as questions about exactly what can take place on that right-of-way. SENATOR TAYLOR asked if the Chitina River is navigable. Number 1687 MR. DELANEY replied the Copper River is navigable. He was not sure of the federal designation of the Chitina River but he thought it would be considered navigable by the state. SENATOR TAYLOR noted the Chitina River was closed. MR. DELANEY repeated that the state would consider the Chitina River a navigable river. SENATOR TAYLOR said he assumed the Copper River was navigable. He asked if, based on the navigability of the Copper River, Alaska is asserting its state's rights through this law to regulate this fishery. MR. DELANEY replied it has always been and continues to be a state- managed fishery. He noted there is certainly a chance in the next couple of years, as federal management unfolds, that will change but at the present time it is under state management. SENATOR TAYLOR said he was confused because many groups believe that the "feds" took over subsistence as of October 1. He asked why ADFG is regulating that fishery if that is true. MR. DELANEY responded the wheels of the federal system are definitely turning. It is assembling staff, taking proposals through advisory councils and preparing to deliberate through the federal subsistence board. No changes on the ground have occurred at this time, however. SENATOR TAYLOR said he is not concerned about changes on the ground, he is concerned about a bill that ADFG supports that will change the definition of a fishery that has been called "personal use" for years. He stated as long as all Alaskans have the opportunity to dipnet on the Copper River, he will be a "happy camper." He will also be happy as long as the State of Alaska controls that issue because the state practices a sustained yield principle. He questioned how, if this bill can pass today and ADFG can exercise the legal authority to regulate that river, the "feds" have taken over. Number 1762 MR. DELANEY said, in the case of the Chitina dipnet fishery, ADFG manages the fishery and is capable and willing to work with the corporations to take care of waste and garbage, which is what SB 301 is about. MR. MINARD stated that Mr. Delaney did a good job of describing where ADFG is at with this issue. ADFG had a similar agreement in place for 10 years which expired on December 31, 1999. Over that 10 year period, the number of permits increased from 4,000 to 10,000 and now about 25,000 to 30,000 people go there every summer for the express purpose of getting fish to eat. As ADFG entered into this renegotiation, the Board of Fisheries took action on Proposal 44, which reclassified the Chitina dipnet fishery as a subsistence fishery. In reality, ADFG has approached this issue in a manner that will allow the fishery to operate as a personal use or subsistence fishery. That aspect of this issue has little bearing on what this agreement deals with. ADFG was attempting to reach an agreement that maximized public legal access and minimized the potential for conflict. Many more people will fish the Chitina without having any idea that the fishery changed from a personal use to a subsistence fishery. The parties that negotiated started out far apart in what they wanted. The final agreement is not perfect but it does address the notion that an ill-defined patchwork of public and private land surrounds the river and it addresses the need for increased services. In its pure form, the fee is a payment to a private landowner and to the state to provide the services necessary to manage 30,000 people, whether on public or private land. SB 301 also streamlines the permitting process. SENATOR MACKIE asked Mr. Minard about the previous agreement. MR. MINARD explained the legislation actually amends a statute that established a personal use permit and a $10 fee that has been in place for 10 years. SENATOR MACKIE asked if a similar agreement was in place that dealt with access and waste removal. MR. MINARD replied that is correct and that the previous agreement was for one year and was substantially similar. Number 2020 SENATOR MACKIE asked if SB 301 modifies an approach that has worked well for the past 10 years and streamlines the permit process for the public. MR. MINARD said that is correct and, technically, the agreement expands the lands that are included in the agreement. The previous agreement only addressed the O'Brian campground and Haley Creek. The new agreement includes all of the lands on the West side of the river between the right-of-way and the river. MR. CHARLIE SWANTON, ADFG, stated that he will be implementing the management plan therefore streamlining and minimizing the conflicts will ensure that the management plan is adhered to and that people get the fish they want. MR. DICK BISHOP, Vice President of the Alaska Outdoor Council (AOC), stated strong support for SB 301 as it provides the means for people to have a relatively trouble-free opportunity to fish in a traditional dipnet fishery. That fishery has been used since pre-contact times which is one of the reasons that the Board of Fisheries reclassified it as a subsistence fishery. Also, in 1978, when the state passed a subsistence priority law, one of the questions that arose was whether people from Fairbanks would be able to persist in the subsistence dipnet fishery at Chitina. The answer was yes. He believes it is appropriate that it has been reclassified as a subsistence fishery. MR. BISHOP noted the agreement strikes a balance between what is needed to accommodate the various interests without getting into further legal tangles or expensive surveys. In the long term, it would be best if all parties seek a more permanent solution, such as planning for surveys, but SB 301 is the appropriate