Legislature(2009 - 2010)BARNES 124

03/08/2010 01:00 PM House RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Continued at 6:00 pm Today --
Moved CSHJR 49(RES) Out of Committee
Moved HCS CSSJR 22(FSH) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SJR 22-FEDERAL PREEMPTION OF SALMON MANAGEMENT                                                                     
2:36:01 PM                                                                                                                    
CO-CHAIR NEUMAN  announced that the  second order of  business is                                                               
CS FOR  SENATE JOINT RESOLUTION NO.  22(RES), Opposing litigation                                                               
that seeks to  eliminate the Kenai, Kasilof,  and Chitina sockeye                                                               
salmon personal  use dip  net fisheries.   [Before  the committee                                                               
was HCS CSSJR 22(FSH).]                                                                                                         
2:36:46 PM                                                                                                                    
SHARON  LONG,  Staff,  Senator   Charlie  Huggins,  Alaska  State                                                               
Legislature,  paraphrased  from  the  following  written  sponsor                                                               
statement [original punctuation provided]:                                                                                      
     This resolution takes  aim at lawsuits filed  in the US                                                                    
     District Court of Alaska, one  by the United Cook Inlet                                                                    
     Drift  Association  (UCIDA)  and other  by  Herbert  T.                                                                    
     Jensen.   The  complaints  by  this commercial  fishing                                                                    
     group  and  an  individual,  calling for  a  return  of                                                                    
     federal  management, are  an affront  to  the State  of                                                                    
     Alaska.  Please,  do not forget, here  in the afterglow                                                                    
     of our  yearlong celebration of 50  years of statehood,                                                                    
     it was a colossal  failure of federal salmon management                                                                  
     that  was a  major driving  force behind  the statehood                                                                    
     movement.  Hopefully,  no one wishes to  return to such                                                                    
     a regime.                                                                                                                  
     UCIDA  is  an association  of  both  resident and  non-                                                                    
     resident  commercial fishers  who participate  in drift                                                                    
     gillnet  salmon fisheries  in the  inlet.   Remarkably,                                                                    
     they  can keep,  for their  personal use,  an unlimited                                                                  
     number  of fish  from  their commercial  catch.   Their                                                                    
     goal is to have the  state-managed personal use dip net                                                                    
     fishery declared unconstitutional  and be pre-empted by                                                                    
     federal law.   This resolution  seeks a fair  shake for                                                                    
     Alaskans  who  fish,   without  commercial  gear,  with                                                                    
     simple dip nets,  to feed their families.   It asks the                                                                    
     governor  to  intervene  in   defense  of  our  state's                                                                    
     authority to manage its own  fisheries in a responsible                                                                    
MS.  LONG  noted the  parties  are  actively filing  motions  and                                                               
briefs and last month the plaintiffs  moved to go forward to oral                                                               
arguments even  though the U.S.  Department of  Commerce National                                                               
Marine  Fisheries Service  (NMFS)  has  responded to  petitioners                                                               
that   under  the   Magnuson-Stevens  Fishery   Conservation  and                                                               
Management Act  it lacks  any authority  to regulate  the state's                                                               
personal  use   fishery  conducted  predominantly   within  state                                                               
waters.  In  this regard, she called attention to  page 11 of the                                                               
NMFS letter contained  in the committee packet.  She  said SJR 22                                                               
asks  UCIDA to  drop  the  lawsuit and  the  attorney general  to                                                               
intervene on the state's behalf should the lawsuit go forth.                                                                    
2:39:56 PM                                                                                                                    
CO-CHAIR NEUMAN understood  the two lawsuits - one  by the United                                                               
Cook Inlet Drift Association and one  by Herbert T. Jensen - seek                                                               
to eliminate the personal use dip net fishery.                                                                                  
MS.  LONG  responded  yes,  the plaintiffs  would  like  for  the                                                               
association's non-resident  members to be able  to participate in                                                               
Alaska's  resident-only personal  use  fishery.   The  plaintiffs                                                               
want  the  personal use  fishery  for  Alaska's residents  to  be                                                               
declared unconstitutional and thereby open it up.                                                                               
2:40:40 PM                                                                                                                    
CO-CHAIR  NEUMAN read  page  2, lines  24-28,  of the  resolution                                                               
which  states  that  "members  of the  United  Cook  Inlet  Drift                                                               
Association,   including  all   nonresidents,   are  allowed   an                                                               
unlimited  bag limit".   He  understood from  this language  that                                                               
