Legislature(2003 - 2004)
03/24/2003 03:36 PM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 24, 2003
3:36 p.m.
MEMBERS PRESENT
Senator Scott Ogan, Chair
Senator Thomas Wagoner, Vice Chair
Senator Fred Dyson
Senator Ralph Seekins
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Ben Stevens
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 139(RES)
"An Act approving an interim classification by the commissioner
of natural resources closing certain land within the Glacier
Creek and Winner Creek drainages to new mineral entry; and
providing for an effective date."
MOVED CSHB 139(RES) OUT OF COMMITTEE
SENATE BILL NO. 70
"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
PREVIOUS ACTION
HB 139 - No previous action to record.
SB 70 - No previous action to record.
WITNESS REGISTER
Representative Mike Hawker
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 139
Mr. George Cannelos
Heritage Land Bank
Municipality of Anchorage
4501 South Bragaw
Anchorage, Alaska 99508
POSITION STATEMENT: Supports CSHB 139(RES)
Mr. Bob Loeffler
Division of Mining, Land and Water
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Supports CSHB 139(RES)
Mr. Robert Hall
Houston Chamber of Commerce
Houston, AK 99694-0027
POSITION STATEMENT: Opposed to SB 70
Mr. Paul Shadura II
Kenai Peninsula Fishermen's Association
Soldotna, AK 99669
POSITION STATEMENT: Supports SB 70
Mr. Lance Nelson
Assistant Attorney General
Department of Law
1031 W 4th St., Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Answered questions about SB 70
Mr. Bruce Knowles
No address provided
POSITION STATEMENT: Expressed concern about SB 70
Mr. Chris Garcia
Cook Inlet Fishermen's Fund
PO Box 203
Kenai, AK 99603
POSITION STATEMENT: Supports SB 70
Mr. Roland Maw
United Cook Inlet Drift Association
PO Box 530
Kasilof, AK 99610
POSITION STATEMENT: Supports SB 70
Mr. Jessie Vanderzanden
Alaska Outdoor Council
Fairbanks, AK
POSITION STATEMENT: Opposed to SB 70
Mr. Doug Mecum
Division of Commercial Fisheries
Department of Fish & Game
PO Box 25526
Juneau, AK 99802-5226
POSITION STATEMENT: Supports SB 70
ACTION NARRATIVE
TAPE 03-15, SIDE A
Number 0001
CHAIR SCOTT OGAN called the Senate Resources Standing Committee
meeting to order at 3:36 p.m. Senators Wagoner, Dyson, Seekins,
Elton and Chair Ogan were present. The committee took up HB 139.
CSHB 139(RES)-CLOSING CERTAIN LAND TO MINERAL ENTRY
REPRESENTATIVE MIKE HAWKER, sponsor of HB 139, gave the
following explanation of the measure.
This is a rare opportunity for me to come before you
and ask you to extend for 10 years a moratorium
against mining claims. It's kind of an unusual
circumstance. HB 139 affects a certain area in the
upper Girdwood Valley - an area that is immediately
adjacent to the current Alyeska Ski Resort development
area. This land, 5,740 acres, that exists adjacent to
the current ski resort, was closed to - or a mining
closure was issued on this 10 years ago. That order
has expired. This bill - and actually then, through
the process, the Administration reauthorized the
order. We, as the legislative body, need to affirm
that authorization for it to remain in effect and we
have until April 20 for that closure to remain in
effect.
This is a 10-year extension of the moratorium on new
mining claims in this area, specifically to allow the
owners of the property, which is a combination of the
State of Alaska, the Municipality of Anchorage (MOA),
Heritage Land Bank, to issue a request for proposal
and seek for additional major world class alpine ski
resort development. The area that is subject to this
closure had been mined in the late 1800s. It pretty
much ceased being mined in the mid-20th Century. There
were additional claims staked on it in the 1980s by
the Toohey (ph) family, who operates commercial and
recreational mining areas on the other side of the
valley - also I was going to say on the far side of
this particular parcel.
When the mining area was first closed 10 years ago,
there were no takings - I have to emphasize - there
were no takings involved. The claims that folks had
were purchased out, fee simple purchases, and the
entire community concurred that the best and highest
development for this property would not be for the
commercial mining but would be for recreation resort
development.
