04/02/2001 01:10 PM House RES
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 2, 2001
1:10 p.m.
MEMBERS PRESENT
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
Representative Mary Kapsner
Representative Beth Kerttula
MEMBERS ABSENT
Representative Beverly Masek, Co-Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 165
"An Act relating to the Kenai River Special Management Area; and
providing for an effective date."
- MOVED CSHB 165(RES) OUT OF COMMITTEE
HOUSE BILL NO. 93
"An Act establishing the permit fee for the personal use dip net
fisheries for the Kenai River and the Kasilof River; and
providing for an effective date."
- MOVED CSHB 93(RES) OUT OF COMMITTEE
HOUSE BILL NO. 216
"An Act relating to the emergency order authority of the
commissioner of fish and game and to meetings of the Board of
Fisheries."
- HEARD AND HELD
HOUSE CONCURRENT RESOLUTION NO. 13
Relating to the nonresident fee differential for commercial
fishing permits and licenses.
- MOVED HCR 13 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 165
SHORT TITLE:KENAI RIVER SPECIAL MANAGEMENT AREA
SPONSOR(S): REPRESENTATIVE(S)LANCASTER
Jrn-Date Jrn-Page Action
03/09/01 0516 (H) READ THE FIRST TIME -
REFERRALS
03/09/01 0516 (H) RES
03/09/01 0516 (H) REFERRED TO RESOURCES
03/26/01 (H) RES AT 1:00 PM CAPITOL 124
03/26/01 (H) Heard & Held
MINUTE(RES)
04/02/01 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 93
SHORT TITLE:KENAI DIP NET FISHERY PERMIT FEE
SPONSOR(S): REPRESENTATIVE(S)LANCASTER
Jrn-Date Jrn-Page Action
01/26/01 0171 (H) READ THE FIRST TIME -
REFERRALS
01/26/01 0171 (H) FSH, RES, FIN
03/12/01 (H) FSH AT 5:00 PM CAPITOL 124
03/12/01 (H) Moved CSHB 93(FSH) Out of
Committee
MINUTE(FSH)
03/16/01 0624 (H) FSH RPT CS(FSH) NT 5DP 1DNP
1NR
03/16/01 0624 (H) DP: SCALZI, KAPSNER,
KERTTULA, WILSON,
03/16/01 0624 (H) STEVENS; DNP: COGHILL; NR:
DYSON
03/16/01 0624 (H) FN1: (DFG)
03/16/01 0624 (H) FN2: (DFG)
03/16/01 0624 (H) REFERRED TO RESOURCES
03/26/01 (H) RES AT 1:00 PM CAPITOL 124
03/26/01 (H) Heard & Held
MINUTE(RES)
04/02/01 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 216
SHORT TITLE:BD OF FISHERIES MEETINGS/EMERGENCY ORDERS
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
03/26/01 0730 (H) READ THE FIRST TIME -
REFERRALS
03/26/01 0730 (H) FSH, RES
03/27/01 0746 (H) FSH REFERRAL WAIVED
03/27/01 0746 (H) REFERRED TO RESOURCES
04/02/01 (H) RES AT 1:00 PM CAPITOL 124
BILL: HCR 13
SHORT TITLE:NONRES. COMMERCIAL FISHING FEES
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
04/02/01 0808 (H) READ THE FIRST TIME -
REFERRALS
04/02/01 0808 (H) RES, FIN
04/02/01 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE KEN LANCASTER
Alaska State Legislature
Capitol Building, Room 421
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of HB 165 and HB
93.
JIM STRATTON, Director
Division of Parks & Outdoor Recreation
Department of Natural Resources
550 West 7th Avenue, Suite 1380
Anchorage, Alaska 99501-3561
POSITION STATEMENT: Reviewed the history of Mayor Bagley's
concerns regarding HB 165.
KEVIN BROOKS, Director
Division of Administrative Services
Alaska Department of Fish and Game (ADF&G)
PO Box 25526
Juneau, Alaska 99811-5526
POSITION STATEMENT: Answered questions on HB 93 regarding the
handling of revenue.
ROD ARNO, Representative
Alaska Outdoor Council (AOC)
PO Box 73902
Fairbanks, Alaska 99707-3902
POSITION STATEMENT: Spoke in opposition to HB 93.
EDWARD D. MARTIN, JR.
PO Box 521
Cooper Landing, Alaska 99572
POSITION STATEMENT: Testified in opposition to HB 93; discussed
concerns with HB 165.
CHRIS GARCIA
Cook Inlet Fisherman's Fund (CIFF)
PO Box 203
Kenai, Alaska 99611
POSITION STATEMENT: Testified in support of HB 93; testified on
HB 165 and HB 216.
DREW SPARLIN
37020 Cannery Road
Kenai, Alaska 99611
POSITION STATEMENT: Testified in support of HB 93 and HB 216.
RED SMITH
PO Box 770
Cooper Landing, Alaska 99572
POSITION STATEMENT: Discussed concerns with HB 165.
DALE BONDURANT
31864 Moonshine Drive
Soldotna, Alaska 99669
POSITION STATEMENT: Testified in full support of the addition
to KRSMA and the added protection for habitat [as proposed in HB
165]; discussed issues regarding HB 216.
FRANK RUE, Commissioner
Alaska Department of Fish & Game (ADF&G)
PO Box 25526
Juneau, Alaska 99802-5526
POSITION STATEMENT: Testified on HB 216.
DOUG MECUM, Director
Division of Commercial Fisheries
Department of Fish & Game (ADF&G)
PO Box 25526
Juneau, Alaska 99802-5526
POSITION STATEMENT: Testified on HB 216.
GERRY MERRIGAN
Petersburg Vessel Owner's Association (PVOA)
PO Box 232
Petersburg, Alaska 99833
POSITION STATEMENT: Spoke in support of HB 216.
NOEL WOODS
PO Box 827
Palmer, Alaska 99645
POSITION STATEMENT: Spoke in opposition to HB 216.
GEORGE COVEL
PO Box 984
Cordova, Alaska 99574-0984
POSITION STATEMENT: Testified that HB 216 would clarify and
strengthen existing statutes.
