Legislature(1995 - 1996)
04/11/1996 05:05 PM FSH
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON FISHERIES April 11, 1996 5:05 p.m. MEMBERS PRESENT Representative Alan Austerman, Chairman Representative Carl Moses, Vice Chairman Representative Scott Ogan Representative Gary Davis Representative Kim Elton MEMBERS ABSENT All members were present. OTHER HOUSE MEMBERS PRESENT Representative David Finkelstein COMMITTEE CALENDAR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 42 am "An Act allowing a person to hold more than one entry permit for certain fisheries and amending the definition of `unit of gear' for purposes of the commercial fisheries limited entry program; and providing for an effective date." - PASSED OUT OF COMMITTEE UPDATE ON ALASKA'S OUTSTANDING LEGAL ISSUES CONCERNING FISHERIES BY DAVID BENTON, DEPARTMENT OF FISH AND GAME PREVIOUS ACTION BILL: SB 42 SHORT TITLE: LIMITED ENTRY & UNITS OF GEAR SPONSOR(S): SENATOR(S) TAYLOR JRN-DATE JRN-DATE ACTION 01/23/95 71 (S) READ THE FIRST TIME - REFERRAL(S) 01/23/95 71 (S) RES, FIN 02/06/95 (S) RES AT 3:30 PM BUTROVICH ROOM 205 02/06/95 (S) MINUTE(RES) 02/06/95 (S) MINUTE(RES) 02/06/95 (S) MINUTE(RES) 03/18/96 2774 (S) SPONSOR SUBSTITUTE INTRODUCED - REFERRALS 03/18/96 2775 (S) RESOURCES 03/27/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205 03/28/96 2938 (S) RES RPT 1DP 3NR 03/28/96 2938 (S) ZERO FISCAL NOTE (F&G) 03/29/96 (S) RLS AT 12:05 PM FAHRENKAMP RM 203 04/02/96 3013 (S) RULES TO CALENDAR 4/2/96 04/02/96 3015 (S) READ THE SECOND TIME 04/02/96 3015 (S) AM NO 1 MOVED BY TAYLOR 04/02/96 3015 (S) AM NO 1 ADOPTED UNAN CONSENT 04/02/96 3016 (S) ADVANCED TO THIRD READING UNAN CONSENT 04/02/96 3016 (S) READ THE THIRD TIME SSSB 42 AM 04/02/96 3016 (S) PASSED Y20 N- 04/02/96 3016 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 04/02/96 3030 (S) TRANSMITTED TO (H) 04/03/96 3615 (H) READ THE FIRST TIME - REFERRAL(S) 04/03/96 3615 (H) FISHERIES, RESOURCES 04/10/96 (H) FSH AT 5:00 PM CAPITOL 124 04/10/96 (H) MINUTE(FSH) 04/11/96 (H) FSH AT 5:00 PM CAPITOL 124 WITNESS REGISTER ROBIN TAYLOR, Senator Alaska State Legislature State Capitol Building, Room 30 Juneau, Alaska 99801 Telephone: (907) 465-3873 POSITION STATEMENT: Presented sponsor statement on SB 42. FRANK HOMAN, Commissioner Commercial Fisheries Entry Commission 8800 Glacier Highway, Suite 109 Juneau, Alaska 99801-8079 Telephone: (907) 789-6160 POSITION STATEMENT: Provided commission's position and answered questions regarding SB 42. OTTO FLORSHUTZ P.O. Box 547 Wrangell, Alaska 99929 Telephone: (907) 874-2522 (message) POSITION STATEMENT: Opposed SB 42 as written. JOHN JENSEN P.O. Box 681 Petersburg, Alaska 99833 Telephone: (907) 772-4635 POSITION STATEMENT: Supported SB 42. LIZ CABRERA, Director Petersburg Vessel Owners Association P.O. Box 232 Petersburg, Alaska 99833 Telephone: (907) 772-9323 POSITION STATEMENT: Supported SB 42. BILL FLOR, President Southeast Dungeness Crab Association Petersburg, Alaska 99833 (NO ADDRESS OR TELEPHONE NUMBER PROVIDED) POSITION STATEMENT: Supported SB 42. BILL ALWERT P.O. Box 1711 Kodiak, Alaska 99615 Telephone: (907) 486-5511 POSITION STATEMENT: Asked question regarding SB 42. DAVID BENTON, Deputy Commissioner Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99811-5526 Telephone: (907) 465-6136 POSITION STATEMENT: Presented update on Alaska's outstanding legal issues concerning fisheries. ACTION NARRATIVE TAPE 96-17, SIDE A Number 0001 CHAIRMAN ALAN AUSTERMAN called the House Special Committee on Fisheries meeting to order at 5:05 p.m. and noted there was a quorum. Members present at the call to order were Representatives Austerman, Moses and Elton. Representatives Davis and Ogan joined the meeting at 5:10 p.m. and 5:32 p.m., respectively. SB 42 - LIMITED ENTRY & UNITS OF GEAR Number 0041 SENATOR ROBIN TAYLOR, sponsor of SB 42, described the bill as "the second shoe to drop". A bill he sponsored the previous year, identical to one sponsored by Representative Grussendorf, had provided the beginning of a limited entry system in the dungeness crab fishery. Senator Taylor recalled a flood of entrants came into Alaska from Oregon and Washington, resulting in doubling and redoubling of the numbers of participants. "Finally, after some years where the economics of that over-extended fishery began to take their toll, and we saw the numbers of permits beginning to level off and come down, we felt it was probably a good time to initiate this tiered system," Senator Taylor said. Number 0144 SENATOR TAYLOR explained there was insufficient time the previous year to accomplish a title change. "The title had been written too tightly and, as a consequence, we were unable to put the stacking provisions within the title," he stated. "The tiered system that was created creates four different levels of gear involvement in the fishery, starting at 300 pots at the top, which would be a Class A permit, going down to a 