Legislature(2003 - 2004)

05/10/2004 09:51 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
     HOUSE BILL NO. 341                                                                                                         
     "An Act relating to the dive fishery management assessment."                                                               
This was  the second  hearing for  this bill in  the Senate  Finance                                                            
Co-Chair  Wilken  stated that  this  legislation would  "finalize  a                                                            
compromise   between  Alaska   shellfish   growers  and   commercial                                                            
fisherman  and resolves  a long-standing  controversy about  geoduck                                                            
clams  on aquatic  farm sites."  He reminded  the  Committee that  a                                                            
Constitutional  question arose regarding  language in the  committee                                                            
substitute, Version  23-LS1280\I that was adopted  during the May 8,                                                            
2004 hearing on this bill.                                                                                                      
TIM  BARRY,  Staff  to  Representative  Bill  Williams,  the  bill's                                                            
sponsor, explained to the  Committee that the original bill that was                                                            
transmitted  from  the  House  of  Representatives   to  the  Senate                                                            
contained  a technical change  to State statute  regarding  how "the                                                            
dive fishery association  assesses itself for management of the dive                                                            
Co-Chair Wilken  suggested that rescinding  Committee action  on the                                                            
adoption  of the Senate  Finance committee  substitute might  be the                                                            
most  appropriate  course of  action  with which  to  deal with  the                                                            
Constitutional  issues  raised  in the  memorandum  [copy on  file],                                                            
dated May 4, 2004,  and addressed to the bill's sponsor  from George                                                            
Utermohle,  Legislative  Counsel,  Division  of Legal  and  Research                                                            
Mr.  Barry communicated  that  the  sponsor  would desire  that  the                                                            
original House bill, Version 23-LS1280\A, be furthered.                                                                         
Co-Chair Wilken  asked Mr. Barry to explain the issues  addressed in                                                            
Mr. Utermohle's 12-page memorandum.                                                                                             
Mr.  Barry stated  that the  Constitutional  issue  regards to  what                                                            
extent shellfish farmers  could harvest wild geoduck stock on leased                                                            
State aquatic  sites in Southeast Alaska. He explained  that a State                                                            
Superior  Court   ruling  specified  that,  based   on  the  State's                                                            
Constitution,  a shellfish  farmer would be  allowed to harvest  "an                                                            
insignificant  amount of  clams."  The Superior  Court decision,  he                                                            
continued,  was appealed to the State  Supreme Court which  decided,                                                            
based on statutory  grounds rather  than on Constitutional  grounds,                                                            
that shellfish farmers  could not harvest substantial amount of wild                                                            
geoducks on a site.                                                                                                             
Mr.  Barry  stated  that,  at  a recent  meeting,   geoduck  divers,                                                            
shellfish farmers,  the Department of Fish and Game,  the Department                                                            
of Law, and  others met and developed  language that addressed  both                                                            
the statutory  and Constitutional concerns addressed  by the Courts.                                                            
This  language, he  continued,  is included  in the  Senate  Finance                                                            
committee  substitute  adopted  by this  Committee.  He stated  that                                                            
these  groups "are  confident" that  were the  constitutionality  of                                                            
this language challenged  at the Superior Court level, "the language                                                            
was meet the question as addressed by the Superior Court."                                                                      
Mr.  Barry informed  that  the  concern raised  in  Mr. Utermohle's                                                             
memorandum  is that it  is unknown  how a challenge  at the  Supreme                                                            
Court level would fare,  as statutory not Constitutional issues were                                                            
addressed  in that  Court.  He concluded  that while  the  concerned                                                            
parties  believe that  the language  would meet  the Constitutional                                                             
issue addressed  by the Superior Court, the view of  these issues at                                                            
the Supreme Court level is "an unanswered question."                                                                            
Co-Chair Wilken  stated that the question is whether  to advance the                                                            
original House version  of the bill or the Version "I" bill to which                                                            
has Constitutional concerns have been raised.                                                                                   
Mr. Barry reiterated  that the bill's sponsor favors  advancement of                                                            
the original  version of the bill.  He stated that "no questions  of                                                            
any sort" arose  regarding the original  House bill as it  proceeded                                                            
through House hearings and the floor process.                                                                                   
Co-Chair Wilken  clarified therefore, that the Court  issues involve                                                            
actions taken by the Senate.                                                                                                    
Mr.  Barry  concurred.  In response  to  a  question  from  Co-Chair                                                            
Wilken, he responded that  the bill passed the House by a vote of 39                                                            
ayes to one  nay, and that "very minimal"  discussion had  occurred.                                                            
Senator Dyson  made a motion  to rescind the  May 8, 2004  Committee                                                            
action  adopting  the  Finance  committee  substitute,  Version  23-                                                            
There being  no objection,  the action of  adopting the Version  "I"                                                            
