Legislature(2003 - 2004)

04/21/2004 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 309 - PROHIBIT RELEASE OF PREDATORY FISH                                                                                   
                                                                                                                                
Number 1887                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL  NO.   309,  "An  Act  prohibiting   the  release  of                                                               
nonindigenous  predatory fish  into public  water."   [Before the                                                               
committee  was   CSHB  309(RES),  which  had   been  amended  via                                                               
Amendment   2  on   4/16/04   and  then   been   assigned  to   a                                                               
subcommittee.]                                                                                                                  
                                                                                                                                
REPRESENTATIVE HOLM, speaking as chair  of the subcommittee on HB                                                               
309,  indicated  that members  should  have  in their  possession                                                               
proposed amendments, and that the  subcommittee didn't come to an                                                               
agreement regarding the body of water.                                                                                          
                                                                                                                                
REPRESENTATIVE HOLM  directed attention  to [Amendment  3], which                                                               
read [original punctuation provided]:                                                                                           
                                                                                                                                
     Section 1                                                                                                                  
     Page 1                                                                                                                     
     Line 6 Delete [the person  holds a permit issued by the                                                                  
     commissioner   or   the  commissioner's   designee   to                                                                  
     transport,  possess,  import,  export, or  release  the                                                                  
     fish or live fish eggs.] after unless                                                                                    
          Line 6 add permitted by AS 16.05-16.40 or by                                                                      
     regulation adopted under AS 16.05 - 16.40                                                                              
                                                                                                                                
     Line 12 Delete ALL of line [12] and renumber                                                                             
                                                                                                                                
     Page 2                                                                                                                     
       Line 1 delete [, the water of the state or release                                                                     
     fish wastes or waster [sic] water from ornamental fish                                                                 
     tanks or other containment systems directly into the]                                                                    
                                                                                                                                
     Line 3 delete [ C felony] after class                                                                                    
     Line 3 add A misdemeanor after class                                                                                   
                                                                                                                                
     Line 4 delete [$1,500] after than                                                                                        
     Line 4 add $5,000 after than                                                                                           
                                                                                                                                
Number 1589                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS  made  a  motion to  adopt  Amendment  3.                                                               
There being no objection, Amendment 3 was adopted.                                                                              
                                                                                                                                
Number 1574                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM directed  attention  to  Amendment 4,  which                                                               
read [original punctuation provided]:                                                                                           
                                                                                                                                
     Line 15 Delete [means any  water of the state forming a                                                                  
     river, stream, lake, pond,  creek, bay, sound, estuary,                                                                  
     inlet,  strait, passage,  canal, sea,  or ocean  or any                                                                  
     other body of water  or waterway within the territorial                                                                  
     limits of the state] after state"                                                                                        
     Line  15  add as  define  [sic]  in AS  5.25.100  after                                                            
     state"                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM offered  his belief  that Amendment  4 would                                                               
provide consistency within fish and game statutes.                                                                              
                                                                                                                                
REPRESENTATIVE  GARA,  though  there   was  no  motion  to  adopt                                                               
Amendment 4, objected.                                                                                                          
                                                                                                                                
REPRESENTATIVE SAMUELS  opined that  the term  "navigable waters"                                                               
should  be avoided,  and that  the current  language in  the bill                                                               
"gets us to where we need to go."                                                                                               
                                                                                                                                
REPRESENTATIVE HOLM withdrew Amendment 4.                                                                                       
                                                                                                                                
Number 1520                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM directed  attention to  Amendment 5,  which,                                                               
along with  an explanation section  and a  handwritten estimation                                                               
regarding  size, read  [original  punctuation  provided and  some                                                               
formatting changed]:                                                                                                            
                                                                                                                                
     Page 1, Line 13, Sec.1  insert:  (3) an ornamental fish                                                                
     pond.                                                                                                                  
                                                                                                                                
