Legislature(2001 - 2002)
04/02/2001 01:10 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 216-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS Number 2735 CO-CHAIR SCALZI announced that the next order of business would be HOUSE BILL NO. 216, "An Act relating to the emergency order authority of the commissioner of fish and game and to meetings of the Board of Fisheries." [HB 216 was sponsored by the House Resources Standing Committee.] [There was a motion to adopt HB 216 for discussion purposes, but it was already before the committee.] Number 2766 CO-CHAIR SCALZI explained that HB 216, which he had drafted, addresses prevalent problems experienced by ADF&G and the Board of Fisheries regarding openings, closures, and agenda changes in recent years. He cited Section 3, subsection (c)(1) through (3), specifying that the added language, on [page 2] lines 15- 16, is "[if] the commissioner concurs"; the intent is to take the pressure off the Board of Fisheries to address every issue that comes along. CO-CHAIR SCALZI noted that what has been lacking is a consensus by the experts of ADF&G in determining whether there is a fishery conservation issue at all. He said: "The public certainly wants to have the ear of the Board [of Fisheries], but what happens, inadvertently, is you get the issue up before the Board [of Fisheries] and you cause things to be taken out of cycle." CO-CHAIR SCALZI cited a recent example of the pressure put on the board to address every issue that involves the Copper River. The City of Cordova, processors, fishermen, and sportsmen went to Anchorage to address a conservation issue to which the Board of Fisheries had said it would listen; however, ADF&G declared it was not a conservation issue and, therefore, the board did not hear the issue. Co-Chair Scalzi said with the new language, "what we're really saying is, if it really is a conservation issue, let's ask the experts ... who know about this." CO-CHAIR SCALZI pointed out Section 2 [subsection (d), lines 8- 10, page 2], which read: The commissioner, as necessary to manage fishery resources for sustained yield, may exercise authority under this section to supersede a regulation or fishery management plan adopted by the Board of Fisheries. He said emergency orders are not new or "exemplary." Under federal management, fisheries were opened and closed on specific dates, and the results were unsuccessful. He added: Our rivers were depleted, there was great abuse going on, and there was no management to speak of. When the State of Alaska took over, they regulated ... the management for ... sustained yield on our fisheries, with in-season management. In essence, emergency orders were created [and] management plans were developed. CO-CHAIR SCALZI indicated several times when [ADF&G] has not felt comfortable in superseding, which is discretionary. For example, where a management plan is written and there is a closure date, but numerous fish show up, ADF&G is reluctant to open that fishery because it may conflict with the closure date in the management plan. TAPE 01-28, SIDE B Number 2995 CO-CHAIR SCALZI made it clear that his intent was not to move the bill out of the committee that day, because he said the bill could be perceived as controversial. Furthermore, he wanted to hear public opinion and the concerns of the department. Number 2958 REPRESENTATIVE GREEN asked Co-Chair Scalzi why the [House Special Committee on Fisheries] had waived its referral. CO-CHAIR SCALZI replied that he had made that request because the end of session was near and the House Special Committee on Fisheries only meets once a week; because of "the five-day" rule [for scheduling hearings], the House Resources Standing Committee would not have seen the bill for two weeks. He also mentioned that many members are on both committees. Number 2913 REPRESENTATIVE KERTTULA asked Co-Chair Scalzi if the intent behind the closure was distinctly for conservation purposes. She said the language was a little broader than "just conservation" in Section 2. CO-CHAIR SCALZI answered that the language was taken from [ADF&G's] regulations. He said: This is how they feel comfortable in bringing up another issue. If somebody wants to take something out of cycle, they have [these] criteria in front of them. And also, in the regulations they did not put in statute, was the fact that they cannot take it up for "allocative" reasons. That is not ... in this part of it, but it is in their regulations. REPRESENTATIVE KERTTULA rephrased her question to inquire whether Co-Chair Scalzi's intent behind the bill was for purposes of conservation, rather than for purposes of allocation. CO-CHAIR SCALZI answered in the affirmative. He explained: What can happen now, and what's happened in the past, is a conservational issue will be brought up. The Board [of Fisheries] will take it up, and in doing so, when they go through their process, they can actually reallocate at that meeting. And if a conservation issue ... really existed, then that would be fine, because the purview of the Board of Fisheries is to do allocations. It's not the department and it's not the legislature. But to bring it up for allocation, it should go through its regular cycle. And ... what this language does is just verify that there really is a conservation issue. REPRESENTATIVE KERTTULA suggested that when the representative from the Department of Law came before the committee, he