Legislature(2003 - 2004)

03/22/2004 09:12 AM House FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 309-PROHIBIT RELEASE OF PREDATORY FISH                                                                                     
CHAIR SEATON announced  that the only order of  business would be                                                               
HOUSE  BILL  NO.   309,  "An  Act  prohibiting   the  release  of                                                               
nonindigenous predatory fish into public water."                                                                                
Number 0147                                                                                                                     
REPRESENTATIVE  WILSON  moved  to adopt  the  proposed  committee                                                               
substitute (CS),  Version 23-LS1097\S,  Utermohle, 3/12/04,  as a                                                               
work draft.  [No objection was  stated, and Version S was treated                                                               
as adopted.]                                                                                                                    
Number 0182                                                                                                                     
REPRESENTATIVE  KELLY WOLF,  Alaska  State Legislature,  sponsor,                                                               
explained that HB  309 is aimed at nonindigenous  fish in Alaska.                                                               
Noting   that   he   would  reference   the   Southcentral   area                                                               
specifically, he  advised of a  growing problem over the  last 25                                                               
or so  years on the Kenai  Peninsula and in the  valley involving                                                               
the  invasion   of  nonindigenous  fish   species,  specifically,                                                               
northern  pike.    In  the  last  couple  of  years,  the  Alaska                                                               
Department of  Fish &  Game (ADF&G)  also discovered  that yellow                                                               
perch on  the Kenai Peninsula  had been brought in  illegally; he                                                               
suggested someone  from ADF&G could identify  the monetary amount                                                               
it costs the  state to use rotenone on the  [unspecified] lake in                                                               
the northern Kenai Peninsula area to extinguish those.                                                                          
REPRESENTATIVE WOLF said the concern  is that "bucket biology" is                                                               
taking place.   Although northern  pike are considered  game fish                                                               
in  some of  the  Interior  and some  other  states, they're  not                                                               
indigenous   to   Southcentral   Alaska;  it   costs   ADF&G   an                                                               
undetermined  amount of  money to  control them  through rotenone                                                               
and  education.    He  said   the  department  currently  has  an                                                               
educational  program,  as  do  other  organizations,  to  provide                                                               
public awareness about  northern pike, their habit,  and what the                                                               
actions  of some  "bucket  biologist" can  create  for an  entire                                                               
watershed.  Explaining  that ADF&G has worked  on [Version S] and                                                               
to his belief  supports it, Representative Wolf  deferred to Doug                                                               
Vincent-Lang to address  what it costs the department  to get rid                                                               
of yellow perch in the lake.                                                                                                    
Number 0450                                                                                                                     
DOUG VINCENT-LANG,  Assistant Director,  Division of  Sport Fish,                                                               
Alaska Department  of Fish  & Game,  said he  wasn't sure  of the                                                               
name of  the lake, but estimated  $20,000 to $30,000 in  terms of                                                               
personnel and  so forth in order  to poison the lake.   He stated                                                               
the desire to get ahead  of the situation, rather than constantly                                                               
be responding to invasive species  that have been introduced into                                                               
lakes.   Expressing  concern that  it's  cost-prohibitive to  use                                                               
rotenone after the  fact, he said this  legislation would provide                                                               
another tool for prevention.                                                                                                    
REPRESENTATIVE  GARA  asked  what  impact  the  rotenone  has  on                                                               
rainbow trout or other fish.                                                                                                    
MR. VINCENT-LANG  answered that rotenone  will kill all  the fish                                                               
in the lake; clearly, it's a  last-ditch effort.  Thus [ADF&G] is                                                               
always  trading  off between  the  need  to control  an  invasive                                                               
species and reintroducing the other species back into the lake.                                                                 
CHAIR  SEATON asked  whether there  have been  any problems  with                                                               
MR.   VINCENT-LANG   replied   that  sticklebacks   are   "pretty                                                               
ubiquitous"  around Southcentral  Alaska  and  there hasn't  been                                                               
much of a problem with people  moving them.  The fish that people                                                               
have  moved  around  in  Alaska   are  northern  pike,  into  the                                                               
Southcentral  region,   and  now   yellow  perch  on   the  Kenai                                                               
Peninsula.  He  added that northern pike appear to  be showing up                                                               
