Legislature(2007 - 2008)BARNES 124
04/02/2007 08:30 AM House FISHERIES
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| HB189 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 189 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
April 2, 2007
8:41 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Kyle Johansen
Representative Gabrielle LeDoux
Representative Peggy Wilson
Representative Bryce Edgmon
MEMBERS ABSENT
Representative Craig Johnson
Representative Lindsey Holmes
COMMITTEE CALENDAR
HOUSE BILL NO. 189
"An Act relating to the policy for management of sustainable
salmon fisheries."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 189
SHORT TITLE: MGMT OF SUSTAINABLE SALMON FISHERIES
SPONSOR(s): REPRESENTATIVE(s) STOLTZE
03/12/07 (H) READ THE FIRST TIME - REFERRALS
03/12/07 (H) FSH, RES
03/26/07 (H) FSH AT 8:30 AM BARNES 124
03/26/07 (H) -- MEETING CANCELED --
03/28/07 (H) FSH AT 8:30 AM BARNES 124
03/28/07 (H) Heard & Held
03/28/07 (H) MINUTE(FSH)
04/02/07 (H) FSH AT 8:30 AM BARNES 124
WITNESS REGISTER
STEVE RUNYAN, Member
Matanuska Valley Fish and Game Advisory Committee
Wasilla, Alaska
POSITION STATEMENT: Testified in support of HB 189.
BRUCE KNOWLES
Alaska Outdoor Council (AOC)
Willow, Alaska
POSITION STATEMENT: During hearing of HB 189, testified that
the salmon management plans don't take control from the
department or the Board of Fisheries.
DICK BISHOP, President
Alaska Outdoor Council
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 189.
ALAN AUSTERMAN
Juneau, Alaska
POSITION STATEMENT: Provided testimony on HB 189.
LANCE NELSON, Senior Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 189, expressed
concerns.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:41:46 AM. Representatives
Seaton, Johansen, Edgmon, and LeDoux were present at the call to
order. Representative Wilson arrived as the meeting was in
progress.
HB 189-MGMT OF SUSTAINABLE SALMON FISHERIES
8:41:58 AM
CHAIR SEATON announced that the only order of business would be
HOUSE BILL NO. 189, "An Act relating to the policy for
management of sustainable salmon fisheries."
8:42:26 AM
CHAIR SEATON drew the committee's attention to the e-mail from
Lance Nelson that's included in the committee packet.
8:43:49 AM
STEVE RUNYAN, Member, Matanuska Valley Fish and Game Advisory
Committee, related his support for HB 189, which strengthens the
policy for management of sustainable salmon fisheries by placing
a guiding policy for the management of fisheries for all fishery
user groups in Alaska into law versus regulation. At the most
recent Board of Fisheries (BOF) meeting, the United Fisherman of
Alaska presented a proposal to strike this policy from
regulation. He opined that those in the Matanuska-Susitna
Valley (Mat-Su Valley) view that as taking a huge step backward
in the management of the state's fisheries. This legislation
provides clarity with regard to the management of the fisheries.
Mr. Runyan related that having this policy in regulation has
been a wonderful tool for the sale of the state's commercial
fish stocks and has allowed the wild salmon marketing.
Furthermore, the policy has been a key in directing former
Commissioner Campbell in identifying concerns and seeking
management direction. In fact, former Commissioner Campbell was
able to secure funding to perform salmon stock studies in the
Susitna drainage. He opined that it's important for HB 189 to
be enacted.
8:47:04 AM
CHAIR SEATON asked if Mr. Runyan, as a member of the Matanuska
Valley Fish and Game Advisory Committee, is comfortable with
taking the ability of the BOF to modify policies it creates out
of its hands and fix it in state statute.
MR. RUNYAN related his understanding that HB 189 doesn't take
authority away from the BOF but rather provides it direction.
He directed attention to page 3, paragraph (4) and subsection
(e) of HB 189, which read:
(4) public support and involvement for sustained use
and protection of salmon resources shall be sought and
encouraged in an open process.
(e) Nothing in the policy set out in this section is
intended to expand, reduce, or be inconsistent with
the statutory regulatory authority of the board, the
department, or other state agencies with regulatory
authority that affects the fishery resources of the
state.
MR. RUNYAN opined that the intent of HB 189 is not to remove
authority from the BOF.
8:49:03 AM
BRUCE KNOWLES, Alaska Outdoor Council (AOC), informed the
committee that although he is representing the AOC, he also
serves on the Matanuska Fish and Game Advisory Board and the
Mat-Su Borough Blue Ribbon Outdoors Group. He recalled hearing
many concerns with regard to the salmon management plan taking
control from the department, the commissioner, and the BOF.
