02/26/2007 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HJR4 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 4 | TELECONFERENCED | |
| += | HB 137 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 26, 2007
8:55 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Kyle Johansen
Representative Peggy Wilson
Representative Bryce Edgmon
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Craig Johnson
Representative Gabrielle LeDoux
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 4
Requesting the Federal Subsistence Board to reconsider its
decision regarding the subsistence fishery priority given to
Ninilchik residents.
- HEARD AND HELD
HOUSE BILL NO. 137
"An Act amending the requirements for the identification card
needed for sport fishing, hunting, and trapping without a
license by residents who are 60 years of age or more."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HJR 4
SHORT TITLE: KENAI/KASILOF SUBSISTENCE PRIORITY
SPONSOR(s): REPRESENTATIVE(s) OLSON
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) FSH, RES
02/23/07 (H) FSH AT 8:30 AM CAPITOL 124
02/23/07 (H) Scheduled But Not Heard
02/26/07 (H) FSH AT 8:30 AM BARNES 124
WITNESS REGISTER
KONRAD JACKSON, Staff
to Representative Kurt Olson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HJR 4, on behalf of
Representative Olson, sponsor.
SARAH GILBERTSON, Subsistence & Federal Issues Coordinator
Office of the Commissioner
Alaska Department of Fish & Game (ADF&G)
Anchorage, Alaska
POSITION STATEMENT: Stated official support of HJR 4, presented
the state's position, and responded to questions.
MICHAEL SEWRIGHT, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions on HJR 4.
ROD ARNO, Executive Director
Alaska Outdoor Council (AOC)
Wasilla, Alaska
POSITION STATEMENT: Testified in support of HJR 4.
RICKIE GEASE, Executive Director
Kenai River Sport Fishing
Kenai Alaska
POSITION STATEMENT: Testified in support of HJR 4 and responded
to questions.
ANDY SZCZESNY
Soldotna, Alaska
POSITION STATEMENT: Testified in support of HJR 4 and responded
to questions.
RON RAINEY, past Chairman
Kenai River Sport Fishing Association
Kenai Alaska
POSITION STATEMENT: Testified in support of HJR 4.
DOUG BLOSSOM, Member
South Central Regional Advisory Committee (RAC)
Clam Gultch, Alaska
POSITION STATEMENT: Testified in opposition to HJR 4 and
responded to questions.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:55:32 AM. Representatives
Johansen, Holmes, and Edgmon were present at the call to order.
Representative Wilson arrived as the meeting was in progress.
HJR 4-KENAI/KASILOF SUBSISTENCE PRIORITY
8:56:40 AM
CHAIR SEATON announced that the only order of business would be
HOUSE JOINT RESOLUTION NO. 4, Requesting the Federal Subsistence
Board to reconsider its decision regarding the subsistence
fishery priority given to Ninilchik residents.
8:57:04 AM
KONRAD JACKSON, Staff to Representative Kurt Olson, Alaska State
Legislature, presented HJR 4, on behalf of Representative Olson,
sponsor, stating that this resolution was drafted to address the
customary and traditional (C&T) use determination by the Federal
Subsistence Board (FSB), giving the residents of Ninilchik
subsistence priority in the waters north, of and including, the
Kenai River drainage, within the Kenai National Wildlife Refuge
and Chugach National Forest.
8:58:00 AM
REPRESENTATIVE JOHANSEN moved to adopt CSHJR4, Version 25-
LS0201\C, Kane, 2/23/07, as the working document. There being
no objection, Version C was before the committee.
8:58:09 AM
MR. JACKSON continued, and said, "Alaska Department of Fish &
Game (ADF&G) feels that ... that determination was flawed."
Included in Version C, are additional C&T use determinations,
applying to the Kenai Peninsula, not previously stipulated.