increasingly  on  the  Kenai  Peninsula  as  well,  which  causes                                                               
concern to  [the department] in  terms of the standard  stocks on                                                               
the Kenai Peninsula.                                                                                                            
Number 0684                                                                                                                     
REPRESENTATIVE OGG  mentioned people who transport  crab from the                                                               
Bering Sea  to the Gulf  of Alaska, but  don't have a  permit and                                                               
have to get  rid of them into the water  because they aren't able                                                               
to offload  them.   Pointing out that  this could  put fertilized                                                               
crab  eggs into  the Gulf  of  Alaska and  mentioning that  water                                                               
might be released as well, he  asked whether this bill would make                                                               
those commercial fishermen subject to a class C felony.                                                                         
MR. VINCENT-LANG  said he was  trying to think that  through, and                                                               
one  question  is  whether  there is  a  difference  between  the                                                               
species in the  Bering Sea and those  in the Gulf of  Alaska.  He                                                               
then said  there is a  possibility "that  could be done,"  but he                                                               
wasn't sure  what language  could be added  to ensure  that isn't                                                               
occurring now and isn't damaging to the health of the ecosystem.                                                                
CHAIR  SEATON  offered  his  belief  that  there  definitely  are                                                               
different  species if  people may  release  live crab  in such  a                                                               
situation, and that it's not appropriate  to do that.  He pointed                                                               
out that  although these aren't "ornamental  fish," seawater must                                                               
be circulated around  live crab the entire time.   He said it's a                                                               
valid point that should be covered here.                                                                                        
Number 0885                                                                                                                     
REPRESENTATIVE GARA  noted that this  has focused on  the problem                                                               
of  impacts on  freshwater  fish.   He  said  he  hadn't heard  a                                                               
concern about  this with regard  to saltwater species.   He asked                                                               
what Mr.  Vincent-Lang would think  if this were limited  to just                                                               
freshwater species.                                                                                                             
MR.  VINCENT-LANG replied  that  invasive species  clearly are  a                                                               
problem  in  fresh  water  and salt  water,  although  the  major                                                               
problems [raised] to  date are in fresh water.   He recalled that                                                               
perhaps  some laws  or  policies  on the  state  level deal  with                                                               
invasive species in the marine environment.                                                                                     
CHAIR SEATON asked whether Representative Wolf had a comment.                                                                   
REPRESENTATIVE  WOLF said  not at  this time,  and that  this had                                                               
caught him off guard.                                                                                                           
CHAIR  SEATON remarked  that that's  a reason  for the  committee                                                               
Number 0995                                                                                                                     
REPRESENTATIVE GARA  suggested perhaps exempting conduct  in salt                                                               
water that is an accepted  commercial fishing practice.  He added                                                               
that  he   didn't  know  whether  what   Representative  Ogg  was                                                               
discussing involved accepted commercial fishing practices.                                                                      
REPRESENTATIVE OGG explained that he  is just concerned that this                                                               
doesn't  subject commercial  fishermen to  a class  C felony  for                                                               
doing  what  they've  normally  done  for  many  years,  such  as                                                               
bringing golden king  crab or blue king crab from  the Bering Sea                                                               
to the Gulf of  Alaska if they somehow escape or  the eggs go out                                                               
in  the  seawater  system.    He  recalled  that  last  time  the                                                               
committee talked about this, there  was also the issue of escaped                                                               
fish from  salmon farms or  other fish  farming, in case  that is                                                               
permitted in the future.                                                                                                        
Number 1110                                                                                                                     
CHAIR SEATON suggested,  however, that it should be  illegal if a                                                               
fisherman comes back with golden  king crab or some other species                                                               
that isn't native to Kodiak,  Cook Inlet, or Prince William Sound                                                               
and  releases those  to  plant a  new stock,  unless  there is  a                                                               
permit  issued   by  the  commissioner  [or   the  commissioner's                                                               
