Legislature(2003 - 2004)
04/21/2004 01:15 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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  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.