Legislature(2009 - 2010)HOUSE FINANCE 519

01/26/2010 01:30 PM House FINANCE


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01:36:16 PM Overview on Engangered Species Act
01:36:51 PM Start
01:38:14 PM Overview on Engangered Species Act
03:17:05 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Overview on Endangered Species Act TELECONFERENCED
                  HOUSE FINANCE COMMITTEE                                                                                       
                      January 26, 2010                                                                                          
                         1:36 p.m.                                                                                              
                                                                                                                                
                                                                                                                                
1:36:51 PM                                                                                                                    
                                                                                                                                
CALL TO ORDER                                                                                                                 
                                                                                                                                
Co-Chair Stoltze  called the House Finance  Committee meeting                                                                   
to order at 1:36 p.m.                                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Mike Hawker, Co-Chair                                                                                            
Representative Bill Stoltze, Co-Chair                                                                                           
Representative Bill Thomas Jr., Vice-Chair                                                                                      
Representative Allan Austerman                                                                                                  
Representative Mike Doogan                                                                                                      
Representative Anna Fairclough                                                                                                  
Representative Neal Foster                                                                                                      
Representative Les Gara                                                                                                         
Representative Reggie Joule                                                                                                     
Representative Mike Kelly                                                                                                       
Representative Woodie Salmon                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
None.                                                                                                                           
                                                                                                                                
ALSO PRESENT                                                                                                                  
                                                                                                                                
Representative   Lindsey  Holmes,   Dan  Sullivan,   Attorney                                                                   
General,  Department  of  Law;   Doug  Vincent-Lang,  Special                                                                   
Projects  Coordinator,  Department  of  Fish and  Game;  Brad                                                                   
Meyen,  Staff  Attorney,  Department of  Law;  Taqulik  Hepa,                                                                   
Director,  Department  of Wildlife  Management,  North  Slope                                                                   
Borough; Andrew  Mack, Special Assistant to the  Mayor, North                                                                   
Slope Borough                                                                                                                   
                                                                                                                                
PRESENT VIA TELECONFERENCE                                                                                                    
                                                                                                                                
George Vakalis, Manager, Municipality of Anchorage;                                                                             
                                                                                                                                
1:36:16 PM                                                                                                                    
                                                                                                                                
SUMMARY                                                                                                                       
                                                                                                                                
^OVERVIEW ON ENGANGERED SPECIES ACT                                                                                           
                                                                                                                                
1:38:14 PM                                                                                                                    
                                                                                                                                
Co-Chair Stoltze discussed housekeeping.                                                                                        
                                                                                                                                
DAN SULLIVAN, ATTORNEY GENERAL,  DEPARTMENT OF LAW, testified                                                                   
that  cooperation   and  mutual  understanding   between  the                                                                   
executive and  legislative branches  was an important  aspect                                                                   
of the  state's  overall strategy  concerning the  Endangered                                                                   
Species Act (ESA).  He discussed the agenda to  be covered in                                                                   
the meeting and introduced his support staff.                                                                                   
                                                                                                                                
1:39:54 PM                                                                                                                    
                                                                                                                                
Mr. Sullivan stated that the Department  of Law has four main                                                                   
objectives:                                                                                                                     
                                                                                                                                
   · Protecting Alaskan's safety, physical and financial                                                                        
     wellbeing.                                                                                                                 
   · Creating the conditions for economic growth and                                                                            
     responsible development of natural resources.                                                                              
   · Protecting the fiscal integrity of the state.                                                                              
   · Promoting and defending good governance.                                                                                   
                                                                                                                                
Mr. Sullivan continued.  He explained that for  DOL and other                                                                   
agencies,  ESA   related  work  was  important   in  creating                                                                   
economic growth  and responsible development.  The department                                                                   
has  witnessed  an  enclave  of   ESA  petitions  that  could                                                                   
threaten future  economic opportunity, economic  development,                                                                   
and  natural  resource  development  in  the  state.  Certain                                                                   
environmental  groups use  the ESA to  impede development  in                                                                   
large  areas   of  the  state  without  regard   to  reliable                                                                   
scientific research,  actual benefit  to the species,  or the                                                                   
economic effects  on residents. The department  contends that                                                                   
the state can  both responsibly develop resources  and create                                                                   
economic opportunity,  while protecting  endangered  and non-                                                                   
endangered species.                                                                                                             
                                                                                                                                
1:41:35 PM                                                                                                                    
                                                                                                                                
Mr. Sullivan believed  that the management of  the Polar Bear                                                                   
on  the  North  Slope was  an  ideal  example  of  successful                                                                   
coexistence.   He   felt   that   state   officials   had   a                                                                   
constitutional  duty  to drive  economic  development,  while                                                                   
simultaneously   protecting    wildlife.   To   address   the                                                                   
challenge,  the  department has  created  a five  part  plan.                                                                   
First, action would be taken to  prevent unwarranted listings                                                                   
of species in Alaska. Several elements compose this action:                                                                     
                                                                                                                                
          · Litigation to challenge unwarranted listings.                                                                       
          · Intervene when necessary to protect the                                                                             
             interest of the state.                                                                                             
          · Undertake pre-listing agreements, such as;                                                                          
             candidate   conservation    plans   and    other                                                                   
             conservation agreements.                                                                                           
          · Focus on research and monitoring of scientific                                                                      
             data.                                                                                                              
                                                                                                                                
Mr. Sullivan  continued. Secondly, the department  would work                                                                   
to  deepen  cooperation  and information  exchange  with  the                                                                   
federal  government. He  cited  a recent  agreement with  the                                                                   
National Marine  Fisheries Service (NMFS), as  an example. He                                                                   
added  that  the federal  government  does  not  consistently                                                                   
reciprocate   the   department's  request   for   information                                                                   
exchange. For  example, the federal government  had not asked                                                                   
either  the  Department  of  Fish  and  Game  (DF&G)  or  the                                                                   
Department of  Law for  an opinion on  the issue  of critical                                                                   
habitat for the Polar Bear. Third,  the department would work                                                                   
to shape habitat designation and  a recovery plan for species                                                                   
that  have   been  deemed  endangered.  The   department  has                                                                   
encouraged the federal government  to use the 4D rules, which                                                                   
are an  ESA mechanism for  protecting threatened,  as opposed                                                                   
to endangered, species.  The fourth part of  the strategy was                                                                   
to work  to move to delist  species from the  endangered list                                                                   
when appropriate.  For example, the department  believes that                                                                   
the Easter  Stellar Sea Lion has  met every objective  in the                                                                   
federal   recovery  plan   and  should   be  considered   for                                                                   
delisting. Finally, the fifth  part of the plan was to engage                                                                   
in public education  on ESA issues, and to  invite a dialogue                                                                   
nationwide.  A letter  had been drafted  for distribution  to                                                                   
the 49 other  Attorney General's in the country,  that listed                                                                   
the  state's concerns  in regard  to ESAs,  and included  the                                                                   
reminder  that the  issue of  ESAs  could have  repercussions                                                                   
nationwide.                                                                                                                     
                                                                                                                                