75-pot limit, which would be a Class D ... permit." Number 0202 SENATOR TAYLOR indicated the legislation allowed the stacking of two permits, so that a person with 75 pots, for example, could purchase a 225-pot or Class B permit and put themselves at the 300- pot limit. "By limiting it to two permits, you would not end up eliminating all of the smaller, entry-level permits," he said, indicating there had been serious concern that economics might quickly generate only Class A or B permits, eliminating an entrance level for new participants. Number 0348 FRANK HOMAN, Commissioner, Commercial Fisheries Entry Commission (CFEC), commented that Senator Taylor had provided a good summation and offered to answer questions. REPRESENTATIVE KIM ELTON asked how long it would take to develop the regulations. MR. HOMAN replied it was hard to say. However, he estimated approximately six months. It would not be the current season, he said, but rather the 1997 season, at least, because permanent permits would be required before CFEC could allow stacking them together. Number 0421 OTTO FLORSHUTZ testified via teleconference from Wrangell, saying he opposed SB 42 as written, although modification had made it more to his liking. He believed access to the fishery by smaller or younger operators was highly important. However, the timing of the bill was bad. The tiered limited entry system was not to be implemented until June 1997. "While the resource is healthy, there are some other things seeking to destroy this fishery," he said. Mr. Florshutz referred to a meeting in October 1995, at which the Board of Fisheries postponed a decision to cut pot levels by one- third and directed the Department of Fish and Game (ADF&G) to develop a comprehensive management plan for the 1997 meeting schedule. The board had forewarned crabbers to get their facts and figures together if they hoped to defeat this management plan. "Fish and Game's position was clear," Mr. Florshutz said. "The 45,000-pot tiered limited entry system plan was too much." He suggested ADF&G would have lots of charts and graphs to prove the imminent destruction of the resource under the current and past management plans. MR. FLORSHUTZ said it was uncertain how many permits would be issued or pots fished. He suggested up to 58 interim permits could be issued. "This bill would ensure that all unfished gears would be bought, stacked and then aggressively fished," he said. "This type of maximization of fishing effort at this time is dangerous in regard to the Board of Fish[eries] decision. This bill could work if amended to read that any gears transferred would sunset or forfeit one-third of the pot allotment. This would ensure some future gear reductions and demonstrate so to the board. For example, 150-pot gear sold becomes 100 pots transferred and 50 forfeited. That would be a one-time only. But, this bill, if passed as written, may be like getting a raise the day before your boss fires you." Number 0617 JOHN JENSEN testified via teleconference from Petersburg, saying simply that he supported SB 42. Number 0632 LIZ CABRERA, Director, Petersburg Vessel Owners Association, testified via teleconference in support of SB 42. She referred to the tiered system and said it gave current dungeness participants an opportunity to make their operations more economically viable without increasing the number of pots in the fishery, while allowing new participants. By limiting the number of permits per individual to two, the bill guaranteed that smaller permits could not be consolidated into 300-pot blocks. Number 0698 BILL FLOR, President, Southeast Dungeness Crabbers Association, testified via teleconference from Petersburg. He said the bill was a compromise that his organization supported, primarily because it allowed for an entry level permit. Number 0730 BILL ALWERT spoke via teleconference from Kodiak, asking if the bill had any bearing on Kodiak. He noted there was no limited entry there yet. CHAIRMAN AUSTERMAN indicated he understood that it did not currently pertain to Kodiak. He asked if there was further testimony or discussion by the committee. Number 0812 REPRESENTATIVE ELTON moved that SSSB 42 (am) move from committee with individual recommendations and attached zero fiscal notes. There being no objection, it was so ordered. UPDATE ON ALASKA'S OUTSTANDING LEGAL ISSUES CONCERNING FISHERIES BY DAVID BENTON, DEPARTMENT OF FISH AND GAME Number 0841 DAVID BENTON, Deputy Commission, Department of Fish and Game (ADF&G), explained he was Alaska's commissioner for the Pacific Salmon Commission. He noted that Marty Weinstein from the Department of Law and Kevin Duffy, Co-Chair of the Northern Panel, from ADF&G, were available for questions. Mr. Benton furnished hand-outs to the committee. MR. BENTON provided a detailed history. In 1985, Alaska was in a precarious position, with tribes in Washington and Oregon threatening litigation to extend