     Page  2 after  Line 18  insert:   (5) "Ornamental  fish                                                                
     pond"  means a  pond located  on private  property, not                                                                
     connected to a water of  the state, with a surface area                                                                
     of  less   than  10,000  square   feet  and   that  was                                                                
     cultivated or constructed to be stocked with fish.                                                                     
                                                                                                                                
     Renumber accordingly                                                                                                       
                                                                                                                                
                                                                                                                                
     Explanation:                                                                                                               
                                                                                                                                
          We do not intend to make a back yard pond which                                                                       
     is  filled  with  goldfish   into  a  criminal  matter.                                                                    
     Existing  ponds  of  every size  and  content  are  not                                                                    
     covered to this point in  time and will not be affected                                                                    
     by  the   passage  of  this   law.    But,   all  newly                                                                    
     constructed or stocked ponds will  now have a threshold                                                                    
     for permitting.   Any pond that  meets the requirements                                                                    
     and is under 10,000 sq. ft.  can be stocked at will.  A                                                                    
     person is free  to construct a bigger  pond from 10,000                                                                    
     ft to 1000  acres or more, but will only  need a permit                                                                  
     to stock it.                                                                                                               
                                                                                                                                
                                                                                                                                
          THE COURTYARD BORDERING THE JUDICIARY COMMITTEE                                                                       
     RM. IS APPROXIMATELY 4,650 SQ. FT.                                                                                         
                                                                                                                                
          THE POND SIZE SUGGESTED IN THIS AMENDMENT WOULD                                                                       
     BE ABOUT TWO TIMES BIGGER.                                                                                                 
                                                                                                                                
REPRESENTATIVE HOLM offered his belief that Amendment 5 would                                                                   
address the issue of "Koi" ponds constructed for landscaping                                                                    
purposes.                                                                                                                       
                                                                                                                                
Number 1450                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA, though there was no motion to adopt                                                                        
Amendment 5, objected.  He said:                                                                                                
                                                                                                                                
     My worry is this:  the  way it's defined, it could be a                                                                    
     natural pond  on a  piece of private  property.   And I                                                                    
     think back to the original  purpose of the bill and the                                                                    
     [following]  example ...:    behind  the Chelatna  Lake                                                                    
     lodge, which  is the headwaters  for Lake Creek  in the                                                                    
     [Matanuska-Susitna]  valley, the  owners  of the  lodge                                                                    
     stocked pike.   At high water, Chelatna  Lake rose, and                                                                    
     the  pike from  the  Chelatna Lake  pond migrated  into                                                                    
     Chelatna Lake.  It wasn't  connected to a water body at                                                                    
     the time, so  it would be allowed.  That's  the kind of                                                                    
     behavior that  we're trying to  avoid, and so  we would                                                                    
     have   to  write   an  amendment   that  got   to  what                                                                    
     Representative  Holm   wanted  but   didn't  jeopardize                                                                    
     [prosecution of]  the kind of conduct  that occurred in                                                                    
     this circumstance,  which fortunately  hasn't destroyed                                                                    
        the Lake Creek system but ... certainly had the                                                                         
     potential to.                                                                                                              
                                                                                                                                
REPRESENTATIVE  HOLM   offered  his  belief  that   the  bill  is                                                               
attempting  to address  purposeful acts,  rather than  accidental                                                               
situations such as occurred at the Chelatna Lake.                                                                               
                                                                                                                                
REPRESENTATIVE  SAMUELS said  he would  support Amendment  5, but                                                               
remarked  that he  would also  support  additional language  that                                                               
would provide some sidebars.                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLM, in  response  to  comments, suggested  that                                                               
perhaps Amendment 5  could be conceptual in order  to ensure that                                                               
it refers  to a manmade  pond that was constructed  by artificial                                                               
means.                                                                                                                          
                                                                                                                                
