Legislature(2003 - 2004)
03/15/2004 09:05 AM House FSH
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 396-MANAGEMENT OF SALMON STOCKS AND FISHERIES CHAIR SEATON announced that the final order of business would be HOUSE BILL NO. 396, "An Act relating to management of salmon and other fish stocks and salmon fisheries and to the use of funds received by an enhancement facility from the sale of fish." Number 1210 REPRESENTATIVE MIKE CHENAULT, Alaska State Legislature, sponsor of HB 396, provided the following statements: This bill is intended to put into law successful fisheries practices utilitized by the department and the Board of Fisheries. These practices have been developed since statehood and have generally resulted in healthy salmon stocks and salmon fisheries throughout the state. Nothing in this bill seeks to radically alter any existing departmental management practice, fishery, or regulatory function. Instead, it is intended to put into law current practices and combine the many regulatory policies developed over the years into a single statute to facilitate efficiency within the department and board, and clarify for the public why actions are being taken in the fisheries. It also, hopefully, will clarify where the lines of authority lie for both the Board of [Fisheries] and the commissioner. That simply stated is that the department manages the fish stocks and the Board of [Fisheries] allocates the fish surplus to escapement needs. Some of the questions I've had asked of me is: why introduce the bill? Simply, this bill is introduced ... in order to delineate where the commissioner's authority granted in AS 16.05.060(a) and the Board of [Fisheries] authority granted under AS 16.05.122(a) overlap and to clarify that the Board of [Fisheries] allocates fishery resources and the department manages these resources and is responsible for setting and achieving conservation or escapement goals. CHAIR SEATON announced that the committee would first take testimony. Number 1510 KEVIN DUFFY, Commissioner, Alaska Department of Fish & Game (ADF&G), paraphrased from the following written statements: House Bill 396 would result in a fundamental diminution of the ability of the Board of Fisheries to allocate benefits from salmon fisheries. Under this bill, the commissioner is directed to manage a mixed- stock fishery to achieve escapement goals for some stocks such that the long-term average catch in that fishery will be maximized (page 4, line 1-8). The board is then directed to allocate this catch among users according to historical norms (pages 4-5, lines 23-7). Section 6 of the bill, proposed AS 16.05.740(c) removes conservation from the purposes of Board of Fisheries' salmon regulations. This is fundamentally inconsistent with the Board's enabling statute, AS 16.05.221(a), which creates the Board of Fisheries for "purposes of the conservation and development of the fishery resources of the state," and AS 16.05.251(a)(12), which authorizes the Board to adopt regulations "regulating commercial, sport, guided sport, subsistence, and personal use fishing as needed for the conservation, development, and utilization of fisheries." If the legislature wanted to remove the Board's authority to recognize and regulate for conservation concerns, perhaps these two statutes should also be amended to expressly authorize the Board to regulate for "conservation (except in the case of salmon fisheries)." Under the proposed AS 16.05.740(c), the following policies in regulations made through a lengthy public process would be rendered moot or require extensive changes: 5 AAC 39.220. Policy for the management of mixed- stock salmon fisheries. 5 AAC 39.222. Policy for the management of salmon sustainable fisheries. 5 AAC 39.223. Policy for statewide escapement goals. HB 396 attempts to lock fisheries management into the status quo, limiting the commissioner's and board's ability to adapt to changing resource and economic conditions. Board actions could only be based on utilization and development (page 4, lines 23-25). The board's only duty would be to determine and maintain historic levels of use (page 4, lines 30 - page 5, line 11). Intercept fisheries would be protected regardless of the economic impacts on terminal fisheries (page 5 lines 8-11). In order to comply with court precedent on regulatory law, the commissioner would have to adopt all escapement and harvest goals into regulation, since the commissioner would be mandated to achieve those goals during the season. So instead of the public discussions before the board, these actions would take place in the commissioner's regulation process. This might require a regulations specialist to work on that process full-time, since they would have to do a written analysis of all public comments before the commissioner could adopt each regulation. That is not required for board procedures under the Administrative Procedures Act. The bill directs the commissioner to manage for MSY [maximum sustained yield] from important and dominant stocks and to maximize benefits to the people of Alaska. Depending on the definitions of yield and benefits, these directives may be mutually exclusive. Provisions of this bill direct the commissioner to set goals according to MSY regardless of the allocative effects while the "AS 16.05.258(b) Subsistence Use and Allocation of Fish and Game" directs the board to provide for opportunity for subsistence harvest while maintaining sustained yield. In years of poor returns these may be mutually exclusive directives. There are conflicting or inconsistent directives regarding allocation of harvests, i.e., the commissioner is directed to meet escapement and harvest goals regardless of allocative consequences and yet the board is charged with maintaining harvest allocations for and among traditional users. HB 396 adds a new statute, AS 16.05.740 and amends AS 16.05.251 and AS 16.05.730. Some confusion occurs because amendments to the latter two statutes concern salmon fisheries and salmon stocks exclusively, while the statutes themselves pertain to fish stocks in general, which could be groundfish, shellfish, and resident fish species as well as salmon. This bill adds a lot of legal ambiguity to management decisions that will probably result in litigation. Terms describing directives for management in the bill, such as "historic uses," "historic level of the harvest," "highest social as well as economic benefits," "over harvest", "over escapement", "yield", "benefits", "depressed stock", "harm