the Boldt decision into Alaska fisheries. Canada had been fishing aggressively on stocks of concern to Alaska and the Pacific Northwest. Primarily because of the litigation threat, Alaska entered into a treaty intended to foster rational management and rebuild chinook stocks. Those stocks were shared by fisheries up and down the coast, came from numerous systems, intermixed throughout the region, and were in a depressed status. "As part of entering into the treaty, Alaska was provided some protection from the Boldt-related, U.S. v. Washington litigation," he said. MR. BENTON explained the resulting three-part agreement provided for 1) a treaty with Canada; 2) an out-of-court settlement involving Alaska, the tribes and the federal government, which set aside the litigation under the Baldrige Stipulation; and 3)a commission composed of a tribal commissioner, a southern states commissioner and an Alaska commissioner, which would have veto power within the U.S. section and make decisions on salmon allocation between the northern and southern United States. Number 1082 MR. BENTON said although that arrangement served Alaska well for a number of years, that was no longer the case. The "first crack in the dike" was the re-initiation, by the tribes, of the U.S. v. Washington proceedings. "That is basically an allocation issue between us and the tribes over salmon that are harvested in Alaska and whether or not those salmon count against the non-treaty tribes' share down in Washington and Oregon," Mr. Benton explained. "The protection from that litigation was one of the key points that brought Alaska into the treaty." Number 1136 MR. BENTON referred to "the second and more immediate crack in that dike", events over the past couple of years where the southern states re-initiated other litigation against Alaska, most notably on chinook the previous year. "Those legal actions, tied to Canada's intransigence over the equity issue, have put the Pacific Salmon Treaty and the whole process in serious jeopardy," Mr. Benton said. "And there are a number of major issues that have become seriously intertwined. And I think the future of whether or not this treaty survives is certainly a question." Number 1178 MR. BENTON referred to rebuilding of chinook stocks, the subject of litigation the previous year and much controversy. "The tribes and state of Washington and Oregon sued Alaska because they did not support our harvest level of 230,000," he said. "They were successful in that litigation, primarily because of procedural issues, although the judge gave every indication that, in her opinion - although she didn't venture into fisheries management issues - in her opinion, that Alaska ... probably would have harvested too many fish. And under her injunction, we harvested 175,000; and Alaska's proposal at the time was 230,000." MR. BENTON noted the upshot was disruption of both the fishery and the treaty process. Prior to that, Alaska had operated within the U.S. section on a more level playing field. Although the southern U.S. members had not been pleasant, they were more or less equal in terms of negotiations and nobody had leverage over anyone else. "Now, we're in a situation where, I think, the tribes in the southern United States believe that they have considerable leverage over Alaska in the process, and it has become apparent in the way they negotiate that they are willing to use that leverage," Mr. Benton asserted. Number 1280 MR. BENTON indicated Alaska took a number of actions the previous fall. The department looked at the chinook program and the treaty provision calling for a chinook rebuilding program, which had been guiding the policy-making in the commission for the life of the treaty. They identified key issues, added and assembled technical staff, and started taking apart, systematically, those issues and the rebuilding program, examining them to see how they affected Alaska's fisheries and the status of those stocks. Number 1337 MR. BENTON said a legal team in the Department of Law was assembled to provide guidance and to help them look at obligations under the treaty to ensure that Alaska's management and negotiations were consistent with both the treaty and the law, in an increased effort to prevent future litigation. "All that's ... a way of saying that we decided that we would go on the offensive this fall and put the south in the position of having to defend their status under the chinook rebuilding program," Mr. Benton stated. "We identified ... a whole range of technical issues and raised them repeatedly with the southern states and tribes. They have, to date, been fairly reluctant to engage us in those technical issues and instead have relied, pretty much, on political and PR efforts to keep us in a place where they're in an advantage in terms of the negotiations. And they, I believe, have been working pretty closely with our Canadian counterparts to do that." Number 