02/14/2007 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB74 | |
| HB41 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 74 | TELECONFERENCED | |
| += | HB 41 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 14, 2007
8:32 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Kyle Johansen
Representative Craig Johnson
Representative Gabrielle LeDoux
Representative Bryce Edgmon
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Peggy Wilson
COMMITTEE CALENDAR
HOUSE BILL NO. 74
"An Act prohibiting mixing zones in freshwater spawning waters."
- MOVED CSHB 74 (FSH) OUT OF COMMITTEE
HOUSE BILL NO. 41
"An Act returning certain duties regarding habitat management
from the Department of Natural Resources to the Department of
Fish and Game; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 74
SHORT TITLE: BAN MIXING ZONES IN SPAWNING AREAS
SPONSOR(s): REPRESENTATIVE(s) SEATON, GARA, LEDOUX
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) FSH, RES
02/05/07 (H) FSH AT 8:30 AM CAPITOL 124
02/05/07 (H) Scheduled But Not Heard
02/07/07 (H) FSH AT 8:30 AM CAPITOL 124
02/07/07 (H) Heard & Held
02/07/07 (H) MINUTE(FSH)
02/12/07 (H) FSH AT 8:30 AM CAPITOL 124
02/12/07 (H) Heard & Held
02/12/07 (H) MINUTE(FSH)
02/14/07 (H) FSH AT 8:30 AM CAPITOL 124
BILL: HB 41
SHORT TITLE: TRANSFER HABITAT DIV FROM DNR TO F&G
SPONSOR(s): REPRESENTATIVE(s) GARA
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) FSH, RES, FIN
02/09/07 (H) FSH AT 8:30 AM CAPITOL 124
02/09/07 (H) Heard & Held
02/09/07 (H) MINUTE(FSH)
02/12/07 (H) FSH AT 8:30 AM CAPITOL 124
02/12/07 (H) Heard & Held
02/12/07 (H) MINUTE(FSH)
02/14/07 (H) FSH AT 8:30 AM CAPITOL 124
WITNESS REGISTER
ROD ARNO, Executive Director
Alaska Outdoor Council
Governor's Transition Team Member
POSITION STATEMENT: Testified in opposition to HB 41.
THOMAS PEBLER
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 41.
DON BREMNER, Natural Resource Coordinator
Southeast Alaska Inter-Tribal Fish and Wildlife Commission
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 41, and made
comments regarding HB 74.
MARK KAELKE, Director
Southeast Alaska Projects
Trout Unlimited
POSITION STATEMENT: Testified in support of HB 41.
HERB SIMON
Nelchina, Alaska
POSITION STATEMENT: Testified in support of HB 41.
RALPH GUTHRIE
Sitka, Alaska
POSITION STATEMENT: Testified in support of HB 41.
DR. HAL GEIGER
Past President
Alaska Chapter
American Fisheries Society (AFS)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 41.
MATHEW LACROIX, Fisheries Biologist
Alaska Department of Fish & Game (ADF&G)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 41.
MIKE MILLIGAN
Kodiak, Alaska
POSITION STATEMENT: Testified in support of HB 41.
KRISTIN SMITH
Copper River Watershed Project (CRWP)
Cordova, Alaska
POSITION STATEMENT: Testified in support of HB 41.
CARL ROSIER
Retired Commissioner
Alaska Department of Fish & Game (ADF&G)
POSITION STATEMENT: Testified in support of HB 41.
DR. VI JERREL
Anchor Point, Alaska
POSITION STATEMENT: Testified in support of HB 41.
KERRY HOWARD, Director
Office of Habitat Management & Permitting (OHM&P)
Department of Natural Resources (DNR)
POSITION STATEMENT: Answered question on HB 41.
TOM BROOKOVER, R-V Regional Supervisor
Restoration
Habitat Office
Division of Sport Fish
Alaska Department of Fish & Game (ADF&G)
POSITION STATEMENT: Answered questions on HB 41.
REPRESENTATIVE GARA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor of HB 41, joined the
committee discussion and provided comments.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:32:42 AM. Representatives
Edgmon, Johansen, and Johnson were present at the call to order.
Representatives LeDoux and Holmes arrived as the meeting was in
progress.
HB 74-BAN MIXING ZONES IN SPAWNING AREAS
8:33:23 AM
CHAIR SEATON announced that the first order of business would be
HOUSE BILL NO. 74, "An Act prohibiting mixing zones in
freshwater spawning waters."
CHAIR SEATON explained to the committee that he would like to
move HB 74 today, on to the House Resources Standing Committee,
and continue hearing testimony on HB 41, without movement.
8:34:57 AM
REPRESENTATIVE JOHANSEN moved to report CSHB 74, Version 25-
LS0337\M, Bullock, 2/6/07, out of committee with individual
recommendations, and the accompanying fiscal notes.
CHAIR SEATON objected for discussion.
8:35:19 AM
REPRESENTATIVE JOHANSEN opined that questions remain unresolved
on this bill. The departments involved appear to regulate in an
effectual manner, and the Alaskan resources management style is
admired the world over. Although he declared that he is uneasy
supporting this bill, due to its scope, he will support moving
it out of this committee.
8:36:20 AM
CHAIR SEATON clarified that the bill does not universally ban
mixing zones; only in spawning areas.
8:36:34 AM
REPRESENTATIVE EDGMON stated agreement with Representative
Johansen's comments and concerns, but said that he would not
object to moving the bill from committee. He stressed the need
to delve further into what this bill will accomplish.
8:37:23 AM
CHAIR SEATON removed his objection.
8:37:29 AM
There being no further objection, CSHB 74(FSH) was reported from
the House Special Committee on Fisheries.