1:46:15 PM                                                                                                                    
                                                                                                                                
Mr. Sullivan informed  the committee that the  issue would be                                                                   
presented  in  March 2010,  to  the National  Association  of                                                                   
Attorney Generals. Currently,  general fund dollars allocated                                                                   
to the  Department of  Fish and  Game furnish the  department                                                                   
with  one  attorney  to  focus solely  on  ESAs.  The  budget                                                                   
includes  the  request  of  $200,000,  to  hire  another  ESA                                                                   
attorney, and  an additional $800,000  to continue  to employ                                                                   
outside  council.  The  Department   of  Fish  and  Game  had                                                                   
requested  $386,000, in  increments,  of  general funds,  and                                                                   
$450,000  in  federal  receipt  authority, to  focus  on  ESA                                                                   
issues and ESA related research.                                                                                                
                                                                                                                                
Co-Chair Stoltze  wondered if  the department could  create a                                                                   
chart illustrating  the spending risk versus  the benefit for                                                                   
the state.   Mr. Sullivan  replied that the department  would                                                                   
work to provide any information requested by the committee.                                                                     
                                                                                                                                
1:49:51 PM                                                                                                                    
                                                                                                                                
Mr.  Sullivan continued.  The  department  believed that  the                                                                   
costs  associated  with  listing  a  species  under  an  ESA,                                                                   
contribute  to  economic uncertainty  throughout  the  state.                                                                   
Also, due  to the ESA listing,  the ultimate  decision making                                                                   
authority  concerning  in-state  species was  transferred  to                                                                   
federal  courts.   It  was  illegal  to  kill,   capture,  or                                                                   
otherwise harm  the species on  purpose or accidentally  once                                                                   
it was  listed. Every  federal funded  permitted or  licensed                                                                   
activity  must undergo  a consultation  process with  federal                                                                   
agencies  to determine  whether the  proposed activity  would                                                                   
jeopardize  continued  existence.   During  the  consultation                                                                   
process  certain environmental  groups  undertake  litigation                                                                   
which the  department  believed increased  the cost of  doing                                                                   
business  in  Alaska,  and bred  uncertainty  among  possible                                                                   
investors.                                                                                                                      
                                                                                                                                
1:51:41 PM                                                                                                                    
                                                                                                                                
Mr. Sullivan discussed the legal  theory concerning the Polar                                                                   
Bear and  Ribbon Seal debates.  The legal theory  stated that                                                                   
climate change  was altering the  habitat for species  in the                                                                   
arctic environment.  Although the  population of  the species                                                                   
might be  increasing, or  at a  high historic level,  species                                                                   
were being listed  because environmental groups  charged that                                                                   
the  changes in  habitat could  put  species at  risk in  the                                                                   
future. He  warned that the  employment of that  legal theory                                                                   
could  lead  to unnecessary  species  listings.  The  federal                                                                   
government had  rejected the theory  in the Ribbon  Seal case                                                                   
and the  department had  requested to  intervene and  support                                                                   
the  decision.  The Federal  Fish  and Wildlife  Service  and                                                                   
National Marine  Fisheries have chosen opposing  sides on the                                                                   
issue.                                                                                                                          
                                                                                                                                
Mr. Sullivan offered  another example of the  misuse of legal                                                                   
climate change  theory in Montana, which had  been acceptable                                                                   
to the federal  government, but that the  department believed                                                                   
was speculative.                                                                                                                
                                                                                                                                
1:53:51 PM                                                                                                                    
                                                                                                                                
Mr.  Sullivan  said  environmentalists  argued  that  Grizzly                                                                   
Bears  should not  be delisted  because the  White Bark  Pine                                                                   
Nut,  which  the Grizzly  Bear  eats,  could be  affected  by                                                                   
climate  change  which  would  put the  bears  at  risk.  The                                                                   
department believed that this  was an improper reading of the                                                                   
ESA and could contribute to unnecessary  additional listings.                                                                   
He gave more  examples of the misuse of ESA  by environmental                                                                   
groups.                                                                                                                         
                                                                                                                                
1:55:47 PM                                                                                                                    
                                                                                                                                
Mr. Sullivan  said that the  environmental groups  often have                                                                   
considerable  financial backing  and  aggressive tactics.  He                                                                   
mentioned  the   importance  of  departmental   intervention.                                                                   
Environmental  groups  claim  that  they are  acting  in  the                                                                   
public  interest  of Alaska;  the  department  does not.  The                                                                   
department protects wildlife,  as well as economic growth and                                                                   
resource development opportunities.  He contended that it was                                                                   
important  that the  department  intervene  when the  federal                                                                   
government   and   environmental   groups   have   settlement                                                                   
discussions. He  shared that the department had  requested to                                                                   
intervene in  the Ribbon  Seal case, but  had not  received a                                                                   
reply. The case was brought by  an environmental group out of                                                                   
Arizona, and was  heard in a federal court  in San Francisco.                                                                   
The  state's intervention  in  the case  was currently  being                                                                   
opposed by the environmental group.                                                                                             
1:59:05 PM                                                                                                                    
                                                                                                                                
Mr.  Sullivan stressed  that  the conservation  of  genuinely                                                                   
endangered  species  was  important  to  DOL  and  DF&G.  The                                                                   
department   maintained   opposition    against   unwarranted                                                                   
listings  based on  speculation,  overbroad critical  habitat                                                                   
determinations that did not take  Alaska's economic interests                                                                   
into  account,   misuse   of  ESA  to   shut  down   resource                                                                   
development, and the use of ESA to regulate climate change.                                                                     
                                                                                                                                