designee];  he referred  to  the language  in  subsection (a)  on                                                               
[page 1]  line 7.   He  added that  if such  a permit  were held,                                                               
which  would   be  required  in  a   mariculture  or  aquaculture                                                               
situation, this  wouldn't apply.  He  requested confirmation from                                                               
Mr. Vincent-Lang  that [subsection] (a) allows  for a mariculture                                                               
or aquaculture  operation that  is permitted to  "not be  held to                                                               
this section."                                                                                                                  
MR. VINCENT-LANG said that's correct,  and clearly the intent was                                                               
that if  a permit  is issued by  the department,  [the permittee]                                                               
would be  exempt.  With  regard to commercial fishermen,  he said                                                               
he'd  have  to  check  whether  or not  transporting  fish  to  a                                                               
different area and the landing of  those fish are covered under a                                                               
permit.   He  surmised  that  selling would  be  covered under  a                                                               
permit, but  not the release  of any  live fish into  a different                                                               
ecosystem; thus it would remain illegal.                                                                                        
CHAIR  SEATON   noted  that  this  talks   about  "either  that,"                                                               
wastewater,  or   eggs.    Reiterating   that  crab   tanks  must                                                               
continuously circulate  water and thus water  flows overboard, he                                                               
emphasized that  this is a  normal activity of crab  fishing, and                                                               
said it seems  "a more important part than  introducing live crab                                                               
and releasing them."                                                                                                            
Number 1291                                                                                                                     
REPRESENTATIVE  WOLF  asked  Mr. Vincent-Lang  whether  he  could                                                               
define fish species versus crustacean or crab species.                                                                          
MR.  VINCENT-LANG  replied  that  he thinks  the  way  "fish"  is                                                               
defined  under regulations,  crustaceans would  be included.   He                                                               
said he was  wondering whether another way to get  around this is                                                               
to  exempt activities  currently  covered  under water  discharge                                                               
permits from the Department  of Environmental Conservation (DEC),                                                               
if commercial fishermen needed water-quality  permits from DEC to                                                               
release wastewater.                                                                                                             
CHAIR  SEATON answered  that  it isn't  the  case, however;  crab                                                               
fishermen don't  need a  DEC permit, and  yet they  circulate sea                                                               
water from  outside the boat  through the crab tank,  through the                                                               
crab, and  then back overboard  to bring  in oxygen and  keep the                                                               
crab alive.                                                                                                                     
Number 1392                                                                                                                     
REPRESENTATIVE  WILSON  began  discussion of  what  would  become                                                               
Conceptual  Amendment 1.    Referring to  the  wording "does  not                                                               
apply to" [Section 1, page 1,  line 9], she suggested there could                                                               
be  a paragraph  (3)  that  says:   "conduct  that is  acceptable                                                               
fishing practices by commercial fishermen".                                                                                     
REPRESENTATIVE  GARA   proposed  another   addition:     "or  the                                                               
inadvertent release by commercial  fishermen of an Alaska species                                                               
from one area into another".                                                                                                    
CHAIR SEATON noted that in  commercial crab fisheries two actions                                                               
take place.  First, water  is circulated as described previously,                                                               
and the water  that goes overboard could carry  eggs or something                                                               
else; this is a normal  commercial practice.  Second, when taking                                                               
crab out  of the  tanks, fishermen discard  crab that  they think                                                               
are dead, generally  by throwing them overboard;  some crab might                                                               
not really be dead, though.                                                                                                     
CHAIR  SEATON surmised  that  the  "incidental release"  language                                                               
would cover  both, but reiterated that  he doesn't want to  go to                                                               
the  extent  of  allowing  intentional release  or  transport  to                                                               
establish  [a  new  area  for   those  crab  or  other  species].                                                               
Expressing concern about  genetics-related problems, for example,                                                               
he  requested confirmation  that  Representative Ogg's  intention                                                               