Your bill package includes the spectrum of
endorsements we've got to extend this closure -
probably the most important to us is the Alaska
Miners' Association has specifically endorsed the
continuation of this closure, then all of the
community interests - the Girdwood Board of
Supervisors, Heritage Land Bank, Municipality of
Anchorage, the Department of Natural Resources (DNR),
as well as personal conversations I've had with the
Toohey family of not only non-objection, but
endorsement of this project. It's important to note
the [Department of] Natural Resources document here
indicates that the prospect of commercial development
in this area is minimal. There's very little
[indisc.]. From the standpoint of mining, it's really
at best a recreational mining area. The use for
recreational mining is not incompatible with ski
resort development. It's my understanding that that
use would not be closed by this order. This order
again would apply only to commercial development that
would impede the ability to use this land or to
further lease this land for ski resort development. I
would be very happy to entertain your questions but,
again, would certainly hope you'd be able to continue
to help us move this bill along and get it to the
Governor before April 20th.
CHAIR OGAN announced that Senator Lincoln joined the committee
shortly after the meeting convened. He then asked if voting in
favor of this bill would ruin his zero rating with environmental
groups.
REPRESENTATIVE HAWKER expressed concern that might occur. He
then said this is a unique opportunity in which very diverse
interests have agreed that the highest, best, economic
development of this area is for recreational activities.
CHAIR OGAN asked who is anticipated to develop this area.
REPRESENTATIVE HAWKER said he learned, in his conversations with
the current management at Alyeska, that Alyeska is interested
but doubts it would be the prevailing party. This bill will
actually bring competition to that area.
CHAIR OGAN asked if a 10-year moratorium will create a situation
in which no development will occur for 9 years and whether it
would be more advantageous to implement a 5-year moratorium to
encourage development sooner.
REPRESENTATIVE HAWKER said if commercial development does not
begin within 10 years, the area would automatically reopen to
mining. There has been some debate on the time frame and window
but, considering the magnitude of the projects under
consideration and current world economics, he believes a 10-year
window is appropriate.
3:45 p.m.
SENATOR LINCOLN read from the Alaska Miners' Association letter:
...Our concern is that lands not be permanently closed
to mineral entry in the case that the ski area is not
developed.
She then said, according to the memorandum dated March 6 from
Kathryn Kurtz, legislative counsel, Section 4 of the bill has an
effective date of 2012 and provides that the repeal in Section 4
will take effect unless the commissioner of natural resources
certifies on or before April 2 that development of a resort has
begun in the closed area. She asked whether a minor structure
would fit that description.
REPRESENTATIVE HAWKER said the reference she made to the letter
from the Alaska Miners' Association referenced the first draft
of this bill. It required that an affirmative action be taken by
the administration of the State of Alaska for the area to be
reopened to mining. The Alaska Miners' Association preferred
that the reopening happen automatically, rather than requiring
an affirmative action. The bill that passed the House is a
committee substitute (CS) in which the Alaska Miners'
Association concern was accommodated.
SENATOR LINCOLN asked Representative Hawker to cite that section
in CSHB 139(RES).
REPRESENTATIVE HAWKER said that can be found on page 3, lines 3
through 7. He explained that section provides important
parameters in that someone will not be able to slap together a
structure at the last minute and ask to keep the area closed to
mining. The development must be in concert with the
comprehensive land use plans developed for this area by the
state and MOA.
SENATOR LINCOLN said she does not interpret that section to
apply to development of the full resort or to a specific stage
of development. It only adds that the development plan is in a
land use plan. She asked if the Alaska Miners' Association has
endorsed CSHB 139(RES).
REPRESENTATIVE HAWKER said it has. He repeated the 10-year
window is for the beginning of the construction of a viable
resort as described. It is not for completion of that facility.
SENATOR ELTON asked if anyone is planning to develop the ski
resort at this time.
REPRESENTATIVE HAWKER said no one is "waiting in the wings" at
this time. He said this is not special interest legislation and,
in fact, the current issue of the Turnagain Times features this
resort in the Girdwood 2020 organization. The article says the
next step, following the passage of CSHB 139(RES), is a two-year
plan to update a 10-year old feasibility study and issue a
formal request for proposals to develop the area.
SENATOR ELTON asked if the only reason CSHB 139(RES) is
necessary is to preclude staking that might be done on
speculation.
REPRESENTATIVE HAWKER said that is correct; CSHB 139(RES) is
preemptive.