measure at this time so that people can participate in the dipnet fishery as of June 1. Had ADFG been unable to negotiate a contract, thousands of people would have been very disappointed. CHAIRMAN HALFORD asked how a 60 year old person and his/her family members would be licensed. He said that he would think that the immediate family of the identification cardholder would be exempt from the license requirement only if in the presence of the cardholder. SENATOR WILKEN remarked that the Division of Legal Services is working on the amendment right now but he did not know what form it will take. CHAIRMAN HALFORD said he did not know how it would work otherwise. He thought many families with a member who does not intend to participate but who qualifies for the senior citizen license will have that member get one so that all family members are exempt from the fee. SENATOR MACKIE suggested notifying the Division of Legal Services of that problem so that it can be taken into account. He added that he believes there will be general support for the amendment and that it can be addressed by the Senate Finance Committee. MR. BISHOP thought Chairman Halford's suggestion to the problem was a practical approach. Number 2340 SENATOR TAYLOR asked what will happen to the entire dipnet fishery if Alaska's Constitution is amended to adopt the federal subsistence laws. MR. BISHOP said he thought if the federal government preempted state management on that fishery, then the rural priority would kick in and the only people who could participate in that subsistence fishery would be those, who by federal rules, qualify as rural. He noted that a second question would then be if those licenses were considered personal use, would the non-rural license holders have been protected. He did not think they would because the subsistence priority under the federal rule takes precedence over other fisheries. CHAIRMAN HALFORD asked if that assumes the failure of state management to allow enough fish to provide for the federal rural priority and a harvest beyond that in a reasonable pattern of personal use, state subsistence and commercial fisheries. The federal government's job under federal management is to guarantee enough fish for the rural priority. He asked if the state system ensures enough fish for the federal system, whether the state will have the ability to manage the remaining fish. MR. BISHOP said that is correct. SENATOR TAYLOR noted the distinction is, with cash sales, that fishery becomes a commercial fishery. He asked if the number of fish a person can take from the Chitina dipnet fishery is limited and if those fish must be used for personal consumption. MR. BISHOP said that is correct. MR. BYRON HALEY, President of the Chitina Dipnetters' Association, made the following comments. He has seen many things happen in this fishery over the years. After the Native people got their lands, they started to charge access to those lands. They put a gate up at Fox Creek and charged $15 per person per day for access. The Chitina Dipnetters' Association lobbied the Legislature and the Governor for access. If SB 301 does not pass, he is not sure what will happen. DNR charges fees for use of state boat ramps and campgrounds. MR. ALLEN BARRETTE stated objection to SB 301. There is a difference between a personal use and a subsistence permit. He doesn't believe that ADFG, or any state agency, should be collecting fees for corporations. He sees a big problem with discrimination because the only people paying for access are those fishing. There is no charge to raft down the river or camp on Native land. Enlarging the boundary area would help alleviate the problem because confining 10,000 people in such a small area increases the problems of waste, trash, and traffic. Number 0163 MR. BRUCE HAMILTON stated opposition to SB 301. SB 301 is a quick solution that will set a dangerous precedent. If any other private entity was inserted into the equation, no consideration would be given. It seems that everytime an issue like this arises, the state errs on the side of the Native corporations and almost always against non-Native residents of Alaska. If he were a private property owner in a similar situation, he would expect to mark his own property and to hire someone to collect any charges to cross his land. He would not expect the state to act as a mediator or a money collector. He encouraged the state to send a message to the Native corporations and tell them to get the property surveyed to determine the boundaries. MR. ROY SPORES said he agrees with the last two speakers as he is opposed to paying a trespass fee to cross a state right-of-way. He would not mind paying an extra $5 to pay for restroom and trash facilities. He would prefer to see the state spend money to survey the land rather than collect money to pay trespass fees. MR. GREG MACHACEK, a 17 year user of the Chitina dipnet fishery and a Fish and Game Advisory Committee member in the Fairbanks area, said the fee is considered to be on the high end but it is affordable for most people. People feel they will benefit from having access and restroom facilities. The cost of $18 per person who trespasses is high, especially since not everyone trespasses. Overall, he supports the bill but he is concerned that the state is setting a precedent by collecting fees for private landowners. SENATOR LINCOLN thanked Mr. Machacek for his testimony but noted the $18 fee is per family, not per person. In addition, she noted that fishers paid a total of $25 per year last year so the charge has not changed. MR. MARK HEM of Hem Charters stated he has operated a charter at Chitina for almost 18 years. He takes an average of 600 people out per year. Over the years he has heard a lot of comments