DOUG VINCENT-LANG,  SPECIAL PROJECTS COORDINATOR,  DEPARTMENT                                                                   
OF FISH AND  GAME, informed the committee that  the state did                                                                   
not question  the protection of definite  endangered species,                                                                   
especially  when  the  endangerment  was a  result  of  human                                                                   
activity.  He cited North  Pacific Right  Wales as  a genuine                                                                   
ESA  listing. The  department  had concerns  over the  recent                                                                   
application of  ESA in the  state. Specific areas  of concern                                                                   
include  how far  into the  future species  viability can  be                                                                   
accurately predicted;  10 years, 50 years, 100  years, or 300                                                                   
years.  Rarely do  DF&G biologists  assess species  viability                                                                   
beyond  10  years.  The  department  had  seen  an  increased                                                                   
reliance  on models  being used  to  predict out  100 to  300                                                                   
years, as  was the case of  Beluga Whales in Cook  Inlet. The                                                                   
department had asked what the  reasonable level of risk to be                                                                   
considered  before  listing  a  species are;  1  percent,  10                                                                   
percent,  20 percent,  or  50 percent,  and  should the  risk                                                                   
levels increase as  longer timeframes are used.  He said that                                                                   
in  Cook Inlet,  the decision  was  made to  list the  Beluga                                                                   
Whale based  on a  probability of  extinction greater  than 1                                                                   
percent, and at  time periods of 100 to 300 years.  At the 50                                                                   
year time  horizon, the  probability of  extinction was  less                                                                   
that 1 percent,  which meant that  the wale had a  99 percent                                                                   
chance of not  going extinct within 50 years.  The department                                                                   
questioned how critical habitat  should be defined. Should it                                                                   
represent  the   occupied  area  as  purposed   for  critical                                                                   
habitat, independent of the primary  threats that the species                                                                   
faces,  or  should  it  represent  a  more  narrowly  defined                                                                   
geography,  that focused  on addressing  the primary  threats                                                                   
facing the  species. For instance,  with the Polar  Bear, the                                                                   
ESA regarded the  entire occupied range as  critical habitat,                                                                   
irrespective  of  the  fact  that   the  primary  threat,  as                                                                   
identified in the listing decision,  was loss of sea ice. The                                                                   
ESA citing  that refuge  from Killer  Whales was the  primary                                                                   
threat  to Northern  Sea  Otters  was an  example  of a  more                                                                   
narrowly defined geography of  critical habitat. He expressed                                                                   
concern  for the  definition of  recovery objectives,  should                                                                   
they  be defined  to remove  the  risk of  extinction, or  to                                                                   
recover  the  species.  He said  that  there  were  currently                                                                   
45,000  to 60,000  Stellar Sea  Lions in  Western Alaska  and                                                                   
that it could be argued that the  risk of extinction had been                                                                   
removed.  He  added  that  another   argument  was  that  the                                                                   
population  had  not  been  sufficiently   recovered  to  the                                                                   
historic  population number  of  103,000.  He suggested  that                                                                   
replenishing the species back  to 103,000 might be impossible                                                                   
given current ocean conditions.                                                                                                 
                                                                                                                                
Mr. Vincent-Lang  stated that DF&G was currently  tasked with                                                                   
coordinating  the states  ESA  related activates.  The  base,                                                                   
unrestricted,  general  fund budget  provided  funding for  a                                                                   
state attorney, and two state  biologists. Given the increase                                                                   
in listings  and proposals for  listings, the  department was                                                                   
requesting  $236,000, in  general funds  dollars, to  improve                                                                   
the  department's ability  to coordinate  ESA activities  and                                                                   
respond to increased  listings. The funds would  also be used                                                                   
to work with  other states facing similar  concerns regarding                                                                   
recent implementation of the ESA.                                                                                               
                                                                                                                                
2:04:50 PM                                                                                                                    
                                                                                                                                
Mr. Vincent-Lang  described the  species that the  department                                                                   
had involvement with under ESAs:                                                                                                
                                                                                                                                
     · Polar Bears                                                                                                            
     · Cook Inlet Beluga Whales                                                                                               
     · Pacific Walrus: The species has been petitioned by                                                                     
        the environmental  groups for  listing under  the ESA                                                                   
        and is currently under a 12 month  review by the U.S.                                                                   
        Fish and Wildlife Service.                                                                                              
     · Southeast Alaska Herring: Attempts to list began                                                                       
        with a  proposal by  a local  environmental group  to                                                                   
        designate   Lynn  Canal   Herring   as   a   distinct                                                                   
        population segment.  The state successfully  provided                                                                   
        comments that stated the Lynn Canal  Herring were not                                                                   
        a distinct  population segment.  The National  Marine                                                                   
        Fisheries Service  expanded  the  listing to  include                                                                   
        all Southeast Alaskan Herring.                                                                                          
     · Ribbon, Spotted, Bearded and Ring Seals: All are in                                                                    
        various staged  of the ESA  process. The  Ribbon Seal                                                                   
        was recently cited to  not warrant a listing,  and is                                                                   
        in litigation.  The Spotted  Seal was  also cited  as                                                                   
        not warranting  a  listing, litigation  is  expected.                                                                   
        The Bearded and Ring  Seals are both undergoing  a 12                                                                   
        month status review by the National  Marine Fisheries                                                                   
        Service.                                                                                                                
     · Kittlitz's Murrelet                                                                                                    
     · Marbled Murrelets                                                                                                      
     · Northern Sea Otters                                                                                                    
     · Red Knots                                                                                                              
     · Goss Hawks                                                                                                             
     · Spectacle Eiders                                                                                                       
     · Stellar Eiders                                                                                                         
     · Stellar Sea Lions                                                                                                      
     · Yellow Billed Loons: Recently decided by the Fish                                                                      
        and Wildlife Service to be warranted for listing,                                                                       
        but precluded due to agency resources.                                                                                  
                                                                                                                                
