Alaska Shore Fishery Statutes and Regulations

SHORE FISH STATUTES

Alaska Statute 38.05.082. Leases for shore fisheries development.

(a) The director, with the approval of the commissioner, may lease tide and submerged land for fisheries development. Fisheries development includes the utilization of shore gillnets or setnets for the taking of fish. Every lease issued under this section shall reserve to the public a right-of-way for access to navigable waters and other tide and submerged land.

(b) The director may classify land as subject to leases for fisheries development and publicly invite applications for lease of the selected areas. Each application shall be accompanied by an affidavit to the effect that the applicant presently intends to personally utilize the leased area for fishing purposes the following season. If two or more applications are received for the same shore area, the director shall award the lease to the most qualified applicant. In determining the qualifications of applicants, the director shall consider the length of time during which the applicant has been engaged in setnetting, the proximity of the past fishing site of the applicant to the land to be lease, the present ability of the applicant to utilize the location to its maximum potential, and other factors relevant to the equitable assignment of the disputed area. If the director cannot determine a preference between conflicting applicants for the same lease site on the basis of qualifications, the director shall select between the applicants by lot. An aggrieved applicant may appeal to the commissioner with 30 days for a review of the director's determination.

(c) A lease for setnet fishing may be issued for any period not exceeding 10 years. If the commissioner determines that the land is not being utilized for the purpose for which the lease is issued, the lease may be declared void. The director shall establish a reasonable rental for the lease, equal to the administrative costs involved in processing the leasehold applications.

(d) Subleasing and renewals of leases are governed by AS 38.05.095 and 38.05.102.

(e) The lease of submerged land conveys no interest in the water above the land or in the fish in the water.

(f) The shore fishery development lease program account is established in the state treasury. The rents, fees, and other proceeds received by the department in connection with the issuance of shore fisheries development leases under this section shall be deposited into the account. The legislature may appropriate money deposited into the account for the operation of the shore fisheries development lease program by the department or for any other public purpose.

Opinions of attorney general. This section, which authorizes shore fishery leases, does not create an exclusive right of fishery and therefore is not unconstitutional under 15, art. VIII, of the state constitution. 1983 Op. Att'y Gen. No. 03. This section can be amended to limit the issuance of state tidelands leases for fisheries development to residents of Alaska. 1983 Op. Att'y Gen. No. 03.

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SHORE FISH REGULATIONS

11 AAC 64 SHORE FISHERIES LEASING

Table of Contents:
Section
10. Short title
20. Participation in shore fishery
40. Advisory committees
50. Tide and submerged land available for leasing
60. Permanent improvements disallowed
61. Staking and filing period
70. Size of lease tracts
80. Maximum number of net sites and lease tracts
90. Marking of sites and tracts
180. Reasonable utilization
200. Closed area
220. Hardship clause; waiver of rental
230. Qualifications of applicant
240. Trusteeship for minors
250. Appointment of trustee
260. Application
280. Proof of qualification
301. Term of lease
330. Rights prior to leasing
370. Annual rental
380. Receipt of annual rental
391. Extension of lease
410. Lease termination
430. Assignment
440. Succession to applicant's interest
450. Protest
460. Appeal
470. Finality of decision
490. Disputes of boundary line location
565. Transition
570. Definitions

11 AAC 64.010. SHORT TITLE.
This chapter applies to leasing tide and submerged lands of the state for the purpose of shore fisheries development. Authority AS 38.05.020, AS 38.05.082
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11 AAC 64.020. PARTICIPATION IN SHORE FISHERY.
No person is required to lease tide and submerged lands to participate in a shore fishery. However,

(1) upon written or verbal notification by a lessee holding a valid shore fishery lease issued under this chapter, a set gillnetter shall remove any net or nets from the site or tract of the lessee if the lessee personally begins to commercially fish the lease site: and