Regarding the community of Ninilchik and the Kasilof River
drainage, he paraphrased from a statement issued by ADF&G, as
follows:
Reconsideration is required because, in adopting the
final rule, "the Board's interpretation of
information, applicable law, or regulation was in
error or contrary to existing law." In regards to the
ruling that included Hope and Cooper Landing, for the
Kenai River drainage, and waters north of the
drainage, [ADF&G] says: "Reconsideration is require
because, in adopting the final rule, the Board's
interpretation of information, applicable law, or
regulation, was in error, or contrary to existing law,
and because new information not previously considered
by the Board, demonstrates that the Board's
determination was based on incorrect information and
assumptions. ... The ruling was in error, or
contradictory, to existing law. In addition,
reconsideration is required because, in making its
determination, the Board assumed incorrect information
including unsupported speculation regarding fish
stocks resulting in a determination based on
speculation. The Board must instead consider real,
factual information, not previously considered by the
Board." In short, ... we would like to see the Board
take another look at these determinations, and ...
follow their own rules and regulations. This is not
intended to argue for against subsistence ... it's
merely asking ... that the Board reconsider its
actions, and ... play by the rules.
9:02:19 AM
CHAIR SEATON asked whether "rolling" the two areas together in
this CS together might cause confusion.
MR. JACKSON stated:
Yes, I'm a little confused ... myself because you're
actually dealing with three separate requests for
reconsideration: one for Ninilchik ... residence
pointing to the Kasilof River; Ninilchik residence
pointing towards the Kenai River, Upper Kenai River;
and ... Hope/Cooper Landing for the Kenai River and
drainages.
9:06:45 AM
SARAH GILBERTSON, Subsistence & Federal Issues Coordinator,
Office of the Commissioner, Alaska Department of Fish & Game,
(ADF&G), stated official support of HJR 4, paraphrasing from a
prepared statement, which read as follows [original punctuation
provided]:
The State of Alaska is deeply troubled by recent
Federal Subsistence Board decisions on the Kenai
Peninsula to grant the communities of Ninilchik, Happy
Valley, Hope, and Cooper Landing a subsistence
priority in the Kenai and Kasilof River drainages.
The State has filed several Requests for
Reconsideration over the last year - most recently in
January of this year - appealing these decisions. The
resolution you have before you is consistent with the
State's appeals.
By way of background, under state law, these
communities are regarded as non-rural in nature and
are part of the Anchorage-Matsu-Kenai non-subsistence
area.
The Federal Board regards these communities as rural
(even though they are surrounded by non-rural
communities) and has found that they have a customary
and traditional use of the Kenai and Kasilof River
drainages.
State argues that the Board did not base its decisions
on evidence that fulfills the eight criteria required
by federal regulation for making such customary and
traditional use determinations.
For example, the regulations require demonstration of
a long-term customary and traditional pattern of
consistent use by a community of the fish resource on
federal lands.
Instead, the Board ignored and misused the available
data indicating that at most, a very small percentage
(up to 7 percent) of Ninilchik residents had fished in
the area of the proposed subsistence fishery in a
study year. This data did not demonstrate the
required long-term pattern of community use.
The Board also neglected to take several factors into
consideration, such as: the changing demographics of
Ninilchik; the impact that Ninilchik's connection to
the available road system has on use levels and the
type of use (sport fishing); Ninilchik's access to and
more common use of local fisheries; historical tribal
use areas, which did not include the upper Kenai River
area; and the purposes of the Kenai National Wildlife
Refuge.
Considered collectively, these factors do not appear
to support a long-term consistent pattern of community
use.
The State is concerned that the Cook Inlet fisheries
are already fully allocated and the Board's decision
will eventually result in unnecessary restriction of
existing established uses (i.e., commercial, sport,
and personal use fishing).
The State is also concerned that the Federal Board:
Does not consistently apply the eight criteria with
substantial evidence required by regulation before
making customary and traditional use determinations;
Does not consider impacts of its decisions on other
beneficial uses as required by the Ninth Circuit
Court; has not adopted and applied criteria in
regulations that require substantial evidence before
implementing restrictions or closures on state-
authorized fisheries.
9:13:06 AM
MS. GILBERTSON relayed that the state supports the inclusion of
Hope and Cooper Landing in HJR 4.
9:15:18 AM
REPRESENTATIVE EDGMON asked whether similar circumstances,
regarding the FSB, have occurred in other state regions.
MS. GILBERTSON answered, "Yes, ... it's a troubling situation."
Similar concerns have been raised since the inception of the
FSB, and every year issues have arisen. The FSB has
consistently not followed federal regulations, nor have they
responded to state court directives to provide written policies
and procedures to support the important decisions being made.
She reported that this is not an isolated case, and that the
state has filed claims against the FSB, regarding other
decisions.
