Legislature(2003 - 2004)

03/08/2004 01:12 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SJR 26-SALMON ENHANCEMENT IN WILDERNESS AREAS                                                                                 
CO-CHAIR MASEK announced  that the first order  of business would                                                               
be CS  FOR SENATE  JOINT RESOLUTION  NO. 26(RES),  Requesting the                                                               
United States  Department of the  Interior and the  United States                                                               
Department  of  Justice to  appeal  the  decision of  the  United                                                               
States Court of  Appeals for the Ninth Circuit  in The Wilderness                                                               
Society v.  United States Fish  and Wildlife Service and  to seek                                                               
an  emergency stay  of  the  decision pending  an  appeal of  the                                                               
CO-CHAIR MASEK turned the gavel over to Co-Chair Dahlstrom.                                                                     
SENATOR  THOMAS WAGONER,  Alaska State  Legislature, speaking  as                                                               
sponsor, explained  that SJR 26  involves the  salmon enhancement                                                               
project  in Tustumena  Lake.   On  December 30,  2003, the  Ninth                                                               
Circuit Court  of Appeals  made the  decision that  the Tustumena                                                               
Lake salmon  enhancement project  violates the Wilderness  Act in                                                               
two ways.   First,  he said the  court considered  [the Tustumena                                                               
Lake salmon  enhancement project]  to be a  commercial enterprise                                                               
because commercial fishermen  benefit from the project.   He said                                                               
that's true  in a  way, but commercial  fishermen do  not benefit                                                               
from  this project  within  the  wilderness area.    He said  the                                                               
salmon are  planted in Tustumena Lake,  "out-migrate," and return                                                               
four to five years later.                                                                                                       
SENATOR WAGONER said  there are three or  four different [groups]                                                               
of  people that  benefit because  of the  fish that  are planted,                                                               
which are:  Commercial fishermen,  personal use fishermen, sports                                                               
fisherman,  and sometimes  subsistence  fishermen.   Noting  that                                                               
there  is a  large  personal  use fishery  at  the  mouth of  the                                                               
Kasilof  River, he  said commercial  fishermen  that benefit  are                                                               
generally  the  setnetters  who fish  on  the  shore-based  nets,                                                               
mainly  below the  Kasilof River.   He  noted that  about 100,000                                                               
fish come back  from this project.  He said  the second objection                                                               
the  court had  is that  [the enhancement  project] might  not be                                                               
consistent with  preserving the natural  conditions of  the area.                                                               
He maintained  that [the enhancement project]  is consistent, and                                                               
said all that  would be done through  the aquaculture association                                                               
is  enhance  the ability  of  the  [salmon]  fry to  survive  and                                                               
Number 0295                                                                                                                     
SENATOR WAGONER  said SJR 26  is requesting that the  decision be                                                               
appealed and that  an emergency stay of the  decision be ordered.                                                               
He said if the  court does not stay the decision,  5 to 6 million                                                               
salmon fry are going to be  destroyed and disposed of because the                                                               
fry  cannot be  put  into another  [water]  system without  going                                                               
through  the  Alaska Department  of  Fish  and Game  (ADF&G)  and                                                               
receiving the [necessary]  permits.  He said it's  just about too                                                               
late to do  that process, and it  is very critical to  get a stay                                                               
if possible.  Noting that this  project has been in operation for                                                               
close to 30 years, he said it  started out as a state project and                                                               
when  the   state  eliminated  FRED   [Fisheries  Rehabilitation,                                                               
Enhancement  and Development],  it was  turned over  to the  Cook                                                               
Inlet Aquaculture  Association (CIAA),  which has  maintained the                                                               
project ever since.  He said it's a long-term project.                                                                          
SENATOR  WAGONER explained  that  the reason  for requesting  the                                                               
appeal is  backed up by  an email  contained in the  bill packets                                                               
from  Martin Bushman,  Legal Counsel,  Utah Division  of Wildlife                                                               
Resources,  who  points out  the  same  problems with  the  court                                                               
decision  that the  State of  Alaska does.   He  said there  is a                                                               
possibility  that with  this decision  other activities  in these                                                               
wilderness  areas are  at risk.    He said  [activities] such  as                                                               