to stocks", "conservation goals", "commercially valuable", and "stability of fisheries", are undefined. One important definition is inconsistent. By the definition of "dominant stock", the order of dominance would be pink salmon, sockeye or chum salmon, coho salmon, and chinook salmon, based on the productivity and abundance of these species in most parts of the state. That order is often just the reverse of the economic value of the harvest from these species. The ambiguity occurs if "commercially valuable" means economic value. No guidance is given when we don't know how abundant or productive a stock may be relative to another one. In addition, in the definition of "dominant stock", such a stock is commercially valuable to whom? Who makes that decision? The board? The commissioner? Number 1911 COMMISSIONER DUFFY said that this legislation seems to more directly involve the commissioner in the day-to-day fishery management decisions. In his opinion, it's a movement away from a system that works effectively as currently structured. Although he acknowledged that the current system isn't perfect, it has withstood the test of time, which he attributed to the relationship between the commissioner, the department, and the Board of Fisheries ("the board"). He said that HB 396 creates "undefined confusion". Mr. Duffy highlighted that the department prepared a fiscal note for HB 396 that would require a regulatory specialist to perform much of the public input and regulatory development process that currently exists with the Board of Fisheries. Number 2017 REPRESENTATIVE WILSON inquired as to the ramifications [of HB 396] to the fisheries. COMMISSIONER DUFFY replied that HB 396 would reduce the role of the board in allocating among the beneficial users in the state. Furthermore, this legislation make the commissioner more directly involved in the allocation of fish resources among users, which is currently a primary responsibility of the board. Mr. Duffy viewed this legislation as a fundamental shift in responsibility from the board to the commissioner of ADF&G. REPRESENTATIVE OGG directed attention to page 5, line 8, Section 3, which he surmised is discussing an intercept fishery. He inquired as to how the aforementioned language would impact the existing regulations concerning the intercept fisheries in Area M, Chignik, and Kodiak. Number 2150 DOUG MECUM, Director, Division of Commercial Fisheries, Alaska Department of Fish & Game (ADF&G), clarified that "we're" speaking hypothetically. The provision [page 5, line 8] takes the regulatory process during which allocation decisions are made through the public process and reduces it to a formulae calculation that maintains historical harvest levels. Therefore, the board's hands would be tied with regard to redistributing economic or social benefits and the board would be forced to manage for these historical and traditional shares of the harvest. In the False Pass fishery, the last board significantly reduced the False Pass fishery and three years later a new board decided it was appropriate to significantly increase the fishing time in that fishery. The aforementioned doesn't seem to be allowed under this legislation. REPRESENTATIVE OGG inquired as to how far back in time the "historical" reference refers. MR. MECUM said that he couldn't answer that because the legislation doesn't specify the base time period. He pointed out that one of the important elements of the US-Canada Pacific Salmon Treaty is the maintenance of some historical fisheries. There is nothing wrong with the concept and the board does review historical fisheries precedence. However, this legislation mandates such would be in place without specifying a base time period. REPRESENTATIVE OGG commented that he could foresee a very heated battle with regard to the definition of "historical." It would be something the board would wrestle with for years, he opined. COMMISSIONER DUFFY related that HB 396 would impact the board's subcommittee because debate would shift significantly under his authority. Number 2377 REPRESENTATIVE SAMUELS recalled that there was a comment regarding the economic value of king salmon that was caught in the sport fishery versus a batch of red salmon caught in a net. He related his understanding that the value of the sport fishery wouldn't be a factor because once escapement is reached commercial fishing would be open under HB 396. Representative Samuels said that he was trying to determine the specific goal with this legislation. MR. MECUM said he believes those [proposing] the legislation wanted to address the idea that there are large sockeye stocks and the board's decisions to protect incidental species or to provide more conservative management has resulted in situations in which the regulations haven't allowed the department to manage strictly for the sockeye escapement goal. Therefore, there has been the complaint that there is an excess escapement of sockeye. Mr. Mecum related: Some people would say that's kind of how the department does manage already in that we try to focus our efforts in terms of our management and stock assessment on the largest stocks, the most dominant stocks, the most valuable or important stocks and that for the other stocks, which we obviously don't have all the resources in the world to monitor, we try to maintain some kind of sustained yield as best that we can. That's true, that is the way that a lot of the fisheries are managed around the state, but this bill tries to lock that down in stone. And I just don't think that that's a good idea. And also, I think, it would throw out some of the other issues that the board has wrestled with on the considerations that they've made to even allocate to different fisheries or to be more conservative and to protect other smaller, less dominant, less commercially important stocks. REPRESENTATIVE SAMUELS asked if the issue is really about the Kenai River. MR. MECUM answered that this has arisen from all of the issues and battles in Cook Inlet. However, the same issues arise in other parts of the state. For example, in Southeast Alaska there is a very large purse seine fishery, which he supposed would be considered the dominant stock. Over the years the board has made restrictions and the department has implemented restrictions to be as conservative as possible with the management of the large purse seine fishery in order to avoid over harvest of some of the smaller stocks such as sockeye. The board has limited the purse seine