could be asked to clarify the issue. She stated her concern that the present language might "open it up" for the commissioner to make decisions regarding allocation. She asked whether Co-Chair Scalzi had said he wanted to raise the conservation issue so that the Board [of Fisheries] could make the proper allocative decisions. CO-CHAIR SCALZI answered no. He outlined the process whereby the Board of Fisheries gets a petition or proposal alerting it of a conservation problem necessitating that it address an issue out of cycle. Rather than have the "lay board" verify that it really is a conservation issue, Co-Chair Scalzi said the decision would be deferred to the biologists in ADF&G, who are better qualified to make that determination. REPRESENTATIVE KERTTULA said she understood what Co-Chair Scalzi was trying to effect, but suggested that the language needed to be changed to reflect that. Number 2764 FRANK RUE, Commissioner, Alaska Department of Fish & Game (ADF&G), gave an overview of the department's issues with HB 216. He stressed that Alaska's successful system is based on an important separation of powers: the Board of Fisheries makes allocation decisions, and the department gives the board information on how many fish are available, tells it what management strategies are possible, and performs in-season management to make sure any surplus resource can be harvested. He added that having the emergency-order authority in the department, particularly for fisheries, is critical to taking advantage of a larger run that comes in, or constraining fisheries if the run comes in smaller. COMMISSIONER RUE pointed out that other states have the director of the department making allocation decisions, but he stressed that that he would not want the job of allocating that the Board of Fisheries presently has. Furthermore, he said, he thinks Alaska's system is a model for success; the Board of Fisheries gives guidance to ADF&G, and ADF&G has the flexibility to be able to take advantage of the run or to "fall back." COMMISSIONER RUE referred to Section 2 of HB 216, saying the language was too broad and gave too much latitude for the department to override an existing regulation. He mentioned the Peninsula Marketing Association v. Rosier case over a previous commissioner's attempt to close down an Area M fishery that the Board of Fisheries had already decided. He said the court ruled that the commissioner could not override a board regulation, however, without new information that the board hadn't considered. COMMISSIONER RUE said many management plans around the state are flexible enough to allow for considerable latitude, so there are few instances of an "opportunity being unavailable" because of a Board [of Fisheries] management plan. As an example, he cited an occurrence last summer [2000] when the board constrained the opportunity for pink salmon fishing in Cook Inlet until it could produce a management plan. COMMISSIONER RUE said the public has the choice to petition for a change if they don't like the manner in which a fishery is currently structured. He noted an instance when that was done in Cook Inlet, but said because the petition took so long to put together and was submitted late, the board decided not to change its management plan. Commissioner Rue recapped the two ways that the public can have an opportunity to request change: through the authority of the commissioner of ADF&G, and by petitioning the Board [of Fisheries] in-season. He mentioned Section 2 of the bill and stated his preference that the current balance be maintained. COMMISSIONER RUE turned attention to Section 3 of the bill, which addresses how the board changes its agenda. He stated his preference that the board have its own rules to change its own agenda and "not have the department have to [assert] itself." Furthermore, he would like the board to listen to ADF&G when the department does not think an issue in question is a conservation one. He noted that the board did amend its agenda criteria to be able to change its agenda when it needs to coordinate with the federal fishery management plan. For example, if the North Pacific Fishery Management Council (NPFMC) makes a change to a cod fishery, the Board [of Fisheries] wants to be able to change its agenda to respond to the actions of the NPFMC. COMMISSIONER RUE reported that in [the board's] amended regulations is a fourth criterion; he recommended that if the House Resources Standing Committee decides to put this in statute, the department should deliver the latest regulations to the committee. [Co-Chair Scalzi passed around a "stack of emergency orders" to show the committee how the language is written.] Number 2320 REPRESENTATIVE GREEN asked Commissioner Rue whether the emergency orders were from his department, and requested clarification as to whether they did not deal with allocation, but instead were a "determination that there are, or are not, enough fish to catch." COMMISSIONER RUE said yes to both, indicating an emergency order is usually to open or close a fishery, "contingent with a management plan." In response to another question from Representative Green, he replied that the bill was not trying to supersede that, but because the bill's language is so broad, he is concerned that it would allow a commissioner, through the emergency orders, to change a management plan through allocation. Number 2270 REPRESENTATIVE CHENAULT asked Commissioner