HB 41-TRANSFER HABITAT DIV FROM DNR TO F&G
8:37:45 AM
CHAIR SEATON announced that the next order of business would be
HOUSE BILL NO. 41, "An Act returning certain duties regarding
habitat management from the Department of Natural Resources to
the Department of Fish and Game; and providing for an effective
date."
8:38:08 AM
ROD ARNO, Executive Director, Alaska Outdoor Council (AOC),
Governor's Transition Team Member, stated opposition to HB 41.
He said that the AOC's membership "depends totally" on well
managed habitat, and that the council has been active to protect
the habitat in Alaska since before statehood. He voiced concern
that this legislation is "getting ahead of what the
administration is trying to do." As a member of the governor's
DNR transition team, he opined:
HB 41 addresses the fish side but there are a number
of concerns on the game side that still need to be
addressed. ... Through the process ... the
commissioners ... [will] come up with a better end
plan.
ROD ARNO asserted that if, following completion of the process,
the governor's plan calls for moving OHM&P to ADF&G, he trusts
that it will occur.
8:40:02 AM
THOMAS PEBLER stated support for HB41, paraphrasing from a
statement, which read as follows [original punctuation
provided]:
It is necessary and appropriate that the "Habitat
Division" be returned to its proper place within the
Alaska Department of Fish and Game. As we all know,
the Board of Fisheries has given its unanimous support
to this intention.
The Department of Natural Resources and Fish and Game
have previously performed separate roles for the sake
of balancing the resource needs of Alaska. It is
critically important that these separate roles
maintain an equal status of integrity.
The consequences of Governor Murkowski's Executive
Order 107 would only be realized after many years of
cumulative effect. Evaluating a 3 ¾ year track record
for permitting projects that are so typically long-
term is an inadequate measure of confidence.
Governor Palin has stated that it is important to
conduct stakeholder outreach in order to assure the
public that departments are working cooperatively and
effectively to manage Alaska's habitat resources and
consistent with public interest. Having understood
Governor Palin and knowing that the public's desire is
to restore the Habitat Division to its proper place,
we must do so by means of legislative action as
necessary. The public should then be assured that the
departments are correct without the effort of
stakeholder outreach.
It is understandable that there is apprehension at the
expense and effort of, again, moving the office. It
is not convenient that we should have to fix the
mistake of a previous administration however, long-
term benefits would appreciate as resources could be
accurately be managed.
May the Governor and Officers and Employees of the
State of Alaska be respectfully reminded that the
foundations of our state and of our country have not
been achieved by convenient means and this is our
revered patriotic tradition.
8:42:26 AM
DON BREMNER, Natural Resource Coordinator, Southeast Alaska
Inter-Tribal Fish and Wildlife Commission, stated support for HB
41, paraphrasing from a statement, which read as follows
[original punctuation provided]:
The Southeast Alaska Inter-Tribal Fish and Wildlife
Commission have been working on subsistence and
commercial fishing issues in Alaska for many years
because they provide a good way of life for our people
in Alaska. As Tlingits, our people have always made a
living from the land and sea. We have traditional
knowledge about the land, oceans, and resources from
which we make a living here in Southeast Alaska. This
traditional knowledge has helped protect, promote,
preserve, and enhance the fish and game in Alaska.
Our TEK knowledge is now being used by western
scientists to supplement their knowledge base in
generating sustainable resource management plans in
Alaska.
Our Native TEK knowledge has become common knowledge
in the eyes of the western world as vital in the cycle
of life of our natural resources. Alaska Natives are
part of the natural life cycle here in Alaska.
The Alaska Department of Fish and Game also has been
part of the natural life cycle of our fish and game
resources in Alaska. The wisdom of past leaders
thought so and we agree. Fish, game, and habitat are
part of the same life cycle. It's the right thing to
do, "Transfer habitat authority and management back to
the Fish and Game Department." The ADF&G cannot
abdicate their rights, roles, and responsibility to
manage fish and game in Alaska.
The Department understands better than any other State
agency what it takes to develop and mange a
sustainable salmon fisheries policy in Alaska;
[1] The Department knows that Alaska's salmon
fishery is healthy and sustainable, largely
because of abundant pristine habitat properly
managed with sound, precautionary, conservation
practices.
[2] The ADF&G has recognized the need for a
comprehensive policy of regulation and
management.
[3] The ADF&G has worked to develop plans which
achieve maximum salmon abundance. The Department
considers factors which include environmental
change, habitat loss or degradation, data
uncertainty, inconsistent funding for research
and management, harvest patterns, new or
expanding fisheries.
[4] The ADF&G understands that to effectively
assure sustained yield and habitat protection for
wild salmon stocks; fishery management plans and
programs require consistent and controlled
guiding principles and criteria.
[5] The Department has set goals of ensuring
conservation of salmon, and salmon's marine and
aquatic habitats, protection of customary and
traditional subsistence uses, and other uses, and
the sustained economic health of Alaska fishing
communities.
Fish, game, and habitat are natural life cycles which
are the responsibility of the Alaska Department of
Fish and Game. The Department cannot abandon their
responsibility in achieving sustainable fisheries
policy in Alaska, even when parts of their role and
authority are legislated away. The Department has
State and Federal legal contracts which say they will
manage fish, game, and habitat to achieve sustainable
fisheries.
Passing HB 41 is the right thing to do and we look
forward to working with State agencies which are
organized to make decisions based on experience and
efficiency.
8:44:50 AM
CHAIR SEATON inquired whether there has been a difference of
empathy or utilization of experiential knowledge afforded the
commission, since OHM&P has been under DNR.
MR. BREMNER explained the confusion to the public and their
ability to participate in department decisions, with the current
configuration. He opined, that the system is not efficient and
is "too divided."
CHAIR SEATON further inquired whether this comment pertains to
the permitting process or the general government regulation of
fish and game [resources].