isn't to permit that.                                                                                                           
Number 1613                                                                                                                     
REPRESENTATIVE  OGG affirmed  Chair Seaton's  understanding.   He                                                               
proposed  language   along  the  following  lines:     "generally                                                               
accepted conduct in relation to permitted commercial fishing".                                                                  
REPRESENTATIVE GARA  said he  thinks the  language Representative                                                               
Ogg  used  is  fine,  but  suggested  limiting  it  to  saltwater                                                               
commercial  fishing.   He explained  that he'd  hesitate to  deal                                                               
with the argument from someone  who believes more hatchery salmon                                                               
are needed  in a  freshwater body,  for example,  since something                                                               
like  that  might  be  generally   accepted  among  a  number  of                                                               
commercial fishermen.                                                                                                           
REPRESENTATIVE OGG  responded that he  had no problem  with that,                                                               
but was trying to understand  where commercial fishermen would be                                                               
"carrying buckets of salmon eggs into a lake."                                                                                  
REPRESENTATIVE  GARA replied  that  it's not  really buckets  and                                                               
that he doubted  anybody could convince a court  it's a generally                                                               
accepted  practice,  but  explained that  perhaps  someone  could                                                               
argue that  hatchery fish  already exist  in many  salmon streams                                                               
and that he or she was  only furthering the commercial purpose of                                                               
adding more hatchery  fish here.  "Well, we don't  want you to do                                                               
that," he remarked, added that he  doesn't want to leave any room                                                               
for argument in the freshwater area.                                                                                            
CHAIR  SEATON  said  that  makes   sense  to  him  because  those                                                               
activities  can be  permitted and  someone should  have a  permit                                                               
before doing it.  He mentioned genetic stocks.                                                                                  
REPRESENTATIVE OGG  pointed out  that salmon do  transfer between                                                               
salt  water  and fresh  water,  and  that Alaska  has  commercial                                                               
salmon  fisheries in  fresh water.   He  again expressed  concern                                                               
that  it might  impact commercial  fishermen who  are doing  what                                                               
they normally do in the course of their business.                                                                               
Number 1796                                                                                                                     
REPRESENTATIVE WOLF referred  to page 1, line  6, which addresses                                                               
live fertilized eggs  of nonindigenous species.   He said someone                                                               
is required  to carry  a permit  to do  any fertilization  in any                                                               
lake within  Alaska.   Recognizing Representative  Ogg's concerns                                                               
about crab,  he said he'd  fully accept the  conceptual amendment                                                               
that has been under discussion.                                                                                                 
CHAIR SEATON  asked whether  anyone else wished  to testify.   He                                                               
then closed public testimony.                                                                                                   
Number 1882                                                                                                                     
REPRESENTATIVE  OGG moved  to adopt  Conceptual  Amendment 1,  to                                                               
perhaps have a paragraph (3) [after  page 1, line 12] that covers                                                               
this  concept:    generally  accepted   conduct  in  relation  to                                                               
permitted commercial fishing would be excluded.                                                                                 
CHAIR SEATON  objected for purposes  of discussion.   With regard                                                               
to salt  water, he referred  to Representative  Wolf's discussion                                                               
of "nonindigenous" and asked:                                                                                                   
     Does  that  really   take  care  of  all   of  the  ...                                                                    
     freshwater problems?  In other  words, if you're on the                                                                    
     Yukon River, any  fish you catch there are  going to be                                                                    
     indigenous?   This would relate to  ornamental fish, or                                                                    
     this would relate to  ... other nonindigenous [species]                                                                    
     and  eggs of  nonindigenous fish.    So, do  we have  a                                                                    
     situation  where we  are  talking  about anything  that                                                                    
Number 1980                                                                                                                     
REPRESENTATIVE OGG replied that  not being a freshwater fisherman                                                               
"except for  sheer joy," he  doesn't know and would  rather leave                                                               
it to the  department.  He reiterated his desire  to avoid having                                                               