SENATOR LINCOLN asked if the subsurface rights on the 5,740
acres will remain with the state.
REPRESENTATIVE HAWKER deferred to George Cannelos for an answer
to that question.
CHAIR OGAN said the state will still own the subsurface rights
and could not lease those rights to anyone during that time.
MR. GEORGE CANNELOS, Heritage Land Bank, MOA, said he believes
the state would maintain ownership of the subsurface rights but
deferred to DNR for more detailed information.
MR. BOB LOEFFLER, Division of Mining, Land and Water, DNR,
affirmed that the state would maintain ownership to the
subsurface rights. He noted that of the 5,740 acres, 1,000 acres
are owned by the MOA and 4,700-plus acres are owned by the
state.
CHAIR OGAN asked if the MOA land is fee simple.
MR. LOEFFLER said it is fee simple only with respect to the
surface rights. The state retains the subsurface rights.
MR. CANNELOS stated support for CSHB 139(RES) as it provides an
opportunity for the state, the MOA, and the private sector to
partner together to test the feasibility of developing the
Glacier Winner Creek area as the next major alpine ski resort
area for Girdwood. The Heritage Land Bank wants to do two things
this year. First, it would like to issue a request for a
proposal to update the development concept and look at the
economics of the project again. Some excellent studies were done
about 10 years ago, but they need to be updated. Second, when
that is concluded, it wants to go out to the private sector and
solicit interest from a prime developer. Regarding the question
asked about the participation of Alyeska, while Alyeska has said
it probably will not be a direct partner, the $200 million hotel
was located halfway between Alyeska Mountain and the new Glacier
Winner Creek resort. Regarding the 10-year period, he agrees
with Representative Hawker that a project of this magnitude will
be built in phases so 10 years is a reasonable time frame.
SENATOR STEVENS arrived.
MR. LOEFFLER stated support for CSHB 139(RES) and said DNR has
reviewed this bill with a critical eye.
There being no further questions or testimony, SENATOR DYSON
moved CSHB 139(RES) from committee with individual
recommendations and its zero fiscal note.
CHAIR OGAN noted that without objection, the motion carried. He
then announced the committee would take up SB 70.
SB 70-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS
SENATOR TOM WAGONER, sponsor of SB 70, told members the intent
of this legislation is to help the fisheries by doing two
things. First, it clarifies the emergency order authority of the
commissioner of the Department of Fish and Game. Second, it
strengthens the stability of the public process by legitimizing
the use of the conservation purpose of the Board of Fisheries'
agenda. He explained that emergency orders are not uncommon in
this state; over 1,000 are issued each year for both fish and
game. However, the current emergency order statute allows room
for wide interpretation and abuse. Section 2 of this bill puts
clarifies the commissioner's powers in statute based on Board of
Fisheries' policy statements and the Alaska Supreme Court
decision on the Peninsula Marketing Association versus Rosier.
SENATOR WAGONER referred to page 2 of the Peninsula Marketing
Association (PMA) versus Rosier case and read:
The commissioner of the Department of Fish and Game
presented a fisheries management proposal to the Board
of Fisheries. The proposal was rejected. The
commissioner then indicated that he intended to
implement the proposal by utilizing his emergency
powers, notwithstanding the Board's decision. The
Superior Court enjoined the commissioner from using
his emergency powers if based on information already
presented to the Board but declined to enjoin him from
using those powers if based on newly developed
information or events occurring after the Board's
rejection of this proposal.
He told members the Superior Court ruled that the commissioner
is prohibited from taking any action on the fishery based upon
information already presented. The Supreme Court stated its
reason for hearing this case on page 9:
The issue of the commissioner's emergency power over
matters previously considered by the Board will likely
resurface and avoid review. By the time the court
reviews the commissioner's use of emergency power, the
emergency is likely to be over. Conservation and
utilization of fish and game resources are important
to the public interest in Alaska. For those reasons we
decided to hear the merits of the case.
SENATOR WAGONER said after hearing the case, the Supreme Court
concluded that the commissioner may not use emergency powers to
implement a fisheries management program already considered and
rejected by the Board in the absence of new information or
events occurring after the Board's decision was made. He
emphasized that after the Board makes a decision in the spring,
many things can happen that would affect the same decision if
made later on. He said SB 70 puts into statute what the
commissioner needs to supersede a decision made by the Board of
Fisheries.