committee substitute was RESCINDED.                                                                                             
Co-Chair  Wilken stated  that  HB 341,  Version 23-LS1280\A  is  now                                                            
before the Committee.                                                                                                           
Mr. Barry informed the  Committee that the Southeast Alaska Regional                                                            
Dive Fisheries Association  was created in 1998 and consists of dive                                                            
fishermen,   communities  in  Southeast   Alaska,  and  processors.                                                             
Continuing,  he noted  that the  Association,  though assessing  its                                                            
members  at  a  rate  of  one,  three,  five,  or  seven-percent  as                                                            
specified in State  statute, pays for management of  the fishery. He                                                            
stated that HB  341 would change statute to provide  the Association                                                            
"more flexibility  to fund the process" by expanding  the options to                                                            
include two, four, or six percent assessments.                                                                                  
Senator Olson asked whether  other aquiculture operations outside of                                                            
Southeast Alaska have weighed in on this legislation.                                                                           
Mr.  Barry  voiced  that  no concern  from  other  areas  have  been                                                            
PAUL  FUHS, Representative,  Alaska  Trademark  Shellfish  Industry,                                                            
expressed  disappointment  in not  testifying before  the  Committee                                                            
rescinded its action on  Version "I" as, he recounted, the Court had                                                            
heard regarding  the Constitutional issues and that  there should be                                                            
"some comfort  in the fact that they  didn't rule on it."  He stated                                                            
that it  is inevitable  that  there would  be some  wild stock  on a                                                            
leased  aquatic  farm site  for,  he  continued,  if no  wild  stock                                                            
existed there,  "it is bad  habitat." Therefore,  he stated  that in                                                            
order for the  shellfish industry  to grow, the issue of  wild stock                                                            
must be  addressed. He opined  that, prior  to this Court case,  the                                                            
Department  of Fish  and  Game had  adequate  measures  in place  to                                                            
address the harvesting  of wild stock on these sites. He stated that                                                            
the Court's  addressing of statutory  rather than Constitutionality                                                             
issues  lends  support  to adopting  the  committee  substitute.  He                                                            
stated that no action in this regard would hurt the industry.                                                                   
Co-Chair  Wilken  asked  whether  this  bill had  had  other  Senate                                                            
committee hearings prior to being referred to Senate Finance.                                                                   
Mr. Barry informed that  the bill had been heard by the Senate Labor                                                            
& Commerce (L&C) Committee.                                                                                                     
Co-Chair Wilken asked whether  the Senate L&C Committee had reviewed                                                            
any  of  the  Constitutional  issues   that  have  been  raised.  In                                                            
addition, he opined  that the bill should have been  referred to the                                                            
Senate Judiciary  Committee where  Mr. Utermohle's memorandum  could                                                            
have been "dissected" and addressed.                                                                                            
Co-Chair Wilken  commented that action  on this bill is limited  due                                                            
to  the impending  end  of this  Legislative  Session,  and that  he                                                            
expected that  the bill would be re-introduced the  next Legislative                                                            
session in  order to give it "proper  consideration." He  reiterated                                                            
that another Senate committee  referral should transpire in order to                                                            
"properly" address all the issues.                                                                                              
Mr. Fuhs commented  that all the various components  of the bill had                                                            
been addressed  by  the Department  of Natural  Resources and  other                                                            
interested  parties,  and that  the committee  hearing  delay was  a                                                            
result of the timing of the recent Supreme Court ruling.                                                                        
Co-Chair  Wilken  pointed out  that  the Committee's  options  would                                                            
include  reporting  out  the  original  bill, HB  341,  Version  23-                                                            
LS1280\A,  or reporting  out the  Version "I"  committee  substitute                                                            
with a referral to the Judiciary Committee.                                                                                     
Mr.  Berry responded  that,  of those  options, the  bill's  sponsor                                                            
would support reporting Version "A" from Committee.                                                                             
Senator  Olson  asked   the  Alaska  Trademark  Shellfish   Industry                                                            
position regarding these options.                                                                                               
Mr. Fuhs voiced  support for furthering  Version "A," as  he stated,                                                            
"there is no problem with it at all."                                                                                           
Co-Chair Green  moved to report the  original bill, HB 341,  Version                                                            
23-LS1280\A,  from  Committee with  individual  recommendations  and                                                            
accompanying fiscal notes.                                                                                                      
There  being no  objection,  HB  341 was  REPORTED  from  Committee,                                                            
accompanied by  zero fiscal note #1, from the Department  of Revenue                                                            
dated February 1, 2004.                                                                                                         
RECESS TO THE CALL OF THE CHAIR 11:03 AM / 7:08 PM                                                                              

Document Name Date/Time Subjects