MR. BREMNER provided that testimony he prepared on HB 74 might
have made this clearer. He answered:
We don't see a comprehensive plan where we could all
work off the same page. It's just not like that. We
don't see a comprehensive plan for HB 74, it has to be
amended. It's having a comprehensive plan, or guide,
that everyone can follow. ... We're not looking at the
Alaska waters and resources as a whole eco system. ...
CHAIR SEATON encouraged Mr. Bremner to pursue testifying on HB
74, before the House Resources Standing Committee.
8:47:21 AM
REPRESENTATIVE JOHNSON asked how management might be different
with OHM&P moved back to ADF&G. Further, he questioned whether,
if Mr. Bremner is advocating having agencies "under one
umbrella," should other aspects of DNR be moved to ADF&G.
MR. BREMNER responded that, under ADF&G, OHM&P historically had
more control over permitting, monitoring, measuring, and
control, of whatever development was being proposed.
REPRESENTATIVE JOHNSON followed-up inquiring: "And do you
believe that under DNR that that same control and oversight will
not be there."
MR. BREMNER related a brief history of the "DNR Wars," that were
fought in Yakutat, over "run-a-way logging" in the Icy Bay area.
He continued:
They weren't paying attention to a lot of the in-
stream and on-site land and water protections. That
is why we moved to form the Yakutat of Fish and Game
Management Conservation [Counsel], because it just
wasn't working with DNR. That's the only experience
we have where we can honestly point to something where
it didn't work. With that history of DNR not
enforcing and supporting habitat protection, it's a
matter of trust. How can we trust them when they
blatantly denied evidence on the ground of what was
taking place. The fish and game at that ... time was
supportive of trying to protect and preserve the
habitat. That's the experience we have.
8:49:41 AM
MARK KAELKE, Director, Southeast Alaska Projects, Trout
Unlimited, stated support for HB 41, paraphrasing from a
statement, which read as follows [original punctuation
provided]:
I would first like recognize the comments on this
matter from former Fish and Game commissioners and
other department employees. Trout Unlimited supports
their viewpoints and experience on this issue and urge
you to do the same.
It is our understanding that 37 Fish & Game Habitat
employees were part of the transfer of that division
to DNR. These individuals brought extensive
experience in fish and game habitat advocacy with them
at that time. But we are concerned about what will
happen when these employees are replaced. Will their
successors have the same knowledge, experience, and
commitment to our fish and game resources as that of
their predecessors? It's obviously a difficult
question to answer now, but we believe passage of HB
41 offers the best chance for this as it will insure
future Habitat employees work for the agency
specifically charged with protecting fish and game
habitat.
I spent 12 years in the sport fishing industry prior
to my work with Trout Unlimited. Doing so gave me an
opportunity to see firsthand not only the great wealth
of fish and game resources we have been blessed with,
but also the great wealth of knowledge our fish and
game employees possess. Were it not for these
professionals and the management systems they have
undertaken, Alaska would not likely lay claim to our
position as a pre-eminent sport fish destination, nor
would we have, what are generally recognized as the
best-managed commercial fisheries in the world. Other
economically tangible matters like the Marine
Stewardship Council certification of our salmon stocks
depends on our continued ability to manage fish to the
highest degree possible. We question whether that is
truly being done now given the current status of
permitting authority.
We believe Governor Murkowski's executive order tipped
the balance of permitting power in favor of
development concerns and we see HB 41 as an
opportunity to set things back to the way they should
be. We believe it's very hard to argue with the 50-
some years of successful fish and game management that
took place before that executive order. Furthermore,
as major projects like the Pebble Mine enter the
permitting process, the people of Alaska should be
assured that ADF&G, the agency specifically charged
with maintenance of fish and game habitat, is doing
exactly that.
8:52:38 AM
HERB SIMON, Nelchina, stated support for HB 41. He recounted
recent experiences, with the new departmental configuration,
which have been detrimental to the Sheep Mountain area. He
underscored that the stewardship of the area is at risk in the
hands of DNR. Further, he stated that DNR bypassed input from
ADF&G on a planned land disposal/sell-off in the Sheep Mountain
area. As an area that borders the Nelchina caribou herd calving
area, as well as being an important habitat area for two species
of sheep, this is a designated special use area. He posed the
question of why DNR would allow opening this habitat up for
mining and land disposal. This was in direct violation of the
stipulated use for this resource area. With public input, and
the resultant involvement of ADF&G, DNR was not able to go ahead
as planned. However, a current proposal for the gas pipeline
would cut a swath through this critical Sheep Mountain area,
which has caused the Foundation for North American Wild Sheep
(FNAWS) to lodge a formal complaint against the state.
8:59:12 AM
CHAIR SEATON requested that written details, on the Sheep
Mountain issue, be provided for the committee's investigation.
MR. SIMON concluded: "That's just a brief summary, there's a
lot more. ... I ... believe that we should never sacrifice a
renewable resource position for something that is non-
renewable."
9:00:55 AM
RALPH GUTHRIE stated support for HB 41 and said:
The move to DNR, ... takes away the advocacy that
would normally happen in the Department of Fish and
Game. This move created quite a lot of attrition and
people that are hired out of DNR are hired ... when
they agree with what DNR is doing. ... The part that
... bothers me is that without a strong advocacy
things are going to happen down the line, as more
attrition happens, it will weaken the Habitat
Division, and I'm really worried about that part.
9:02:44 AM
DR. HAL GEIGER, Past President, Alaska Chapter, American
Fisheries Society (AFS), described AFS as a professional
organization comprised of over 400 scientists, fishery managers,
and other research specialists in Alaska. The society receives
requests to make official comments on various developmental
projects being undertaken in the state. These requests are not
routinely responded to, as the societies mission is for the
review of professional standards. The societies focus is
brought to bear on issues that would question the quality of
scientific advice provided, and utilized by the state, for
granting project permits. This occurred with a permit issued by
DNR for the use of commercial jet boats on the Chilkat Bald
Eagle Preserve. Dr. Geiger paraphrased from the published
article, Juneau Empire, My Turn guest editorial, August 23,
2005, which addressed this permit process [original punctuation
provided]:
In the Pacific Northwest, the word salmon is typically
followed by the word crisis. The Columbia River, once
the largest producer of Pacific salmon in the world,
now has less than 5 percent of the salmon it once had.