SENATOR WAGONER told members Section 3 establishes the criteria
for which the Board of Fisheries is authorized to amend and
adopt an agenda. The Joint Board Petition Policy in the Alaska
Administrative Code [5 AAC 96.625(d)] reads, "The public has
come to rely on this regularly scheduled participatory process
as the basis for changing fish and game regulations." Subsection
625(e) says that the boards find that petition can detrimentally
circumvent this process.
SENATOR WAGONER said by having the criteria set in Section 3,
the Board can change the date, time or order of the agenda and
add new subjects to the agenda.
SENATOR WAGONER described an instance on the Kenai Peninsula a
few years ago in which a late run of pink salmon came up the
Kenai River. Whether an emergency order could have been issued
at that time or not, one wasn't with the excuse the commissioner
had no power to do so. Therefore, an extra 1.5 to 2 million
salmon went up the river, which could have been detrimental to
king and silver salmon spawning areas. He gave another scenario
in which a run of 4 million fish was projected to return to Cook
Inlet a few years ago but 10 million returned. Toward the end of
that season, the Board restricted the fleet to fish specific
days and forbid the department or anyone else from allowing
additional fishing time. If the ability to open that area via an
executive order is taken out of the commissioner's hands, the
commissioner would have to take the matter to court and, by that
time, a huge over-escapement of red salmon would occur. SB 70
would remedy such a situation.
SENATOR LINCOLN said she understands the intent of SB 70, but
asked if the commissioner has the power to adopt an emergency
order following a decision that might be made by the federal
subsistence board.
SENATOR WAGONER said he could not answer that question.
CHAIR OGAN noted that a representative of ADF&G would be
available to answer questions. He then told Senator Wagoner that
he has received a lot of input on SB 70. He asked him to comment
on the fear he has heard that sport fishermen will get the short
end of the deal if the Board of Fisheries and commissioner of
the Department of Fish and Game are pro-commercial fishing.
SENATOR WAGONER said he does not believe the strong return of
kings into the upper inlet area has much to do with fishing by
the commercial fleet. The drift fleet does not fish that run of
kings, and he believes the opening to fish king salmon in the
northern inlet is only one or two days. He does not believe SB
70 will have much of an impact on whether the board creates
windows to allow silvers to go up through Cook Inlet.
CHAIR OGAN said he was not only speaking of Cook Inlet but of
intercept fisheries in general. He then said he reads SB 70 as
an allocation bill because it gives the commissioner the ability
to reallocate based on emergencies.
SENATOR ELTON said he does not see SB 70 as an allocation bill
because the board would still make the allocation decisions. He
believes, after the allocations have been made, if there is an
overabundance of the resource, SB 70 will give the commissioner
the ability, under the emergency order authority, to allow the
harvest of the additional fish.
CHAIR OGAN said the commissioner can still allocate more so it
may take care of the problem of too many pinks in the Kenai
River that Senator Wagoner brought up. However, there is always
the law of unintended consequences and there are other fish
milling among the pinks.
SENATOR ELTON said his reaction to that is that without the
emergency order authority, nobody would get anything so everyone
would be disadvantaged.
SENATOR WAGONER maintained that SB 70 will address very
extenuating circumstances and is not designed to take place
every week of the year. He cautioned against basing management
decisions on the courts because they operate too slowly.
SENATOR BEN STEVENS said the Board of Fisheries and the
commissioner of ADF&G are to base their decisions on scientific
information. That is what the new governor has claimed as his
priority when he chose nominees to the Board of Fisheries and
the commissioner. He read from Section 2 on page 3 of SB 70:
...in order to prevent the loss of a biologically
allowable harvest of a fishery resource that would
otherwise be precluded by delayed action...This
authority may not be used for the purpose of summarily
changing the allocation of fishery resources....
He said if the local regional manager comes to the commissioner
because of a surplus of fish, the commissioner will have the
emergency order authority to open the fishery based on the
confidence that the regional manager has the scientific
evidence. He noted the commissioner has emergency order
authority to shut a fishery down but not to open one up.
CHAIR OGAN said that not all fish and game management is based
on science. He gave the example of the last administration's
"gag order" on scientific statements about predator control. He
said the Board listens to the scientific recommendations of the
biologists and then makes a political allocation decision.
4:16 p.m.