1410 MR. BENTON said in January, the first sit-down session of the Pacific Salmon Commission occurred, an executive session involving Alaska, Canada and a U.S. executive. "At that meeting, the southern United States, in our U.S. executive session, put forward a proposal that would have very severely constrained the Alaska chinook fishery," he said. "I don't want to get into the numbers, but it was just a very significant reduction which would have, in essence, had us not even having a fishery this year. Canada came forward at that same meeting and provided a very superficial analysis of concerns that they have for stocks on the west coast of Vancouver Island, claiming that if there weren't severe restrictions beyond those that were in place in 1995, that some of those stocks would be -- they're depressed now and could even go extinct. And that was their words. They did not provide much in the way of technical back-up at that time." Number 1476 MR. BENTON said the second round of meetings took place in February. Between those two meetings, Alaska asked the Canadians for data on the status of those stocks. By February, some data had been received, but not all of it. Mr. Benton said Alaska's technical people worked with the Canadians and got into some in- depth review of the Canadian presentation. Referring to the Canadians, Mr. Benton said, "Their contention is built around the production out of a couple of major hatcheries on the west coast of Vancouver Island. They have tied that production argument, and problems they've had with the hatcheries, to the wild stocks on the island. And it turns out that after a fair amount of review, a lot of their contentions are not accurate, and the linkage between the hatcheries and the wild stocks is tenuous at best, for some systems, and non-existent for a fairly sizeable number of systems." MR. BENTON referred to a recent meeting in Victoria, at which Canada made a proposal for Alaska's fishery that looked remarkably like the original southern U.S. proposal and that would have significantly restrained Alaska's fishery. The three items on the agenda were status of Fraser River sockeye, southern U.S. coho and chinook. "And they tied agreement on those other two fisheries to us accepting a very low number on chinook," Mr. Benton said. "The southern United States, on the other hand, actually became somewhat more reasonable. They came back to us with a different proposal that was more acceptable, but not really acceptable yet, for our fishery. But more importantly, they laid out a concept that opened the door for, maybe, a longer-range solution to the problem. And what they put forward was ... a three-part proposal that would have an interim arrangement for '96, negotiating, between now and the end of the year, a long-term arrangement for '97 and beyond on chinook, and an agreement that Alaska and the southern U.S. would get together and develop a program for restoring production to those chinook stocks in southern United States." Number 1627 MR. BENTON continued, "We followed up on that with them and actually fleshed it out and gave them a more detailed proposal on all three components. And I'd say that for our numbers in '96 that we are still fairly far apart. But if we're able to reach some kind of accommodation on a longer-range, harvest-sharing arrangement that extends from '97 and beyond, that both sides could live with, we actually may be able to reach some kind of accommodation for 1996." MR. BENTON said the principle was "if we're going to share the pain, we're going to share the gain." He stated, "Under the life of the treaty to date, Alaska was constrained by a ceiling on the chinook fishery of 263,000. And in the late '80s and early 1990s, the abundance more than doubled in the fishery, but we were still constrained at that low level. And our fisheries didn't have the opportunity to access those fish. So, they didn't get to share in the gains that were made in terms of rebuilding those stocks. Now they're asking us to share in the pain in the low numbers. And we've said, `if we're going to have to do that, then we want to see a system that is somewhat more balanced and symmetrical, that gives us opportunity, if we're going to have to take the constraint as well'." Number 1697 MR. BENTON noted there had been some progress using that concept. "The importance of that is that if we get this kind of an agreement put in place, we will not wind up in court this year," he stated. "And given the way that the 9th Circuit has dealt with us, that's probably a real advantageous thing to do, if we can do it." He pointed out that did not mean Alaska would accept just any number for 1996. An acceptable number would have to be based on the status of stocks, not just a political reallocation accommodating interests of the southern U.S. "So, we're still working on that part of it, as well," he added. Number 1735 MR. BENTON referred