(2) no set gillnet may be set at less than the minimum distance established by Department of Fish and Game Commercial Finfish Regulations set out in 5 AAC 03 - 5 AAC 39, from a net currently in use by a lessee holding a valid shore fishery lease issued under this chapter.
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11 AAC 64.040. ADVISORY COMMITTEES.
The director will, in his or her discretion, accept recommendations from recognized associations or groups whose members are engaged in the practice of set gillnet fishing, or establish an advisory group to recommend resolutions involving application conflicts or protests. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.050. TIDE AND SUBMERGED LAND AVAILABLE FOR LEASING.
The director will, in his or her discretion, classify for leasing, under ll AAC 55, all unappropriated tide and submerged land where set gillnet fishing is allowed by the Alaska Department of Fish and Game. After the director designates an area as open to leasing, the director will publicly invite lease applications for all or specific portions of the open areas. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.060. PERMANENT IMPROVEMENTS DISALLOWED.
No lessee may erect a permanent installation, building, structure, fixture, or facility upon a lease tract or site. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.061. STAKING AND FILING PERIOD.
An applicant may stake a set gillnet site or tract, and may file an application for a shore fishery lease, annually from May 1 to September 1. The director will extend, close, suspend, or otherwise modify the period for staking and filing an application if the director determines in writing that it is in the best interests of the state to do so. Authority: AS 38.05.020, AS 38.05.082.

(Due to Director's policy change the staking period is between May 2 and October 15 and the application period is between June 1 and October 15.)
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11 AAC 64.070. SIZE OF LEASE TRACTS.
(a) If an applicant has more than one set gillnet site, and the area between individual sites is not claimed by another person for set gillnet purposes, the applicant may include all such set gillnet sites in one lease tract if

(1) the maximum number of set gillnet sites included in one tract does not exceed that number allowed by 11 AAC 64.080;
(2) the maximum distance between set gillnet sites does not exceed twice the minimum distance, minus one foot, allowed between nets by Department of Fish and Game Commercial Finfish Regulations, set out in 5 AAC 03 - 5 AAC 39, for the local area, unless otherwise determined by the director;
(3) the maximum distance of the tract side line from the nearest set gillnet site within the tract does not exceed one-half the distance allowed between set gillnet sites by Department of Fish and Game Commercial Finfish regulations set out in 5 AAC 03 - 5 AAC 39; and
(4) the maximum distance between the seaward end line of a tract and the landward end line of an offshore tract is not greater than one-half the distance from the seaward end of the nearest set gillnet as determined by Department of Fish and Game Commercial Finfish regulations set out in 5 AAC 03 - 5 AAC 39.

(b) In establishing the size and proper location of a tract, the director will, in his or her discretion, require the applicant to survey the tract. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.080. MAXIMUM NUMBER OF NET SITES AND LEASE TRACTS.
Except as provided otherwise in this section, the maximum number of sites allowed one applicant is that number established under Department of Fish and Game Commercial Finfish Regulations set out in 5 AAC 03 - 5 AAC 39, except for Cook Inlet, where the maximum is three sites. The sites may be contained in one, two, or three tracts. In an area where, under established custom, the applicant has or currently uses the same set gillnet and other gear for high and low water sites, the director will, in his or her discretion, lease additional set gillnet sites, if the applicant submits proper justification. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.090. STAKING OF SITES AND TRACTS.
Before submitting an application under 11 AAC 64.260, an applicant must stake each tract by placing the stake at the net anchor point. The location stake must be at least three feet above ground level and must support a sign showing the applicant's name, mailing address, limited entry permit number, and date of staking. For a low water tract, the location stake may be co-located with the high water stake. The sign on the low water stake must contain the information contained on the high water sign and must be labeled across the top as a low water site with the distance and bearing to the shoreward end of the net or net anchor point noted on the sign. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.180. REASONABLE UTILIZATION.
(a) Except as otherwise provided by (b) of this section, reasonable utilization of a site or tract means personally fishing each site of each leased tract for at least four legal fishing periods during the commercial fishing season.