from dipnetters who use the fishery. He is very grieved that most of those people have very limited knowledge and more than likely have not spent more than three or four days in the area of Chitina. When Charlie Swanton of ADFG took this over last year, he had never been to Chitina. When he contacted legislators two weeks ago, most knew nothing of this issue. Fairbanks' residents did not know that a deal of this magnitude was being proposed - $180,000 for three months of the use of a very small piece of land. He hopes the bill does not pass out of committee. He pointed out that the majority of Chitina dipnetters buy a sport fishing license anyway, so the fact that one is not needed for the Chitina fishery will not save them money. Regarding improved access, MR. HEM stated no improvements have been made and the corporations do not plan to provide anything. The corporations remain adamantly opposed to anyone even being in the area. The only reason the corporations agreed to this arrangement is because the road goes through the area and it is a state right- of-way. The corporations can stop use on the other side of the river because there is no road, which is why they will not consider negotiating the use of the other side of the river. He is concerned about the scare tactics used by the dipnetters' association, such as, if the bill does not pass, then people who go to Chitina will be threatened and ticketed for trespassing. He noted that he owns two houses in Fairbanks and school children cross his property. To stop them, he would have to survey his property and put up a fence. Even so, if someone climbed the fence and was injured on his property, he would be sued. The two agreements before the committee remove any responsibility from the corporations for anything that happens in Chitina. MR. HEM noted that ten years ago, when this agreement was first negotiated, the road went around Fox Creek. Since that time the state has straightened the road and it is no longer on private lands. When the dipnetters came to the state ten years ago to figure out a way to resolve this conflict they received no help whatsover from the state. MR. HEM informed committee members that ADFG opened up a buffalo hunt in the St. Elias Range recently. When ADFG issued the permits for that hunt, the Native corporations wanted $2,000 for each hunter even though the hunt was not on Native land. He pointed out that nowhere else in the State of Alaska do fishers have to pay a fee to use restrooms and garbage cans. When a person buys a fishing license, some of those services are supposed to be provided. SENATOR MACKIE asked Mr. Hem if he thinks it is unreasonable for the Native corporations to be concerned about people trespassing on their land and leaving garbage and human waste. MR. HEM said he would not argue that any private landowner should be concerned but he would argue that the amount the landowner will be paid is ridiculous. The land could be purchased for probably half that amount at a price above fair market value. He thought it makes no sense that the Native corporations should have more rights to protect their lands. They should survey their lands, fence it, and hire someone to collect fees to cross the property. He has heard talk from the corporations that gravesite markers have been used for firewood. He said in all of his years there, he has seen nothing like that. SENATOR MACKIE asked Mr. Hem if he uses state land to put his charter boat in the river. MR. HEM said that is correct. SENATOR MACKIE asked Mr. Hem what the going rate is for a charter in that area. MR. HEM said the going rate is $60 per person. He said each trip costs him a minimum of $145. SENATOR MACKIE asked if the number of Mr. Hem's customers have decreased because some of the access questions have gone away. MR. HEM said there is no relationship. At one point he had three boats so his clientele increased to 1500. He found that operation was not cost effective so he decided to operate with one boat. SENATOR TAYLOR asked Mr. Hem about his statement that the state has assumed liability for any harm that occurs on the Native land in the agreement and whether he has actually seen the contract. MR. HEM said he knows the corporations have taken that stand but he did not bring his copy of the agreement with him. He pointed out the state and the corporations both claim a right to the land. SENATOR LINCOLN said she wanted to correct, for the record, that she has never said that anything on the Native corporation land was torn down to be used for firewood and she has never heard that. She has heard that people leave 55 gallon drums and oil cans and human waste from RVs which requires a lot of clean up. MR. HEM asked Senator Lincoln how many times she has been in Chitina. SENATOR LINCOLN said quite a number of times, and that she was there last summer. She noted that Chitina is in her district. MR. HEM asked Senator Lincoln how many actual days she has spent there. He repeated that he has been there for 18 years, seven days per week, for 2+ months per year and he has never seen 55 gallon drums left on any private property nor any waste from motor homes. SENATOR LINCOLN said because Chitina is in her district, she has heard from people who live there year round so she depends upon their word. MR. ERLING HEM stated he has lived in Chitina for the past 15 years and has people trespassing on his land. [The remainder of Mr. Hem's testimony was inaudible.] SENATOR TAYLOR asked Mr. Hem to send his written comments to the committee. MR. MIKE TINKER, Fairbanks Fish and Game Advisory Committee Chairman, stated the Chitina dipnet fishery is near and dear to the constituency of the Fairbanks Advisory Committee. An estimated 2600 families participate in this