commercial fishermen  be subject  to a  class C  felony if  it is                                                               
limited to just  salt water "and then we cause  that to happen to                                                               
somebody."   He said  he didn't  know if there  is an  event that                                                               
would do  that, but if the  department comes back and  says there                                                               
is  nothing  in  fresh  water  that would  be  affected  if  [the                                                               
exemption] is limited  to salt water, he has no  problem with it.                                                               
"But I  don't want  to set  the parameter for  them to  say 'just                                                               
salt water', because they may not look beyond that," he added.                                                                  
CHAIR SEATON  asked whether within Conceptual  Amendment 1, then,                                                               
is that  if the department feels  it would be beneficial  to have                                                               
'salt  water' included  and that  it  wouldn't impact  commercial                                                               
fisheries in fresh water, Representative  Ogg would accept having                                                               
it in there.                                                                                                                    
REPRESENTATIVE  OGG  affirmed that,  if  it's  acceptable to  the                                                               
CHAIR  SEATON asked  Representative Gara  whether that  satisfies                                                               
his concerns.                                                                                                                   
REPRESENTATIVE  GARA replied,  "Sure,  ... if  it's  OK with  the                                                               
department to  add 'saltwater commercial  fishing', just  to make                                                               
that term 'saltwater  commercial fishing', just to  be safe, that                                                               
would  make  me   comfortable,  I  guess."     He  asked  whether                                                               
Representative Wolf  would be asked  to work with  the department                                                               
or whether the  committee would "pass out the  amendment and have                                                               
Representative Wolf report to us on the floor."                                                                                 
CHAIR SEATON pointed  out that it will go to  the House Resources                                                               
Standing Committee.  He said  he was comfortable enough with that                                                               
direction to the department.  He  asked whether anyone else had a                                                               
problem with giving the department  leeway to specify "saltwater"                                                               
if  it  wouldn't  negatively  impact  any  freshwater  commercial                                                               
fisheries.    He  then  said   Conceptual  Amendment  1  inserts,                                                               
approximately on  line 12  [page 1], a  new [paragraph]  (3) that                                                               
adds a generally accepted conduct  in relationship to a permitted                                                               
commercial fishing activity, or to permitted commercial fishing.                                                                
Number 2116                                                                                                                     
CHAIR SEATON removed his objection.                                                                                             
CHAIR SEATON  asked whether there  was any objection  to adopting                                                               
Conceptual  Amendment 1.   There  being no  objection, it  was so                                                               
Number 2128                                                                                                                     
REPRESENTATIVE  GARA moved  to adopt  Conceptual  Amendment 2  as                                                               
     Page 2, line 1, after "class C felony"                                                                                     
     Add ", and must pay a fine of at least $1,500"                                                                             
CHAIR SEATON objected for discussion purposes.                                                                                  
REPRESENTATIVE GARA explained his  reasoning:  although this kind                                                               
of  crime in  many senses  isn't as  serious as  one involving  a                                                               
human victim,  it is, in  some sense,  a crime against  the whole                                                               
community.   Tens of  thousands of  Alaskans cherish  that Alaska                                                               
has  wild fish  that  in  size and  number  are  similar to  what                                                               
they've always  been.  "We've done  a very good job  managing our                                                               
fisheries, and  when somebody  commits the  kind of  conduct that                                                               
Representative Wolf  is trying  to prevent,  ... they  impact the                                                               
lives of the whole community at the same time," he explained.                                                                   
REPRESENTATIVE GARA noted that ADF&G  has ongoing efforts to deal                                                               
with this impact  and has biologists who are  concerned right now                                                               
with  how to  deal  with predatory,  introduced, nonnative  fish.                                                               
Therefore,  he said,  he believes  it's appropriate  for somebody                                                               
who commits this  crime to pay a minimum fine,  since it occupies                                                               
the time  of the state and  impacts the interests of  its people.                                                               
Furthermore, he  opined, this  is the kind  of conduct  ADF&G can                                                               
help  to deter  by  talking  about the  minimum  $1,500 fine,  by                                                               