taking guided  people [into the  area] for kayaking  or horseback                                                               
riding excursions or transporting people  into these areas may be                                                               
forbidden.   He remarked, "We  think this is where  they're going                                                               
with this ... decision."                                                                                                        
SENATOR WAGONER said the reason  [SJR 26] is being rushed through                                                               
is that the keynote speaker at  the energy council is going to be                                                               
Gail Norton,  Secretary of  the Interior, and  "we would  like to                                                               
hand her a copy of this  resolution while we're back there and go                                                               
over  it  with  her,"  because  there's  some  hesitancy  on  the                                                               
Solicitor General's part to proceed  with this suit and the State                                                               
of Alaska can't proceed with it.                                                                                                
Number 0492                                                                                                                     
REPRESENTATIVE  LYNN  stated  support  for the  resolution.    He                                                               
remarked, "To  me, it's just another  in a series of  outrages by                                                               
the Ninth Circuit Court of Appeals."   He suggested that there is                                                               
a history  of outrageous decisions  from the Ninth  Circuit Court                                                               
of  Appeals.   Representative Lynn  said he  thought this  should                                                               
bolster  "our attempts"  to  get Alaska  removed  from the  Ninth                                                               
Circuit,  so  "we  don't  have  outrages  like  this,  and  other                                                               
outrages from  that district."   He said he can't  understand why                                                               
the  [salmon] fry  can't  be put  into the  lake,  because as  he                                                               
understands it  that would not  be introducing a new  species [of                                                               
salmon].   He remarked, "It's  just enhancing what God  put there                                                               
to begin with."                                                                                                                 
SENATOR  WAGONER said  CIAA's director,  a representative  of the                                                               
Wilderness Society, and another  conservation group had a meeting                                                               
in  Anchorage and  realized that  this was  a problem,  and asked                                                               
that this be allowed.  However,  he said since the court decision                                                               
has already  been made,  there is  no way that  this can  be done                                                               
without a  stay of the  court decision.  He  said it is  not that                                                               
simple to  say a mistake  was made, ask  for it to  be rectified,                                                               
and have  the enhancement  [project] continue  for at  least this                                                               
one cycle.  That's kind of where it stands right now, he noted.                                                                 
Number 0668                                                                                                                     
REPRESENTATIVE GATTO asked if there  was someone from ACV [Alaska                                                               
Conservation  Voters]  or  the Wilderness  Society  available  to                                                               
CO-CHAIR DAHLSTROM indicated that there was not.                                                                                
Number 0684                                                                                                                     
REPRESENTATIVE   STEPOVICH  asked   if   the  state's   [federal]                                                               
delegation supports this resolution.                                                                                            
SENATOR WAGONER replied yes.                                                                                                    
REPRESENTATIVE  STEPOVICH  asked  who  is going  to  present  the                                                               
SENATOR WAGONER said  he and Senator Scott Ogan  would present it                                                               
to [Gail Norton].                                                                                                               
Number 0733                                                                                                                     
REPRESENTATIVE WOLF  asked if  CIAA has  quantified an  impact of                                                               
the  damage  that was  caused  two  years  ago when  the  [flood]                                                               
occurred at Tustumena  [Lake].  He asked how it  has impacted the                                                               
natural [salmon] run.                                                                                                           
SENATOR WAGONER said it may have,  but he had not been given that                                                               
information.  He explained that  there was a tremendous amount of                                                               
damage  done  to the  spawning  area  on  the  upper end  of  the                                                               
Tustumena system.   Senator Wagoner remarked,  "Generally, that's                                                               
what the  people would  argue; ... that's  nature's way,  and let                                                               
happen whatever  happen."   He suggested  that the  Ninth Circuit                                                               
Court of Appeals  is generally overruled about 85  percent of the                                                               
time.  Senator Wagoner said if  "we" can get this appealed to the                                                               
U.S. Supreme Court, then "we'll" have a good record.                                                                            