(b) The lessee may refrain from fishing upon any one or all leased tracts for one year, but not for two consecutive years. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.200. CLOSED AREA.
The director will not issue a lease in an area closed to commercial fishing by the Department of Fish and Game. The closure of an area by the Department of Fish and Game will not result in the termination of a lease for failure of reasonable utilization. The closure of an area will not extend the term of an issued lease. The lessee may, however, request an extension of a current valid lease as provided for under 11 AAC 64.391, if the area is reopened to commercial fishing. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.220. HARDSHIP CLAUSE; WAIVER OF RENTAL.
The director will, in his or her discretion, waive the annual rental in the case of substantial injury, illness, call to military service, or legal closure of the fishery. An application for a waiver must be postmarked at least 30 days before the date the annual rental is due. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.230. QUALIFICATIONS OF APPLICANT.
An applicant for a lease is qualified if the applicant

(1) is a citizen of the United States and is at least 18 years of age; and

(2) holds a valid limited entry permit or interim-use salmon setnet permit for the area within which a lease is requested. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.240. TRUSTEESHIP FOR MINORS.
The director will, in his or her discretion, issue a lease in trust for the benefit of a minor who is 10 years of age or older if the minor is otherwise qualified to lease under 11 AAC 64.230. The trust automatically terminates upon the date of the minor's 18th birthday. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.250. APPOINTMENT OF TRUSTEE.
A person who is qualified under the laws of Alaska to act as a trustee may apply for approval to act as a trustee for a shore fishery lease on behalf of a minor. The director will issue the lease in the name of an approved trustee, subject to other provisions of this chapter. The trustee does not acquire any rights in the leased area by virtue of this trusteeship. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.260. APPLICATION.
(a) An applicant shall file a shore fishery lease application with the department within 30 days after staking a shore fishery lease site. The filing date is determined by the postmark date of the application.

(b) A nonrefundable filing fee, as prescribed by 11 AAC 05.010, must accompany each application.

(c) A shore fishery lease application must contain the following information:

(1) the applicant's name, mailing address, and birthdate;
(2) if the applicant is a minor, the name and mailing address of the trustee;
(3) the applicant's limited entry permit or interim-use salmon setnet permit number;
(4) the date the site was staked;
(5) the number of seasons the applicant has commercially fished the site;
(6) the number of years the applicant has participated in a shore fishery;
(7) a description of the lease tract sufficient to locate the tract and sites on the ground and including the township, range, and protracted section in which the site is located, as well as the site's distance and bearing from the shoreward end of the net or net anchor point to a known fixed point, such as a permanent building, monument, or fixed natural feature;
(8) a U.S.G.S. map of not more than 1:63,360 scale showing the location of the site;
(9) a statement that the applicant intends to personally fish the site;
(10) a statement that the applicant has complied with the staking requirements of 11 AAC 64.090 and that the applicant is within legal net distances as established by Department of Fish and Game Commercial Finfish Regulations set out in 5 AAC 04 - 5 AAC 39; and
(11) the names and addresses of adjacent right, left, shoreward and seaward setnet neighbors; if any.

(d) Upon acceptance of a shore fishery lease application, the division will send the applicant further instructions for completing a shore fishery diagram.

(e) Within 90 days after receipt of the instructions, the applicant shall provide the division with a completed and signed shore fishery diagram.

(f) If an applicant is unable to comply with any of the instructions for completing the shore fishery diagram, the applicant shall submit a notarized affidavit attesting to the reason or the cause for failing to comply. The affidavit will be made part of the lease document.