BOB MERCHANT, President
United Cook Inlet Drift Association (UCIDA)
PO Box 398
Kenai, Alaska 99611
POSITION STATEMENT: Spoke in support of HB 216.
ACTION NARRATIVE
TAPE 01-28, SIDE A
Number 0001
CO-CHAIR DREW SCALZI called the House Resources Standing
Committee meeting to order at 1:10 p.m. Representatives Fate,
McGuire, Green, Chenault, Stevens, Kerttula, and Scalzi were
present at the call to order. Representative Kapsner arrived as
the meeting was in progress.
HB 165-KENAI RIVER SPECIAL MANAGEMENT AREA
CO-CHAIR SCALZI announced that the first order of business would
be HOUSE BILL NO. 165, "An Act relating to the Kenai River
Special Management Area; and providing for an effective date."
[There was a motion to adopt HB 165 for discussion purposes, but
it was already before the committee; in committee packets,
however, not yet adopted, was a new proposed committee
substitute (CS), Version C.]
Number 0200
REPRESENTATIVE KEN LANCASTER, Alaska State Legislature, sponsor
of HB 165, informed the committee that technical corrections to
the bill were made by the department; he indicated those
corrections are encompassed [in CSHB 165, Version C].
CO-CHAIR SCALZI reminded committee members that at the prior
hearing on HB 165 [those amendments were discussed].
REPRESENTATIVE GREEN referred to an e-mail from Dale Bagley,
Mayor, Kenai Peninsula Borough, which notes the mayor's
opposition to HB 165 because he believes there is enough
protected land. Representative Green requested the sponsor's
comments on Mr. Bagley's e-mail.
Number 0377
REPRESENTATIVE LANCASTER characterized the e-mail as "a general
negative e-mail in regard to the addition of the KRSMA [Kenai
River Special Management Area] land." Representative Lancaster
informed the committee that Mr. Bagley did initiate a lawsuit
against the state and that issue was resolved. He noted that
perhaps [Jim Stratton, Director, Division of Parks & Outdoor
Recreation, Department of Natural Resources] could speak to that
issue.
CO-CHAIR SCALZI remarked that there is quite a bit of history
with the issue [brought forth by Mayor Bagley]. He agreed with
Representative Lancaster that the issue had been resolved.
REPRESENTATIVE KERTTULA relayed concern she has heard because it
has been some time since the public hearing process on this
land. She asked when the last public hearings were held.
REPRESENTATIVE LANCASTER deferred to Mr. Stratton.
Number 0516
JIM STRATTON, Director, Division of Parks & Outdoor Recreation,
Department of Natural Resources (DNR), testified via
teleconference. He informed the committee that there were
extensive public hearings on the KRSMA update in 1997 and 1998.
[The KRSMA update] made the recommendation for the acreage
included in HB 165. In the Fall of 1999, the Kenai Area Plan
public comment period also included these same recommendations.
Although Mr. Stratton didn't have the exact number of hearings,
he said perhaps Chris Degernes, Superintendent, Kenai Peninsula
Area, Division of Parks & Outdoor Recreation (DNR), may have
that information.
REPRESENTATIVE LANCASTER pointed out that most of the
resolutions have been updated within the last week, since the
committee last heard the bill. Representative Lancaster
informed the committee that he had individual testimony and
letters of support as well as a few letters of opposition to
this bill. He offered to provide those to the committee.
Number 0785
CO-CHAIR SCALZI, after determining that some teleconference
sites had "fallen off," announced that HB 165 would be taken up
again later in the hearing.
HB 93-KENAI DIP NET FISHERY PERMIT FEE
CO-CHAIR SCALZI announced that the next order of business would
be HOUSE BILL NO. 93, "An Act establishing the permit fee for
the personal use dip net fisheries for the Kenai River and the
Kasilof River; and providing for an effective date."
Number 0880
REPRESENTATIVE KEN LANCASTER, Alaska State Legislature, sponsor
of HB 93, mentioned a question raised [by Representative Fate]
at the previous hearing regarding the disposition of the [dip
net] fee. He pointed out a letter in the committee packet from
Kevin Brooks [which explains that the dip net] fees would go
[into the fish and game fund and would remain available pending
subsequent appropriation by the legislature.]
[There was motion to adopt HB 93(FSH), Version 22-LS0431\J, as a
work draft; however, it was later clarified by Co-Chair Scalzi
that the version the committee wanted before it was HB 93,
Version 22-LS0431\C, Utermohle, 2/17/01, which had already been
adopted and amended on March 26, 2001.]
Number 0961
KEVIN BROOKS, Director, Division of Administrative Services,
Alaska Department of Fish and Game (ADF&G), came before the
committee to answer the question regarding the handling of
revenue. He explained that under AS 16.05.110[(a)(1)], the
revenue would be deposited into the fish and game fund. Since
fish and game funds are already excluded [from unrestricted
general fund] program receipts [under AS 37.05.146(b)(4)(F)],
the second section of the bill is not necessary, because it
would already be part of the fish and game fund exclusion.
Number 1010
REPRESENTATIVE FATE stated that he appreciated Mr. Brooks'
response. He asked Mr. Brooks to confirm that the request from
Kenai for the use of the restricted funds would follow along
with the fish and game restricted fund guidelines. He added a
"thank you" to Representative Lancaster.
MR. BROOKS answered affirmatively.
Number 1075
ROD ARNO, Representative, Alaska Outdoor Council (AOC),
mentioned a letter [included in the committee packet]. He
thanked Representative Lancaster for introducing the bill,
because human waste, trash, and trespassing are a problem;
however, he stated that AOC is concerned about setting a
precedent of adding a fee for a personal use fishery, instead of
going through ADF&G's capital budget request for facilities, or
for access issues. Mr. Arno said right now, one of the Division
of Sport Fish's missions is to manage activities associated with
personal use fisheries. He added, "Here's an opportunity ... to
use the Dingle/Johnson federal money, as well as the fish and
game money that comes in, for these projects." He explained
that it would be "put together through a process on a budget
request to the department."