Rue if the department has "EO" [emergency order] authority in Cook Inlet. COMMISSIONER RUE replied: Yes, we do. It's constrained by the management plan the Board [of Fisheries] set up. For instance, they have a couple of mandatory closures, ... but within those mandatory parts of the ... management plan we have discretion to open and close fisheries. REPRESENTATIVE CHENAULT alluded to previous remarks about not being able to fish for pink salmon because of lack of a management plan. He also mentioned a management plan the board had mandated the department to implement; however, the department did not do so, possibly because of an issue of funds, he surmised. Number 2192 DOUG MECUM, Director, Division of Commercial Fisheries, Department of Fish & Game (ADF&G), in response to questions from Representative Chenault, restated Commissioner Rue's earlier statement regarding the petition to the Board of Fisheries regarding pink salmon in Cook Inlet. He said: The board, in this case, [acted in a way that] was a little bit unusual, in that [it] went ... a step further and said, "Not until such time as we have better information that we can use to build a management plan that ensures the conservation of these various stocks will we allow ... the department to open a directed fishery on pink salmon." MR. MECUM explained that the board justified [that decision] on the basis of what it calls a "precautionary approach," due to a lack of information on coho salmon, and because of the depressed status of the chum salmon stocks. He continued: So, in response to this action that the Board [of Fisheries] took, we set about going to the legislature to seek funding, and this year we put in a million- dollar-increment request from CFEC [Commercial Fisheries Entry Commission] receipt services and non- GF [general fund] program receipts. A quarter million dollars of that, if it goes through - and so far, it has gone through - would be for a Cook Inlet-wide, abundance-based tagging program, which would be the first key step in us getting a better handle in-season of how many fish we're dealing with - how many chums and pinks are there, what's the status of cohos - so we could better refine our management approach. MR. MECUM concluded that this process was a way for the department to report back to the board and the public. Number 2035 REPRESENTATIVE FATE read the following from Section 3, subsection (c)1), lines 15-16: "address a fishery conservation issue if the commissioner concurs". He asked, if the commissioner did not concur, whether the board would not be able to take that matter up. COMMISSIONER RUE concurred. REPRESENTATIVE FATE asked if that [language in the bill] would counter the previously-mentioned balance between the responsibilities of the board. COMMISSIONER RUE answered a qualified yes. He said the language inserts the commissioner into the board's own agenda-setting abilities. He added that the board has tried to set a three- year schedule, so that the public knows when things are coming up and so every issue is not brought up every year. Number 1961 CO-CHAIR SCALZI asked for confirmation that, under the "coho plan," the closing date for pinks, chums, or reds was August 5, and asked what the total number of pinks was that showed up in Cook Inlet. He said he had heard an estimate of 20 million from the department. [Commissioner Rue conferred with Mr. Mecum, and between them, the answer given was a closing date of August 7.] COMMISSIONER RUE said the department didn't have an "absolute number" regarding the pink salmon. He added: Again, that's ... one of the reasons why the Board [of Fisheries] did what they did. [Its members] said, "Look, ... there [are] lots of pinks, but what is a lot, and what do we need for escapement, and how many cohos are there?" They wanted more specificity; they wanted more quantitative estimates of what that was. CO-CHAIR SCALZI said he'd heard that the number of pink salmon was estimated at 20 million. He added that the number came from the local area biologists within the department. MR. MECUM said that number was a "wild guess." CO-CHAIR SCALZI inquired whether, when the surplus of pink salmon had shown up, the department had said its hands were tied and that it was unable to manage an EO [emergency order] because of the management plan. COMMISSIONER RUE said that was "basically correct," adding that there were "plenty of pinks around" to have a directed pink salmon fishery. CO-CHAIR SCALZI mentioned the failed petition discussed earlier in the meeting. Number 1819 MR. MECUM responded: There is a petition process in the Board [of Fisheries] regulations that says under certain situations they will hear an issue out of cycle. And the criteria for that has to do with a situation that threatens a fish or game resource - a conservation emergency, or if there is going to be some substantial harm ... to somebody who's not able to access some resource. And, clearly, this situation did come under those criteria. And so the board was willing to consider it under those criteria, but the petition [by the fishermen] ... was submitted very late in the pink salmon run - probably two to three weeks late. Number 1777 CO-CHAIR asked if there were any suggestions the department had to "remedy the problem" and to speed up the petition process. COMMISSIONER RUE mentioned a question he had received previously from Representative Fate, regarding Section 3 of the