(g) Failure to provide the information required by this section constitutes grounds for denying the shore fishery lease application. Authority: AS 38.05.020 AS 38.05.082
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11 AAC 64.280. PROOF OF QUALIFICATION.
In addition to the information submitted with the application, the director may request such additional proof of qualification as is deemed necessary to help effect an equitable assignment of the disputed area. Failure to comply with any request for proof of qualification or additional information shall be reason for the disqualification of an applicant. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.301. TERM OF LEASE.
Upon the successful completion of all requirements of this chapter, and the resolution of any protest filed, the director will issue a lease for a period not to exceed 10 years. In determining the term of a lease, the director will consider the stability of the beach within the area, as well as any other applicable considerations or factors. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.330. RIGHTS PRIOR TO LEASING.
The filing of an application for a lease shall not in any way vest any right in the applicant to a lease. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.370. ANNUAL RENTAL.
Annual rental shall be an approved proportionate share of the cost of administration of the total of the shore fishery development leasing costs, as determined by the director and concurred in by the commissioner. Annual rental shall be paid in advance of April 15, unless otherwise approved by the director, and shall be prorated from the 15th day of the month in which issued to the 15th day of April of the following year. All leases shall stipulate that the annual rental shall be subject to adjustment by the director at five year intervals and such adjustment is to be based on the administration costs involved, and shall in no way reflect the value of the leasehold. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.380. RECEIPT OF ANNUAL RENTAL.
The first year's rental shall be receipted on the lease; thereafter the director shall immediately issue receipts for all rents paid. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.391. EXTENSION OF LEASE.
90 days before the expiration of a valid lease, the lessee may request an extension of the lease. The director will, in his or her discretion, extend the lease for a period of up to 10 years if no changes in site or tract location have occurred, the beach has remained stable, the lease is in good standing with the department, the lessee remains qualified under 11 AAC 64. 230. and no protest of the extension is received. A nonrefundable filing fee, as established by the department's approved fee schedule, must accompany a request for an extension. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.410. LEASE TERMINATION.
(a) The department will, in its discretion. terminate a lease if

(1) the lessee fails to pay the annual rental;
(2) the director determines that the site is not being used for the purpose for which the lease was issued;
(3) the lessee misrepresented facts or made an error with respect to a material fact in the shore fishery lease application;
(4) the lessee fails to properly locate his tract and sites or fails to properly situate in the tract when commercially fishing;
(5) the lessee fails to maintain a valid limited entry permit or interim-use salmon setnet permit: or
(6) utilization of the tract or sites is not in accordance with 11 AAC 64.180;

(b) The director will notify a lessee in writing of the department's intention to terminate a lease under this section. The director will send the notice of termination to the last address provided to the department by the lessee. The notice is considered delivered when deposited in the mail.

(c) A lease termination is effective 30 days after the date of the notice, unless stayed by the commissioner in conjunction with an appeal filed by the lessee under 11 AAC 64.460. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.430. ASSIGNMENT.
A lessee may assign a lease to another if

(1) the lease rental payments are current;

(2) the assignee is qualified under 11 AAC 64.230 or 11 AAC 64.240 and holds a valid limited entry permit or interim-use salmon setnet permit for the fishery;

(3) the assignee does not currently lease the maximum allowed sites for the fishery;

(4) approval of an assignment will not result in the assignee holding leases for more than the maximum allowable number of sites;

(5) the lessee and assignee complete the required assignment of lease form; and

(6) the director approves the assignment. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.440. SUCCESSION TO APPLICANT'S INTEREST.
A person who is legally assigned all rights to another person's lease application succeeds to all rights and privileges of the original lease applicant under this chapter if the assignee submits

(1) a notarized statement setting out the name of the lease applicant, the lease applicant's address of record, the location of the site or sites, the date of lease application acquisition, and the name and address of each of the adjacent site holders, if any; and

(2) a notarized statement by the lease applicant stating the length of time the lease applicant has personally operated the site or sites, and stating that the lease applicant has relinquished to the assignee all rights to and interest in the site or sites. Authority: AS 38.05.020, AS 38.05.08
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11 AAC 64.450. PROTEST.
(a) A person may protest an application for or the location of a shore fishery lease site by mailing a statement of protest to the applicant and to the director. The protest may be filed from the time a site has been staked until the last date for filing a protest, as determined and published in writing by the department. The postmark date of the statement of protest constitutes the date of protest. If a protest is filed, the director will not issue a lease until resolution of the protest.

(b) A statement of protest must be in writing, must be signed by the protester, and must contain

(1) the protester's name and mailing address;
(2) the protester's limited entry permit number or interim-use salmon setnet permit, if any;
(3) the applicant's name and address as shown on the staking sign;
(4) a brief statement of reasons why the protester believes that the lease site location is invalid or that the protester is more qualitied to fish at the lease site; affidavits may be included to support the reasons set out in the statement; and
(5) a brief statement of the relief requested, which may be either denial of the lease site location, or a determination that the protester is more qualified to fish from the lease site and more entitled to lease the site than is the applicant.