MR. ARNO stated that 275,000 nonresident sport fishermen brought
in $9 million to the fish and game fund in 2000, whereas
approximately 115,00 resident sport fishermen brought in only
$2.4 million. He made the point that there is money available
through nonresident sport fishermen, Dingle/Johnson money, and
the fish and game fund to support projects that would mitigate
"these problems," as opposed to having an additional $10 fee,
which [AOC] considers just as "food tax." Mr. Arno said as an
example, Alaskan residents are not charged an additional price
for Tier II caribou permits, even though the management of those
herds is "a different ... piece of the component."
MR. ARNO said there are two different ways in which money is
available. He mentioned the CARA [Conservation and Reinvestment
Act] program, which uses fish and game funds as part of the
matching fund to that. He said $300,000 of CARA money has been
allocated to the [Division of Sport Fish] for education, but
there is no reason some of that money could not be used to
provide facilities, as it is in other areas of the state. Mr.
Arno added that the state is using only $1.5 million of the $2.4
million CARA money available.
MR. ARNO also suggested the Habitat and Restoration Division as
a source of money, stating that its goal is to protect fish and
wildlife habitat and to protect the public use of fishing
resources. Currently, the Habitat and Restoration Division is
investing money into several projects, including the Kenai River
salmon habitat restoration project. He spoke of the recent
approval of HB 61, which allows the habitat and restoration
grant to be made directly to the department.
MR. ARNO stated that the AOC feels there is genuine concern with
the litter; there are other ways to take care of that, as
opposed to adding a food tax [by charging] a special fee to
these dipnetters.
Number 1390
EDWARD MARTIN testified via teleconference in opposition to HB
93. He referred to Article VIII, Section 3, of the Alaska
Constitution, which reads:
Wherever occurring in their natural state, fish,
wildlife, and waters are reserved to the people for
common use.
MR. MARTIN said he recognizes the problem with the management of
[the Kenai dip net fishery]. He mentioned the troopers or
"brown shirts," saying, "It's getting to the point where most of
these agencies get a big sum of money and they aren't
accountable for what ... their mission statement is, or at least
maybe they feel they're doing the best they can." Mr. Martin
suggested that plenty of people in enforcement are not doing
much during the winter months and could reroute some hours to
cover the two- or three-month personal use fishery period.
MR. MARTIN said he looks at this as a constitutional issue and
as a management issue "under a mission statement of ... who's
responsible to do the management enforcement." Regarding
detriment to the [river] banks, he said many people are aware of
what's going on right now. He said:
If we can't get some control of that, we can't have
some volunteers in this system, because, to be honest
with you - some of that being ... a constitutional
right for subsistence - I believe there's ... good,
honest people, good Alaskans that'll go out there and
could work within a controlled atmosphere to see that
we aren't abusing ... it, whether nonresident or
residents.
Number 1555
CHRIS GARCIA testified via teleconference in support of HB 93,
telling the members that they were not charging enough. He said
he has witnessed some of the atrocious problems [in the Kenai
dip net area]. He stated that the mayor of Kenai [Peninsula
Borough] had requested funding from the state for this problem
and was told there was no money available. He said a lot of
nonresidents who are using the fishery shouldn't be. He stated
his belief that imposing this fee will help control, patrol, and
improve the fishery for the state.
Number 1618
DREW SPARLIN, testifying via teleconference, said he supports HB
93 for many reasons, most of which had been mentioned
previously. A resident within one-quarter mile of the Kenai dip
net area, Mr. Sparlin stated that he has witnessed "a very large
amount of abuse and disrespect." He added that he did not think
anyone would argue [against] there being a sanitation problem in
the area.
MR. SPARLIN questioned the necessity of using "brown shirts" to
monitor the fishery, as was suggested in previous testimony;
however, he said monitoring by temporary, seasonal hires - for
the purpose of checking licenses and documenting harvest - would
be of some value. He agreed with earlier testimony that there
is abuse by nonresidents. Mr. Sparlin acknowledged that
Representative Lancaster "hung his neck out" on this issue, but
said he is right to address it. People who are going to utilize
the resources don't want to tap the permanent fund or [pay for
the fishery with] taxes, and a way to pay for [the management of
the Kenai dip net fishery] must be found.
Number 1737
REPRESENTATIVE FATE asked Mr. Brooks if, contrary to previous
testimony, other funding sources could adequately be used to
take care of the same things for which the proposed fee is
intended.
MR. BROOKS replied that there are funding sources within [ADF&G]
that could legally be used, but it is a matter of the allocation
of scarce resources. He said the department has projects within
the Division of Sport Fish budget, and it would have to make the
call that this is of greater importance than the other
management work being done. He suggested that the question
might better be addressed to Mr. Hepler. Mr. Brooks said there
is no legality issue; general funds could be used, for instance,
or fish and game funds currently in the budget. He said, "I
think the attempt here was to try [to] identity an additional
source of revenue for this specific purpose, and not negatively
impact an existing project that might be going on."
REPRESENTATIVE FATE asked if fees are ordinarily set by statute,
or are ever set by the board.
MR. BROOKS answered that every sport fishing or hunting license
fee is set in statute. The permit fees are more recent; for
example, the Chitina dip net fee is set in statute.
Number 1855
REPRESENTATIVE CHENAULT asked how and why the king salmon stamp,
required to fish for king salmon in the Kenai River, was
instituted. He asked where that money goes.
MR. BROOKS responded that the stamp has existed since the early
to mid-1990s. He said it predates his work at the department,
but his understanding is that chinook salmon are recognized as
trophy fish, and certain management requirements go along with
that. Mr. Brooks told the committee that the license revenue
goes into the fish and game fund, and is used to fund the
Division of Sport Fish's budget; however, there is more funding
allocated to king salmon management than is generated by the
stamp alone.
[A one-minute at-ease was called.]
Number 1951
CO-CHAIR SCALZI clarified that before the committee was HB 93,
version 22-LS0431\C, Utermohle, 2/27/01 [as amended].
REPRESENTATIVE CHENAULT moved to report HB 93, version 22-
LS0431\C, Utermohle, 2/27/01 [as amended], out of committee with
individual recommendations and the accompanying fiscal note.