CHAIR McGUIRE pointed out, however,  that people may want to turn                                                               
a  naturally  occurring  pond  into   an  ornamental  fish  pond;                                                               
therefore, referring to manmade ponds may not be sufficient.                                                                    
                                                                                                                                
REPRESENTATIVE HOLM concurred.                                                                                                  
                                                                                                                                
Number 1236                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KELLY WOLF,  Alaska  State Legislature,  sponsor,                                                               
noted that currently,  if one wants to transport  fish within the                                                               
state, one  needs a  permit, regardless of  whether the  fish are                                                               
being  transported to  a manmade  pond or  a naturally  occurring                                                               
pond.                                                                                                                           
                                                                                                                                
REPRESENTATIVE  HOLM relayed  that Amendment  5 proposes  to deal                                                               
with the issue of ornamental fish ponds.                                                                                        
                                                                                                                                
REPRESENTATIVE  GARA  concurred  with  Representative  Wolf,  and                                                               
suggested  not  adopting  Amendment 5  and  allowing  Legislative                                                               
Legal and Research  Services to draft appropriate  language for a                                                               
House  floor  amendment.     He  opined  that   "limiting  it  to                                                               
artificial ponds  for which  a permit is  not needed  would cover                                                               
the issue that Representative Holm wants [addressed]."                                                                          
                                                                                                                                
REPRESENTATIVE HOLM withdrew Amendment 5.                                                                                       
                                                                                                                                
Number 1108                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  directed attention  to page  1, line  5, and                                                               
said  he questions  whether  they  want to  make  it  a crime  to                                                               
transport,  import,  export,  or  possess if  the  fish  are  not                                                               
released  into water.   He  suggested  that "transport,  possess,                                                               
import,  export, or"  be  deleted from  page 1,  line  5.   These                                                               
actions are already illegal, he  remarked, and offered his belief                                                               
that  what they  want to  do  is make  it a  crime to  "knowingly                                                               
release".                                                                                                                       
                                                                                                                                
CHAIR McGUIRE  referred to the foregoing  suggestion as Amendment                                                               
6.                                                                                                                              
                                                                                                                                
REPRESENTATIVE  WOLF suggested  amending  Amendment  6 such  that                                                               
line 5 would read in part:  "transport and release".                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  remarked, however, that there  could be                                                               
situations in which one person  does the transporting but not the                                                               
releasing  while   another  does   the  releasing  but   not  the                                                               
transporting.  Therefore,  if such a change is  made to Amendment                                                               
6,  then "and"  should be  "or"  so as  to catch  both those  who                                                               
release and those who transport.                                                                                                
                                                                                                                                
REPRESENTATIVE GARA  said he  did not  think the  committee would                                                               
want to make transporting fish without releasing them a crime.                                                                  
                                                                                                                                
Number 0982                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  made a  motion  to  adopt Amendment  6,  to                                                               
delete  from page  1,  line 5,  the  words, "transport,  possess,                                                               
import, export, or".                                                                                                            
                                                                                                                                
Number 0978                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG objected for  the purpose of discussion.                                                               
He opined  that similar to  drug transactions, there  should also                                                               
be a penalty for the person doing the transporting.                                                                             
                                                                                                                                
REPRESENTATIVE SAMUELS agreed, adding  that it could be difficult                                                               
to convict only  those releasing fish because  the evidence would                                                               
swim away.                                                                                                                      
                                                                                                                                
REPRESENTATIVE WOLF concurred.                                                                                                  
                                                                                                                                
REPRESENTATIVE   GARA  indicated   that  he   did  not   want  to                                                               
criminalize someone  who catches  a pike  and then  transports it                                                               
live because he/she wants to arrive home with a fresh fish.                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  wants to prosecute  the person                                                               
who  transports for  release, and  suggested having  a conceptual                                                               
amendment  say  something  along   the  lines  of  "releasing  or                                                               
transporting for release".                                                                                                      
                                                                                                                                