bill and whether the department would be stepping in to change the balance between itself and the board. He revisited an earlier comment by Mr. Mecum that [under the new provisions of the bill], the board could still accept its own agenda changes. Commissioner Rue added that as he understands it, [the proposed language of the bill] would change how the Board [of Fisheries] deals with public requests to change its agenda. Commissioner Rue said, "So, while I might be able to limit which public requests for agenda changes go to [the] Board [of Fisheries], ... they could still accept their own agenda change requests, from their own members, without my saying anything." He emphasized that there would be a limited change in the balance of powers. Number 1693 REPRESENTATIVE FATE qualified that not only would it be limited, but it would also be restricted solely to the issue of conservation. COMMISSIONER RUE concurred. Number 1618 GERRY MERRIGAN, Petersburg Vessel Owner's Association (PVOA), testified via teleconference in support of HB 216. He said although the board can move fast, sometimes it cannot convene quickly enough to react to an in-season issue, whereas the commissioner could do so [under the bill]. He specified that Section 3 is a limited modification of the balance of powers and a "very needed portion" of the bill. He added that presently the board relies heavily on the committee process to encourage stakeholder participation. He said the "committee process" has lengthened to 10-11 days, and he thought the Board of Fisheries process was "under its own democratic considerations." Mr. Merrigan added, "The more we can filter out appropriate agenda proposals, the better off we would be." He continued: In the case of the "Copper River exercise," that was a considerable expenditure of energy by all parties. That ... seemed to bear out [that] the final action was unnecessary. ... We just went through a similar exercise at the Board of Fisheries on separation of powers, on the biology and allocation of escapement goal policy. And I think this [Copper River case] kind of falls in the same ... vein, where the department is responsible for the biology. [For instance], a conservation concern should be ... concurred with them. I don't think that's asking a whole lot, that the department at least [agrees] that it's a conservation concern, [in order] to take it up out of sequence. I think Commissioner Rue was absolutely right: It does drive people crazy to have to come every year to a meeting to address the same issue as an item, when it's supposed to come up every three years. MR. MERRIGAN concluded by thanking the House Resources Standing Committee for its consideration of HB 216 and saying that he hoped the committee could move the bill ahead, and "at least get some language in Section 2." Number 1435 NOEL WOODS, testifying via teleconference, asked if the language of the bill would make the commissioner more responsible for lack of action on a particular fishery, specifically, when such action was directed by the board. He said, "We in the Cook Inlet/Susitna area have been extremely disappointed with the lack of action directed by the commissioner regarding escapement goals for spawning salmon in our area." He continued: The sponsor statement is not reassuring about this concern. Further, it seems that by the second changed statement that this bill places the Board of Fisheries in a "second position" as regards items of concern. If this is true, then this bill is certainly not acceptable. The governor directing the commissioner is not a replacement for the Board of Fisheries answering to the people of the state. At this time, I oppose this bill as it's written. Number 1331 GEORGE COVEL testified via teleconference. He stated that he had been involved with the "Alaska boards process" for over 18 years, as a member of his local advisory committee, which he chaired for the last 10 years. He said: In 1997 - and it was a matter of months following completion of the regularly scheduled meeting for this area - an e-mail to the commissioner, which concerned the Copper River, was somehow manufactured into an ACR [and] brought before the Board [of Fisheries]. Following that episode, the Board [of Fisheries] promised and delivered a standardized format for ACR's, but, in spite of this clarification of the process, the Board [of Fisheries] continues to accept ACR's, sometimes arbitrarily, with increasing frequency. In his introduction [Co-Chair Scalzi] briefly outlined what happened with another ACR concerning the Copper River this past winter. I might add that that also occurred [within] a matter of months after completion of the regularly scheduled meeting for our area. Both of these matters were eventually resolved, but at considerable cost to the public, the department, and the Board [of Fisheries]. I think that [HB] 216 would clarify and strengthen existing statutes, yet it recognizes a fundamental fact: professional fishery managers are much better qualified to make scientific determinations as to fishery conservation than lay members of an appointed board. Furthermore, the public is accustomed to and deserves a predictable board process. This bill, if enacted, would help bring current Board [of Fisheries] practices in line with legislative intent and public expectations. Number 1178 BOB MERCHANT, President of the United Cook Inlet Drift Association (UCIDA), testified via