fisheries' ability to harvest coho salmon late in the season. Therefore, there have been a number of restrictions that the department or the board has implemented in order to focus the purse seine fishery on the larger, more dominant, and more commercially valuable pink salmon. Number 2606 CHAIR SEATON informed the committee that in Cook Inlet last year the escapements were fulfilled in all streams, but the board's policy prevented the commissioner from opening the fishery to take the stocks. The aforementioned wasn't to protect the stock or the weak streams, although Chair Seaton opined that the original idea behind the closures was conservation/protection of the weak stock. Therefore, last year the commercial fishermen felt that the commissioner was locked into a policy that wasn't addressing the current situation. He requested that the aforementioned be addressed such that when a stock isn't being protected that the return for the people is maximized by [allowing] harvest of the available fish. Chair Seaton, reviewing the situation last year in Cook Inlet, said that something was wrong and he viewed this legislation as an attempt to fix it. COMMISSIONER DUFFY agreed with Chair Seaton's general description of last year, except that he did approve additional commercial fishing time in the drift gillnet and the setnet fishery in the Cook Inlet, over and above the board-approved management plan. He said he did move outside the board-approved management plan because of the circumstances that arose last year. However, the discussion became that it should've been done earlier and more of it should've been done. Commissioner Duffy said that it's difficult to predict exactly how those issues will be addressed because those aren't the current situation. Furthermore, salmon forecasting is flexible and once the fishery starts in-season information is utilized to do the management program. He noted that he isn't directly involved with the management program on a day-to-day basis, but did so last year because of the decision to go outside of the board- approved management plan. With regard to how to address this long-term, Commissioner Duffy has encouraged folks to bring issues and concerns on this matter in the Cook Inlet to the board meeting in February. MR. MECUM turned to Chair Seaton's earlier remark that what happened in Cook Inlet indicates that something is broken. Although that would be the perspective of some, it isn't the perspective of everyone. He clarified that he means to say that politics is involved in the management and regulation of the fisheries of this state. Mr. Mecum related his belief that the commissioner has discretionary authority to deal with new information that develops during the season and biological emergencies. However, it's left to the board and the stakeholders to determine whether the system is broken or not. CHAIR SEATON noted that the Board of Fisheries adopts some escapement guidelines with regard to upper and lower limits. He asked if Mr. Mecum sees it as his job to manage within the goals or is it considered a successful management regime even when well above the maximum [limit is harvested] as long as it's over the minimum escapement goal. MR. MECUM responded that he believes the [division's] mission is to manage for sustained yield first and foremost and then maximize the benefits to the people of the state. Therefore, it translates into maximum sustained yield and trying to harvest all the fish available for harvest in a sustainable way, while being subject to preferential allocations among beneficial uses. Number 2914 REPRESENTATIVE GUTTENBERG directed attention to page 5, and asked if the definitions listed are new. MR. MECUM answered that all of the definitions are new or amended definitions of existing definitions. REPRESENTATIVE GUTTENBERG inquired as to what the changes [in definition] achieve. He surmised that "maximum sustained yield" is a constitutional phrase. MR. MECUM said that he wasn't sure that "maximum sustained yield" is a constitutionally defined term, although some have interpreted the constitution to mean such. He specified that the constitution discusses sustained yield and maximizing benefits. TAPE 04-14, SIDE B Number 2947 DOUG BLOSSOM, President, Cook Inlet Fishermen's Fund, informed the committee that he has fished the Cook Inlet for 55 years in various capacities. He explained that HB 396 was introduced in order to bring together a lot of state fishery policies into regulation because policies seem to veer off course every so often. He estimated that approximately 90 percent of this legislation comes from the sustainable salmon fisheries policy for the state. The mixed-stock policy is almost verbatim, he said. This legislation, he said, protects Kodiak and Area M under the present policy in the state. Mr. Blossom emphasized that this legislation wasn't proposed just for the Kenai River, rather it has been introduced to place state policies in regulation. He informed the committee that last year more fish were put in the Kenai River than Skilak Lake (ph) could hold. This is a lake that state biologists have studied for years and said it can only hold so many fish. He explained that although the returns from this past year will probably be fine, the fish placed in the lake this summer will probably have nothing to eat. Mr. Blossom reiterated that HB 396 merely places all these policies across the state into regulation, and he didn't see how it could hurt anyone. He noted that this legislation has [been reviewed by Legislative Legal and Research Services] as well as fish biologists in order to ensure that it's drafted properly. He concluded by emphasizing that it's time for policy to be turned into regulation. Number 2751 REPRESENTATIVE OGG asked if Mr. Blossom is one of the prime proponents of this legislation. MR. BLOSSOM replied yes. In further response to Representative Ogg, he reiterated that it's time for policy to be turned into regulation without changing anyone's power. The department wouldn't have to be concerned with allocation, it would merely run the fishery. REPRESENTATIVE OGG turned to page 5, lines 5-11. He asked if Mr. Blossom could project the next 10 years when, perhaps, there is a much higher increase of sport fish and dipnet fish in the streams. He inquired as to how the aforementioned would relate to the history of the commercial fishery. "Will the commercial fishery be affected if there's a lot more users up there or will they now have this priority and not allow that