2:07:37 PM                                                                                                                    
                                                                                                                                
Mr.  Vincent-Lang  stated  that  the  priority  was  to  help                                                                   
residents of Alaska navigate the  ESA. Under Section 6 of the                                                                   
ESA,  the department  had entered  into  agreements with  the                                                                   
Fish and Wildlife Service, and  the National Marine Fisheries                                                                   
Service, in  order to collect  more information on  the needs                                                                   
of  at-risk  and  enlisted species.  An  increment  had  been                                                                   
identified  in  the budget  that  would provide  $150,000  of                                                                   
general funds as a match to $450,000  in federal dollars that                                                                   
would  enable  the department  to  improve  understanding  of                                                                   
certain  marine  mammal  issues.   The  department  was  also                                                                   
conducting  research  using  existing  Section  6  monies  to                                                                   
examine  species  listed under  the  United  States Fish  and                                                                   
Wildlife  Service  Endangered  Species Program.  Finally  the                                                                   
department was  examining ways to leverage existing  funds in                                                                   
order to collect the information  necessary to delist certain                                                                   
species.                                                                                                                        
                                                                                                                                
Representative  Gara asked  about  the hourly  rates paid  to                                                                   
outside counsel hired to litigate on the states behalf.                                                                         
BRAD MEYEN,  STAFF ATTORNEY,  DEPARTMENT  OF LAW, replied  (I                                                                   
think)  recalled that  the range  was from  $230 to $480  per                                                                   
hour.  He added  that  the work  was  allocated  at the  most                                                                   
efficient  level  possible.  Mr.  Sullivan  interjected  that                                                                   
outside council  brought additional expertise.  He added that                                                                   
retaining outside  counsel was  advantageous when  cases were                                                                   
litigated  out  of  state.  He stated  that  funding  for  an                                                                   
additional   expert  attorney   within  the   DOL  had   been                                                                   
requested.                                                                                                                      
                                                                                                                                
Representative  Gara thought that  in-state counsel  could do                                                                   
the work for a significantly lower  cost to the state. If the                                                                   
state paid an  outside attorney $350 per hour,  full time for                                                                   
one year,  it would result in  a total cost of  $700,000. The                                                                   
same  attorney, in-state,  would cost  $200,000. He  believed                                                                   
such  spending was  wasteful and  hoped  that the  department                                                                   
would work to eliminate the unnecessary.                                                                                        
                                                                                                                                
2:13:04 PM                                                                                                                    
                                                                                                                                
Representative Gara  believed that qualified  attorneys could                                                                   
be  found  at the  Attorney  General's  office,  which  would                                                                   
negate  the need  for outside  counsel.  Mr. Sullivan  agreed                                                                   
that DOL had  first-rate attorneys working for  salaries that                                                                   
did  not match  the private  sector. He  maintained that  the                                                                   
combination of  outside and in-state expertise  was best when                                                                   
litigating ESA cases.                                                                                                           
                                                                                                                                
Representative  Gara  understood  the political  pressure  of                                                                   
hiring  outside rather  than creating  a  new state  employee                                                                   
position.  He  hoped  that  DOL  could  overcome  the  system                                                                   
prejudice  and  work to  create  new positions,  rather  than                                                                   
hiring out-of-state. He hoped  that, in cases where the state                                                                   
acts  as an  Amicus  curiae; a  phrase  that literally  means                                                                   
"friend of  the court", someone  who was  not a party  to the                                                                   
litigation, but  who believes  that the court's  decision may                                                                   
affect  its interest,  that the motivation  was sincere,  and                                                                   
not to "put on a show".                                                                                                         
                                                                                                                                
2:15:48 PM                                                                                                                    
                                                                                                                                
Mr. Sullivan  rebutted that the  state had not  been involved                                                                   
enough on  a federal  level. He  reminded the committee  that                                                                   
the  state   intervened  in  the  litigation   involving  the                                                                   
Kensington Mine.  Had the state  not applied for  certiorari,                                                                   
and taken the case to the Supreme  Court, the mine would have                                                                   
been shut  down.  He asserted  that when state  territory and                                                                   
jobs were  at stake, as  was the risk  in most ESA  cases, it                                                                   
was necessary for the state to  become aggressively involved.                                                                   
                                                                                                                                
2:18:35 PM                                                                                                                    
                                                                                                                                
Vice-Chair  Thomas commented  that he  felt it was  important                                                                   
that the  department gather  its own  information on  herring                                                                   
stocks to compare and contrast  with research gathered by the                                                                   
National Oceanic  and Atmospheric  Administration (NOAA)  and                                                                   
NMFS.  Mr.  Vincent-Lang  replied  that  the  department  was                                                                   
working  with NMFS  as it went  through its  12 month  status                                                                   
review. The department had a research  program and management                                                                   
plans  in  place  and  considered   itself  the  managers  of                                                                   
Southeast  Alaskan  herring.  Herring  stocks  fluctuate  and                                                                   
migrate  over  time.  He  felt   that  the  most  informative                                                                   
information was  available in order  to make the  decision as                                                                   
to list or not list the species.                                                                                                
                                                                                                                                
2:22:03 PM                                                                                                                    
                                                                                                                                
Vice-Chair  Thomas  was  interested   to  see  how  much  the                                                                   
department had budgeted for herring research.                                                                                   
                                                                                                                                
2:22:28 PM                                                                                                                    
                                                                                                                                
Mr. Vincent-Lang responded that  the department often differs                                                                   
with other agencies as to whether  or not a species should be                                                                   
listed.  He   said  that   the  department  would   challenge                                                                   
information  that it  believed had  been misinterpreted,  and                                                                   
any  ruling  made as  a  result  of the  interpretation,  but                                                                   
providing  the  information  to  the agencies  was  the  main                                                                   
objective.                                                                                                                      
                                                                                                                                
2:25:52 PM                                                                                                                    
                                                                                                                                
TAQULIK HEPA, DIRECTOR, DEPARTMENT OF WILDLIFE MANAGEMENT,                                                                      
NORTH SLOPE BOROUGH, read from a prepared document (copy on                                                                     
file):                                                                                                                          
                                                                                                                                
     Thank you,  Mr. Chairman  and members of  the Committee.                                                                   
     I appreciate  this opportunity to speak to  you today on                                                                   
     behalf  of  the North  Slope  Borough and  Mayor  Edward                                                                   
     Itta. I would like to share  our views on the listing of                                                                   
     the polar bear and other  species under the terms of the                                                                   
     Endangered  Species Act  and  its effects  on our  local                                                                   
     government, our communities  and our subsistence hunting                                                                   
     practices.                                                                                                                 
                                                                                                                                