However, that's not the case, he opined. The sustainable salmon
management policy needs to be in place in order to establish
salmon management plans in each area [of the state]. He
highlighted that the sustainable salmon management plan is
actually user neutral and places [all users] on equal terms.
The available data is used to make the best choices. Mr.
Knowles recalled also hearing that there will be many lawsuits
over this [legislation]. However, he said that to his knowledge
there haven't been any lawsuits over the sustainable salmon
management policy since it was instituted. The only lawsuits he
knew of were over the salmon management plans developed by the
BOF and these lawsuits were brought forth by commercial fishing
organizations. In fact, in the last decade there have been
numerous lawsuits in the Cook Inlet concerning salmon management
plans; these suits were brought forth by commercial fishermen.
Mr. Knowles opined that the sustainable salmon management plans
are necessary and will help resolve some of the problems in the
Cook Inlet area.
8:52:26 AM
CHAIR SEATON surmised then that Mr. Knowles isn't concerned that
other groups will now have a statutory provision under which to
challenge decisions that are seen as not maintaining diversity
to the maximum extent possible at the genetic level.
MR. KNOWLES pointed out that it has been proven in court that
folks can sue under a management plan, which is merely set in
policy and not in statute. Therefore, he didn't believe placing
the policy in statute would make much difference, although it
would require better information upon which the BOF makes its
decisions.
8:54:13 AM
DICK BISHOP, President, Alaska Outdoor Council, began by
relating support for HB 189. Mr. Bishop opined that the system
in Alaska is a good system. The constitution lays out the
principles of sustained yield, common use, et cetera and the
legislature has the opportunity and responsibility to implement
that policy and philosophy through statute. Boards, such as the
BOF can take it to the working level through the details of
regulations. He noted his agreement that placing the
sustainable salmon management policy in statute would provide a
solid foundation upon which decisions can be made and confirm
the board's ability and authority to choose management options
consistent with statute and the constitutional provisions they
interpret. Furthermore, this [legislation] ensures that the
department provides the appropriate types and levels of
information on a regular basis. He opined that [HB 189] is "a
step in the right direction."
8:57:55 AM
ALAN AUSTERMAN opined that HB 189 appears to be a discrete fish
stock management scheme. Although Mr. Austerman said he
understood the frustration of those in the Upper Cook Inlet with
regard to their fishery, he didn't believe this legislation to
necessarily be the right answer. He said that he is more
concerned with ADF&G's funding and what its mandates are in
relation to establishing the real problems in the Upper Cook
Inlet. He recalled that last year the Cook Inlet Regional
Aquaculture Association came forward with a number of issues on
the lake systems in the Upper Cook Inlet such that perhaps the
fish that need to be produced aren't being produced. He opined
that there seems to be a disconnect as to the holistic view of
what occurs in the Upper Cook Inlet and why fish aren't
returning to the area. Mr. Austerman remarked that as the state
grows, the problems around the state and how they are handled
become a more acute problem. Therefore, it behooves the
legislature to ensure that the department has the funding
necessary to do the job and the mandate to do the job.
9:02:55 AM
LANCE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Anchorage), Department of
Law, noted that he has been the primary advisor to the BOF for
about 10 years. In fact, since 1988 he said he has spent all of
his time involved in commercial fisheries regulation or
enforcement work. With regard to the sustainable salmon
fisheries management policy in regulation, Mr. Nelson pointed
out that no one has found any fault with the substance of that
regulation. The only objection has come in the proposal put
forward by the United Fisherman of Alaska, which suggested that
it be put forward in policy as opposed to regulation. The BOF
recently considered the aforementioned and unanimously rejected
it. Mr. Nelson clarified that there hasn't been an issue
regarding whether the policy should be eliminated but rather if
it should continue as policy or as regulation. The arguments
that it remain as a policy is that most of the sustainable
salmon fishery management policy isn't what's defined as
regulation as it sets goals and ideals for fisheries management,
but it doesn't regulate the public. Furthermore, the policy
sets up a process that the board and the department use to
approach issues with sustainable salmon fisheries. He related
that although DOL has concerns with the policy being in
regulation, those can most likely be addressed. Mr. Nelson then
paraphrased from his written statement, which read as follows
[original punctuation provided]:
Generally, this bill would tend to micromanage and
also sets very difficult or impossible standards, and
will result in increased litigation. Here are the
primary specific concerns we have with the language of
the bill:
1. Under paragraph (a)(1), does "comprehensive
policy" means that every regulatory plan has to be
comprehensive? That will be an unrealistic standard
for many stocks.
2. Under paragraph (a)(2), almost all plans are
designed to achieve "maximum or optimum salmon
production." What other objective would they have?