Number 0831                                                                                                                     
REPRESENTATIVE  GUTTENBERG  said  [language]  on  page  2  "talks                                                               
about"  the  contribution to  the  lives  and activities  of  the                                                               
residents on the  Kenai River and of the hardships.   He asked if                                                               
there   is  quantitative   number   on  the   loss  of   economic                                                               
opportunity, such as how many fish are lost.                                                                                    
SENATOR WAGONER remarked:                                                                                                       
     It's about  100,000 red  salmon ....   These  are early                                                                    
     ...  return  fish;  they're primarily  a  beach  caught                                                                    
     fish.  ...  At fifty cents a pound, times  four or five                                                                    
     pounds,  ... let's  say they're  a five-pound  average,                                                                    
     that 's two and a half  dollars times 100,000.  It just                                                                    
     depends  on where  you  want to  stop  on the  economic                                                                    
     chain.   ...  You can  say that  turns over  four times                                                                    
     into the community or two times.                                                                                           
SENATOR  WAGONER said  it's an  indeterminable  number, but  it's                                                               
part of  the overall  economic part  of the fishery.   He  said a                                                               
substantial number  of those  [fish] are  caught in  the personal                                                               
use fishery, which  takes place for several days at  the mouth of                                                               
the Kasilof  River.  He  said a lot of  people take part  in that                                                               
Number 0921                                                                                                                     
REPRESENTATIVE GUTTENBERG asked  how long the stay  would have to                                                               
be in order to release the fish from the hatchery into the lake.                                                                
SENATOR WAGONER said  any stay would have to run  past the end of                                                               
June.   He said the  [salmon fry] are  loaded into a  float plane                                                               
near  Seward  and flown  directly  over  and deposited  into  the                                                               
Tustumena Lake, which probably happens in June.                                                                                 
Number 0980                                                                                                                     
DON JOHNSON,  Member, Kenai River Professional  Guide Association                                                               
(KRPGA), testified.   He  said KRPGA  is opposed  to SJR  26, and                                                               
although [KRPGA] is  basically against most of  the Ninth Circuit                                                               
Court  of Appeals  decisions,  it  tends to  go  along with  this                                                               
decision.   He said  there have  been a  lot of  general problems                                                               
with stocking  in Tustumena Lake.   Mr. Johnson said there  are a                                                               
few  parts   of  the   [resolution]  that   appear  to   be  pure                                                               
misinformation, for  example, he  said the part  about commercial                                                               
activities.   He  said he  went  through the  Wilderness Act  and                                                               
didn't see  that kind of  thing in it, in  fact, there are  a few                                                               
clauses in  there that specifically  exempt that stuff.   He said                                                               
the  actual  statements  that  are coming  out  and  saying  this                                                               
attempt of the  Ninth Circuit Court of Appeals is  aimed at going                                                               
after tourism,  kayaking, guiding,  outfitting, and that  kind of                                                               
thing is not seen in the Wilderness Act.                                                                                        
MR.  JOHNSON said  apparently there  are a  bunch of  people that                                                               
want these  fish to go into  the [Tustumena Lake] and  are trying                                                               
to use misinformation  "in order to keep it there."   Mr. Johnson                                                               
said if those  people want to keep it there  on their own merits,                                                               
but  are trying  to  drag a  bunch  of other  things  into it  to                                                               
somehow justify  getting this  case appealed  again, is  not what                                                               
"we're really looking to do."   He said [the resolution] makes it                                                               
look  like  there  is  100  percent agreement  to  get  the  case                                                               
appealed, but  "we don't see  it."   Mr. Johnson said  there have                                                               
been a  lot of problems up  there with the planning  of fish, and                                                               
it  is not  particularly  in  the same  area  as the  "wilderness                                                               
people are  going with this thing."   He suggested that  a lot of                                                               
the people  who are trying to  keep that project going  are using                                                               
what he sees as misinformation to  dilute what is going on in the                                                               
Wilderness Act "to  say that it's doing something  and it's not."                                                               