There being no objection, CSHB 93(RES) was moved out of the
House Resources Standing Committee.
HB 165-KENAI RIVER SPECIAL MANAGEMENT AREA
Number 2040
CO-CHAIR SCALZI announced that the committee would return
attention to HOUSE BILL NO. 165, "An Act relating to the Kenai
River Special Management Area; and providing for an effective
date."
REPRESENTATIVE FATE made a motion to adopt the proposed CS for
HB 165, Version C, 22-LS0389\C, Luckhaupt, 3/29/01, as a work
draft.
Number 2065
RED SMITH testified via teleconference. He referred to 1970 and
the Seward National Recreation Area Act. He said "they" asked
for 1.4 million acres and "we" defeated the federal proposal in
Congress three different times. Finally, "we" thought we'd
settled it "under AS 9 of the 'D2' settlement." Mr. Smith
referred to a letter from U.S. Senator Stevens, which said it
had finally been accomplished; however, today this just refers
to about 8,000 acres. It is down to a much smaller acreage, he
remarked, but the philosophy remains the same: if "we" lock up
and lock out, something will be protected. "We" are not
protecting the Alaska Statehood Act, the state constitution, or
the idea that development will occur in that area, he added.
MR. SMITH said he has concerns about parks. He remarked that
the settlement agreement was reached in June 2000, and he
doesn't believe there is any evidence that these agreements have
been fulfilled. The selection right is still ignored and
abused; "we" are going too fast with the "set-asides" when
proper funding isn't available to manage them. The programs for
utilization and Article VIII [of the state constitution] have
been totally ignored, with fisheries as the exception.
MR. SMITH stated that he was part of a group that requested
"public interest intervenor" status on July 10, 2000; he said he
would send a copy [of the request] to the committee for
consideration prior to taking action. He related his belief
that Alaska has gone entirely too far "underground" in these
"set-asides," and now management in the Cooper Landing area is
critical.
MR. SMITH commented that putting a stop sign solved the problem
of a bad intersection in front of the Cooper Landing School, but
it gets run over because of poor design; he said these are the
kinds of solutions [put in place] by the Division of Parks &
Outdoor Recreation in his community.
MR. SMITH commented that [the state] has given the division a
lot of authority that it doesn't know how to properly exercise,
and land that it can't manage. He said [Alaska] has many
federal, state, and local parks, and more attention could be
paid to the word "settlement." [A portion of the tape was
inaudible.] In 42 years, 3.82 acres of land was made available
for community (indisc.).
MR. SMITH remarked that he would like to see this bill reviewed
in its entirety.
Number 2384
EDWARD D. MARTIN, JR., testified via teleconference. He said he
has been very vocal on the addition of the Kenai River Special
Management Area (KRSMA) and the Kenai Area Plan when it comes
into conflict with the borough's selection of lands. The
borough signed an agreement that says certain things will be
done; however, he is not certain that the legislature would be
privy to those. Therefore, he suggested that the legislature
review the decision made by the Kenai Peninsula Borough with
regard to its selection and the deal made to ensure that the
Kenai Area Plan could become a reality.
MR. MARTIN clarified that it wasn't really whether or not the
borough was getting a selection of land, but rather that the
borough was going to get a denial and a relinquishment of
borough-selected lands. He directed the committee to the last
line in Section 7, which he said makes it very clear. He
objected to this; he said after 40 years of statehood, with
numerous undermanaged and underfunded parks, people of the state
[still] have little land available for settlement. The
communities and the state can't be sustained for revenues if
money continues [to be allocated] for state parks, rather than
placing it on the tax rolls.
MR. MARTIN remarked that this situation is affecting whether his
children can stay in Alaska and find land or will be taxed out
of existence because there isn't enough land in the tax base to
support schools. Alaska has a dead national forest and no
revenue is coming from it, he said. This is another negative
effect on our constitution, Article VIII, Section 1, which reads
as follows: "It is the policy of the State to encourage the
settlement of its land and the development of its resources by
making them available for maximum use consistent with the public
interest."
MR. MARTIN said he wished [the legislature] would realize that
the constitution already has a policy and thus doesn't give
[authority] to the departments to create a new ad hoc policy.
He urged the legislature to look into this more deeply. He said
[former commissioner] John Shively has created a de facto law,
and the departments are currently managing [KRSMA] as such.
Number 2553
DALE BONDURANT testified via teleconference. He remarked that
he is in full support of the addition to KRSMA and the added
protection for habitat. He maintained that there is a
constitutional mandate that Alaska's fish, wildlife, and water
public trust resources be protected for current and future
generations. As time goes on, [Alaska] is going to need added
protection for public trust resources. Now is the time to move
this addition forward, because later will be too late.
Number 2615
CHRIS GARCIA testified via teleconference. He stated that he is
not in favor of locking up land just for the sake of locking it
up; however, when KRSMA was first formed, he attended most of
the meetings, and [KRSMA] has done a "pretty fair job." He
couldn't say whether he was in favor or opposed to the
legislation, he told the committee, because he hasn't done
enough research to know what it encompasses.
Number 2665
REPRESENTATIVE SCALZI noted that former Representative and
Speaker of the House Gail Phillips was present at the meeting.
Number 2695
REPRESENTATIVE FATE moved to report CSHB 165, version 22-
LS0389\C, Luckhaupt, 3/29/01, out of committee with individual
recommendations and the accompanying zero fiscal note. There
being no objection, CSHB 165(RES) was moved out of the House
Resources Standing Committee.
HB 216-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS
Number 2735
CO-CHAIR SCALZI announced that the next order of business would
be HOUSE BILL NO. 216, "An Act relating to the emergency order
authority of the commissioner of fish and game and to meetings
of the Board of Fisheries." [HB 216 was sponsored by the House
Resources Standing Committee.]
[There was a motion to adopt HB 216 for discussion purposes, but
it was already before the committee.]