UCIDA members  can keep salmon  for personal use that  are caught                                                               
during the commercial fisheries.                                                                                                
MS. LONG replied  yes.  She called the Alaska  Department of Fish                                                               
& Game  to verify  this and was  told that it  was accurate.   In                                                               
further response, she  said the fish must be claimed  on the fish                                                               
tags,  as  is done  by  residents  on  their personal  use  tags.                                                               
Additionally,  for  commercial  fishermen in  this  fishery,  the                                                               
personal-use take is unlimited.                                                                                                 
CO-CHAIR NEUMAN inquired  whether there is a limit  on the amount                                                               
of salmon that a resident Alaskan can keep for personal use.                                                                    
MS. LONG answered she does not know and deferred to Mr. Kane.                                                                   
BRIAN  KANE,  Attorney,  Legislative Legal  Counsel,  Legislative                                                               
Legal and Research Services, Legislative  Affairs Agency, said he                                                               
would have to  look through the regulations in this  regard as he                                                               
does  not  believe  fishing  limits  are put  in  statute.    The                                                               
regulations might be different for different areas, he added.                                                                   
2:42:48 PM                                                                                                                    
CO-CHAIR  NEUMAN  offered  his  belief that  the  limit  for  the                                                               
Chitina River  is 30  salmon per  household and  15 for  a single                                                               
person, and that  on the Kenai River the maximum  is 45-50 salmon                                                               
per household.                                                                                                                  
REPRESENTATIVE OLSON  said he  believes it is  25 salmon  for the                                                               
head-of-household and  10 for each additional  family member, but                                                               
no limit on family members.                                                                                                     
CO-CHAIR  NEUMAN  summarized  the  discussion by  noting  that  a                                                               
commercial  fisherman  can  take  an unlimited  bag  amount  [for                                                               
personal  use], while  Alaskans  taking salmon  for personal  use                                                               
have a limit; both must report the amount taken.                                                                                
MS. LONG nodded yes.                                                                                                            
2:44:23 PM                                                                                                                    
CO-CHAIR NEUMAN surmised  the goal of SJR 22 is  to challenge the                                                               
two lawsuits.                                                                                                                   
MS. LONG responded yes.                                                                                                         
MS.  LONG, in  response to  Representative Guttenberg,  explained                                                               
that  the housekeeping  changes made  to the  resolution included                                                               
updating  of the  names of  the  governor and  U.S. Secretary  of                                                               
2:45:06 PM                                                                                                                    
REPRESENTATIVE  P. WILSON  inquired why  non-residents are  being                                                               
allowed subsistence privileges that are meant for residents.                                                                    
MS.  LONG replied  this was  the  serious question  that was  the                                                               
genesis  of SJR  22.   She clarified  that it  is a  personal use                                                               
fishery, not subsistence.                                                                                                       
REPRESENTATIVE  P. WILSON  asked what  the difference  is between                                                               
personal use and subsistence.                                                                                                   
MS.  LONG answered  that  while  she cannot  do  a  great job  of                                                               
describing subsistence, she knows that  the first priority in the                                                               
allocation of  fish is  for subsistence  purposes and  the second                                                               
highest priority is the personal use fishery.                                                                                   
2:46:16 PM                                                                                                                    
REPRESENTATIVE  P.  WILSON inquired  whether  personal  use is  a                                                               
guise for fishers  to take more commercial catch,  given that the                                                               
amount for personal catch is unlimited.                                                                                         
MR.  KANE, at  the request  of Co-Chair  Neuman, first  addressed                                                               
Representative P. Wilson's earlier  question about the difference                                                               
between  personal  use and  subsistence  fishing.   He  read  the                                                               
following from AS 16.05.940 [original punctuation provided]:                                                                    
     "personal use  fishing" means the taking,  fishing for,                                                                    
     or possession  of finfish, shellfish, or  other fishery                                                                    
     resources,  by Alaska  residents for  personal use  and                                                                    
     not for  sale or barter,  with gill or dip  net, seine,                                                                    
      fish wheel, long line, or other means defined by the                                                                      