In the last 50 years, over $3 billion has been spent
to restore runs in the Columbia, and largely failed.
In Alaska, the opposite happened. In the 10 years
before Alaska took over salmon management from the
federal government, the total commercial catch never
exceeded 51 million fish; since 1990, the statewide
commercial catch has never dropped below 123 million,
and it has been above 200 million twice.
What's the difference between Alaska and the Pacific
Northwest? Well, there are several things, including
ocean conditions. Even so, the most important
difference is Alaskans valued salmon. Alaskans
demanded aggressive protection of the fish stocks and
the habitat that salmon need to survive and reproduce.
The Alaska Board of Fisheries summed it up pretty
clearly in its Sustainable Salmon Fisheries Policy:
"Alaska's salmon fisheries are healthy and sustainable
largely because of abundant pristine habitat and the
application of sound, precautionary, conservation
management practices."
What's changed? Recently habitat protection and
permitting was transferred from the Alaska Department
of Fish and Game to the Department of Natural
Resources. When this change took place, many
organizations expressed their concern that this
management would be taken from a vigilant and
effective institution and turned over to a group too
quick with a rubber stamp and a slogan. Since then we
have heard a lot about "responsible resource
development," but what does that really mean?
The executive board of the Alaska Chapter of the
American Fisheries Society is very concerned about the
way the Department of Natural Resources reached its
recent decision to open parts of the Chilkat Bald
Eagle Preserve to very large commercial jet boats. We
reviewed the same scientific studies DNR did, and we
don't see how they came to the conclusion that these
commercial activities pose no risk to salmon. It is
worth mentioning these jet boat operators have been
working in the Chilkat River since before 1990, and we
do not want to see them shut down or put out of
business. The only issue is whether to keep some
reasonable time and area restrictions to protect
salmon during spawning and migration.
To be fair, DNR does have some new information that
some of the early fears about the jet boats are
unjustified. But DNR has not taken a comprehensive
look at all the issues. They glossed over way too
much, misunderstood or exaggerated the optimistic side
of the science, and just ignored the negative and the
uncertainty. In other words, before DNR, the fish got
the benefit of the doubt. Now, it looks like DNR
wants to see conclusive proof of damage before they
will act in favor of the fish.
That is our issue here: Real habitat managers should
place the burden of proof of "no harm" on the person
or company wanting to do the activity that puts fish
at risk. DNR needs to do what it takes to understand
what the real risks are, not just assume that if there
is no information that everything will work out fine.
DNR seems to be saying as long as they do not have
conclusive scientific evidence that some activity is
causing some harm, then don't worry, be happy. That
is not how most people treat valuable assets in their
own personal lives, and that is not how we should be
treating this valuable shared resource.
Since well before statehood, Alaskans wanted our
salmon fisheries protected and carefully managed.
Republicans, Democrats, rural residents, city
dwellers, all of us, valued the jobs our salmon
brought, valued the fish we used for food, and valued
these fish for many other reasons. We recognize that
DNR is new to this permitting business. We hope they
are still just learning the ropes. However, if the
opposite of precautionary management is our new way of
doing business in Alaska, the Pacific Northwest has
already clearly shown us where this leads.
DR. GEIGER referred to the testimony received from DNR, before
this committee on February 12, 2007, which made assurances that
the current habitat biologists at OHM&P have the same
qualifications that the habitat biologists had at ADF&G. He
stated:
If you think about it, baseball teams that didn't even
make the playoffs had players with the same
qualifications as the players who won the World
Series. There's far more to it than just studying the
basic qualifications. I think if we're interested in
an organization that is truly effective, you have to
look at the culture. Our organization is very
concerned about the culture, and the lack of
professional standards, as we see it, that are going
into the decisions [being made at], and the advice
coming out of, DNR.
9:08:55 AM
MATTHEW LACROIX, Fisheries Biologist, Alaska Department of Fish
& Game (ADF&G), stated support for HB 41, paraphrasing from a
prepared statement, which read as follows [original punctuation
provided]:
For the past five years I have worked as a permitter
and project reviewer for both the Departments of Fish
and Game (ADF&G) and Department of Natural Resources
(DNR). I am here on my own time providing this
testimony as a private citizen. It is based on my
personal experiences and opinions. In no way does
what I say reflect the official position of any office
or division within either the Department of Fish and
Game or Natural Resources.
I strongly support returning Fish Habitat permitting
authority to the ADF&G.
I was working for the ADF&G within the former Habitat
and Restoration Division as a permitter when Governor
Murkowski issued Executive Order 107. As a result of
the Executive Order the Habitat Division was
eliminated along with thirty percent of its positions.
The remaining positions were split between ADF&G's
Sport Fish Division and the new Office of Habitat
Management and Permitting (OHM&P) at DNR. I was one
of those that received a layoff notice.
But I was not laid off. Instead, I was offered a
position within the new OHM&P area office in Palmer.
I accepted the position, and began work to open the
new office. I was the only biologist in the office
for the first several months, and I received a
director's commendation from Kerry Howard for the work
that I did during that time. In total, I spent two
and one-half years with the OHM&P. I have been back
with ADF&G as a permitter in the Sport Fish Division
for the past eighteen months.
I relate my personal history so that you know that I
am not presenting innuendo or hearsay. I have been
issuing permits and coordinating per the ADF&G/DNR
Memorandum of Understanding (MOU) ever since it was
originally written. This has been almost four years,
and I can say that the arguments put forward by those
who support keeping Fish Habitat permitting within DNR
are disingenuous to the extreme.
