Legislature(2003 - 2004)
03/08/2004 01:12 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 decision. 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 return. 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 testify. 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 resolution. 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 fishery. 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 definition. 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 support. 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 [Association]." 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.