fishery to grow," he inquired. MR. BLOSSOM related his belief that the language used in HB 396 was taken from the state's existing mixed-stock policy. This policy has been used for about as long as Alaska has been a state. This legislation will merely place the policy into regulation. With regard to what it would do to the Kenai River, Mr. Blossom pointed out that it's up to the board to allocate and if the board decided to allocate more fish to one user over another, that would be the board's prerogative. The department is left to manage the fishery. REPRESENTATIVE OGG pointed out that on page 5, line 5, the language specifies, "the board shall give priority consideration to the history of use of a salmon stock by a fishery and to the stability of fisheries when fishery management decisions are adopted". Therefore, the board is being directed to give this priority whereas now the board can perhaps balance that. Furthermore, the language on page 5, line 10, mandates that the board "maintain harvests". These mandates are a bit different than the board's present regulations, which he understood to have a bit more flexibility. MR. BLOSSOM opined that this mixed-stock policy has been used for 35-40 years and it has worked. He reiterated that he believes Alaska's mixed-stock policy should be placed in regulation. CHAIR SEATON requested that the department provide the committee with a copy of the mixed-stock policy and the sustainable fish policy. Number 2497 CHRIS GARCIA, Drift Fisherman of salmon, halibut, and herring, announced that he is totally in favor of HB 396, which he opined would keep much of the current controversy from happening. The legislation basically places management policies under "maximum sustained yield," which works for everyone. When the aforementioned policies aren't followed, an economic disaster results. For example, when Icicle Seafoods' plant burned, it said that if the board couldn't manage for MSY, the company couldn't afford to rebuild its plant. The aforementioned cost Homer approximately 300 year-round jobs. Ward Cove and Dragnet closed in Kenai under similar situations. When these tax bases are lost to the [local government] and the state, the private citizen's tax increases because all the services still have to be met. Mr. Garcia noted his disagreement with Mr. Mecum, whom he understood to prefer the board to manage [the fisheries stocks]. Mr. Garcia questioned the point of hiring biologists if they aren't allowed to do their job. Furthermore, he opined that most of the fisheries biologists are concerned about maintaining this resource. He mentioned that if over-escapement of a fishery occurs continuously, the resource is killed. Therefore, he opined that the management of these fisheries is far better left up to the data collected by the biologists. Number 2335 RICKY GEASE, Executive Director, Kenai River Sportfishing Association, Inc., began by noting his agreement with Commissioner Duffy that HB 396 is written by the commercial fishing industry in Cook Inlet and it would radically change the balance of power between the board and ADF&G. The board's process is a deliberative public process. With regard to claims that this legislation merely places the current mixed-stock policy into statute, it isn't the existing mixed-stock policy found in regulation. As stated earlier, HB 396 prioritizes within the salmon stock species and places weighted averages based upon abundance, which he felt was wrong. If the aforementioned, management for the dominant stock, is adopted, he predicted that the Endangered Species Act will be implemented in 10-20 years because of the failure to have conservation for "weaker" stocks. Therefore, the federal government will step in and there will be another layer of regulatory process. He further predicted that the federal government will close some fisheries in order to protect the "weaker" stocks. Moreover, HB 396 takes the policy decisions from the board and dictates what the commissioner can and cannot do and implements new definitions for various terms. Number 2210 MR. GEASE informed the committee that currently included in the processes of a sustainable fishery is the concept of "windows" and management for a terminal fishery. He said that "section" 3 of the legislation specifies that no matter the effect of an intercept fishery, it will continue. He then turned attention to page 5, [paragraph] (4) and the concept of over-escapement, for which there is some scientific debate. In some realms of science some people believe that having more fish periodically move up river systems is beneficial for the overall health of the river systems. Furthermore, this legislation cuts off some policies for in-river user groups, which he opined wouldn't be beneficial. Page 4, paragraph (5) specifies that "the commissioner shall conserve depressed salmon stocks", which will be how it's managed under this dominant stock. He returned to the issue of over-escapement and inquired as to where the science is to support the [provisions in the legislation]. Tying everything to historical use changes the current concept of a deliberative public process. This legislation, he opined, sets in stone allocation and eliminates the public policy concept. Mr. Grease said he couldn't disagree more with this legislation. Number 2087 CHAIR SEATON inquired as to how the commissioner conserving depressed salmon stocks as specified on page 4, paragraph (5) is detrimental. MR. GREASE explained, "What's going to happen is ... this one little section here: 'we're going to conserve for a depressed salmon stocks' and that's what you're going to have, you're going to implement in that we're going to have depressed salmon stocks." For example, if on the Kenai River management occurs only for pink salmon and sockeye salmon and to prevent over- escapement of salmon into Skilak Lake (ph). Therefore, he interpreted that to mean that no concern will be given to coho, king salmon, and chum stocks and thus the prioritization of the over-escapement of reds occurs to the detriment of the other stocks. Mr. Grease stressed that there is already a workable and sustainable management plan in place based on the concept of "windows." He explained that the "windows" concept is such that it allows for the reproductive capacity of all salmon stocks to maintain them through time. The aforementioned is the meaning of sustainability. Therefore, to say that this legislation is a simple change from regulation to statute is wrong, he opined. CHAIR SEATON