to the equity issue and the New Zealand ambassador, Mr. Beeby, hired by the United States and Canada to help sort out the equity argument. "In simple terms, equity is one of several principles in the treaty," Mr. Benton explained. "It basically says each party, the United States and Canada, should get the benefits of the production of salmon from their ... respective waters." Mr. Benton said it was vague and was an allocation issue. "Canada has made this a theological tenet for them ... in their negotiations in the commission," he said. "And they maintain that the United States takes far more fish of Canadian origin than Canada takes of U.S. origin. And without getting into all the details, it is very contentious. It is very complicated." MR. BENTON explained, "Clearly, we don't agree with the Canadian viewpoint on how equity needs to be resolved, and we reached an impasse between the two countries last year on this matter. It was the issue that caused Canada to institute the transit fee a couple of years ago. It was the issue that caused Canada to walk out of the treaty process initially. It was the issue that Brian Tobin, when he was fisheries minister and came out to the west coast in '94, it was the issue that caused him to institute a fishing strategy that was designed to fish hard on U.S. stocks, primarily Washington and Oregon stocks, to bring the United States to the table so we could resolve the equity issue." Number 1822 MR. BENTON indicated Ambassador Beeby was hired as a mediator, reluctantly by the U.S., in a last-ditch effort to resolve differences. "He was unable to do that," Mr. Benton said. "Canada back-tracked severely from progress we'd made even up to that time." He said since Ambassador Beeby's departure, Canada had made a lot of noise about having his report released. "Let me assure you that the ambassador did not make a report," Mr. Benton said. "He didn't even make a proposal. He had some concepts that he floated around and there were several different versions of these concepts. They were not acceptable to either or both of the parties at any one time. When he left, he did not find fault with either side in this debate. It's just that it is a very complicated issue that the parties are very far apart on right now." Number 1849 MR. BENTON referred to the equity matter and said those dealing with it on the U.S. side did not know where to go next. They believed Canada was unwilling to negotiate in a good-faith manner. "We've made every effort we could think of to get them to the table so we could talk about it," Mr. Benton stated, indicating they had offered to meet with Canada any time or place to discuss equity arrangements. "And it has just gotten nowhere. So, I don't see us making any progress on that any time soon," Mr. Benton added. Number 1914 MR. BENTON indicated the issues of chinook and equity, combined with Canada's problems with internal reallocation and fisheries management, did not bode well for reaching agreements with Canada this year or in the short-term foreseeable future. Canada had instituted licensing and buy-back programs in their fleet, with possible reductions of a third or greater. The licensing scheme involved stacking licenses that were awarded to individuals who might have to pool them onto one vessel in order to operate. MR. BENTON understood Canadian fishermen had been paying the government for several years in case of a future buy-back program. "One industry representative down there told me it was on the order of $65 million that they'd paid, that they thought they had to institute a buy-back program when they agreed to it," Mr. Benton said. "The Canadian government can't quite find that $65 million now. They don't know how they're going to implement that buy-back program. But it's there and they've got everybody pretty stirred up. That, combined with the way they've mismanaged their fisheries have really got their internal political situation in bad shape. Their fishing policies have pretty much decimated their coho stocks. They have consistently overfished their southern resident chinook stocks down there in Georgia Strait and they have done a terrible job on the Fraser River, to the extent they're going to have to close the sockeye fishery this year. So, there's a lot of pressures inside Canada that are going to cause them to not be very amenable to negotiations with us." MR. BENTON suggested it was to Alaska's benefit to reach accord with the southern U.S. to avoid court battles. "We're willing to go to court and will go to court if we have to, to defend Alaska's interests," he said. "But I would hope that we could reach an accommodation with them and hopefully resolve our differences there. And then maybe then, together, we can deal with Canada ... on a united front inside the U.S. section." Number 2021 CHAIRMAN AUSTERMAN asked about the limit for Southeast Alaska chinook this year. MR. BENTON replied