The mantra from these supporters seems to be: "…it is
the same statutes, same biologists, same protections,"
but this is far from the truth. If there truly is no
difference in protection, why did our former governor
feel so strongly that creating OHM&P was necessary? I
will tell you why. Because there is such a thing as
corporate culture, because concentrating permitting
and project review authorities within DNR was
essential to sending the message and creating the
reality that was central to the Murkowski
administration's goals.
That message and reality was that the State of Alaska
was "open for business." That the state was pro-
development, and that facilitating development was a
priority within all state agencies. The governor
publicly stated time and again that he was moving
permitting to DNR because ADF&G had stalled or blocked
development projects. The governor's sole purpose
for creating OHM&P was to grease the skids for
development.
I saw first-hand the differences in perspective
between ADF&G and DNR. At ADF&G, the focus was on
doing a complete, in-depth review of proposed
projects. In-depth reviews do occur at OHM&P, but
there is a greater focus on short review times. At
ADF&G, we take a broad view when reviewing projects,
considering potential impacts to all fish and
wildlife, as well as users of the resource. The OHM&P
focuses much more closely on anadromous fish.
At ADF&G, we address likely impacts and recommend
conservative management measures to maintain the
existing high quality and productivity of our
resources. At OHM&P, applicants are given all
reasonable doubt. The burden is on the biologists to
demonstrate "significant" and direct impacts to
"important" or "high value" fish or wildlife
populations before activities can be conditioned. In
some cases, such as impacts to spawning habitats the
full scope of the problem may not be apparent for
years; and no one is out looking for or documenting
them. But even documented impacts may be ignored if
avoiding them would add costs to a project.
At ADF&G, detailed permits are written with a focus on
their clarity and enforceability. This is much less
of a concern at OHM&P. And there were sideboards
placed on my work at OHM&P. If at all possible,
permits were to be three pages or less, with five or
fewer stipulations. Detailed project descriptions
were discouraged. If they didn't like the focus of
your review, they simply took the project away and
gave it to someone less inclined to "rock the boat."
Or just changed your work. Proposed projects that
were inconsistent with coastal standards became
consistent, eight alternative measures became one, and
ten stipulations became three.
This is significant because violations of the Fish
Habitat permitting statutes are criminal rather than
civil offenses. While other state agencies may also
issue permits for a given project, generally the OHM&P
permit is the only one that can be effectively
enforced. Violators can be cited by commissioned
OHM&P staff or by the state troopers. Vague permits
are difficult to enforce. The Division of Mining,
Land and Water within DNR might issue a twenty-page
permit with twenty conditions, while the OHM&P permit
(the one that actually could be enforced) might be two
pages with two stipulations.
Kerry Howard testified on Monday about the close
working relationship that exists between OHM&P and
ADF&G. About how OHM&P routinely consults with ADF&G
biologists on every project "bigger than a bread box,"
and how seventy-nine percent of OHM&P biologists once
worked for ADF&G. If this is the case, then why not
send the OHM&P biologists back to ADF&G were they came
from?
If so many of the OHM&P staff really are co-located
with ADF&G, why would it be so "disruptive" to return
permitting to ADF&G? By the way, ADF&G does not have
permanent staff based in the Kenai River Center. We
did have permitting staff there - those individuals
now work for DNR.
If ADF&G really has the expertise that OHM&P personnel
need to do their jobs; and if OHM&P permitters really
do rely on and incorporate the input they receive from
ADF&G staff, how does it possibly make sense for DNR
to have that permitting authority instead of ADF&G?
It makes sense if you want DNR to have editing and
veto power over ADF&G's comments and concerns. And
that is how things are now. ADF&G provides "input"
that can be disregarded by DNR. If DNR does not agree
with ADF&G's comments, those comments simply do not
get passed on to the coastal program or to project
proponents and do not become part of the public
record. The silencing of dissent was a major factor
in concentrating review and permitting authorities
within DNR.
In her testimony, Ms. Howard pointed out that ADF&G
was granted a "full seat at the table" regarding
review of the prospective Pebble mine. This seat at
the table was only granted after the ADF&G protested
that the OHM&P was editing its comments to the Large
Mine Team. In fact, OHM&P refused to pass on a
memorandum regarding wildlife baseline study needs.
ADF&G may have a seat at the table, but no authority,
and we still had to submit comments through OHM&P for
the recent coastal review of exploration activities.
And this seat at the Large Mine Team table is only for
Pebble, not for any other mines.
Although Executive Director Howard pointed out the
common responsibilities of all state agencies under
our constitution, the departments of Fish and Game and
Natural Resources are not interchangeable, and neither
are their respective biologists. If they were, there
would be no need for an MOU between the two
departments. There would be no need for OHM&P to
consult with ADF&G, or for ADF&G to review projects at
all.
We know that the idea of "…same statutes, same,
biologists, same protections" is false. That is why
there is an MOU, and why even the current governor
acknowledges that it is necessary.
About that MOU. If there is such a close relationship
between the two departments, why is this MOU eleven
pages long, and why has it been amended four times in
less than four years? Even if I didn't already know
how convoluted and unworkable this document is,
Governor Palin's letter to the boards and Ms. Howard's
testimony would give me pause.
If the MOU is the key to coordination between the two
departments, why should we accept that a "new and
improved" version would be any more effective than the
previous five versions? If the MOU is about
coordination, and if OHM&P really does contact the
ADF&G on all projects "bigger than a breadbox," why
didn't they contact ADF&G about the Rock Creek mine?
Or about coal exploration activities within the
Matanuska Valley Moose Range? The MOU identifies
ADF&G as the lead for review of activities within the
Moose Range. Perhaps these projects are smaller than
a breadbox.