surmised then that Mr. Grease didn't have a problem with paragraph (5) on page 4. He further surmised that Mr. Grease's concern is in regard to the balance between paragraphs (2) and (5) on page 4. MR. GREASE replied yes. If there is merely management for the dominant stocks, soon there will be depressed stocks in the "weaker" fisheries. The aforementioned has happened in the Pacific Northwest, where biologists and policy-makers of that area would say that the Endangered Species Act has basically killed the commercial fishing industry. Therefore, he said he didn't understand why [the state] would want to create a situation in which the federal government will involved in 10-20 years. CHAIR SEATON remarked that he didn't believe this legislation is doing that. He opined that there is a question with regard to the weight given to ensure harvests and the protection of weak stocks. However, he didn't believe the department could use the provisions of this legislation to run any fish stock into the endangered status. Although [a balance] is necessary, he said he didn't believe conservation would be overridden in the legislation. Number 1865 JOHN EFTA, Commercial Drift Fisherman, spoke in favor of HB 396. He opined that the fisheries need to be managed biologically. For example, in 2000 there was a fair amount of red salmon. However, following the red salmon run there were 30-40 million humpies. The Board of Fisheries said there was a "silver conservation problem," the 30-40 million humpies went to waste. The commercial fishermen asked the commissioner to issue an emergency exception and open the fishery to which the commissioner declined. In 2002 there was again the "silver conservation problem," although there was no scientific data to back it up. Based on the test data from that year from the seine boat, there were 2.7 million silvers and 3.9 million dogs - the vast majority of which weren't harvested. For the aforementioned reasons, these policies need to be codified. Number 1724 RON RAINEY, Member, Kenai River Sportfishing Association, Inc., turned to the term "dominant stock," which is the sockeye salmon in Cook Inlet. He predicted a local biologist will say that "we" don't want to over escape Skilak Lake (ph), and therefore say that the dominant stock should be fished 24 hours a day for two weeks straight, without a good way for other stocks to enter the Kenai River. Placing the aforementioned in regulation is one thing while passing legislation [placing it in statute] is another. He opined that the aforementioned is totally wrong because the charge of the local biologist is to harvest the sockeye salmon rather than meet the needs of the sport fisherman, of which there are over 1,000 in the Cook Inlet Basin. For the growing [sport] fishery to be ignored and allocated on historic data eludes the public process. Therefore, Mr. Rainey announced that he is very much against HB 396. Number 1593 CHAIR SEATON posed a situation in which the board, through policy, has indicated that there should be days lost during the season, without biological data. If all the rivers are having good escapement such that a sport fishery has been allocated extra harvest, he asked if Mr. Rainey would have a problem with the commissioner having the ability to go outside the management plan and open for one or two days and not have additional closures. He noted that the aforementioned would be based on the biology of that run for that year. MR. RAINEY emphasized that the current management plan allows the commissioner and the biologist to open the fishery earlier. Furthermore, the commissioner could add extra fishing time if there are windows during which king salmon and a genetically diverse run of red salmon could enter the river. The windows are for the aforementioned. He reminded the committee that back in the 1980s and early 1990s, one could commercially fish 24 hours a day, 7 days a week for 2 weeks straight on many occasions. The aforementioned really impacts the diversity and the escapement for the king salmon and the coho salmon in the river. Number 1435 ROLAND MAW, Executive Director, United Cook Inlet Drift Association (UCIDA), informed the committee that he's been commercial fishing for halibut, salmon, and cod for 30-plus years. He remarked that he didn't believe everything that's happened in the fishing industry on farmed salmon because Alaskans are part of this problem. Mr. Maw said that he supports HB 396 because there has been a differential application of the statewide policies depending upon the region. He indicated that perhaps that's a good reason to place [the statewide policy] in statute. With regard to the historical context of Cook Inlet, he saw two contradictory things occurring with salmon fishing. Ward's Cove closed down in Cook Inlet and it was the first closure of a Ward's Cove plant in Alaska. [Due to other closures] over the past 10 years, about half of the processing capacity has been lost. The aforementioned raises the question regarding why that capital left. Mr. Maw then turned to the fact that over the last 10 years in Cook Inlet at least 100 million fish have gone to waste, and, again, inquired as to why the processing capital went to waste. Mr. Maw remarked, "I find it real interesting, here we are the year 2004 and neither the Board of [Fisheries] or the department has ever come up with a definition of "conservation" rather it's come from fishermen." Mr. Maw concluded by noting his support for HB 396. Number 1183 TEAGUE VANEK, Cook Inlet Fishermen's Fund, began by informing the committee that he's a lifelong commercial fisherman in Cook Inlet. Mr. Vanek turned to the issue of the waste of fish, which he believes this legislation addresses on page 5, line 12. The waste of salmon, he opined, is the most important issue of HB 396. He related his belief that the Board of Fisheries has abused the conservation allocation issue and has caused undue waste in Cook Inlet. He noted that the board closed the fishery at the beginning of the silver run. In 2002, Mr. Vanek's last delivery was worth $1,200, it was the fist day that silvers showed up, and it was the last day of the season. However, it was a huge run that year and fish were wasted. The silver season was [closed] during an out-of-cycle meeting without public testimony under the auspices of conservation and an agenda change request. There was no involvement of the public or the commercial fisheries at that meeting. Furthermore, this winter the board refused to hear an agenda change