So the department would have to affirmatively supply
data on each of the listed criteria and the board
would have to formally consider all the criteria,
regardless of whether each was an important factor in
the particular proposal before the board. In such
cases, consideration tends to be a formal, rote
recitation of the criteria without translating to a
better, more informed decision; however, failure to
expressly address any of the criteria could result in
successful legal challenges against Board regulations.
MR. NELSON mentioned that the state has been sued by the Cordova
District Fishermen United, which claimed that the regulatory
plan wasn't consistent with the sustainable salmon fisheries
policy. The state has also been sued by the Kenai Peninsula
Fisherman's Association on the grounds that regulations were
inconsistent with escapement goal policy, which is a companion
regulation to the sustainable salmon fisheries policy. Mr.
Nelson opined that it would be more difficult to defend if this
policy was in statute. Mr. Nelson continued to paraphrase from
his written testimony [original punctuation provided]:
3. Under subsection (b), the phrase "must ensure"
sets an impossible standard for salmon management.
"Ensure" means to guarantee a result, which is
impossible given the way salmon return and the limits
on the state's ability to control their entire
lifecycle. Certainly, the Board has very limited
control over the marine habitat of salmon, and no
power to ensure the "sustained economic health of
Alaska."
4. In subsection (c), the term "shall" imposes new,
difficult standards.
5. For example, in J(C)(1), even in the sustained
yield provision of the Alaska Constitution (section 4,
article VIII) there is no mandate that salmon stocks
be maintained to "ensure sustained yields." The
constitutional provision says: "Fish ... shall be
utilized, developed, and maintained on the sustained
yield principle, subject to preferences among
beneficial uses." That language has been interpreted
with flexibility in light of the record of the
constitutional convention, which states, in pertinent
part: As to forests, timber volume, rate of growth,
and acreage of timber type can be determined with some
degree of accuracy. For fish, for wildlife, and for
some other replenishable resources, it is difficult or
even impossible to measure accurately the factors by
which a calculated sustained yield could be
determined. Yet the term, "sustained yield principle"
is used in connection with management of such
resources. When so used it denotes conscious
application insofar as practicable of principles of
management intended to sustain the yield of the
resource being managed. That broad meaning is the
meaning of the term as used in the Article. Papers of
Alaska Constitutional Convention, 1955-1956, Folde
210, Terms quoted in Native Village of Elim v. State,
990 P.2d 1,7 (Alaska 1999). The Supreme court went on
to elaborate as follows in the Elim case: (T)he
primary emphasis of the framers' discussions and the
glossary's definitions of sustained yield is on the
flexibility of the sustained yield requirement and its
status as a guiding principle rather than a concrete,
predefined process. Id. at 7-8. The language in the
bill, on the other hand, imposes a standard of strict
guarantees.
6. Under (c)(2), the directive "shall be managed to
allow escapement within ranges necessary to conserve
and sustain wild salmon production and maintain normal
ecosystem functioning" is also problematic. It does
not recognize the variables at work in salmon
management. As noted by the Alaska Supreme Court:
The salmon in these waters are subject to numerous
pressures, any one of which could account for a
population decrease in a given year. A short and
incomplete list of these factor includes weather,
natural predators, competition with other fish,
international fishing efforts, water pollution, and
improved efficiency of fleets and fishing methods.
Moreover, several different species of salmon travel
through the False Pass fishery, thus creating a mixed
stock that increases challenges of management. The
record also shows that the salmon operate on a
fluctuating cycle that makes estimating returns from
year to year difficult even under the best conditions.
Id. at
7. Use of mandatory terms like "shall" and "ensure"
in salmon management statutes sets up unrealistic
expectations and invites legal challenges, which are
much more likely to be successful with mandatory
language. Provision (c)(4) could be interpreted to
require the Board to shut down any mixed stock fishery
that involves take of a depleted salmon stock
regardless of consequences to other fisheries or other
escapement objectives. Thus, a relatively low rate of
interception of a depleted stock could result in
closure of a fishery causing significant over
escapement and possibly harming production of another
stock, even while providing little benefit to the
depleted stock. The failure to define the terms
"depleted" and "actively restored" also raises
concerns. Other paragraphs of subsection (c) also
contain problematic language such as "to the maximum
extent possible," and "priority." Similar language in
a regulation can be addressed by qualifying language
in another regulation, such as by adding a
"notwithstanding" provision, and further, the Board
receives great deference in interpreting its own
regulations, however if this type of language is put
in statute, the Board will not have any discretion to
do anything but follow the letter of statutory
language.