9:18:26 AM
REPRESENTATIVE JOHANSEN inquired how the state decides which of
these subsistence issues will be acted on.
MS. GILBERTSON responded that a departmental liaison team tracks
these issues on a full time basis; monitoring the progress and
working with the Department of Law (DOL). To a follow-up
question, he explained that the state does not necessarily take
up an issue of whether an area should be considered rural or non
rural, but rather urges the FSB to follow federal regulations
and to adherence to process; the board has not followed this
advisement.
9:22:41 AM
CHAIR SEATON requested that the location of Happy Valley be
clarified, particularly its relative location to Ninilchik.
MS. GILBERTSON stated that the FSB refers to Happy Valley and
Ninilchik as the same area.
MICHAEL SEWRIGHT, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law (DOL), stated that
these two communities are in the same census area, and are
treated essentially as one community by the FSB.
9:25:37 AM
ROD ARNO, Executive Director, Alaska Outdoor Council (AOC),
stated support for HJR 4, and said that the council's membership
has been in conflict with the FSB for 16 years, primarily
regarding game management. He opined that the rural
determination for the Kenai Peninsula is flawed, and the federal
land managers adhere to that determination. He explained that
the unique location, and priority uses, of the Kenai have
fostered this lack of accord and stressed the need to "clear-up"
the issues.
9:29:04 AM
RICKIE GEASE, Executive Director, Kenai River Sport Fishing,
stated support for HJR 4, and provided information regarding the
justification used by the FSB for the determinations in
question, as explained by the FSB chairman at a recent meeting.
He opined that the interpretation was a novel concept, and a
departure from what has been used to qualify areas/resources for
C&T use. Additionally, he reported the FSB's apparent disregard
for considering state evidence presented, or for the need to
provide clear policies and procedures for making determinations.
Describing other incongruities and scenarios he said:
When you play loose with ... policies and procedures,
it encourages people to play loose with ... policies
and procedures in other decisions. ... What's
interesting ... is what the fed's said about the
state's ability to file suit on behalf of its
citizens. ... The federal argument ... for the Chena
[wildlife/moose] case, says that ... the state doesn't
have a substantive interest in that issue, and cannot
sue on behalf of its citizens. ... That's the legal
opinion that's driving some of these decisions from
the federal level.
9:33:46 AM
MR. GEASE suggested three action steps, for the legislature to
implement: approve HJR 4; encourage DOL to file a law suit, if
this Request for Reconsideration (RFR) is denied; and create an
action plan for Alaska's congressional delegation to clear up
the Kenai Peninsula issue, and how it relates to the Alaska
National Interest Lands Conservation Act.
9:35:46 AM
ANDY SZCZESNY stated support for HJR 4, and introduced himself
as a fly fishing business owner on the upper Kenai River. He
reported that the proposed subsistence area is a heavily used
sport fishing local, supporting thousands of seasonal visitors.
As a member of the Methods and Means sub committee, of the
Cooper Landing Fish and Game Advisory Committee, he recently
attended a three-day meeting to study the proposed subsistence
areas. Given the current situation, he predicted grave problems
in the future pending the passage of this resolution to clear up
these issues.
CHAIR SEATON asked if his testimony covers the entire area as
described in the CS.
MR. SZCZESNY stated that all of the communities should be
included.
9:37:45 AM
RON RAINEY, past Chairman, Kenai River Sport Fishing
Association, stated support for HJR 4, and said, "This is the
greatest stretch of the imagination for C&T that I've observed."
He opined that the FSB has flagrantly ignored the accepted
federal guidelines. Further, he agreed with previous testimony
that legal action needs to occur to correct some of the ills
that have gone on in the past. He said, "We need to wake up to
the fact that subsistence in some areas, including the Kenai
Peninsula, is out of control."
9:39:39 AM
DOUG BLOSSOM, Member, South Central Regional Advisory Committee
(RAC), stated opposition to HJR 4, and cautioned against
handling the issue in this manner. Although he asserted that
"the federal law is wrong, the state law is right," he stressed
the need for the legislature to work with the federal government
to come to accord rather than divide the communities over a
subsistence issue. As a member of the federal RAC he is charged
with managing the current situation, whether it is correct or
not. The necessary changes will not occur by passing a
resolution.
9:42:31 AM
CHAIR SEATON noted that the CS includes reconsideration for all
of the communities.