request on this issue, even with new information regarding the strength and health of the run of silver stocks. The refusal was presented on the basis of an allocation issue whereas [the closure was announced] as a conservation issue. He questioned why the board changed its stance. The aforementioned is addressed by this legislation, he said. Mr. Vanek concluded by urging the committee to pass HB 396. Number 0993 NORBERT MILLER, Commercial Drift Fisherman, said that he likes HB 396 because it separates the issues of allocation and escapement, and therefore harvest. The aforementioned, he opined, will go a long way in regard to taking the politics out of setting allocations for various groups. Furthermore, the legislation obligates someone to allow the harvest of fish that are over and above escapement, which he believes is necessary. Mr. Miller urged the committee to pass HB 396. Number 0839 CARL ROSIER, Alaska Outdoor Council (AOC), informed the committee that he spent about 40 years managing fisheries resources in the state. Mr. Rosier related AOC's opposition to HB 396, which seems to move toward the slippery slope of regulations being adopted by the legislature. The aforementioned has occurred in other states. This legislation attempts to freeze the policy areas of management in the state that are in place today. He emphasized that there have been policy changes over the years, including changes in the fisheries themselves. In fact the Cook Inlet fishery is a much different fishery than it was at statehood. "You cannot freeze yourself into a ... legislated fisheries policy that doesn't permit the flexibility of management," he stated. The terminology in the legislation referring to major, minor, and lesser stock is similar to the situation at statehood, which had the state on a downward spiral with regard to salmon production. Once the flexibility of policies was implemented through area management biologists having regulatory authority and the commissioner having emergency authority, the recovery of the salmon stocks in Alaska began. Mr. Rosier opined, "There isn't a single salmon stock ... in the state ... at the present time that isn't important and should not be taken seriously, as far as the management program in the state is concerned. Only then are you, in fact, going to protect it." At statehood, the state was down to a handful of major systems that were carrying the fisheries. He recalled the year he was the director of commercial fisheries when there was a statewide total catch of 27 million fish. However, currently the catch in Southeast is more than three times that. Mr. Rosier reiterated that HB 396 is a slippery slope, and urged the committee not to proceed down this path. Number 0442 CHAIR SEATON related his belief that the impetus behind HB 396 is flexibility. Those in Cook Inlet have seen that the flexibility and management has been taken away from the commissioner's office and the local biologist by the board adopting things "during a window you must take away a commercial fishery opening, even though it is totally independent from what the run strength is." The area biologist is limited to no more than 36 hours of fishing within seven days. Chair Seaton related that it seems that the flexibility that Mr. Rosier wants is what is behind HB 396. He requested that Mr. Rosier comment. MR. ROSIER remarked that he "was a veteran of the Cook Inlet 'fish wars' for a good many years." He acknowledged that there were times when the commissioner had to step in and make decisions, but basically there has been a polarization of the various user groups regarding the issues involving Cook Inlet. Mr. Rosier said: If you could retreat ... back to ... the way most of the areas of the state are in fact being managed on this thing and get over this ... calling my local legislator, calling the mayor, calling whoever on this, and holding public demonstrations whenever decisions are, in fact, being made in good faith on these things, then you might be able to return to that. But what you're seeing here now is ... a reaping of what happens when people become so ... paralyzed by polarization on the management decisions and how they're, in fact, made that the system can't work effectively. And I would agree with that as far as Cook Inlet is concerned, ... the system cannot work in Cook Inlet. It works everywhere else in the state, but it doesn't work in Cook Inlet. I think that in itself tells you something. From the standpoint of the resource, this is ultimately what's going to lose in this particular scenario on this thing. Yes, it's flexible at the present time, but on the other hand as changes are made in the fishery and as better information is available to everyone and your ability to harvest runs, your ability to harvest over a broad spectrum of the run not just ... take your escapement out of the heart ..., you're looking for a spread as far as your ... escapements are concerned, then you might get somewhere with Cook Inlet. But until such time as the ... social structure ... of Cook Inlet - the competition between the various user groups up there on this thing and the hate and discontent that's been spread - ... then I think you'll be getting somewhere and you might be able to get back to a flexible program that ... they're trying to set in statute at the present time. But this is not the avenue, in my view, to get there. MR. ROSIER, in further response to Chair Seaton, confirmed that he believes the commissioner and the local biologists need flexibility. Number 0050 REPRESENTATIVE OGG noted that he participated in some of the "interactions" between different areas of the state, some of which while Mr. Rosier "was on board and driving." Representative Ogg expressed concern with Mr. Rosier's statement that the legislation freezes current policies. However, Representative Ogg read parts of the legislation to "actually open [it] up". He related his understanding that the legislation would open up, in other areas of the state [tape changes midspeech]. TAPE 04-15, SIDE A MR. ROSIER responded that he read it the same way as Representative Ogg. For example, in Southeast Alaska the balance is good. He opined that what is being discussed here is the protection of the cape mixed stock fisheries policy versus the minimal escapement policy of management for the weakest runs. Mr. Rosier further opined that the management policies of the state have been between the aforementioned. He acknowledged that some cape fisheries have been impacted, they