(c) The applicant shall prepare a brief written response rebutting the protester's statement, the applicant shall mail the response to the protester and to the director within 30 days after receiving the statement of protest. Affidavits may be included to support the facts set out in the response.

(d) The director will base a decision resolving a protest on the criteria contained in AS 38.05.082 and on the protest, response, supporting affidavits, and hearing, if one is conducted. The decision constitutes the final departmental action unless it is appealed. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.460. APPEAL.
An eligible person affected by a decision issued under this chapter may appeal that decision in accordance with 11 AAC 02. Authority: AS 38.05.020, AS 38.05.082.
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11 AAC 64.490. DISPUTES OF BOUNDARY LINE LOCATION.
In a dispute concerning one or more leased tract locations, the protesting party may request that the director establish or reestablish, by survey, the boundary lines of the tract or tracts in question. The director will, in his or her discretion, require that a survey be performed to determine the location of the boundary lines in dispute. The party or parties at fault shall pay the cost of the entire survey. The department will, in its discretion, terminate the lease of the party or parties at fault if they do not pay the survey costs. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.565. TRANSITION.
Pending applications submitted under this chapter before March 30, 1985 will be adjudicated under the provisions of this chapter which are in effect after that date. The applicant will be notitied of any additional requirements. Authority: AS 38.05.020, AS 38.05.082
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11 AAC 64.570. DEFINITIONS.
In these regulations, the following terms shall have the meaning indicated unless the context clearly requires a different meaning:

(1) repealed 3/30/85;

(2) "adjacent" means touching or lying in close proximity, as opposed to "contiguous" which requires a common boundary;

(3) "boundary lines" means lines having a course and distance that enclose one tract;

(4) repealed 3/30/85;

(5) repealed 3/30/85;

(6) "commercial fishing" means the taking, fishing for, or possession of fish, with the intent of disposing of them for profit, or by sale, barter, or in commercial channels;

(7) "commercial fishing season" means the locally recognized commercial fishing season opened by field announcement by the Alaska Board of Fish and Game;

(8) "commissioner" means the Commissioner of the Department of Natural Resources, State of Alaska;

(9) "department" means the Department of Natural Resources, State of Alaska;

(10) "director" means the Director of the Division of Lands;

(11) "division" means the Division of Lands within the Department of Natural Resources;

(12) "endline" means that boundary line of any lease tract that is parallel or nearly so with the shoreline;

(13) repealed 3/30/85;

(14) repealed 3/30/85;

(15) "lease" means a surface lease for shore fisheries development issued or held pursuant to these regulations;

(16) repealed 3/30/85;

(17) repealed 3/30/85;

(18) repealed 3/30/85;

(19) "monument" means a natural, physical, artificial, or record monument, as customarily used to appropriately deflne or mark an area;

(20) "neighbor" means an adjacent commercial fisherman who is to be designated as right or left side, or seaward or shoreward neighbor;

(21) "offshore" means those submerged lands lying seaward from the line of mean low tide;

(22) repealed 3/30/85;

(23) repealed 3/30/85;

(24) repealed 3/30/85;

(25) repealed 3/30/85;

(26) repealed 3/30/85;

(27) repealed 3/30/85;

(28) "site" means setnet site, individual setnet location, setnet fishing site, and set gillnet site;

(29) repealed 3/30/85;

(30) "tidelands" are those lands that are periodically covered by tidal waters between the elevation of mean high and mean low tides;

(31) "tract" means a parcel of tidelands leased under this chapter and may include one, two, or three set gillnet sites;

(32) repealed 3/30/85;

(33) repealed 3/30/85;

(34) repealed 3/30/85;

(35) "party at fault" means the lessee or lessees who, following a dispute over tract or site boundaries or locations, is determined by the director to be in error;

(36) "permanent" means not capable of being readily dismantled or removed from a site or tract within the 24 hours after notification, without destroying the object dismantled or removed or damaging the site or tract, and does not include setnet anchors;

(37) "shore fishery diagram" means a graphic depiction of an applicant's or lessee's site which indicates the relationship of the site to local landmarks and adjacent or neighboring sites. Authority: AS 38.05.020, AS 38.05.082, AS 38.05.965

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