And if the working relationship between DNR and ADF&G
is so congenial, why is it that virtually the only
permit denial issued by the Palmer OHM&P office in the
last eighteen months was issued to ADF&G? This is in
referral to the beaver dam removal project brought up
by Ms. Howard during her testimony. Why is it that
OHM&P couldn't work with the ADF&G to modify the
project instead of issuing a denial? And why exactly
did the OHM&P deny this application when they have
issued permits to the Forest Service and other
applicants for the same activity?
In conclusion, I need to say that I have nothing
against OHM&P biologists. They did not create the
situation and for the most part are conscientiously
doing the best they can under difficult circumstances.
These are good biologists who do good work, but the
reality is that neither department currently has the
necessary staff to adequately protect the state's
valuable fish and wildlife resources.
I do object to the message that is being given to this
committee, to the legislature as a whole, to the
governor, and to the public. That message is that
there are no issues here, that the protection provided
to our resources is the same as it was prior to EO
107. It is not. The state lost many of its most
experienced permitters and project reviewers as a
result of that Order. Review responsibilities are
fragmented and uncoordinated. There is more
duplication, not less, and the work is being done by
fewer, less experienced biologists. It will take
years for either ADF&G or DNR to rebuild the capacity
lost as a result of EO 107.
The big loser here are the resources, and of course
the public that utilizes and depends on them. If we
truly focused on protecting and maintaining the
resources for the public in accordance with the
constitution it wouldn't matter who issued the
permits. Unfortunately, however, we are not there
yet, and so it does matter. The OHM&P has
demonstrated a willingness to defend developers and
industry, but have they shown they are willing to
defend our fish and wildlife? If Executive Director
Kerry Howard had given one example of when OHM&P had
stood up in opposition to a position taken by DNR, we
could give them the benefit of some doubt that they
were first and foremost looking out for the resource.
But she did not. The OHM&P is 37 people in a very
large and powerful department, and frankly, I don't
think that they are willing to fight their own
commissioner.
The ADF&G, on the other hand, has a proven track
record of being willing to fight to protect the
state's fish and wildlife resources. If the
legislature recognizes the true value of these
resources, it will realize that they are worth
fighting for, and it will give the ability to do so
back to ADF&G.
I urge you to return Fish Habitat permitting to ADF&G.
9:16:15 AM
REPRESENTATIVE JOHNSON referred to previously discussed
corporate culture differences of the two departments, and asked:
Since you've worked in that department, ... [did] you
ever feel pressured or felt like anything you brought
forward would have jeopardized your position, or your
standing; did you feel threatened in any way when you
were at OHM&P.
MR. LACROIX responded:
I never felt threatened, no. Did I feel pressured to
change my analysis of projects, yes. Was analysis
that I conducted changed, yes. Everything goes up
through a review process that's typical in all
agencies, ... but there is a definite difference in
corporate perspective, corporate culture, within fish
and game and DNR. ... The benefit of the doubt is
given to project proponents and developers, as opposed
to the resource, in the case of OHM&P. ... It's
typical for results of analysis to be modified,
changed, or for projects to be taken away from review
biologist, if certain individuals don't agree with the
conclusions that are reached, and given to another
biologist to finish the review; [one] who is less
likely to rock the boat.
REPRESENTATIVE LEDOUX inquired about Mr. LaCroix's comfort level
in bringing this testimony forward.
MR. LACROIX responded that he is not comfortable providing this
testimony, as a state employee, but more so being at ADF&G than
DNR.
9:19:00 AM
REPRESENTATIVE EDGMON acknowledged the compelling testimony
received, and stated that his district's future existence
depends on the protection of the habitat. He referred to A
CITIZENS GUIDE TO THE ALASKA CONSTITUTION (Alaska legislative
rd
Research Agency, Gordon S. Harrison, 3 ed. 1992), which
describes how the Alaska Constitution is deeply rooted in the
principles of conservation for sustained yield and multiple use.
He advised:
[These are] doctrines that have guided not only our
resource management policies, over the many years [of
statehood], but also have guided the Department of
Fish and Game, and the Division of Habitat up until
2003. ... I haven't had anyone tell me that the
Habitat Division was broken before it was moved over
to DNR. We [have] many years on the record to show
that the Division of Habitat was doing its job
effectively.
REPRESENTATIVE EDGMON said that, having heard from the many
involved and distinguished witnesses, and with respect to the
governor's decision process and fellow committee members, he
would urge support to move OHM&P back to ADF&G.
9:21:13 AM
MIKE MILLIGAN, Kodiak, stated support for HB 41, and opined that
the "single most important issue" is the Dingell-Johnson Act
funding. These federal D-J receipts are directed to state fish
and game departments, specifically for the use of habitat
divisions. He stated that the question of the continued receipt
of these funds was not answered publicly by the Murkowski
administration, nor has it been asked and answered in this
debate, but he stressed that this is a critical, pivotal,
question to be answered prior to the movement of this bill to
the finance committee. For clarity he asked:
Has the state lost its access to the Dingell-Johnson
monies for the funding of the Habitat Division. If it
did lose those monies has it been able to access those
monies for other purposes. And finally, will the
state be able to get those monies back if this House
Bill 41 passes.
REPRESENTATIVE LEDOUX asked if the D-J funds were received prior
to the transfer of OHM&P to DNR.
MR. MILLIGAN responded that the D-J funds were being received,
and at that time constituted the sole funding source for OHM&P.
9:26:06 AM
KRISTIN SMITH, Copper River Watershed Project (CRWP), stated
support for HB 41. She said that this issue "speaks to the
heart" of the CRWP mission, which emphasizes integrating the
effects of development on all types of capital including:
social and cultural, economic, and natural resources. The
definition of sustainable economic development, as recognized by
CRWP is: "A project, or an effort, that can enhance at least
one of those type of capital without detracting from the
others." Because salmon are a public renewable resource, they
should be managed specifically for annual productivity.