deserved to be due to the changes in the fisheries themselves, such as bigger and more powerful boats. Fishermen and equipment have adapted, and therefore fishermen can't expect to have a set situation. "When his efficiency changes, then the management program has to adjust for that," he said. Number 0280 REPRESENTATIVE GARA inquired as to why Mr. Rosier believes the resource will ultimately lose under HB 396. Representative Gara highlighted that there are places in the state where there are minor, but important wild salmon stocks. For example, on the Kenai River the state has done an amazing job of protecting a winter run of silver salmon. Representative Gara asked if Mr. Rosier saw this legislation as detrimental to wild fish stocks that aren't economically dominant, but are worthy of protection. MR. ROSIER, in response to whether this legislation would have a detrimental impact on nondominant wild fish stocks, replied yes. He explained that it comes down to the implementation of this [legislation] because, over time, there will be different views as far as the board is concerned and as far as the commissioner is concerned. "Because of those changes, ... I don't think you're going to have the consistency that ... the group that has put this forward ... would like to see because the implementation is ultimately ... going to affect the resource," he said. He predicted that if there is a political situation within the board or the department on this matter, then decisions could be made that would negatively impact minor stocks. He reminded the committee, "It's that cumulative production of all of the systems in the state that, in fact, puts us up there at 140 million fish or 150 million fish or wherever we're at the present time." For example, the rebuilding process of king salmon stocks in Cook Inlet took over 10 years. Number 0664 CHAIR SEATON asked if Mr. Rosier saw anything in HB 396 that mandates the director or the commissioner to over harvest weak stocks. MR. ROSIER replied no. CHAIR SEATON said, "So, ... if you have the political situation where the Board of Fisheries changes so that they're going to allocate differently, ... the situations that you're talking about where you have a commissioner that says I'm going to harvest every fish in the state, they could expend that kind of energy right now and the Board of [Fisheries] could do those allocation decisions based on those kind of criteria right now, regardless of this. ... you don't see that happening with the legislature letting that happen either, do you?" MR. ROSIER answered that he hoped not. Number 0752 REPRESENTATIVE GARA returned to Mr. Rosier's earlier concern that this legislation would have a detrimental impact on the resource. MR. ROSIER reiterated that it's a matter of the implementation. He surmised that if this type of management approach is taken, there will be many suggestions for additional amendments and activity by the legislature in terms of assuring stability. Ultimately, the politics of this would become much larger than the conservation of the resource. The aforementioned isn't desirable, he opined. REPRESENTATIVE GARA asked if, from a biological standpoint, it's possible that sustaining the maximum yield of a dominant fish stock would impact the spawning area or habitat of a minor fish stock. MR. ROSIER answered that there's always danger and the management folks have to determine what risk they are dealing with during the in-season management. For instance, in many stocks there is an overlap because there is an early and a late [run]. He offered that there should be a chunk of escapement from both [the early and the late run]. However, when there are specifications in regard to continuous fishing time, the risk that some lesser fish stocks will be impacted is higher. Therefore, there is the desire to have flexibility in the management program. He expressed the need to "give the benefit of the doubt to the resource." Moving away from the aforementioned will mean that the current salmon stocks in the state won't be maintained, he opined. Number 1032 REPRESENTATIVE SAMUELS asked if there are biological problems with the over-escapement of Skilak Lake(ph). MR. MECUM answered that it depends upon which system is being discussed. He reminded the committee of the oil spill during which fisheries were closed and there were very large escapements over a couple of years. After much research it was found that back-to-back large escapements into systems like that, which are "rearing limited," can create a brood-year interaction in which the fish from the first brood are eating all the food available and the fish from the second brood year don't have anything to eat. Therefore, it can lead to a serious depression in yield and economic yield, although he said he wouldn't go as far as saying it threatens the sustained yield of the stock. Mr. Mecum said the question is whether the aforementioned is a conservation problem or an economics and yield problem. He pointed out that different species in different systems have different problems, but the over- escapement has been the biggest problem in the rearing-limited sockeye systems. In response to Chair Seaton, Mr. Mecum confirmed that some or the areas in Cook Inlet are rearing- limited [sockeye systems]. REPRESENTATIVE SAMUELS asked if a commercial season can be opened in the middle of the season for a short period of time in order to deal with over-escapement. MR. MECUM answered that there is some flexibility to provide additional openings. He noted that within the deliberative process of the department there are discussions with regard to how to do better than what happened last year. He related, "We do want to try to be more aggressive based on the forecasts that we've got and we've got some ideas on how we're going to do that." In further response to Representative Samuels, Mr. Mecum said that there is some flexibility [to open a season in the middle [of a run]. He surmised that those pushing this legislation are concerned with the reduction in some of the opportunity once available to harvest the more abundant sockeye salmon. This legislation really discusses the reduction of the flexibility of the board to allocate. Over the past 10-15 years in Cook Inlet, the board has essentially truncated the commercial season and has allocated the chinook salmon upfront and the coho salmon at the end [of the season], both primarily for the benefit of recreational users. Therefore, the managers have been forced to fish more aggressively