fishery. The Advisory Committee has recognized that, for a long time, there have been landowner impacts that predate the original agreement in the 1990s by some time. Problems with trespass into inhabited and uninhabited property have been occurring, and some sites are sensitive, such as gravesites, some of which are within the state right-of-way. Prehistoric sites also exist in that area and DOTPF has done a lot of work to protect those sites, such as moving parking areas. The Fairbanks Advisory Committee discussed the dipnet agreement in its draft form a month ago. The Committee's only disappointment is that it is for a short term. ADFG will have to renegotiate this agreement next year and it is a difficult agreement to negotiate because it involves cultural traditions and people's emotions. SB 301 offers short term relief; the Fairbanks Advisory Committee recommends that the legislature pass this legislation. Regarding the discussion about a personal use fishery versus a subsistence fishery, the federal regime does not recognize personal use fisheries at all so that if the "feds" did exert themselves in this area, they would not recognize the Chitina dipnet fishery. The change to a subsistence fishery at least puts those dipnetters on a footing under the state rules. Finding other funds to work on this issue, such as the federal tax funds that can be used for access to fishing sites, would be helpful. Unfortunately those funds cannot be used at Chitina because the fishery is not open to non-residents. He would like to see a more broad based approached during the next negotiaion so that a long term solution can be found. Regarding other issues, MR. TINKER mentioned that the senior citizen waiver could apply to family members living under the same roof, such as is done for the Nilchina caribou herd hunt. SENATOR TAYLOR asked if this agreement is only good for one year. MR. TINKER said that is his understanding. SENATOR MACKIE pointed out that does not affect the bill; the bill only changes the fee structure for the permit. SENATOR TAYLOR expressed concern that the Native corporations might want $240,000 next year instead of $180,000 so the legislature will have to change the fee since it is set in statute. MR. DELANEY verified that the agreement is for one year. It is modelled after the agreements that have been entered into to date. Two things made the agreement more difficult to reach this year: disagreement as to whether a fee should be charged and the amount of the fee. Now that the fee has been set, the revenue will be predictable. The money collected will be separately accounted for in the fish and game fund. SENATOR TAYLOR asked what arrangements were made within the agreement regarding liability. MR. DELANEY asked Mr. Minard to send that information to Senator Taylor. SENATOR TAYLOR said in the 40 year history that was provided, the landowner was first given a significant portion of these monies through appropriations to the ADFG budget. In previous years, they were paid for cleaning up the campgrounds, etc. He asked if they now get $180,000 with no responsibilities for cleanup. MR. DELANEY said that is correct. SENATOR TAYLOR asked if the cleanup work will be done by state employees. MR. DELANEY said that work will be contracted out and ADFG will manage those contracts for performance. MR. JOSEPH HART, Ahtna Native Corporation, informed committee members that he worked with Mr. Minard in the negotiation process. He thanked Mr. Minard for his accurate comments. Mr. Hart stated that the Native corporations have attempted to collect fees in the past but those efforts created problems that lead to SB 301. Ahtna has posted signs and attempted to impose fines, however the signs get torn down. Ahtna then began working with the state to find a better solution to limit the impacts of the dipnet fishery to its property. There are places within the right-of-way of the current road where the road goes outside of the state's 300 foot right-of- way. He believes the liability issue is covered by recent law because a private landowner who gives permission is held harmless. TAPE 00-18, SIDE A Number 001 In response to a previous comment made about the buffalo hunt, MR. HART said the bison available for hunting were on private property 80 percent of the time. The Native corporations are responsible for protecting the resources of the rivers year-round, not just during the dipnet season. The Native corporations took the steps necessary to make sure an oil spill on the Copper River was cleaned up. He noted that he can provide testimony from past employees who have cleaned up the trash from the dipnetters. The dipnetters leave bags of trash and fire rings and they cut down trees. Most of the dipnetters revisit the area two to four times each year so the number of visitors is more than 10,000. He also offered to provide photographs of barrels left on the sand bars and state lands. SENATOR TAYLOR said he thought the previous agreements all involved the State of Alaska paying the corporations a fee that had been negotiated for cleanup. MR. HART said that was the agreement. The Native corporations were to take the money from the $10 fee and pay for the pick up of the trash. Now the fee is $25 and a portion will be kept separate to pay for the pick up of the trash. That job will be contracted out. SENATOR TAYLOR noted he was just told the state would be contracting out for trash pick up. He asked if the Native corporations will no longer be responsible for doing that. MR. HART said that is correct. Number 259 SENATOR TAYLOR maintained the Native corporations will now be paid $180,000 without the obligation of taking care of the impacts of this fishery. MR. HART pointed out that when the agreement first