8. In subsection (d), the language "best available
information" could be problematic because it might be
construed to require the department and board to seek
out and review all possible information rather than
what they deem to be the most critical. Anyone could
argue that there was better information available and
the Board did not hear or consider it. The Board
normally relies upon a short report from the
Department and consideration of all public comments
submitted to it in adoption of its regulatory
decisions. Similarly, the Department normally relies
principally upon fish ticket and escapement
information collected by the department in development
of its reports and recommendations to the Board.
While this information is often extensive, other
information is available from the internet, scientific
journals, and other sources, and it could certainly be
argued that some of this information may be "better"
regarding discrete issues. This bill could be
interpreted to require the Department and Board to
actively gather and review this information even if
not presented by a member of the public. thus, if
this bill were enacted, Department recommendations and
Board decisions would be vulnerable to potentially
successful legal challenges unless the Department
commits significant new resources to doing a
[thorough] scientific review of all potentially
relevant background information, and presents the
resulting information to the Board for consideration
with regard to each of the several hundred proposals
considered by the Board each year. This would require
increased staffing of biologists and economists and
would significantly extend the time necessary for
Board meetings, possibly to the extent that Board
members would be precluded from effectively engaging
in other occupations.
9. In (d)(1) the language applies to "human
activities that affect salmon," but the statutory
authority of the Board extends generally to fishing
activities and not many other activities that affect
salmon, some of which are more specifically regulated
by other state agencies, such as salmon stream
activity permitting under AS 41.14.870.
10. Under (d)(2), every management plan would have to
contain "goals and measurable objectives." This
connotes a formulaic, equation*type approach to
management plans that works in some fisheries, but
there are probably current plans that do not
specifically express goals and measurable objectives
because of the nature of those fisheries or the lack
of information. They would be subject to challenge
under this provision.
11. Paragraph (d)(3) has the same kind of language
that sets the Board and Department up for easy
challenges to regulations and department actions. The
language on habitat restoration and protection measure
is largely outside the authority of the Board or
Department.
MR. NELSON pointed out that under subsections (c) and (d) there
could be situations in which small, less valuable depleted runs,
would be mandated for recovery. Therefore, the harvest of more
valuable stocks would likely be foregone. He then emphasized
that this proposed statute would subject regulatory action to
challenge as well as every departmental decision related to
salmon management, including preparation of reports for
consideration by the board and other in-season decisions. Mr.
Nelson expressed concern that HB 189 appears to make the agency
vulnerable in its decision-making process.
9:18:27 AM
CHAIR SEATON inquired as to the impact of placing this policy in
statute on the commissioner's emergency order (EO) authority.
MR. NELSON related his belief that all of these provisions apply
to the department as well as the board. He highlighted that
proposed AS 16.05.247(c)(4) says, "depleted salmon stocks shall
be allowed to recover or, where appropriate, be actively
restored;". The commissioner, he explained, would have to
decide whether an EO allowing a fishery with an abundant stock
would be consistent with the aforementioned provision if a minor
stock might be depleted. Therefore, the commissioner may decide
to allow a lot less fishing on a more abundant stock. Mr.
Nelson pointed out that the constitutional provision relating to
sustained yield includes the following qualifying language,
"subject to preferences among beneficial uses". The board and
the department have to constantly make judgment calls. He
mentioned that the decision is sometimes that the more valuable
stock is given preference while the less valuable stock suffers.
Mr. Nelson opined that this legislation could have a major
impact with regard to the decisions of the commissioner and his
designees on EOs and other management matters.
9:21:10 AM
CHAIR SEATON recalled testimony from a previous hearing
regarding the genetic difference between king salmon that return
at eight years versus six years. He then directed attention to
page 2, lines 12-13 of the legislation, which read "(3)
diversity shall be maintained to the maximum extent possible at
the genetic, population, species, and ecosystem levels;". He
asked if, in a situation in which there isn't an adequate
population of 8-year-old returning king salmon, that would be
the basis for a group to file a challenge against king salmon
fishing on the river in order to maintain an adequate population
of the 8-year-old stock.
MR. NELSON recalled that the person testifying believed that in
such a situation [the requirement would be to stop fishing for
king salmon on the river in order to maintain an adequate
population of 8-year-old king salmon]. Furthermore, a lawsuit
would be the basis for such. Certainly, if this provision was
in place, the board and department would need to spend more time
on those regulations.
9:24:01 AM
CHAIR SEATON, upon determining no one else wished to testify,
closed public testimony.
9:24:09 AM
CHAIR SEATON opined that a number of significant issues have
been raised, such as the concern that this legislation could
change the entire intent of the constitution from flexible
management under sustained yield to a strict mandate.
Therefore, Chair Seaton announced that HB 189 would be sent to a
subcommittee consisting of the following members:
Representative Wilson, Chair, and Representatives LeDoux and
Edgmon.
9:25:17 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 9:25
a.m.
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