Number 2766
CO-CHAIR SCALZI explained that HB 216, which he had drafted,
addresses prevalent problems experienced by ADF&G and the Board
of Fisheries regarding openings, closures, and agenda changes in
recent years. He cited Section 3, subsection (c)(1) through
(3), specifying that the added language, on [page 2] lines 15-
16, is "[if] the commissioner concurs"; the intent is to take
the pressure off the Board of Fisheries to address every issue
that comes along.
CO-CHAIR SCALZI noted that what has been lacking is a consensus
by the experts of ADF&G in determining whether there is a
fishery conservation issue at all. He said: "The public
certainly wants to have the ear of the Board [of Fisheries], but
what happens, inadvertently, is you get the issue up before the
Board [of Fisheries] and you cause things to be taken out of
cycle."
CO-CHAIR SCALZI cited a recent example of the pressure put on
the board to address every issue that involves the Copper River.
The City of Cordova, processors, fishermen, and sportsmen went
to Anchorage to address a conservation issue to which the Board
of Fisheries had said it would listen; however, ADF&G declared
it was not a conservation issue and, therefore, the board did
not hear the issue. Co-Chair Scalzi said with the new language,
"what we're really saying is, if it really is a conservation
issue, let's ask the experts ... who know about this."
CO-CHAIR SCALZI pointed out Section 2 [subsection (d), lines 8-
10, page 2], which read:
The commissioner, as necessary to manage fishery
resources for sustained yield, may exercise authority
under this section to supersede a regulation or
fishery management plan adopted by the Board of
Fisheries.
He said emergency orders are not new or "exemplary." Under
federal management, fisheries were opened and closed on specific
dates, and the results were unsuccessful. He added:
Our rivers were depleted, there was great abuse going
on, and there was no management to speak of. When the
State of Alaska took over, they regulated ... the
management for ... sustained yield on our fisheries,
with in-season management. In essence, emergency
orders were created [and] management plans were
developed.
CO-CHAIR SCALZI indicated several times when [ADF&G] has not
felt comfortable in superseding, which is discretionary. For
example, where a management plan is written and there is a
closure date, but numerous fish show up, ADF&G is reluctant to
open that fishery because it may conflict with the closure date
in the management plan.
TAPE 01-28, SIDE B
Number 2995
CO-CHAIR SCALZI made it clear that his intent was not to move
the bill out of the committee that day, because he said the bill
could be perceived as controversial. Furthermore, he wanted to
hear public opinion and the concerns of the department.
Number 2958
REPRESENTATIVE GREEN asked Co-Chair Scalzi why the [House
Special Committee on Fisheries] had waived its referral.
CO-CHAIR SCALZI replied that he had made that request because
the end of session was near and the House Special Committee on
Fisheries only meets once a week; because of "the five-day" rule
[for scheduling hearings], the House Resources Standing
Committee would not have seen the bill for two weeks. He also
mentioned that many members are on both committees.
Number 2913
REPRESENTATIVE KERTTULA asked Co-Chair Scalzi if the intent
behind the closure was distinctly for conservation purposes.
She said the language was a little broader than "just
conservation" in Section 2.
CO-CHAIR SCALZI answered that the language was taken from
[ADF&G's] regulations. He said:
This is how they feel comfortable in bringing up
another issue. If somebody wants to take something
out of cycle, they have [these] criteria in front of
them. And also, in the regulations they did not put
in statute, was the fact that they cannot take it up
for "allocative" reasons. That is not ... in this
part of it, but it is in their regulations.
REPRESENTATIVE KERTTULA rephrased her question to inquire
whether Co-Chair Scalzi's intent behind the bill was for
purposes of conservation, rather than for purposes of
allocation.
CO-CHAIR SCALZI answered in the affirmative. He explained:
What can happen now, and what's happened in the past,
is a conservational issue will be brought up. The
Board [of Fisheries] will take it up, and in doing so,
when they go through their process, they can actually
reallocate at that meeting. And if a conservation
issue ... really existed, then that would be fine,
because the purview of the Board of Fisheries is to do
allocations. It's not the department and it's not the
legislature. But to bring it up for allocation, it
should go through its regular cycle. And ... what
this language does is just verify that there really is
a conservation issue.
REPRESENTATIVE KERTTULA suggested that when the representative
from the Department of Law came before the committee, he could
be asked to clarify the issue. She stated her concern that the
present language might "open it up" for the commissioner to make
decisions regarding allocation. She asked whether Co-Chair
Scalzi had said he wanted to raise the conservation issue so
that the Board [of Fisheries] could make the proper allocative
decisions.
CO-CHAIR SCALZI answered no. He outlined the process whereby
the Board of Fisheries gets a petition or proposal alerting it
of a conservation problem necessitating that it address an issue
out of cycle. Rather than have the "lay board" verify that it
really is a conservation issue, Co-Chair Scalzi said the
decision would be deferred to the biologists in ADF&G, who are
better qualified to make that determination.
REPRESENTATIVE KERTTULA said she understood what Co-Chair Scalzi
was trying to effect, but suggested that the language needed to
be changed to reflect that.
Number 2764
FRANK RUE, Commissioner, Alaska Department of Fish & Game
(ADF&G), gave an overview of the department's issues with HB
216. He stressed that Alaska's successful system is based on an
important separation of powers: the Board of Fisheries makes
allocation decisions, and the department gives the board
information on how many fish are available, tells it what
management strategies are possible, and performs in-season
management to make sure any surplus resource can be harvested.
He added that having the emergency-order authority in the
department, particularly for fisheries, is critical to taking
advantage of a larger run that comes in, or constraining
fisheries if the run comes in smaller.
COMMISSIONER RUE pointed out that other states have the director
of the department making allocation decisions, but he stressed
that that he would not want the job of allocating that the Board
of Fisheries presently has. Furthermore, he said, he thinks
Alaska's system is a model for success; the Board of Fisheries
gives guidance to ADF&G, and ADF&G has the flexibility to be
able to take advantage of the run or to "fall back."
COMMISSIONER RUE referred to Section 2 of HB 216, saying the
language was too broad and gave too much latitude for the
department to override an existing regulation. He mentioned the
Peninsula Marketing Association v. Rosier case over a previous
commissioner's attempt to close down an Area M fishery that the
Board of Fisheries had already decided. He said the court ruled
that the commissioner could not override a board regulation,
however, without new information that the board hadn't
considered.