began, there were only 4,000 dipnetters. The increased number of dipnetters has a much greater impact. The dipnetters engage in camping activities; for example, they cut down trees. The Native corporations are asking for compensation for those impacts that are going to occur. MR. DALE BONDURANT stated in 1977 he, as a public interest litigant, fought the federal government to establish legal access to all public waters of Alaska, not just navigable waters. Alaska then passed a statute to do that. He does not want to set a precedent so that the public has to pay for access. He prefers keeping the Chitina dipnet fishery as a personal use fishery because it is compatible with Alaska's Constitution. He suggested working out an agreement for water access. SENATOR MACKIE moved to adopt a conceptual amendment that applies the same criteria for a senior citizen card to SB 301. SENATOR TAYLOR asked if that would limit the family members to those living in the same household. SENATOR GREEN said the family members must live under the same roof. There being no objection, CHAIRMAN HALFORD announced the conceptual amendment was adopted and would be incorporated into a committee substitute. SENATOR TAYLOR asked how the Public Trust Doctrine fits into SB 301 and whether any provisions in state law give people the right to access navigable waters. CHAIRMAN HALFORD said such a provision is in the Constitution and in statute. The Senate Resources Committee amended a House bill last year to more strongly state that right. SENATOR TAYLOR asked what happened to that right. CHAIRMAN HALFORD replied it is obviously there. He clarified that the bill only changes the fee from $10 to $25. SENATOR TAYLOR commented he does not have a problem with the bill but he does have a problem with the concept of charging people an access fee for a right which is guaranteed under the Constitution. SENATOR MACKIE noted the private landowner concerns need to be looked at as well. Number 672 SENATOR GREEN asked if there is a prohibition against private landowners collecting fees. MR. DELANEY said there is none in this particular case. SENATOR GREEN asked if the state owns part of the land that the people are using for access and, if the Ahtna and the Chitina corporations were not involved, whether the state would charge a fee at all. MR. DELANEY explained that the primary need in this situation comes from the fact that 15,000 to 25,000 come to an area that has no facilities. If it were all state land, a state agency would have come to the legislature for a permit fee to cover the cost of the products and services that need to be delivered. In this case, there are two large private landowners involved in addition to the state, and the patchwork of property lines cannot be described to people who show up. ADFG designed a package deal that includes compensation for access across private lands and for services. SENATOR GREEN asked Mr. Delaney if setting this precedent is of concern to him since this agreement could be used as a hallmark event in future discussions about similar areas. MR. DELANEY said that issue was discussed right from the start with this concept. ADFG looked around the Western states where, in almost every case, the state acted as a facilitator in some manner to collect fees and manage public access on private lands. In his opinion, if this is a precedent, it is not a bad one because ADFG can step in as an intermediary between 15,000 people and private landowners to make a workable situation. CHAIRMAN HALFORD asked if the actual agreement includes a disclaimer of any precedent from a legal perspective against the state in future access. MR. DELANEY said it is his understanding that the issue left unresolved is the issue of where exactly the right-of-way is as the road moves and what can happen on that right-of-way. This agreement leaves that question unresolved which is specifically noted in the agreement. CHAIRMAN HALFORD said he did not agree with Mr. Delaney's earlier statement that the right-of-way moved with the road. He added that the point that Senator Taylor was concerned about is that no agreement entered into can be in anyway construed to change any rights of the state with regard to access provisions in state or federal law. The Supreme Court has upheld that the state has the right to provide access to public waters. He does not want the state to back away from any of the public access provisions in working something out. He noted SB 301 does not ratify the agreement. SENATOR TAYLOR repeated that he is not concerned with SB 301 itself, but he is concerned with what goes on beneath the legislation because major issues are being approached in a way that may be a good resolution but do not pay attention to the Public Trust Doctrine. He stated he believes the state's title on the Copper River extends to the high average flood line. He noted the Doyon Corporation just won a case in the Ninth Circuit Court of Appeals in which Doyon argued that the Bureau of Land Management (BLM) could not force it to take thousands of acres of land under navigable water on three rivers. Doyon argued that those lands belong to the State of Alaska and that it wanted uplands instead. If that case is accurate, then all of the land that the dipnetters will be standing on is state land. In addition, there is strong case law that gives the public the right to cross private property to get to public access areas. He does not want to see a precedent set so that in the future any private landowner can demand that the state pay an exhorbitant price before the public can have access to the resource. SENATOR MACKIE moved CSSB 301(RES) with its accompanying fiscal note to its next committee of referral. There being no objection, the motion carried.