in the middle, which has lead the board to say that it's been too aggressive and specifying the need for "windows" and less effort in the middle [of the season]. Number 1394 CHAIR SEATON recalled that in the past the local area biologist had the ability to open it every day if it was necessary for escapement. However, that was changed to two days a week and then the board has made a decision that during the peak of a season, at least one period has to be lost, which is one of the two days a week. Therefore, there is a large restriction on the ability of the local area biologist and the commissioner to utilize management flexibility to harvest the stocks when present. The aforementioned is the reason for this legislation. The Board of Fisheries has limited the flexibility of the department to harvest fish. The commercial fishery sees this limitation that is regardless of the number of fish and the biological return of the run. The commissioner doesn't have the flexibility unless the commissioner goes outside the management plan. MR. MECUM clarified that "we" took some actions that "on their face" were inconsistent with some of the regulations adopted by the board. However, the management plan for the Kenai River is built around the sockeye salmon escapement into the Kenai River. There's an abundance-based management program that essentially specifies that the results of the managers' actions should result in escapements that fall within 500,000 to 1 million fish range. There is data that specifies high sustained yields can be maintained within the aforementioned range. He pointed out that during the peak of the season last year, it became obvious that the escapement goal range couldn't be maintained unless some action was taken, and therefore some action was taken. Although one can argue that the department went outside of the plan, Mr. Mecum said he would argue that the department was trying to remain within the constraints of the plan and balance the various competing elements of the plan. Number 1604 REPRESENTATIVE GARA pointed out that the department can't regulate perfectly because the department doesn't know how many fish will return. Therefore, the department can err on the side of over fishing or under fishing. He opined that the department has properly erred on the side of under fishing in order to prevent an under-escapement. Representative Gara related his understanding that even before the minimum escapement is achieved, the commercial red fishery has been opened a certain number of days a week. MR. MECUM remarked, "I wouldn't characterize that as how we actually manage the fishery." Some chances have to be taken on the front end because the forecast is questionable sometimes. One way to test the [forecast] is to do test fishing and allow some limited openings, which the department does before the minimum escapement is guaranteed. "We try to implement a fishing schedule that's not going to cause us problems to go out there and see if our forecast is accurate," he related. REPRESENTATIVE GARA asked whether this legislation imposes any dangers that would impede achievement of the minimum escapement early in the season. MR. MECUM agreed with Mr. Rosier and Chair Seaton in that this legislation isn't going to threaten salmon stocks. This legislation is about allocation and maintaining historic harvest shares and stability. He said although he didn't object to the notion, it's probably a mistake to lock it down in the manner specified under HB 396, which also removes the flexibility of the board to change based on differing economic and resource conditions, et cetera. He echoed Mr. Rosier's comments with regard to the view that this depends upon the implementation. Trying to focus all management on achieving MSY has, to some extent, resulted in some of the battles in Cook Inlet. Mr. Mecum opined that it would be a stretch to say that HB 396 would threaten resource conservation. He highlighted the department's concern with regard to how HB 396 would impact subsistence uses. CHAIR SEATON reminded the department of the need to provide the committee with the sustainable fish policy, the mixed-stock policy, and any thoughts for avenues to achieve [the goal] of HB 396. COMMISSIONER DUFFY indicated that his testimony addressed [his thoughts for achieving the goal of HB 396], specifically that there is a structure in place that can be utilized to address some of the concerns leading to this legislation. Through the board cycle one can address concerns, still he agreed to discuss other options with the committee. CHAIR SEATON reiterated his belief that the impetus for this legislation is the inability to manage within the ranges. He specified that he is interested in ideas from the department with regard to achieving management flexibility in order to manage for sustained yield for the benefit of all citizens of the state. COMMISSIONER DUFFY agreed to provide such suggestions to the committee. Number 2022 REPRESENTATIVE OGG asked if the department and the board already have the ability to achieve what the proponents of the legislation are seeking. MR. MECUM recalled that there has been testimony that this legislation merely pulls together all of the existing policies and regulations and places them in one place in statute. He said he wasn't sure he agreed with the aforementioned. Certainly, the Board of Fisheries has the authority to do all of the things contained in HB 396 because the board is the ultimate management authority in the state with respect to conservation and allocation. The commissioner's authority with respect to allocation is very limited with discretionary emergency order authority. REPRESENTATIVE OGG returned to the earlier discussion regarding Cook Inlet's [brood] cycle. He asked if people have the ability to approach the board on an important issue when the board is out of cycle. COMMISSIONER DUFFY explained that there is an agenda change request, which is a process by which the board can be approached. The agenda change requests come in the fall. Furthermore, there are emergency petitions. REPRESENTATIVE OGG asked if anyone approached the board requesting that this particular philosophy be before the board out of cycle. MR. MECUM said that it seems that every year Cook Inlet issues surface and people have approached the board. Earlier testifiers were correct in that the board rejected the most recent agenda change request that was submitted. [HB 396 was held over.]
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