Further, she emphasized:
We hear miners, and land developers, and loggers
complain about the expense of erosion control and
stream protection. But if you look at the expense
that Oregon and Washington [state] are facing of
trying to ... [restore] salmon in their streams, the
expense ... is outrageous, and it's just too great an
expense for us to lose the resources we have and then
try to restore them later. ... The function of the
Department of Fish and Game is critical and for these
reasons we believe strongly that salmon need an
independent voice to insure that balance in decision
making.
9:28:59 AM
CARL ROSIER, Retired Commissioner, Alaska Department of Fish &
Game (ADF&G) stated support of HB 41, and opined that this is
one of the most important issues this session. He pointed out
that the decision to move OHM&P to DNR was never discussed in
the halls of legislature. Continuing, he paraphrased from a
prepared statement which read as follows [original punctuation
provided]:
I began fisheries work in Alaska in 1955, went to work
for Alaska Department of Fish and game (ADF&G)
Commercial Fisheries Division in 1959 and held
positions of increasing responsibility with commercial
fisheries as an Area Manager Biologist, Region
Supervisor, Division Director, and Deputy
Commissioner. I left State employment in 1980 to take
over as Chief of Fisheries Development with the
National Marine Fisheries Service. In this position I
am proud to have been of help in the Americanization
of our Exclusive Economic Zone. I capped my fisheries
career by serving Governor Hickel as Commissioner of
ADF&G from 1990-1995.
First I would like to say that I fully support and
agree with the testimony presented on Monday [February
12, 2007] by Mr. Lance Trasky. Needless to say I am
extremely proud of the job the professionals of ADF&G
have done in protecting and extending the fish,
wildlife, and aquatic plant resources of our state.
ADF&G has a 50 year history of fishery management and
habitat protection that is the model and envy of every
state fortunate enough to have anadromous fish
populations. Alaska's success has come about as the
result of a strong fishery management program and
habitat protection for long term sustainability and
abundance. California, Oregon, Washington [state],
and the southern half of British Columbia have all
seen their salmon stocks decline precipitously due
largely to damage by other extractive industries such
as irrigation, electric generation, logging, mining,
urban pollution, and in some cases over-fishing. The
costs of rebuilding, if possible, will be in the 100's
of millions of dollars; not to mention the peripheral
costs associated with an ever increasing federal
involvement as the list of endangered species
continues to grow. With the transfer of the habitat
function to DNR, Alaska has now placed our resources
on the same slippery slope that has caused the
declines in the majority of coastal areas supporting
anadromous stocks.
We all know that the resource extractive industries
are the future of Alaska, but we have to be smart
stewards in terms of protecting the renewable versus
non-renewable resources. Yes, there have been some
problems between industry and the habitat staff, but
the transfer of the Division of Habitat to DNR did
nothing to resolve anything except exacerbate the
controversy. The logging leadership as well as some
segments of the mining industry were the political
friends of Murkowski that forced the transfer and have
placed the fishery resources in a dangerous
compromised position. These resources are renewable,
they support the economy of many Alaska communities;
commercial salmon alone are valued at between $500 to
$800 million annually. Fisheries in Alaska are second
only to oil in terms of economic importance. This is
a resource that deserves to be represented at the
cabinet level under an agency charged with their
welfare. That was exactly what our early Legislators
decided in placing this responsibility with ADF&G.
That decision, in my view, is as good today as it was
when title 16 was promulgated in the late 1950's.
I am pleased that Governor Palin has elected to take a
second look at this issue. She has not been hesitant
to reverse bad decisions by the Murkowski
administration and I believe that upon closer scrutiny
the Governor will see through the political nonsense
espoused by the previous administration and the greed
of the industries that have been willing to compromise
a great resource so important to so many Alaskans.
Control of the habitat by a deputy commissioner under
a Commissioner charged with management of land
resources simply makes no sense.
In conclusion, the memorandums of understanding may
sound good. However, they will only work if the
signature parties are somewhat equal in authorities.
DNR currently holds all of the policy aces in this
regard and with all due respect to the current
Commissioner of DNR, the interagency agreement will
not stand the test of time.
9:35:57 AM
REPRESENTATIVE EDGMON asked that, given the terms of the Alaska
Constitution and the principles of conservation, sustained
yield, and multiple uses, "what agency is best served to protect
our natural resources."
9:36:31 AM
MR. ROSIER emphasized that ADF&G is the agency to best manage
Alaska's fish and wildlife resources. He elaborated:
There was certainly controversy here in terms ... of
who should do this, but when you look at the basis for
the decision ... it was personal attacks in many cases
... by political types from the industry leadership.
... They had been after doing this thing for at least
three years. They made a run on it when I was
commissioner. We beat the industry back, at that
time, largely the logging industry. ... Politics
changed, for a moment in time, and the Murkowski
administration moved into that in hopes that they
could grease the skids for development. Development
that had been on-going. We've got a lot of mines in
Alaska, we've still got somewhat of a logging
industry, not the way it was, but the logging industry
refused to change in terms of their products ... and
they were out paced by foreign activities producing
the same products that we were, at a cheaper price.
It was not the agencies that put the logging ... out
of business, in Southeastern Alaska, or in any other
part of the state. Other factors ... effected them
much more, but the scapegoat that they like to use
[is] always the agencies and the regulations on their
industry.
9:38:59 AM
DR. VI JERREL stated support for, and urged the passage of, HB
41.
9:40:06 AM
CHAIR SEATON closed public testimony and directed attention to
the testimonies being added to the committee packet; received
from Bruce Baker, the Carlson family, Doug Hill, Stephen Taufen,
and Jeff Parker.