posting  it  in  appropriate  places,   for  example.    Thus  he                                                               
suggested a minimum fine in this regard is important.                                                                           
Number 2237                                                                                                                     
CHAIR SEATON asked  what the range of fines and  penalties is for                                                               
a class C felony.                                                                                                               
MR. VINCENT-LANG answered that the  maximum fine is up to $50,000                                                               
and up to five  years in jail for a class C  felony.  Clearly, he                                                               
said, a $15,000 penalty would be ...                                                                                            
CHAIR SEATON clarified that it's $1,500.                                                                                        
MR.  VINCENT-LANG responded  that a  $1,500 penalty  would be  in                                                               
line with the maximum allowed under a class C felony.                                                                           
CHAIR  SEATON  asked whether  there  is  a minimum  currently  in                                                               
statute for a class C felony.                                                                                                   
MR. VINCENT-LANG said he wasn't sure.                                                                                           
Number 2278                                                                                                                     
REPRESENTATIVE  GARA expressed  confidence that  there's no  such                                                               
minimum, but  made the commitment  that if this  amendment passes                                                               
and it  turns out there is  a minimum [already in  statute], he'd                                                               
work with the sponsor to delete the language.                                                                                   
REPRESENTATIVE OGG  suggested conditional  language such  that if                                                               
there is no  minimum fine [already in statute], this  will be the                                                               
REPRESENTATIVE GARA  accepted that  as a friendly  amendment that                                                               
might result in  the following language:  "Unless  a minimum fine                                                               
is provided  elsewhere in law,  the minimum fine for  a violation                                                               
of this  section shall  be at  least $1,500".   In response  to a                                                               
request from Chair Seaton to  repeat it, he reworded it slightly:                                                               
"To the extent  a minimum fine is not provided  elsewhere by law,                                                               
the  minimum  fine for  a  violation  of  this section  shall  be                                                               
$1,500."   He offered to do  research on the minimum  fine so the                                                               
language could be cleaned up on the House floor.                                                                                
CHAIR  SEATON specified  that  he  wanted it  done  in the  House                                                               
Resources  Standing Committee.   He  requested confirmation  that                                                               
the intention,  if there is a  minimum fine elsewhere in  law, is                                                               
that this amendment won't be incorporated.                                                                                      
REPRESENTATIVE GARA affirmed that.                                                                                              
Number 2450                                                                                                                     
CHAIR SEATON removed his objection.                                                                                             
CHAIR SEATON  asked whether there  was any objection  to adopting                                                               
[Conceptual Amendment 2, as amended].   There being no objection,                                                               
it was so ordered.                                                                                                              
CHAIR SEATON  noted that  the halibut  commission has  found that                                                               
15 percent  of supposedly  dead  halibut come  back  to life  and                                                               
Number 2532                                                                                                                     
REPRESENTATIVE   GUTTENBERG  referred   to  page   2,  line   11,                                                               
paragraph (4),  "water of  the  state".   He  asked whether  that                                                               
definition is consistent throughout statute.                                                                                    
MR. VINCENT-LANG  said it's a  definition of how  [ADF&G] applies                                                               
public policy.                                                                                                                  
CHAIR SEATON asked whether any of the other definitions are new.                                                                
MR. VINCENT-LANG  replied that they're basically  consistent with                                                               
how  [ADF&G] has  been applying  this  in terms  of managing  the                                                               
Number 2591                                                                                                                     
REPRESENTATIVE OGG moved to report CSHB 309, Version 23-                                                                        
LS1097\S, Utermohle,  3/12/04, as amended, out  of committee with                                                               
individual  recommendations and  the  accompanying [zero]  fiscal                                                               
notes.   There  being no  objection, CSHB  309(FSH) was  reported                                                               
from the House Special Committee on Fisheries.                                                                                  
MR. VINCENT-LANG said he'd be glad to work on the aforementioned                                                                

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