     Board of Fisheries;                                                                                                        
     "subsistence  fishing"  means  the taking  of,  fishing                                                                    
     for,  or  possession  of   fish,  shellfish,  or  other                                                                    
     fisheries resources by a resident  domiciled in a rural                                                                    
     area of the  state for subsistence uses  with gill net,                                                                    
     seine, fish  wheel, long line,  or other  means defined                                                                    
     by the Board of Fisheries;                                                                                                 
2:47:59 PM                                                                                                                    
REPRESENTATIVE P.  WILSON reiterated her question  about why non-                                                               
residents  should  be  allowed subsistence  privileges  that  are                                                               
meant for Alaska residents.                                                                                                     
MR. KANE responded he does not know why that is allowed.                                                                        
MS. LONG  said that, personally,  she has not ascribed  motive as                                                               
to why  the plaintiffs  are seeking this.   However,  she related                                                               
that the  defendant's have interpreted  this "as UCIDA  seeking a                                                               
greater  allocation  of  salmon  for its  members  and  a  lesser                                                               
allocation for, among others, Alaska  residents."  Therefore, the                                                               
defendant's  interpretation   was  the  same  as   the  sense  of                                                               
Representative P. Wilson's question.                                                                                            
2:49:22 PM                                                                                                                    
CO-CHAIR JOHNSON  said he  thinks what is  being talked  about is                                                               
priority use  and the plaintiffs  are asking that  the commercial                                                               
use be elevated to the same priority level as personal use.                                                                     
REPRESENTATIVE SEATON pointed out that  there is a priority usage                                                               
for subsistence, but not a  designation of priority use among the                                                               
other uses  for Alaska  fisheries.  Under  current Alaska  law, a                                                               
personal use  fishery is  essentially like  a sport  fishery, but                                                               
with different gear.   This is not a  priority situation; rather,                                                               
this is asking  for non-residents to be able to  use personal use                                                               
fisheries the  same as the others.   He clarified that  it is not                                                               
an unlimited catch  available to members of the  Upper Cook Inlet                                                               
Drift Association  because there are  limited days and  times for                                                               
the commercial fishery;  it is limited to  their legal commercial                                                               
catch.   This  legal commercial  catch must  be reported  and the                                                               
fishermen  can choose  whether to  sell,  donate, distribute,  or                                                               
keep that catch for their own personal use.                                                                                     
2:51:40 PM                                                                                                                    
CO-CHAIR NEUMAN  said there  is concern  about this  issue across                                                               
REPRESENTATIVE  TUCK added  to Representative  Seaton's statement                                                               
by  reading  the  following  written  testimony  from  commercial                                                               
fisherman Matt Donohoe of Sitka [original punctuation provided]:                                                                
     Commercial  fishermen cannot  keep  all  the fish  they                                                                    
     want.   They can choose  to keep  some or all  of their                                                                    
     commercial catch  and not  sell it.   They  cannot keep                                                                    
     fish when their commercial fishery is closed.                                                                              
CO-CHAIR NEUMAN opened public testimony.                                                                                        
2:53:09 PM                                                                                                                    
ROD  ARNO,  Executive  Director, Alaska  Outdoor  Council  (AOC),                                                               
stated  that the  Alaska Outdoor  Council represents  over 10,000                                                               
Alaskans  statewide  who participate  in  dip  net fisheries  and                                                               
harvest wild food.  He said AOC  supports passage of SJR 22.  The                                                               
state   constitution  provides   that  Alaskan   individuals  are                                                               
obligated  to  respect  the  rights   and  protections  of  other                                                               
Alaskans.   The personal use  fishery was established in  1982 to                                                               
provide an  opportunity for non-Copper River  Basin residents who                                                               
had lost their priority to dip  net for salmon at Chitina because                                                               
the  Board of  Fish and  the Board  of Game  had adopted  a rural                                                               
priority.   He  related that  the AOC  is in  currently in  court                                                               
trying to make  sure that that dip net fishery  on the Chitina is                                                               
not a personal use fishery,  but a subsistence use fishery, which                                                               
would  give it  a  priority  to Alaska  residents  who choose  to                                                               
gather a wild  food harvest.  In response to  Co-Chair Neuman, he                                                               