COMMISSIONER RUE said many management plans around the
state are flexible enough to allow for considerable
latitude, so there are few instances of an
"opportunity being unavailable" because of a Board [of
Fisheries] management plan. As an example, he cited
an occurrence last summer [2000] when the board
constrained the opportunity for pink salmon fishing in
Cook Inlet until it could produce a management plan.
COMMISSIONER RUE said the public has the choice to petition for
a change if they don't like the manner in which a fishery is
currently structured. He noted an instance when that was done
in Cook Inlet, but said because the petition took so long to put
together and was submitted late, the board decided not to change
its management plan. Commissioner Rue recapped the two ways
that the public can have an opportunity to request change:
through the authority of the commissioner of ADF&G, and by
petitioning the Board [of Fisheries] in-season. He mentioned
Section 2 of the bill and stated his preference that the current
balance be maintained.
COMMISSIONER RUE turned attention to Section 3 of the bill,
which addresses how the board changes its agenda. He stated his
preference that the board have its own rules to change its own
agenda and "not have the department have to [assert] itself."
Furthermore, he would like the board to listen to ADF&G when the
department does not think an issue in question is a conservation
one. He noted that the board did amend its agenda criteria to
be able to change its agenda when it needs to coordinate with
the federal fishery management plan. For example, if the North
Pacific Fishery Management Council (NPFMC) makes a change to a
cod fishery, the Board [of Fisheries] wants to be able to change
its agenda to respond to the actions of the NPFMC.
COMMISSIONER RUE reported that in [the board's] amended
regulations is a fourth criterion; he recommended that if the
House Resources Standing Committee decides to put this in
statute, the department should deliver the latest regulations to
the committee.
[Co-Chair Scalzi passed around a "stack of emergency orders" to
show the committee how the language is written.]
Number 2320
REPRESENTATIVE GREEN asked Commissioner Rue whether the
emergency orders were from his department, and requested
clarification as to whether they did not deal with allocation,
but instead were a "determination that there are, or are not,
enough fish to catch."
COMMISSIONER RUE said yes to both, indicating an emergency order
is usually to open or close a fishery, "contingent with a
management plan." In response to another question from
Representative Green, he replied that the bill was not trying to
supersede that, but because the bill's language is so broad, he
is concerned that it would allow a commissioner, through the
emergency orders, to change a management plan through
allocation.
Number 2270
REPRESENTATIVE CHENAULT asked Commissioner Rue if the department
has "EO" [emergency order] authority in Cook Inlet.
COMMISSIONER RUE replied:
Yes, we do. It's constrained by the management plan
the Board [of Fisheries] set up. For instance, they
have a couple of mandatory closures, ... but within
those mandatory parts of the ... management plan we
have discretion to open and close fisheries.
REPRESENTATIVE CHENAULT alluded to previous remarks about not
being able to fish for pink salmon because of lack of a
management plan. He also mentioned a management plan the board
had mandated the department to implement; however, the
department did not do so, possibly because of an issue of funds,
he surmised.
Number 2192
DOUG MECUM, Director, Division of Commercial Fisheries,
Department of Fish & Game (ADF&G), in response to questions from
Representative Chenault, restated Commissioner Rue's earlier
statement regarding the petition to the Board of Fisheries
regarding pink salmon in Cook Inlet. He said:
The board, in this case, [acted in a way that] was a
little bit unusual, in that [it] went ... a step
further and said, "Not until such time as we have
better information that we can use to build a
management plan that ensures the conservation of these
various stocks will we allow ... the department to
open a directed fishery on pink salmon."
MR. MECUM explained that the board justified [that decision] on
the basis of what it calls a "precautionary approach," due to a
lack of information on coho salmon, and because of the depressed
status of the chum salmon stocks. He continued:
So, in response to this action that the Board [of
Fisheries] took, we set about going to the legislature
to seek funding, and this year we put in a million-
dollar-increment request from CFEC [Commercial
Fisheries Entry Commission] receipt services and non-
GF [general fund] program receipts. A quarter million
dollars of that, if it goes through - and so far, it
has gone through - would be for a Cook Inlet-wide,
abundance-based tagging program, which would be the
first key step in us getting a better handle in-season
of how many fish we're dealing with - how many chums
and pinks are there, what's the status of cohos - so
we could better refine our management approach.
MR. MECUM concluded that this process was a way for the
department to report back to the board and the public.
Number 2035
REPRESENTATIVE FATE read the following from Section 3,
subsection (c)1), lines 15-16: "address a fishery conservation
issue if the commissioner concurs". He asked, if the
commissioner did not concur, whether the board would not be able
to take that matter up.
COMMISSIONER RUE concurred.
REPRESENTATIVE FATE asked if that [language in the bill] would
counter the previously-mentioned balance between the
responsibilities of the board.
COMMISSIONER RUE answered a qualified yes. He said the language
inserts the commissioner into the board's own agenda-setting
abilities. He added that the board has tried to set a three-
year schedule, so that the public knows when things are coming
up and so every issue is not brought up every year.
Number 1961
CO-CHAIR SCALZI asked for confirmation that, under the "coho
plan," the closing date for pinks, chums, or reds was August 5,
and asked what the total number of pinks was that showed up in
Cook Inlet. He said he had heard an estimate of 20 million from
the department.
[Commissioner Rue conferred with Mr. Mecum, and between them,
the answer given was a closing date of August 7.]
COMMISSIONER RUE said the department didn't have an "absolute
number" regarding the pink salmon. He added:
Again, that's ... one of the reasons why the Board [of
Fisheries] did what they did. [Its members] said,
"Look, ... there [are] lots of pinks, but what is a
lot, and what do we need for escapement, and how many
cohos are there?" They wanted more specificity; they
wanted more quantitative estimates of what that was.
CO-CHAIR SCALZI said he'd heard that the number of pink salmon
was estimated at 20 million. He added that the number came from
the local area biologists within the department.
MR. MECUM said that number was a "wild guess."
