BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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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
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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.
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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
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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
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