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