9:41:14 AM
REPRESENTATIVE JOHNSON asked for the intent on the bill and
expressed concern for the corporate culture issues, which remain
unresolved.
CHAIR SEATON restated his intention to hear and hold this bill
today, pending the receipt of additional information. He noted
that some questions may be answered, at this time, by the DNR
and ADF&G personnel prepared to testify.
9:43:03 AM
KERRY HOWARD, Director, Office of Habitat Management &
Permitting (OHM&P), Department of Natural Resources (DNR),
offered that the D-J funding is not available to DNR.
Responding to Chair Seaton's inquiry about how the division is
funded, she directed the committee's attention to the DNR
handout and the pie chart entitled DNR, OHM&P FY08 Funding
Sources. The chart indicates the division funding as being: 71
percent General Funds, 18 percent I/A Receipts, 6 percent SDPR,
and 5 percent CIP Receipts.
9:45:13 AM
REPRESENTATIVE JOHNSON asked what amount is currently received
by the state under the D-J funding.
TOM BROOKOVER, R-V Regional Supervisor, Restoration, Habitat
Office, Division of Sport Fish, Alaska Department of Fish & Game
(ADF&G), refrained from guessing at the historic D-J funding
figures provided to OHM&P. However, he stated that the FY08
budget request includes D-J funds totaling approximately
$485,000 dollars, to administer five research projects.
CHAIR SEATON requested that the committee be provided with the
details of the D-J funding. Additionally, he stated that a
"chief question" seems to be the difference in corporate culture
between the departments, and how each department views its
primary objectives. Also, he asked Ms. Howard to provide
examples of OHM&P project data analysis being changed, ignored,
or utilized in a selective manner, as public testimony suggests
that information has been retarded by DNR in the permitting
process. The committee must establish if there is a change in
how decisions are made based on the current agency
configuration.
REPRESENTATIVE LEDOUX pointed out that the corporate culture
argument may not be fully determined by this committee. To sort
this out would require speaking to the current and past
employees of OHM&P, off the record, without identification; this
does not seem plausible, she opined.
CHAIR SEATON advised that the Palin administration has stated
intent to research and scrutinize the issues of this move.
Questions which this committee generates may give rise to
discussions to help the governor in her decision.
9:53:04 AM
REPRESENTATIVE GARA joined the panel for discussion.
9:53:19 AM
REPRESENTATIVE HOLMES observed that no one is being demonized by
this committee. The best "fit", for everyone, is in the
forefront of this discussion.
9:54:32 AM
REPRESENTATIVE JOHNSON acknowledged that the culture of the
organizations may not be able to be answered; however, the
divisions and the public need to know that the legislature is
aware and concerned for being able to obtain unbiased, sound,
and accurate scientific advice.
CHAIR SEATON stated that interrogatives will be made and
published on the record.
9:56:14 AM
REPRESENTATIVE GARA, Alaska State Legislature, as prime sponsor,
confirmed that there is a reason why the corporate culture
exists, and why moving a division from one agency to another
would have a major impact on the states resources. The first
consideration on this decision should be for the testimonies
provided: constituents with first hand experience; experts in
the field; and particularly every ADF&G commissioners who served
prior to the Murkowski administration. These witnesses, he
pointed out, have unanimously testified that habitat protection
was better served with OHM&P located in ADF&G, and that there is
a tangible difference of permitting policy, since the office was
moved to DNR. To understand why, he offered, it is important to
understand how the decision process was handled prior to the re-
organization and how it has been working since the move.
Historically, when a difference of opinion occurred, because
ADF&G wanted to protect fisheries to a greater degree and DNR
wanted to move ahead with a particular development project, the
two commissioners, with equal power, would come to the governor
for a policy decision. This maintained the balance of equal
authority between the commissioners. Given the current
configuration, if habitat biologists deem it necessary to
protect a fishing stream, the commissioner of DNR may make a
unilateral choice to disregard the recommendation; in effect
providing DNR "veto" power over an OHM&P decision.
Additionally, he pointed out, that each of these departments is
charged with viewing the resources of the state differently,
accounting for opinions to differ. Each department views the
same project through a different lens to maintain compliance
with state statutes. The department of DNR has the duty to
"develop and conserve, our resources for the maximum benefit of
the state." This provides a broad area of discretion, he
opined, which allows the appointed commissioner to choose a
liberal or conservative approach. The commissioner of ADF&G is
not allowed that discretion.
REPRESENTATIVE GARA paraphrased from AS 16.05.010 and AS
16.05.020, which read as follows [original punctuation
provided]:
Sec. 16.05.010. Commissioner of fish and game ...
shall be a qualified executive with knowledge of the
requirements for the protection, management,
conservation, and restoration of the fish and game
resources of the state.
Sec. 16.05.020. Functions of commissioner.
The commissioner shall
(2) manage, protect, maintain, improve, and
extend the fish, game and aquatic plant resources of
the state in the interest of the economy and general
well-being of the state;
REPRESENTATIVE GARA stated that the ADF&G commissioner is
charged with promoting the state's natural resources to benefit
the economy. This is different than the mandate for the
commissioner of DNR to cultivate the state's economy over those
same resources. He pointed out that, although the difference
may sound subtle, it is the reason that these two departments
exist, and answers the corporate culture question. The
difference arises out of the statutory mandate being interpreted
for each interest. He offered that the director of OHM&P is,
and the biologists at DNR are, doing their work "as well as they
can." In summary, he underscored the difficulty for any
employee to testify contrary to the opinion of a supervisor, at
any time, on any issue; not necessarily out of direct fear of
retribution.
10:01:45 AM
REPRESENTATIVE EDGMON called for additional testimony in support
of the current departmental configuration.
10:02:16 AM
CHAIR SEATON announced that he will re-open public testimony, on
HB 41, if necessary.
[HB 41 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 10:02
a.m.
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