Mr.  Johnson  said  unless  someone  is going  to  come  up  with                                                               
specifics and  point it out and  say exactly what it  is going to                                                               
do, he  can't see it  "doing that."   He said he  was referencing                                                               
sections "4(d)(1) and 4(d)(6)" of  the Wilderness Act, which both                                                               
specifically allow  aircraft, motorboats,  kayaking, recreational                                                               
commercial activities, and so forth.                                                                                            
REPRESENTATIVE WOLF  said he believes the  entire Kenai Peninsula                                                               
delegation  understands the  impacts that  have taken  place with                                                               
the  flood and  the slide,  which impacted  the systems  draining                                                               
into the  Tustumena Lake.   He said his  concern is that  what is                                                               
being  talked  about is  an  event  that  took place  by  "mother                                                               
nature" that has  decimated part of the salmon run.   He said now                                                               
"we're"  having  the  court  system  do the  same  thing  by  not                                                               
allowing  the CIAA  to deposit  the [salmon  fry] into  the lake;                                                               
"we're"  affecting an  economy twice  -  the commercial  fishery,                                                               
sport fishery,  personal use fishery, and  subsistence [fishery].                                                               
Representative  Wolf said  "we"  can't do  anything about  mother                                                               
nature, but "we"  can do something about the  Ninth Circuit Court                                                               
of Appeals.  He stated his support.                                                                                             
Number 1256                                                                                                                     
REPRESENTATIVE GATTO  asked Mr.  Johnson about the  definition of                                                               
the words "commercial enterprise".                                                                                              
MR. JOHNSON said he believed that was in the Wilderness Act.                                                                    
REPRESENTATIVE   GATTO  asked   Mr.  Johnson   if  he   knew  the                                                               
MR. JOHNSON indicated he didn't.                                                                                                
REPRESENTATIVE GATTO said  it is an important term as  far as the                                                               
[resolution] is  concerned.  He  said he  thought it was  of real                                                               
value to  establish ahead of  time what those two  words actually                                                               
mean.   He said if  this language is going  to be referred  to in                                                               
some  of  the  supporting  documents,  he  thinks  it  is  pretty                                                               
valuable to  him to know  exactly what it means.   Representative                                                               
Gatto suggested  that something  as simple  as taking  a relative                                                               
who is not  a resident of the state  on a trip in the  state is a                                                               
minor form of  some sort of a commercial enterprise.   He said if                                                               
he operates  a business,  that is  a major  form of  a commercial                                                               
enterprise.   Representative Gatto asked  if there is  a dividing                                                               
line, so that he can  understand [what actions] violate the Ninth                                                               
Circuit  Court  of  Appeals  ruling  or  the  Wilderness  Act  or                                                               
anything else.                                                                                                                  
MR.  JOHNSON  said  section "4(d)(6)"  [of  the  Wilderness  Act]                                                               
specifically allows  commercial services.  He  remarked, "You can                                                               
read whatever you want into that."                                                                                              
Number 1368                                                                                                                     
SENATOR  WAGONER  said  he  believes  the  commercial  enterprise                                                               
referred  to in  this  bill  takes place  outside  of the  entire                                                               
wilderness  area, which  is one  of the  problems, and  the other                                                               
commercial enterprise referred to takes place inside the area.                                                                  
REPRESENTATIVE  GUTTENBERG  asked  Mr.  Johnson  if  there  is  a                                                               
problem mixing hatchery fish with wild stock in that area.                                                                      
MR. JOHNSON said  absolutely; a big problem.  He  said when those                                                               
hatchery fish  are dropped into  the Tustumena Lake and  mix with                                                               
the wild  fish, it produces a  massive effort in Cook  Inlet with                                                               
gillnetters  who basically  end up  intercepting every  wild fish                                                               
that  could possibly  be trying  to get  into the  system on  the                                                               
Kasilof  River, which  runs out  of  Tustumena [Lake].   He  said                                                               
every time "stock  fish" are thrown into a system  that flows out                                                               
into saltwater, it  causes an extra increased  effort [to harvest                                                               
the fish]  by gillnetters, and  that extra effort  actually comes                                                               