teleconference. On behalf of UCIDA, Mr. Merchant expressed support of HB 216. He said UCIDA believes the commissioner has always had the authority to supersede a regulation or management plan, "should certain, unforeseen circumstances, not previously considered," become known to him. Mr. Merchant added that there seems to be some confusion regarding this authority, which HB 216 would serve to clarify. He said it was felt by UCIDA that the Board [of Fisheries] has, in the recent past, used the ACR authority to deliberate issues out of cycle by using the conservation criteria, when, in fact, the issues turned out to be "allocative." MR. MERCHANT described "allocative" issues as being "strictly confined to regular three-year-cycle meetings," at which time the public may participate. He concluded: By requiring substantial proof and concurrence from the commissioner and department that conservation concern does exist, the public and the state will save substantial dollars and time, and allocation issues will be debated in the proper forum, during regular- cycle meetings. Number 1055 CHRIS GARCIA, representing the Cook Inlet Fishermen's Fund (CIFF), testified via teleconference in support of HB 216. He said, "I [respectfully] disagree with the commissioner about Section 3 of this bill changing the balance of power," adding that [Section 3] would most likely keep the balance of power by preventing the board from being allowed to "run amok." He mentioned a comment by a testifier regarding the board's being accountable to the people. To the contrary, he stated that because the board is appointed by the governor, it is not answerable to the people. Mr. Garcia commented that the biologists are more answerable to the people. MR. GARCIA indicated he would like to see EO authority go to the local area management biologists as well as the commissioner. He said there is no way that ADF&G could function without this authority. Mr. Garcia said when the authority is taken away like the [Board of Fisheries] has done in the past, "basically we're paying people to do something they're not allowed to do." He added, "If you don't have the power to manage something, there's really not a lot of sense in having you hired as a manager." Number 0918 DALE BONDURANT, testifying via teleconference, stated that he believes in immediate response for emergency openings and closures and responsible management for sustained yield protection, such as escapement goals. He said he hoped that political pressure would not override biological need, noting that that had been the "record in the past." Mr. Bondurant cited an example, saying: "Carl Rosier, former commissioner, lost his position when he stopped continuous commercial openings for three days to allow additional escapement in Glacier (ph) River." He stated his opinion as an observer that, in the past, the department has been "influenced by local political pressure in this area." Mr. Bondurant said at first glance he is hesitant to support the bill and intends to watch the results of HB 216, should it pass. Number 0833 DREW SPARLIN, United Cook Inlet Drift Association, testified via teleconference in support of HB 216. He stated that he has been actively involved in the Board [of Fisheries] process during the over 30 years he has been a commercial fisherman in the Cook Inlet. Mr. Sparlin said he sees a definite need to define the goals and obligations of both the Board [of Fisheries] and the department. MR. SPARLIN talked about his involvement at the Soldotna office, starting on "the fourth day of August," asking for some provision to help harvest the surplus of pink salmon available in the Cook Inlet. He indicated he had in front of him a written response from that office, stating that they did not have the authority, according to the Department of Law. He mentioned having to petition at that point. He said: We did develop a viable fishery. In [that] respect, we developed a market. I had a promise of "20-cent pinks" which would have salvaged our fishery to some degree, at least for the season, possibly avoiding the need to call the governor's people down here to talk about requiring a pretty severe situation like we went through. ... Here in the Cook Inlet, we were party to meetings that [were] conducted under the ACR, when the department said that there was not a conservation concern. I'm speaking of the avalanche (ph) meeting that occurred in Anchorage, and ... that meeting ... resulted in making [an] allocation. They took away gear from fishermen in [the] northern portion of the Cook Inlet; they took away time from the commercial fishermen in the central district; and they reduced the bag limit in the river; but that had absolutely no assurance of dropping any amount of harvest, and there was no monitoring. This works, folks, whenever you have a board that will deal with the issues based on the biological information presented to them. It does not [work] whenever you have a board that is driven with an agenda. Number 0575 CO-CHAIR SCALZI reminded the committee that HB 216 would be held over. He mentioned that he had a letter to the chairman of the Board [of Fisheries] and wanted to get the board's concerns regarding HB 216. He referred to the concerns of the commissioner and the department, and encouraged committee members to direct any comments to him during the next week. [HB 216 was held over.]
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