BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- BILL NO: AB 787 HEARING DATE: June 28, 2011 AUTHOR: Chesbro URGENCY: No VERSION: March 31, 2011 CONSULTANT: Bill Craven DUAL REFERRAL: No FISCAL: Yes SUBJECT: Marine protected areas: California Native American tribes. BACKGROUND AND EXISTING LAW The Marine Life Protection Act (MLPA) requires the Department of Fish and Game (DFG) to develop and implement marine protected areas using science-driven ecosystem-based management as a way to preserve and enhance fisheries and marine biological diversity. Several MPAs have been developed or proposed, and one is now pending on the north coast. The Marine Life Protection Act presently does not have provisions pertaining to Native American fishing rights. Recognized Native American tribes retain certain fishing rights through various mechanisms including treaties, presidential executive orders, or congressional acts. Defining with particularity those reserved rights is extremely contentious and is often accomplished through the allocation process undertaken by the Pacific Fishery Management Council, a regional group established by federal law. In addition, numerous court cases have made determinations that affect tribal fishing rights. The Klamath basin and the northern coastal area of California has seen more than its fair share of acrimony, litigation, and social unrest over this issue going back many decades. The issue of tribal fishing rights is presently affecting the ongoing discussion of the proposed north coast marine protected area proposal. Last July, at Fort Bragg, several tribal representatives and others (numbering nearly 300) protested the proposal. The California Resources Agency is currently working with tribal 1 representatives and other stakeholders in a process to resolve these issues. A recent position paper describing three major options that could help resolve these issues was released on June 9, 2011. The North Coast Regional Stakeholder Group for the proposed MPA includes several tribal representatives. There is general agreement that the traditional, non-commercial tribal uses of the fishing and marine resources of the north coast region should be recognized and protected in MLPA regulations. PROPOSED LAW This bill contains findings to the effect that tribal fishing, gathering, and other traditional uses of marine resources are an intrinsic part of the ecosystem and that there is no scientific evidence that these tribal activities have had an adverse effect on marine resources for the north coast area. The bill's operational provision would exempt Native American fishing and gathering practices for traditional religious, ceremonial, and cultural purposes within a marine protected area, subject to applicable tribal and federal environmental laws. To be eligible for the exemption, a person (Native American) would be required to hold a tribal identification card. The provision would apply to members of federally recognized Native American tribes in California and nonfederally recognized California Native American tribes listed on the California Tribal Consultation List maintained by the Native American Heritage Commission. ARGUMENTS IN SUPPORT The author is very interested in clarifying that the MLPA allows appropriate traditional tribal uses in marine protected areas that may be established. He is also very aware of the ongoing effort at the Resources Agency focused on accommodating tribal gathering rights within the science-based management approach of the MLPA and that, if successful, may render moot the need for any legislation. NRDC and the Ocean Conservancy have a support if amended position. While supportive of strengthening the provisions of the MLPA regarding tribal fishing and gathering, these organizations express concern that the bill, as drafted, could undermine the inclusive public process that has been underway for many years to implement the MLPA. These organizations are hopeful that the ongoing process within the administration will result in specific methods to recognize and respect continued traditional tribal gathering and fishing activities. 2 ARGUMENTS IN OPPOSITION None received COMMENTS 1. The author is joined in the effort to protect non-commercial traditional tribal fishing and gathering activities by Senator Evans whose bill, SB 770, was heard and passed by this committee earlier in the year. Both authors have indicated their respective bills may not be necessary depending on the outcome of the process at the Resources Agency. As of now, both authors are continuing to move their bills forward pending a final proposal from the agency. 2. The administration is currently considering options to address tribal fishing and gathering that meets the science guidelines for proposed take of the identified species and that meets the conservation guidelines of the proposed marine protected areas. Both the MLPA North Coast Regional Stakeholder Group (NCRSG) and the MLPA Blue Ribbon Task Force (BRTF) recommended allowing tribal gathering to continue within marine protected areas on the north coast. The NCRSG proposal was broader and would allow tribal gathering throughout all MPAs. The BRTF focused on allowing tribal gathering throughout all MPAs with the exception of identified marine reserves where only limited gathering would occur. Within the Resources Agency, the options now under consideration would allow various tribal activities depending on whether the location is a reserve, a conservation area, or a protected area, each of which has a different level of conservation protection. Consideration is also being given to whether there should be limitations on the gear allowed. 3. The Committee may recall that SB 770 (Evans) was amended in committee to establish a process for tribal governments to propose co-management of the marine reserves established pursuant to the MLPA. AB 787 adopts a different approach and establishes a conditional exemption for tribal members. 4. The Committee may determine that in light of the continued work on this matter that is now underway at the Resources Agency, that it may be premature to establish an exemption. At the same time, the Committee may be sympathetic to the author's request to have language in a bill that could become more robust if the effort within the administration is not successful. It should be clear that under this approach the author may amend 3 the bill at a later date if that is necessary. The Committee would request that the author work with the Committee on the future amendments and agree the bill may be re-heard at the discretion of the Committee chair. This is the same approach that was taken with SB 770. 5. The recommended amendments are offered to accomplish the goal expressed in the fourth comment. The recommended amendments also postpone the need to discuss whether it is appropriate or not to reference the Marine Managed Areas Improvement Act (a predecessor to the MLPA which has been largely replaced) in the bill, the more controversial question of whether an exemption is the best policy, and whether the findings are correct in asserting both that tribal gathering is an intrinsic part of the ecosystem and for which there is no scientific evidence of an adverse effect on marine resources in the North Coast. 6. The proposed re-numbering of the section also avoids a chaptering out conflict with SB 770 should both bills be presented to the Governor for signature. SUGGESTED AMENDMENTS AMENDMENT 1 Page 2, lines 1-27 delete and replace with: Section 2864.5 Native Americans who engage in non-commercial fishing, gathering, or other traditional cultural practices within the North Coast Study Region of the Marine Life Protection Act shall possess a valid tribal identification card and comply with the adopted plan for native American fishing and gathering that is approved by the California Fish and Game Commission. SUPPORT None received OPPOSITION None received 4