down to  taking a disproportionate  amount of  fish.  He  said if                                                               
more stock  fish come back than  wild fish, it will  [produce] an                                                               
extra effort to harvest the  stock fish, [because] in the process                                                               
of trying to  harvest the stock fish, a higher  percentage of the                                                               
wild fish are going to be taken.                                                                                                
MR. JOHNSON said after years of  doing that, it degrades the wild                                                               
stock  down to  nothing and  results in  nothing but  stock fish,                                                               
which have  been planted there year  after year.  He  said that's                                                               
been going on  in the Tustumena drainage and is  the real problem                                                               
up there.   He  said it's  been going  on for  quite a  while and                                                               
"we've" been  trying to get the  program shut down just  for that                                                               
reason, because it's been hard on the  wild stock.  He said it is                                                               
one  of  the   major  reasons  "we've"  not  tried   to  put  any                                                               
"stockings"  into the  Kenai  River because  "we"  don't want  to                                                               
damage any  of the genetics of  the stocks that are  in the Kenai                                                               
River.   He  said the  Tustumena Lake  [enhancement project]  has                                                               
been going on  for such a long  time that it's been  very hard to                                                               
do anything  about it.   He  said it  is most  of the  reason for                                                               
addressing the  resolution at  this time,  and the  Ninth Circuit                                                               
Court of  Appeals has  come in  and put the  "shut down"  on this                                                               
[project] for wilderness reasons.                                                                                               
MR. JOHNSON said  it is the "wild factor" that's  really got this                                                               
thing  going for  [KRPGA], because  it does  not [want]  the wild                                                               
fish wiped out  for a bunch of  [stocked fish].  He  said this is                                                               
even bigger  than what was  suggested.  He  said when a  bunch of                                                               
fish are stocked in the Kasilof  River, it causes extra effort at                                                               
the mouth  of the Kasilof  River, which impacts the  Kenai River,                                                               
and that's a huge issue.                                                                                                        
Number 1550                                                                                                                     
SENATOR  WAGONER  said these  fish  are  genetically exactly  the                                                               
same.  He explained that the  egg take for these fish takes place                                                               
in Tustumena Lake;  the eggs are taken, fertilized,  taken to the                                                               
hatchery, hatched,  and fed.   He said  those fish have  a better                                                               
survival rate  by far than  those in  the wild.   Senator Wagoner                                                               
said there is  genetically no difference between  a salmon that's                                                               
reared for the  first two years in the hatchery  versus the wild.                                                               
He  stated that  the  genetic strain  is exactly  the  same.   He                                                               
turned attention  to the last paragraph  of a letter in  the bill                                                               
packet from  Attorney General Gregg Renkes,  which read [original                                                               
punctuation provided]:                                                                                                          
     If allowed to stand, the Ninth Circuit's decision may                                                                      
         be used to burden or eliminate legitimate non-                                                                         
     commercial  activities  in   wilderness  that  Congress                                                                    
     never meant  to bar.   We  urge you  to take  action to                                                                    
     correct the  Ninth Circuit's overreaching.   Please let                                                                    
     me  know  if we  can  be  of  any other  assistance  or                                                                    
SENATOR WAGONER  said to keep in  mind that the director  of this                                                               
wilderness area  had no problem  with this fish  stocking effort.                                                               
He remarked,  "We even won,  until it was appealed,  on a 2  to 1                                                               
vote at  the Ninth  Circuit Court."   He said it  is a  matter of                                                               
keeping  it  going  to  a  higher court,  which  is  what's  been                                                               
happening.   Senator  Wagoner remarked,  "Every  place else,  the                                                               
decision's   been   in   favor    of   Cook   Inlet   Aquaculture                                                               
Number 1668                                                                                                                     
CO-CHAIR MASEK moved  to report [CSSJR 26(RES)]  out of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes,  and  asked  for  unanimous   consent.    There  being  no                                                               
objection, CSSJR  26(RES) was reported  from the  House Resources                                                               
Standing Committee.                                                                                                             

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