     The  borough  has been  involved  in the  management  of                                                                   
     polar bears  on a daily  basis since 1988,  when Alaskan                                                                   
     and   Canadian   subsistence   users   established   the                                                                   
     Inuvialuit-Inupiat  Polar   Bear  Management  Agreement.                                                                   
     Since then,  Native hunters have managed  the aboriginal                                                                   
     harvest of  polar bears along the Arctic  coast based on                                                                   
     annual quotas  recommended by polar bear  scientists and                                                                   
     the traditional knowledge  of experienced Inuit hunters.                                                                   
                                                                                                                                
     This co-management program  has emphasized protection of                                                                   
     denning  bears,  females  and  cubs, and  it  relies  on                                                                   
     continuous  harvest monitoring. As  a result,  the polar                                                                   
     bear take  has remained  below established  quota levels                                                                   
     on  average  for the  past  20  years. The  North  Slope                                                                   
     Borough  has  embraced  this   conservation  effort  and                                                                   
     continues  to do  so, because  we care  about the  polar                                                                   
     bear  as a resident  Arctic species  and we consider  it                                                                   
     essential to  the cultural and nutritional  wellbeing of                                                                   
     our people.                                                                                                                
                                                                                                                                
     But hunting is not the primary  interaction we have with                                                                   
     polar bears.  As the human  population increases  on the                                                                   
     North  Slope and  polar bears  spend  more time  onshore                                                                   
     because of  receding sea ice,  the borough has  found it                                                                   
     necessary to  establish a polar bear  deterrence program                                                                   
     for  the  protection  of  both bears  and  people.  With                                                                   
     authorization  from the  U.S. Fish  & Wildlife  Service,                                                                   
     our  Department of  Wildlife  Management operates  polar                                                                   
     bear  patrols to  prevent human/bear  encounters in  the                                                                   
     coastal  communities   of  Kaktovik,   Nuiqsut,  Barrow,                                                                   
     Wainwright,  Point  Lay and  Point  Hope. These  patrols                                                                   
     require  staff, vehicles  and deterrence equipment,  and                                                                   
     the  borough  has  always  been expected  to  cover  the                                                                   
     costs,  despite  the federal  responsibility  for  polar                                                                   
     bear protection.                                                                                                           
                                                                                                                                
     So my first  point is that if the federal  government is                                                                   
     concerned  about polar  bears, they  should talk  to us.                                                                   
     North Slope  people have  a subsistence interest  in the                                                                   
     conservation  of  polar  bears;  we  have  centuries  of                                                                   
     traditional  knowledge about  the habits  and health  of                                                                   
     the polar  bear population; and the North  Slope Borough                                                                   
     has done more  in recent decades to protect  the species                                                                   
     than  any  other governmental  entity.  We  know how  to                                                                   
     manage  the interaction  of  polar bears  and people  to                                                                   
     limit harm  to the bears while protecting  the safety of                                                                   
     a  growing North  Slope  population.  And I  guess  were                                                                   
     wondering  why that doesnt  seem  to count for  anything                                                                   
     when it comes to setting policy on polar bears.                                                                            
                                                                                                                                
2:28:07 PM                                                                                                                    
                                                                                                                                
     The  North  Slope Borough  is  very troubled  about  the                                                                   
     expanding application  of the Endangered Species  Act as                                                                   
     a way to  protect polar bears and other  listed species.                                                                   
     The blunt  force approach of  the ESA is likely  to have                                                                   
     severe implications on our residents and communities                                                                       
     in terms  of our continuing efforts to  manage wildlife,                                                                   
     our subsistence hunting practices  (including such basic                                                                   
     activities as  coastal travel by snow machine  or boat),                                                                   
     and even routine infrastructure development.                                                                               
                                                                                                                                
     Our concern is not only based  on the sweeping nature of                                                                   
     the  ESA, but  also on  our recent  experience with  the                                                                   
     U.S. Fish & Wildlife Service.  In late 2008 in an effort                                                                   
     to  conserve Stellars  Eiders, the  North Slope  Borough                                                                   
     hammered  out  a  MOA with  the  Service  setting  local                                                                   
     conservation measures  in place.  Our hope  was that the                                                                   
     Service  would  focus on  the  biological  needs of  the                                                                   
     species,    outreach,     and    educational    efforts.                                                                   
     Unfortunately, the result  was a season of intensive law                                                                   
     enforcement  activity.  This  is this punitive  approach                                                                   
     to wildlife  management that first  comes to mind  as we                                                                   
     consider the possibilities for an ESA management plan.                                                                     
                                                                                                                                
     We don't  know what specific restrictions  the Feds will                                                                   
     come  up  with.  But having  designated  200,000  square                                                                   
     miles  of critical  habitat  that  includes our  hunting                                                                   
     grounds  and travel  routes  and surrounds  some of  our                                                                   
     communities, any  restrictions are likely  to compromise                                                                   
     our freedom of movement through  the area or our ability                                                                   
     to improve our communities.  For example, it is not hard                                                                   
     to  imagine  that prohibited  activities  could  include                                                                   
     construction  of  the new  runway  that  the village  of                                                                   
     Kaktovik so  desperately needs. If  a polar bear  den is                                                                   
     identified  near the community,  the village may  not be                                                                   
     able to move  their runway to higher ground  in order to                                                                   
     avoid  being routinely  swamped by  storm surges,  as it                                                                   
     has been in  recent years. That's just one  example of a                                                                   
     very justifiable  public need that stands  a good chance                                                                   
     of getting derailed in the  wake of this listing and the                                                                   
     enormous critical habitat designation.                                                                                     
                                                                                                                                
     If  polar bears  were going  to be  hugely benefited  by                                                                   
     these  restrictions  on our  daily  lives,  we could  at                                                                   
     least  understand it.  But the federal  action  on polar                                                                   
     bears  is based on  rapid disappearance  of the  sea ice                                                                   
     the   bears   depend   on   as   a   feeding   platform.                                                                   
     Unfortunately, there  is nothing we can do  on the North                                                                   
     Slope  to  counteract  that   problem.  Restricting  our                                                                   
     activity  in a  200,000-square-mile area  will not  help                                                                   
     the  polar bear  at all.  It  will only  make life  more                                                                   
     difficult for  people, local governments  and commercial                                                                   
     concerns.                                                                                                                  
                                                                                                                                