although he could not speak to the numbers, Alaska was reasonably far apart but within striking distance of agreement with the southern U.S., but nowhere near any kind of agreement with Canada. Following a planned meeting of the U.S. commissioners towards the end of April, more firm information should be forthcoming. "The sticking point right now is the estimate of abundance of chinook," Mr. Benton said, explaining that estimates were done through a modeling effort conducted by Alaskan, southern U.S., and Canadian scientists. He stated, "Until we have agreement on that abundance estimate, we're not going to able to really get an agreement on an overall number for this year. But I will tell you that abundances are down this year over last. That's not unexpected. We knew that there was a problem with Robertson Creek Hatchery on the west coast of Vancouver Island." Number 2088 MR. BENTON said several years ago, there had been back-to-back el ninos, during which there was heavy predation on hatchery-released chinook in Barkley Sound. That hatchery accounted for approximately 30 percent of Alaska's fishery when it was up and running. "So, we know abundances are down because of that," Mr. Benton said. "We knew there was a problem with that hatchery program. This year was the year that was projected to be sort of the bottom of that curve and abundances are now supposed to start increasing because of the survival of that hatchery stock and others, because ocean survival conditions improved. It should help us out in '97 and ... beyond. But this year, abundances are definitely down and Alaska is going to act responsibly. We have a conservation obligation under the treaty and just generally, that's the way we manage fisheries. And so, we're going to respond to that. But we don't think the kind of response Canada was trying to force us into was anywhere near responsible or appropriate." Number 2125 REPRESENTATIVE OGAN asked about the predation on hatchery fish. MR. BENTON replied it was mackerel, which followed warm water north into Barkley Sound. REPRESENTATIVE ELTON noted Mr. Benton's reluctance to talk about the numbers and asked why. MR. BENTON explained there were international negotiations and that Alaska was right in the middle of negotiating with the south in an executive committee setting. He was bound by those rules. Number 2168 REPRESENTATIVE ELTON indicated he sensed the Canadians did not feel constrained about discussing the issue. MR. BENTON replied the Canadians had not been very constrained about meeting any of their obligations recently. For example, with regard to the mediator in the equity issue, there was an agreement not to discuss the mediator's operations in the press, which the Canadians came close to violating after presenting inaccurate information. "But that doesn't mean that Alaska can't meet its obligations, at least with regard to our southern colleagues I'm trying to negotiate with right now," he said. REPRESENTATIVE ELTON asked at what point Mr. Benton could begin talking about the numbers. MR. BENTON hoped after the next round of discussions with the southern U.S. commissioners that either an agreement would be reached or that they would be close enough to talk about numbers. Number 2270 REPRESENTATIVE ELTON asked if there was any way of allocating the sport fish harvest by Washington and Oregon residents, and the commercial troll harvest by Washington and Oregon trollers, to the southern catch rather than to Alaska's catch. MR. BENTON asked if he meant in-state. REPRESENTATIVE ELTON concurred and asked why that should be counted against the Alaska harvest. MR. BENTON declared that was just the way it was structured under the annex in the treaty. All catch in Southeast Alaska was under that quota, regardless of who caught the fish. REPRESENTATIVE ELTON asked if that could be changed. "For example, I've been told that half the sport fish harvest in Southeast Alaska is by Washington and Oregon anglers," he said. "I get very frustrated ... that that's allocated to us." He asked if it was written in stone. Number 2278 MR. BENTON said he sometimes shared that frustration. "It has to do with the treaty annex and, in part, it has to do with U.S. law," he said. He suggested that, as with other allocation issues, it might be unconstitutional to discriminate between residents of respective states. As for the treaty annex, the harvest in Southeast Alaska was under a quota. Mr. Benton mentioned a related problem, the large sport fish catches off the west coast of Vancouver Island that were not accounted for under the Canadian quota. REPRESENTATIVE ELTON indicated that was his next question. He asked if that was also written in stone and how that had happened. Number 2326 MR. BENTON said he was not around when the treaty was negotiated. "But my understanding is that the reason that that occurred is because the southern delegates, at the time the treaty was