MR. BLOSSOM reiterated the need for the subsistence issue to be
addressed, on a statewide, legislative level. In response to a
question, he explained that the RAC he sits on is similar to the
state RACs that advise the ADF&G boards. The Federal South
Central RAC receives proposals from the public, reviews the
concerns, and advises the FSB.
9:44:29 AM
CHAIR SEATON suggested that the primary question is whether the
FSB has been following federal guidelines and regulations.
MR. BLOSSOM explained the federal legal stance on determining a
person's right for C&T harvest. He emphasized that, until the
federal and state laws mirror each other, there will continue to
be issues throughout the state.
9:46:21 AM
CHAIR SEATON stated that the purpose of this resolution is to
raise questions. Testimony has indicated that three changes
appear to have occurred in the FSB's interpretation for C&T
status. One is how the consideration of historic vs. long-term
use of a resource is determined, and he asked for a further
explanation.
MR. BLOSSOM relayed that, since statehood, Alaska has eliminated
subsistence use on the Kenai. However, federal anthropologists
have done studies indicating the Kenai's historic use as a C&T
area. In further response, he stated that the FSB considers
this historic aspect, and does not require continuous use for an
area to qualify.
9:48:22 AM
CHAIR SEATON requested additional information on how fish usage
on state lands could qualify for federal subsistence priority.
9:49:22 AM
MR. BLOSSOM provided the example that, if subsistence users of
federal lands on the Kasilof River could not harvest enough king
salmon, they could curtail fishing downstream, in the state
waters, to allow fish populations the possibility of arriving
up-river for subsistence harvest.
CHAIR SEATON asked if the Ninilchik net fishery, intercepting
Kenai River salmon, was the qualifier for the Kenai River
watershed to be designated for C&T use.
MR. BLOSSOM confirmed that the determination for the C&T finding
was that anthropologists ascertained that many years ago the
Ninilchik community had fished the Kenai as far inland as Skilak
Lake. The level of historic participation was not required to
qualify the determination.
9:51:54 AM
CHAIR SEATON asked for a legal opinion on whether the CS could
be handled as two issues: Ninilchik and Happy Valley as one
concern, and a request to "further reconsider its [FSB's]
decision regarding the subsistence fishing priority for Hope and
Cooper Landing residents."
MS. GILBERTSON noted that the state previously filed a Request
for Reconsideration (RFR) for Hope and Cooper Landing, and has
officially been denied.
9:54:21 AM
MR. SEWRIGHT reiterated that the FSB "sidestepped the prior
Requests for Reconsideration, regarding Cooper Landing and
Hope." In the latest RFR, January 15, 2007, although the focus
is on the Ninilchik and Happy Valley areas, the FSB was asked to
directly address the prior RFRs. He pointed out that Hope is
"fairly distant" from the Kenai River drainage, compared to
Cooper Landing. The Cooper Landing issue has been addressed,
and the residents have dissented the subsistence designation.
9:56:02 AM
CHAIR SEATON referred to previous testimony concerned with how
the FSB interprets the federal regulations for granting C&T use
of a federal watershed area, when C&T use was established on
state land. He asked for confirmation of this understanding.
MR. SEWRIGHT confirmed the chair's understanding, and said that
it is a novel approach. The RFR did address that proposition.
He referred the committee to the RFR analysis on page 2, and the
members rationalization statements quoted on page 9.
10:01:00 AM
CHAIR SEATON summarized that these rulings cause concern for
migrating salmon, depending on where the fish are harvested en
route to the headwater spawning grounds. A clear definition of
how the FSB interprets C&T use regulations is important, and
could have far reaching effects. Another concerns is for how
C&T is qualified based on the traditional use timeline: has
anyone ever fished the area vs. continuous use. He asked DOL if
this is being challenged as the standard.
10:02:46 AM
MS. GILBERTSON stated that this issue is also addressed in the
RFR, and pointed out that this will not be a concern if the 8
criteria are adhered to, in accordance with the state
interpretation. However, the federal interpretation remains in
contrasts with that of the state, and neither is the FSB
interpretation inline with federal regulation. She assured the
committee that the state will continue to challenge FSB on this
point.
10:05:51 AM
CHAIR SEATON announced that HJR 4 would be held for further
discussion.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 10:05
a.m..
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