     If the  federal government  really wants to  protect the                                                                   
     polar  bear, it  needs to  address the  issues of  ocean                                                                   
     warming   and   climate    change.   Nothing   will   be                                                                   
     accomplished   by  restricting   the   ability  of   our                                                                   
     communities  to  go  about  normal daily  life.  We  are                                                                   
     clearly  not the cause  of any  serious threat  to these                                                                   
     species,  and  yet  we could  face  civil  and  criminal                                                                   
     liability under  the ESA for any harm to  a single polar                                                                   
     bear,  even  though we  are  not  having any  effect  on                                                                   
     climate change or sea ice.  This is not right.                                                                             
                                                                                                                                
     In 2007, the North Slope  Borough filed comments opposed                                                                   
     to the listing of the Polar  Bear under the ESA.  We did                                                                   
     so because    although we  are very concerned  about sea                                                                 
     ice retreat    we didnt  think there was enough  data on                                                                   
     polar  bears to  justify a  listing, and  we dont  think                                                                   
     the ESA  is the right tool  to deal with  climate change                                                                   
     issues.                                                                                                                    
                                                                                                                                
     As we noted  in our 2007 comments, we  have observed the                                                                   
     effects of  the warming Arctic  for many years.  Sea ice                                                                   
     is forming later  in the fall, it is not  as thick as it                                                                   
     used to be, and it thaws  earlier in the spring. Violent                                                                   
     storms  are  now  more frequent  and  more  intense  and                                                                   
     theyre  happening both  earlier and  later in  the year.                                                                   
     So we  are experiencing the  effects of climate  change.                                                                   
     But   as  we  wrote   in  our   comments  to   Secretary                                                                   
     Kempthorne,  the causes  of a changing  northern climate                                                                   
     lie outside  our region, and we firmly  believe that any                                                                   
     action to counter the warming  trend must focus on those                                                                   
     causes at their sources.                                                                                                   
                                                                                                                                
2:31:30 PM                                                                                                                    
                                                                                                                                
     Unfortunately, it  looks like the polar  bear listing is                                                                   
     going to be  the wave of the future. For  the first time                                                                   
     in  history, there  is  now the  likelihood  of a  large                                                                   
     number of  other North Slope  species being  listed. The                                                                   
     federal  government  has   already  listed  at  least  5                                                                   
     species on  or near the  North Slope and  is considering                                                                   
     at  least 7  more.  Based on  our  long experience  with                                                                   
     bowhead  whales, cooperative  management agreements  for                                                                   
     polar  bears,  and  work   with  bird  species  such  as                                                                   
     spectacled  and   Steller's  eiders,  we   believe  most                                                                   
     species  can be  managed  best under  the Marine  Mammal                                                                   
     Protection Act, the Migratory Bird Treaty Act, and                                                                         
     for  the polar  bear    our  international  conservation                                                                   
     agreements.  There are also  state and federal  wildlife                                                                   
     laws and  other international treaties that  can be used                                                                   
     as  additional  tools.  We dont   need ESA  listings  to                                                                   
     create  the best  possible  conservation programs  along                                                                   
     the Arctic  coast. And as  I said before,  no management                                                                   
     plan  in the Arctic  is going  to get  at the  source of                                                                   
     receding sea ice, which is the specific problem.                                                                           
                                                                                                                                
     We are also  concerned that management under  the ESA is                                                                   
     driven by litigation, and  ESA litigation is targeted at                                                                   
     the    federal    government,   ignoring    any    local                                                                   
     consequences. Any person  can bring litigation under the                                                                   
     "citizen  suit"   provisions  of  the  ESA,   and  local                                                                   
     communities  are little more  than collateral  damage in                                                                   
     these   actions.   Our   ability   to   participate   in                                                                   
     traditional activities gets  thrown under the bus in the                                                                   
     wake of broad  federal actions resulting  from this kind                                                                   
     of litigation.  It is  not only  unfair, its  completely                                                                   
     unreasonable.                                                                                                              
                                                                                                                                
     We  are  exploring  ways  to  limit  the  risks  to  our                                                                   
     communities.  The Polar Bear  Special Rule under section                                                                   
     4d  of   the  ESA  gives   the  federal   government  an                                                                   
     opportunity  to  shield  us from  some  liability.  This                                                                   
     special rule  protects against liability  for incidental                                                                   
     takes authorized  by the  Marine Mammal Protection  Act,                                                                   
     and  for self-defense  and deterrence.  We are  worried,                                                                   
     though, that  litigations - to which we are  not a party                                                                   
     - in  federal court  could strike down  the 4d  Rule and                                                                   
     the protection it provides.                                                                                                
                                                                                                                                
2:35:02 PM                                                                                                                    
                                                                                                                                
     Finally,  I  want  to  reiterate   that  in  considering                                                                   
     actions  under the  ESA,  the Federal  Government  hasnt                                                                   
     recognized   the   value   of  local   and   traditional                                                                   
     knowledge.  We  know  species  such as  polar  bear  and                                                                   
     arctic seals better than  anyone. We pay close attention                                                                   
     to these  animals and interact  with them  almost daily.                                                                   
     They are part  of our culture, our food  supply, and our                                                                   
     way of  life. We  have worked  with federal agencies  on                                                                   
     many  Arctic species,  and weve  had notable  successes,                                                                   
     including the Alaska Eskimo  Whaling Commission managing                                                                   
     the  endangered  bowhead  whale and  the  Alaska  Nanuuq                                                                   
     Commission managing polar bears.                                                                                           
                                                                                                                                
     Even  so,  our knowledge  is  often ignored  in  federal                                                                   
     planning,  and it  was not  fully  considered in  formal                                                                   
     consultation before  the polar bear listing.  Mayor Itta                                                                   
     testified  at  hearings,  wrote letters,  and  spoke  to                                                                   
     Administration officials.  Yet its fair  to say that the                                                                   
     final  analysis  did  not consider  the  experience  and                                                                   
     knowledge of the people most  familiar with the species.                                                                   
     So we dont  believe there has been  an adequate weighing                                                                   
     of  local and  traditional  knowledge in  the early  ESA                                                                   
     decisions.                                                                                                                 
                                                                                                                                