negotiated, were so anxious to get an agreement that they agreed to allow Canada to not count their sport fish harvest off Vancouver Island under the annex. So, the annex covers troll and net and some sport. It's sort of called `sport troll' but it's ... in the outside waters. And it's relatively a minor component of the overall sport catch off the west coast of Vancouver Island. At the time, I don't think the sport fishery was that large. But what has happened is that they've had an enormous explosion in the sport fish component of their fishery, none of which is counted under the quota." REPRESENTATIVE ELTON asked if that was a door that could not be opened again. MR. BENTON replied, "Well, I've brought it up a number of times with the Canadians. And every time I do, the southern United States guys are the ones that start squawking about, `oh, we can't bring that up again'. It's pretty frustrating. That's why, in some ways, I'd like to ... try to get some better cooperation between the U.S. commissioners, if possible, so that we can do things like that. But as long as it's the way it is inside the U.S. section, there's no way we can get to it, because it requires both sides to agree." Number 2391 REPRESENTATIVE ELTON said he was amazed at the ability of the Canadians, when there was a vacuum of information, to take advantage of that. He expressed concern over the way Canada had characterized the departure of Ambassador Beeby. He asked if the ambassador could prepare a press release saying `I have no report; I have circulated concepts; the concepts were not agreeable to both parties'." MR. BENTON stated he shared the frustration and said, "When Canada first broke this as a news article and started doing their PR campaign, we went to the U.S. negotiator - because really this is his province, and the U.S. government should be responding, in my view - and strongly urged him to deal with us. And the U.S. government has been reluctant to get out there in front of the PR campaign. I guess they just feel that they're better off doing things behind the scenes." Mr. Benton said Ambassador Pipkin solicited a letter from Ambassador Beeby clarifying the situation, which apparently Beeby sent to Fortier, the Canadian negotiator. Mr. Benton never saw the letter, which addressed confidential issues. TAPE 96-17, SIDE B Number 0003 MR. BENTON said whereas Canada had no qualms about "pushing the envelope," the U.S. did not want to do so and was stuck with the result. CHAIRMAN AUSTERMAN said he understood negotiations were still going on and there was no cap set for Southeast Alaska. MR. BENTON concurred. CHAIRMAN AUSTERMAN remarked that at some point, people would want to start fishing. He asked if that time arrived and there was no cap set, whether ADF&G would set a conservative cap. MR. BENTON explained that, excluding last year, in years past when there was no agreed-to annex, Alaska set a harvest range, usually in keeping with the previous annex, which would have been 263,000. However, in more recent years, that number had been somewhat constrained by Endangered Species Act (ESA) requirements to deal with Snake River fall chinook. "This year, because of the severe reductions in the Canadian fisheries - they're planning fairly significant reductions in their chinook fishery - and in southern fisheries - primarily because of coho - we don't think that the ESA question is really going to ... have much effect up in Southeast Alaska," Mr. Benton said. "So, we shouldn't have much of a problem with an ESA issue if ... the fishery is conducted anywhere near where it has been in recent years." MR. BENTON indicated that if Alaska could not get an agreement from southern United States interests, let alone Canada, Alaska would set the best number possible and live by it. "And it's at that time that the opportunity for the south to take us to court sort of comes into play," he said. "Hopefully, we'll have an agreement or, hopefully, it will be a number that even if they can't agree, maybe for political reasons, they won't think it's worth their time and effort to go to court. We will be responsible. But ... right now, we're in a situation where we can't even really estimate what that number should be." Number 0103 CHAIRMAN AUSTERMAN asked whether Mr. Benton anticipated a lawsuit from the Canadians if an agreement was reached with the southern U.S. and a cap was set. MR. BENTON replied, "Canada can't take us to court. The only way that Canada got in that lawsuit was at the invitation of Washington and the tribes ...." REPRESENTATIVE DAVID FINKELSTEIN expressed appreciation to David Benton, who had worked on these kinds of issues for over a decade. CHAIRMAN AUSTERMAN asked if there were further questions and thanked Mr. Benton for the presentation. ADJOURNMENT There being no further business to conduct, CHAIRMAN AUSTERMAN adjourned the House Special Committee on Fisheries meeting at 6:00 p.m.