added that fish  caught in a personal use fishery  cannot be sold                                                               
CO-CHAIR  NEUMAN closed  public testimony  after ascertaining  no                                                               
one else wished to testify.                                                                                                     
2:56:39 PM                                                                                                                    
MS. LONG,  in response  to Representative  Tuck, stated  that two                                                               
lawsuits have been filed.                                                                                                       
CO-CHAIR NEUMAN, in response to  Representative Tuck, pointed out                                                               
that the resolution does address  the lawsuit filed by Herbert T.                                                               
Jensen and this can be found on page 1, line 15.                                                                                
REPRESENTATIVE  SEATON posited  that  the lawsuit  may have  been                                                               
entered  into with  the idea  of  restricting a  dip net  fishery                                                               
because the  dip net fishery  has expanded exponentially  in Cook                                                               
Inlet,  with  hundreds  of  thousands of  fish  now  being  taken                                                               
annually  and  possibly  exceeding  the commercial  catch.    The                                                               
problem is  the way the  lawsuit is  written.  He  referenced the                                                               
language  on   page  1  of   HCS  CSSJR  22(FSH),   lines  12-13,                                                               
"requesting  the  court  to  declare  that  the  state-authorized                                                               
resident-only salmon fisheries are  unconstitutional" and said he                                                               
thinks a  court is not  going to say  to close down  the fishery.                                                               
He  thinks the  probable logical  thing is  that the  state would                                                               
then  say the  fishery cannot  be restricted  to residents  only,                                                               
which would  mean that it  would greatly expand the  personal use                                                               
fishery.  For  this reason, he appreciates the  resolves that ask                                                               
for  withdrawal  of  the  lawsuits.   He  said  he  thinks  state                                                               
management is  much preferable  to federal  management and  it is                                                               
perfectly  legitimate  to  have   a  resident-only  personal  use                                                               
fishery.  Therefore, he supports the resolution.                                                                                
CO-CHAIR NEUMAN  disagreed that the  personal use catch  is close                                                               
to the commercial catch.                                                                                                        
3:00:15 PM                                                                                                                    
REPRESENTATIVE TUCK  pointed out  that the State  of Alaska  is a                                                               
party in  the Jensen lawsuit.   He asked whether the  state is on                                                               
the same or opposite side of Mr. Jensen's lawsuit.                                                                              
MS. LONG responded the state is opposing Mr. Jensen's lawsuit.                                                                  
REPRESENTATIVE TUCK offered his  concern about hindering people's                                                               
seventh amendment right to go to  court.  He agreed that Alaskans                                                               
should have priority to the  state's fisheries and said he enjoys                                                               
dip netting  to provide fish for  his family.  He  encouraged the                                                               
attorney  general   to  continue  fighting  this   on  behalf  of                                                               
Alaskans.   However, while  he opposes this  type of  lawsuit, he                                                               
asked  rhetorically whether  the legislature  through resolutions                                                               
should be telling people to drop lawsuits.                                                                                      
3:03:04 PM                                                                                                                    
CO-CHAIR JOHNSON moved to call the question.                                                                                    
REPRESENTATIVE  TUCK objected  and said  he has  an amendment  he                                                               
would like to offer.                                                                                                            
CO-CHAIR JOHNSON withdrew his motion to call the question.                                                                      
3:04:10 PM                                                                                                                    
REPRESENTATIVE  TUCK   moved  Conceptual   Amendment  1   to  add                                                               
"continue to" after the second "to" on page 3, line 27.                                                                         
CO-CHAIR JOHNSON objected  and said he does not want  to send the                                                               
message that  the legislature  is going  to oppose  all lawsuits,                                                               
those particular lawsuits, or additional  lawsuits once those are                                                               
CO-CHAIR NEUMAN  pointed out that  there are  wildlife management                                                               
lawsuits  and others  that he  would like  the state  to continue                                                               
REPRESENTATIVE TUCK withdrew Conceptual Amendment 1.                                                                            
3:07:17 PM                                                                                                                    
CO-CHAIR  JOHNSON  moved  to  report HCS  CSSJR  22(FSH)  out  of                                                               
committee with  individual recommendations and the  attached zero                                                               
fiscal note.   There  being no objection,  HCS CSSJR  22(FSH) was                                                               
reported from the House Resources Standing Committee.                                                                           

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