                                                                                                                                
     The North  Slope Borough  is glad to  know that  you are                                                                   
     reviewing new and potential  listings under the ESA, and                                                                   
     we are grateful  for the chance to speak  on our behalf.                                                                   
     Theres  no question  in our minds  that the  ESA tackles                                                                   
     complex problems with a giant  hammer aimed in the wrong                                                                   
     direction. It creates tremendous  uncertainty for people                                                                   
     in our  isolated communities,  and it  may well  lead to                                                                   
     legal liability  even though we  are causing no  harm to                                                                   
     the species.  There has to be  a better way, and  we are                                                                   
     eager to work with you toward  a more sensible solution.                                                                   
                                                                                                                                
2:38:34 PM                                                                                                                    
                                                                                                                                
Co-Chair Stoltze  asked if the  North Slope Borough  had been                                                                   
involved  in  meaningful  conversation  with  DOL  concerning                                                                   
ESAs.                                                                                                                           
                                                                                                                                
ANDREW MACK, SPECIAL  ASSISTANT TO THE MAYOR,  GOVERNMENT AND                                                                   
EXTERNAL  AFFAIRS, NORTH  SLOPE  BOROUGH  testified that  the                                                                   
attorney  general  had  recently   visited  the  North  Slope                                                                   
Borough. He  said that the listings  had been coming  in at a                                                                   
rapid pace  and had been difficult  to manage. He  hoped that                                                                   
conversation with DOL would continue.  The Department of Fish                                                                   
and Game has also been in contact.                                                                                              
                                                                                                                                
2:40:00 PM                                                                                                                    
                                                                                                                                
Co-Chair Stoltze  wondered if DOL had been  overly aggressive                                                                   
in the  pursuit of  certain cases. Mr.  Mack replied  that it                                                                   
was  difficult  for  a  local   government  to  evaluate  the                                                                   
challenge faced by the attorney  general each day, on whether                                                                   
or  not to  intervene or  file  an Amicus  curiae brief.  The                                                                   
borough had concern for decisions  being driven by litigation                                                                   
of which the borough had not been  a party. For instance, the                                                                   
deadline  for establishing  a  critical habitat  rule was  by                                                                   
consent decree  in a federal court,  and the borough  had not                                                                   
been involved  in the  discussion. He  felt that the  borough                                                                   
would need  to defer  to the state  on larger issues  because                                                                   
engaging in the  litigation was out of the scope  of what the                                                                   
local government could carry out.                                                                                               
                                                                                                                                
2:41:37 PM                                                                                                                    
                                                                                                                                
Representative  Gara inquired  if  there was  a  way for  the                                                                   
borough  to  become a  party  to  litigation at  the  state's                                                                   
expense.  Mr. Mack  replied that  the  issue was  one of  the                                                                   
uncertainties of ESA cases. He  cited the proposed runway for                                                                   
Kaktovik Airport,  located on  Barter Island, which  has been                                                                   
identified  as critical  habitat.  He anticipated  litigation                                                                   
and opined  that the  groups promoting  the critical  habitat                                                                   
litigation  in  federal court  had  little sympathy  for  the                                                                   
community. He expounded that the  groups had stated directly;                                                                   
if the  choice must  be made  between the  community and  the                                                                   
endangered  species, the  movement  would be  to protect  the                                                                   
species. If the runway plans are  stifled, the borough may be                                                                   
forced  to  engage   in  litigation,  in  which   case  state                                                                   
involvement would most likely be necessary.                                                                                     
                                                                                                                                
2:45:28 PM                                                                                                                    
                                                                                                                                
Representative  Gara  asked  if the  federal  government  had                                                                   
indicated  that it  would stop  construction  of the  airport                                                                   
based  on  the  critical  habitat   consideration.  Mr.  Mack                                                                   
replied no.                                                                                                                     
                                                                                                                                
Representative   Gara  understood   that   the  borough   was                                                                   
concerned that  an outside group  could intervene and  file a                                                                   
lawsuit. Mr. Mack yes.                                                                                                          
                                                                                                                                
2:46:48 PM                                                                                                                    
                                                                                                                                
Representative  Joule hoped  that the  voices of  communities                                                                   
directly impacted by wildlife  issues would continue to be at                                                                   
the forefront of the conversation.                                                                                              
                                                                                                                                
2:47:48 PM                                                                                                                    
                                                                                                                                
Co-Chair  Hawker  recalled  a   meeting  involving  committee                                                                   
members in  December 2009, at  which Mayor Edward S.  Itta of                                                                   
the  North   Slope  Borough   established  a  dialogue   with                                                                   
legislators  concerning   ESAs.  He  hoped,   through  honest                                                                   
communication  with  effected   communities,  to  maintain  a                                                                   
mutual understanding of the issue.  Representative Fairclough                                                                   
echoed the sentiments.                                                                                                          
                                                                                                                                
GEORGE  VAKALIS,  MANAGER,  MUNICIPALITY  OF  ANCHORAGE  (via                                                                   
teleconference),  he   spoke  to  the  impacts   of  the  ESA                                                                   
listings,  specifically  as  it  related to  the  Cook  Inlet                                                                   
Beluga Whale, and the proposed  critical habitat designation.                                                                   
In May of 2007, NOAA and NMFS  proposed listing Beluga Whales                                                                   
as endangered under  the ESA. In October 2008,  the whale was                                                                   
listed as endangered.  The municipality supports  the science                                                                   
as the  basis for  mitigation measures  that have a  positive                                                                   
effect  on  the recovery  of  the  species. The  ESA  listing                                                                   
required designation  of critical habitat at the  time of the                                                                   
listing. Federal  agencies must  consult with NOAA  and local                                                                   
agencies  to   prevent  projects  that  would   endanger  the                                                                   
critical habitat.  NMFS had proposed designating  3016 square                                                                   
miles of  the Cook Inlet  as critical habitat.  Comments were                                                                   
being solicited  by NMFS concerning  the proposal.  A request                                                                   
was made  by the mayor of  Anchorage for an extension  of the                                                                   
comment  timeframe,  which  was granted.  Comments  would  be                                                                   
accepted  through  March  3,  2010.  Additionally,  NMFS  had                                                                   
announced  that  public hearing  will  be held  in  Soldotna,                                                                   
Homer,  Wasilla, and  Anchorage.  The Anchorage  hearing  was                                                                   
scheduled  for February  12, 2010.  He could  not provide  an                                                                   
estimated  cost  to  the  municipality  as a  result  of  the                                                                   
proposed listing.  However, he was  certain that the  Port of                                                                   
Anchorage  would  be  significantly impacted.  The  port  was                                                                   
undergoing a major expansion and  extension project to better                                                                   
facilitate   statewide   military   deployments   and   cargo                                                                   
handling. He  said that  the port was  designated as  a vital                                                                   
strategic national  asset. He added that 80  percent of goods                                                                   
coming to,  and moving  through the  state, pass through  the                                                                   
Port  of  Anchorage.  The  Anchorage   water  and  wastewater                                                                   
treatment  facility at  Point Woronzof  could be affected  by                                                                   
the critical  habitat designation. The facility  uses primary                                                                   
discharge  and  meets  all  existing   regulatory  and  water                                                                   
quality standards.  Environmental  monitoring has shown  that                                                                   
the discharge  has had  no significant  impact on the  marine                                                                   
environment.  During the  previous renewal  of the  discharge                                                                   
permit, the Environmental Protection  Agency (EPA) determined                                                                   
that  Cook  Inlet  Beluga  Whales   would  not  be  adversely                                                                   
impacted by  the discharge.  Currently, the municipality  was                                                                   
in the process of permit renewal  and was concerned about the                                                                   
financial consequences of moving  from a primary facility, to                                                                   
a more  restrictive discharge  system, which would  cost $400                                                                   
million, and may have no meaningful environmental impact.                                                                       
                                                                                                                                