CO-CHAIR SCALZI inquired whether, when the surplus of pink
salmon had shown up, the department had said its hands were tied
and that it was unable to manage an EO [emergency order] because
of the management plan.
COMMISSIONER RUE said that was "basically correct," adding that
there were "plenty of pinks around" to have a directed pink
salmon fishery.
CO-CHAIR SCALZI mentioned the failed petition discussed earlier
in the meeting.
Number 1819
MR. MECUM responded:
There is a petition process in the Board [of
Fisheries] regulations that says under certain
situations they will hear an issue out of cycle. And
the criteria for that has to do with a situation that
threatens a fish or game resource - a conservation
emergency, or if there is going to be some substantial
harm ... to somebody who's not able to access some
resource. And, clearly, this situation did come under
those criteria. And so the board was willing to
consider it under those criteria, but the petition [by
the fishermen] ... was submitted very late in the pink
salmon run - probably two to three weeks late.
Number 1777
CO-CHAIR asked if there were any suggestions the department had
to "remedy the problem" and to speed up the petition process.
COMMISSIONER RUE mentioned a question he had received previously
from Representative Fate, regarding Section 3 of the bill and
whether the department would be stepping in to change the
balance between itself and the board. He revisited an earlier
comment by Mr. Mecum that [under the new provisions of the
bill], the board could still accept its own agenda changes.
Commissioner Rue added that as he understands it, [the proposed
language of the bill] would change how the Board [of Fisheries]
deals with public requests to change its agenda. Commissioner
Rue said, "So, while I might be able to limit which public
requests for agenda changes go to [the] Board [of Fisheries],
... they could still accept their own agenda change requests,
from their own members, without my saying anything." He
emphasized that there would be a limited change in the balance
of powers.
Number 1693
REPRESENTATIVE FATE qualified that not only would it be limited,
but it would also be restricted solely to the issue of
conservation.
COMMISSIONER RUE concurred.
Number 1618
GERRY MERRIGAN, Petersburg Vessel Owner's Association (PVOA),
testified via teleconference in support of HB 216. He said
although the board can move fast, sometimes it cannot convene
quickly enough to react to an in-season issue, whereas the
commissioner could do so [under the bill]. He specified that
Section 3 is a limited modification of the balance of powers and
a "very needed portion" of the bill. He added that presently
the board relies heavily on the committee process to encourage
stakeholder participation. He said the "committee process" has
lengthened to 10-11 days, and he thought the Board of Fisheries
process was "under its own democratic considerations." Mr.
Merrigan added, "The more we can filter out appropriate agenda
proposals, the better off we would be." He continued:
In the case of the "Copper River exercise," that was a
considerable expenditure of energy by all parties.
That ... seemed to bear out [that] the final action
was unnecessary. ... We just went through a similar
exercise at the Board of Fisheries on separation of
powers, on the biology and allocation of escapement
goal policy. And I think this [Copper River case]
kind of falls in the same ... vein, where the
department is responsible for the biology. [For
instance], a conservation concern should be ...
concurred with them. I don't think that's asking a
whole lot, that the department at least [agrees] that
it's a conservation concern, [in order] to take it up
out of sequence.
I think Commissioner Rue was absolutely right: It
does drive people crazy to have to come every year to
a meeting to address the same issue as an item, when
it's supposed to come up every three years.
MR. MERRIGAN concluded by thanking the House Resources Standing
Committee for its consideration of HB 216 and saying that he
hoped the committee could move the bill ahead, and "at least get
some language in Section 2."
Number 1435
NOEL WOODS, testifying via teleconference, asked if the language
of the bill would make the commissioner more responsible for
lack of action on a particular fishery, specifically, when such
action was directed by the board. He said, "We in the Cook
Inlet/Susitna area have been extremely disappointed with the
lack of action directed by the commissioner regarding escapement
goals for spawning salmon in our area." He continued:
The sponsor statement is not reassuring about this
concern. Further, it seems that by the second changed
statement that this bill places the Board of Fisheries
in a "second position" as regards items of concern.
If this is true, then this bill is certainly not
acceptable. The governor directing the commissioner
is not a replacement for the Board of Fisheries
answering to the people of the state. At this time, I
oppose this bill as it's written.
Number 1331
GEORGE COVEL testified via teleconference. He stated that he
had been involved with the "Alaska boards process" for over 18
years, as a member of his local advisory committee, which he
chaired for the last 10 years. He said:
In 1997 - and it was a matter of months following
completion of the regularly scheduled meeting for this
area - an e-mail to the commissioner, which concerned
the Copper River, was somehow manufactured into an ACR
[and] brought before the Board [of Fisheries].
Following that episode, the Board [of Fisheries]
promised and delivered a standardized format for
ACR's, but, in spite of this clarification of the
process, the Board [of Fisheries] continues to accept
ACR's, sometimes arbitrarily, with increasing
frequency.
In his introduction [Co-Chair Scalzi] briefly outlined
what happened with another ACR concerning the Copper
River this past winter. I might add that that also
occurred [within] a matter of months after completion
of the regularly scheduled meeting for our area.
Both of these matters were eventually resolved, but at
considerable cost to the public, the department, and
the Board [of Fisheries]. I think that [HB] 216 would
clarify and strengthen existing statutes, yet it
recognizes a fundamental fact: professional fishery
managers are much better qualified to make scientific
determinations as to fishery conservation than lay
members of an appointed board.
Furthermore, the public is accustomed to and deserves
a predictable board process. This bill, if enacted,
would help bring current Board [of Fisheries]
practices in line with legislative intent and public
expectations.
Number 1178
BOB MERCHANT, President of the United Cook Inlet Drift
Association (UCIDA), testified via teleconference. On behalf of
UCIDA, Mr. Merchant expressed support of HB 216. He said UCIDA
believes the commissioner has always had the authority to
supersede a regulation or management plan, "should certain,
unforeseen circumstances, not previously considered," become
known to him. Mr. Merchant added that there seems to be some
confusion regarding this authority, which HB 216 would serve to
clarify. He said it was felt by UCIDA that the Board [of
Fisheries] has, in the recent past, used the ACR authority to
deliberate issues out of cycle by using the conservation
criteria, when, in fact, the issues turned out to be
"allocative."