REPRESENTATIVE  GARA  suggested  that   the  committee  adopt  an                                                               
unamended Amendment 6 and then  address further changes to line 5                                                               
via an Amendment 7.                                                                                                             
                                                                                                                                
REPRESENTATIVE SAMUELS objected  to [that suggestion], indicating                                                               
that  he  would  prefer  to  know the  totality  of  the  changes                                                               
proposed to line 5.                                                                                                             
                                                                                                                                
Number 0841                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA made a motion  to amend Amendment 6 such that                                                               
the words  "or transport for  the purpose of releasing"  would be                                                               
added after "release".                                                                                                          
                                                                                                                                
Number 0823                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS  suggested   amending  the  amendment  to                                                               
Amendment 6 such that it would  say, "or possess or transport for                                                               
the purpose of releasing".                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA said, "Sure."                                                                                               
                                                                                                                                
CHAIR  McGUIRE   suggested  making   Amendment  6,   as  amended,                                                               
conceptual so  as to  allow the  drafter the  ability to  make it                                                               
grammatically correct.                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  about importing  fish  for  the                                                               
purpose of release.                                                                                                             
                                                                                                                                
REPRESENTATIVE GARA  opined that  such behavior would  already be                                                               
covered because of use of the words "possess" and "transport".                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  argued that such might  not necessarily                                                               
be the  case, and relayed that  he knows of people  in the export                                                               
business who  never actually possess  or transport  the commodity                                                               
themselves.                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  remarked that that  is an interesting point.   She                                                               
suggested  leaving  the  language  on  line  5  as  is  with  the                                                               
exception of changing  "or" to "for".  Line 5  would then read in                                                               
part:  "transport,  possess, import, export for  release into the                                                               
water ...".                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  remarked that the term  export seems to                                                               
imply that  one is  taking fish  out of the  waters of  the state                                                               
rather than releasing them into the waters of the state.                                                                        
                                                                                                                                
REPRESENTATIVE WOLF pointed out,  however, that other states have                                                               
had  to deal  with fish  being imported  and released  into their                                                               
waters,  and  someone  first  had   to  export  those  fish  from                                                               
somewhere else.                                                                                                                 
                                                                                                                                
Number 0531                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA withdrew Amendment 6.                                                                                       
                                                                                                                                
Number 0528                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA and  CHAIR McGUIRE  made a  motion to  adopt                                                               
Amendment 7,  to delete "or"  on page 1,  line 5, and  replace it                                                               
with "for".  There being no objection, Amendment 7 was adopted.                                                                 
                                                                                                                                
REPRESENTATIVE  GARA   suggested  that  in  order   to  make  the                                                               
releasing of  fish a crime  under HB  309, they should  alter the                                                               
language  on  line 5  to  say  "release, or  transport,  possess,                                                               
import, export for release into the water ...".                                                                                 
                                                                                                                                
CHAIR  McGUIRE   indicated  that  the  language   as  amended  by                                                               
Amendment 7  is sufficient to  make releasing fish a  crime under                                                               
this bill.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG  opined  that  it is  not  possible  to                                                               
release a fish without possessing it.                                                                                           
                                                                                                                                
Number 0463                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE suggested  making Amendment  7 conceptual  for the                                                               
purpose  of  allowing the  drafter  to  make  it clear  that  the                                                               
behaviors of  transporting, possessing, importing,  and exporting                                                               
are  modified by  the  words  "for release".    No objection  was                                                               
heard;  therefore,   Amendment  7   was  treated   as  Conceptual                                                               
Amendment 7.                                                                                                                    
                                                                                                                                
REPRESENTATIVE OGG mentioned that  someone in another state could                                                               
be guilty  of exporting fish from  that state for the  purpose of                                                               
releasing the fish into the waters of Alaska.                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG concurred.                                                                                             
                                                                                                                                
Number 0337                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS   moved  to  report  CSHB   309(RES),  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying  fiscal notes.   There being no  objection, CSHB                                                               
309(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                

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