2:55:41 PM                                                                                                                    
                                                                                                                                
Mr.  Vakalis  shared  that  the  city has  hired  a  team  of                                                                   
scientists to  assist with the  permit process. The  hope was                                                                   
that scientific  data would prove  that there was  no impact.                                                                   
He  revealed  that  storm water  drainage  permits  that  the                                                                   
municipality had  obtained would need to be  reviewed because                                                                   
of  the critical  habitat issue.  Mr. Vakalis  said that  the                                                                   
municipality  was aware of  its surrounding communities.  The                                                                   
mayors of the  surrounding communities were  collaborating to                                                                   
address concerns.  Mr. Vakalis declared that  exploration and                                                                   
development of the  Cook Inlet Region was necessary  to solve                                                                   
current energy issues. He stressed  the importance of quality                                                                   
science and encouraged  the legislature to fund  science that                                                                   
created valuable  baseline data that could be  used to assist                                                                   
communities going  through the required consultation  process                                                                   
to mitigate issues  pertaining to the recovery  of the Beluga                                                                   
Whale in Cook Inlet.                                                                                                            
                                                                                                                                
2:59:04 PM                                                                                                                    
                                                                                                                                
Representative  Kelly queried the  cost to Anchorage  for the                                                                   
required consultation process.                                                                                                  
                                                                                                                                
Mr. Vakalis  replied $1  million would be  spent to  gain the                                                                   
scientific  data. Many  operations associated  with the  port                                                                   
had given  federal agencies concern  in regard to  the Beluga                                                                   
Whale.  Several  examples  include;  noise  pollution,  water                                                                   
depth,  Beluga feeding  sources,  and the  movement of  ships                                                                   
through  the channel.  The cost  was unknown  as neither  the                                                                   
impact or required measures were known at this point.                                                                           
                                                                                                                                
Representative Fairclough  pointed to a handout,  "Endangered                                                                   
Species:  Can We  Afford Them?"  by Henry  Springer (copy  on                                                                   
file).                                                                                                                          
                                                                                                                                
3:03:46 PM                                                                                                                    
                                                                                                                                
Representative  Kelly  queried  existing statute  related  to                                                                   
endangered  species. He wondered  whether opportunities  were                                                                   
being  missed to  quell  environmental  groups. Mr.  Sullivan                                                                   
replied  that the  problem was  once a listing  was made  the                                                                   
precedent  was set.  He  opined that  environmentalists  were                                                                   
very adept at manipulating the law.                                                                                             
                                                                                                                                
3:08:06 PM                                                                                                                    
                                                                                                                                
Representative  Kelly requested  that the department  examine                                                                   
the issue further.                                                                                                              
                                                                                                                                
Representative  Austerman asked  if the  funding for  outside                                                                   
legal counsel  could be  used to pay  existing staff  for the                                                                   
same work.  Mr. Sullivan reiterated  that DOL  was requesting                                                                   
an additional  in-house attorney  in the budget.  The current                                                                   
position  was  paid  for by  Fish  and  Game.  Representative                                                                   
Austerman  felt  that  the committee  should  work  to  draft                                                                   
intent language that would address the issue.                                                                                   
                                                                                                                                
3:11:17 PM                                                                                                                    
                                                                                                                                
Co-Chair Hawker  responded that  the DOL budget  was arranged                                                                   
into   three    appropriations;   administrative,    criminal                                                                   
division,   and   civil   division.  Once   the   money   was                                                                   
appropriated into  civil or criminal, the department  had the                                                                   
latitude to  move the  money where it  was needed  within the                                                                   
division. The strongest  move that could be made  would be to                                                                   
create a separate appropriation with clear intent language.                                                                     
                                                                                                                                
3:13:28 PM                                                                                                                    
                                                                                                                                
Representative  Gara informed  the committee  that last  year                                                                   
DOL  reported  that  outside  council  had  not  always  been                                                                   
necessary. He  hoped that  in order to  save the  state money                                                                   
the department would abstain from hiring outside council.                                                                       
                                                                                                                                
Mr.  Sullivan concluded  that the  deepening engagement  with                                                                   
other  effected entities  would  prove to  be beneficial.  He                                                                   
stated that  the issue was  daunting and that  the proclivity                                                                   
going forward should be that the  state be present in federal                                                                   
discussions in order to promote the public interest.                                                                            
                                                                                                                                
3:17:05 PM                                                                                                                    
                                                                                                                                
Representative  Kelly was encouraged  by the urban  and rural                                                                   
Alaskan unity concerning the issue.                                                                                             
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
The meeting was adjourned at 3:18 PM                                                                                            
                                                                                                                                
                                                                                                                                

Document Name Date/Time Subjects
Endangered Specis Act Overview Handout.pdf HFIN 1/26/2010 1:30:00 PM
Endangered Specis Act Testimony.pdf HFIN 1/26/2010 1:30:00 PM
ESA Springer Article.pdf HFIN 1/26/2010 1:30:00 PM