MR. MERCHANT described "allocative" issues as being "strictly
confined to regular three-year-cycle meetings," at which time
the public may participate. He concluded:
By requiring substantial proof and concurrence from
the commissioner and department that conservation
concern does exist, the public and the state will save
substantial dollars and time, and allocation issues
will be debated in the proper forum, during regular-
cycle meetings.
Number 1055
CHRIS GARCIA, representing the Cook Inlet Fishermen's Fund
(CIFF), testified via teleconference in support of HB 216. He
said, "I [respectfully] disagree with the commissioner about
Section 3 of this bill changing the balance of power," adding
that [Section 3] would most likely keep the balance of power by
preventing the board from being allowed to "run amok." He
mentioned a comment by a testifier regarding the board's being
accountable to the people. To the contrary, he stated that
because the board is appointed by the governor, it is not
answerable to the people. Mr. Garcia commented that the
biologists are more answerable to the people.
MR. GARCIA indicated he would like to see EO authority go to the
local area management biologists as well as the commissioner.
He said there is no way that ADF&G could function without this
authority. Mr. Garcia said when the authority is taken away
like the [Board of Fisheries] has done in the past, "basically
we're paying people to do something they're not allowed to do."
He added, "If you don't have the power to manage something,
there's really not a lot of sense in having you hired as a
manager."
Number 0918
DALE BONDURANT, testifying via teleconference, stated that he
believes in immediate response for emergency openings and
closures and responsible management for sustained yield
protection, such as escapement goals. He said he hoped that
political pressure would not override biological need, noting
that that had been the "record in the past." Mr. Bondurant
cited an example, saying: "Carl Rosier, former commissioner,
lost his position when he stopped continuous commercial openings
for three days to allow additional escapement in Glacier (ph)
River." He stated his opinion as an observer that, in the past,
the department has been "influenced by local political pressure
in this area." Mr. Bondurant said at first glance he is
hesitant to support the bill and intends to watch the results of
HB 216, should it pass.
Number 0833
DREW SPARLIN, United Cook Inlet Drift Association, testified via
teleconference in support of HB 216. He stated that he has been
actively involved in the Board [of Fisheries] process during the
over 30 years he has been a commercial fisherman in the Cook
Inlet. Mr. Sparlin said he sees a definite need to define the
goals and obligations of both the Board [of Fisheries] and the
department.
MR. SPARLIN talked about his involvement at the Soldotna office,
starting on "the fourth day of August," asking for some
provision to help harvest the surplus of pink salmon available
in the Cook Inlet. He indicated he had in front of him a
written response from that office, stating that they did not
have the authority, according to the Department of Law. He
mentioned having to petition at that point. He said:
We did develop a viable fishery. In [that] respect,
we developed a market. I had a promise of "20-cent
pinks" which would have salvaged our fishery to some
degree, at least for the season, possibly avoiding the
need to call the governor's people down here to talk
about requiring a pretty severe situation like we went
through. ... Here in the Cook Inlet, we were party to
meetings that [were] conducted under the ACR, when the
department said that there was not a conservation
concern.
I'm speaking of the avalanche (ph) meeting that
occurred in Anchorage, and ... that meeting ...
resulted in making [an] allocation. They took away
gear from fishermen in [the] northern portion of the
Cook Inlet; they took away time from the commercial
fishermen in the central district; and they reduced
the bag limit in the river; but that had absolutely no
assurance of dropping any amount of harvest, and there
was no monitoring. This works, folks, whenever you
have a board that will deal with the issues based on
the biological information presented to them. It does
not [work] whenever you have a board that is driven
with an agenda.
Number 0575
CO-CHAIR SCALZI reminded the committee that HB 216 would be held
over. He mentioned that he had a letter to the chairman of the
Board [of Fisheries] and wanted to get the board's concerns
regarding HB 216. He referred to the concerns of the
commissioner and the department, and encouraged committee
members to direct any comments to him during the next week. [HB
216 was held over.]
HCR 13-NONRES. COMMERCIAL FISHING FEES
[Contains discussion of HB 194]
Number 0465
CO-CHAIR SCALZI announced that the next order of business would
be HOUSE CONCURRENT RESOLUTION NO. 13, Relating to the
nonresident fee differential for commercial fishing permits and
licenses.
[There was a motion to adopt HCR 13 for discussion purposes, but
it was already before the committee.]
REPRESENTATIVE STEVENS reminded members that the committee had
recently passed HB 194, a response to the Carlson case and the
supreme court ruling that Alaska could not charge nonresident
fishermen three times more than resident fishermen were charged.
He recapped that HB 194 was a practical response to the problems
Alaska faced in that case. Representative Stevens reminded
those present that the intent of HB 194 was to say that Alaska
would charge [nonresident fishermen] the most the court would
allow it to charge. He mentioned that although HB 194 was
passed out of the House Resources Standing Committee, some of
its members were concerned that the language of the bill did not
make as strong a statement as should be made; therefore HCR 13
was conceived.
REPRESENTATIVE STEVENS stated that HCR 13 clarifies the House
Resources Standing Committee's concerns regarding HB 194, and
highlights the reasons why the committee thinks nonresident
fishermen should be charged more than resident fishermen,
including the cost to the legislature and the court system. He
mentioned page 2, line 28, of the resolution, describing that
line and ensuing lines as "a kitchen-sink approach that tosses
everything into the works." Representative Stevens stated that
he would like to see [HCR 13] move right along with [HB 194].
Number 0220
CO-CHAIR SCALZI summarized that HCR 13 "goes along with our
provision of changing the way the Commercial Fisheries Entry
Commission charges for in-state and out-of-state licenses." He
added that he was satisfied with the resolution.
Number 0180
REPRESENTATIVE STEVENS moved to report HCR 13 out of committee
with individual recommendations and the accompanying zero fiscal
note. There being no objection, HCR 13 was moved out of the
House Resources Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Resource Standing Committee meeting was adjourned at 2:52 p.m.
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