SENATOR SEEKINS asked Senator Wagoner if he feels the Peninsula
Marketing Association's case is a good example of the need for
more flexibility.
SENATOR WAGONER said he is not as familiar with that case but it
is one case on which a court decision was made. The intent of SB
70 is to avoid court cases.
SENATOR SEEKINS said when he looks at the relationship between
the Board of Fisheries and the commissioner, the commissioner
serves at the pleasure of the governor. Board of Fisheries
members are nominated by the governor but can only be removed
for cause, which provides some insulation from political
pressure. He said that creates a separation of power between the
board and the commissioner because the commissioner represents
the governor and is more susceptible to political pressure. He
said his reading of the Supreme Court case is that the
commissioner has the right to issue an order based on an
emergency situation, which would have applied to the scenario
described by Senator Wagoner in which the projected run of pinks
was 4 million while the actual run was 10 million. He asked if
the commissioner has been precluded from doing so in the past by
another court case.
SENATOR WAGONER said not by a court case but because the
commissioner did not believe he had the authority to do so.
SENATOR SEEKINS said as he reads the law on the responsibilities
between the commissioner and the board, the commissioner has
that emergency power when it is based on sound biological
evidence. He said he is aware of some political in-fighting
between board members and commissioners, and of situations that
could be interpreted as allocation issues. He asked where the
problem lies.
SENATOR WAGONER said if the Board of Fisheries says a fishery
will only be open certain days, the commissioner does not have
authority to invoke an emergency order to extend that season.
CHAIR OGAN took public testimony.
MR. ROBERT HALL, representing the Houston Chamber of Commerce in
the Mat-Su Valley, told members the Chamber clearly understands
the frustration with the Board of Fisheries process expressed in
this bill and agrees that improvements could be made. However,
the Chamber is strongly opposed to SB 70 because it lacks clear
definition and limits and is subject to tremendous abuse. The
Chamber believes this bill could be used as an end-run around
the Cook Inlet salmon management plan, although it does not
believe that is the sponsor's intent. Both sides in a
complicated mixed stock fisheries can always argue biology on
their side and, in this changing environment, one can always
argue new science. Therefore, every year, both sides will be
able to meet the definition of the bill and run to the
commissioner to ask for more fishing opportunities.
MR. HALL said residents of Houston are at the mercy of what
happens on the Kenai Peninsula, regarding fishing. The Houston
Chamber is very concerned that this will turn into another
political football. The Houston Chamber believes it would be
very beneficial for the committee to review the board process
during the interim. Current board members are stretched to the
limit and have very little time to look at problems developing
on the horizon. He asked that the committee hold this bill in
committee and continue studying the board process in the
interim.
TAPE 03-15, SIDE B
SENATOR LINCOLN asked Mr. Hall how large the Houston Chamber of
Commerce is and whether it only represents Houston proper.
MR. HALL said he is representing the Houston Chamber of
Commerce, which is made up of 72 members, most of which are pro
forma and pay dues but don't attend meetings. He suggested that
he probably represents the vast majority of sentiment in the
Mat-Su.
CHAIR OGAN stated for the record that he is a member of the
Houston Chamber of Commerce.
SENATOR ELTON asked if Houston or the Mat-Su has a fish and game
advisory board and whether Mr. Hall has spoken with that board.
MR. HALL said he got a call from one of the members of the fish
and game advisory board who was quite concerned about SB 70. He
said he couldn't speak for that board member but suspects that
the advisory board's concerns are along the same lines as the
Chamber's concerns.
CHAIR OGAN confirmed that the Houston Chamber's sentiment runs
strong in his district.
SENATOR LINCOLN asked how large of an area the fish advisory
board encompasses.
CHAIR OGAN said he believes the fish and game advisory board
covers all of the Matanuska, Susitna, and Knik River drainages
in the Mat Valley and probably some of the drainages on the
western side of Cook Inlet.
MR. PAUL SHADURA II, President of the Kenai Peninsula
Fishermen's Association (KPFA), stated support for SB 70. KPFA
believes SB 70 is necessary to clarify ADF&G's role in
management based on biological necessity rather than political
or ballot box reaction. The constitutional founders and
legislature believed that resource management should be shared
among all branches of the government. The ADF&G commissioner's
duties are detailed in statute. SB 70 clarifies the practice of
in-season management, provides the tools vital to deal in real
time, and allows for the dynamics of fisheries management to
either conserve the resource for future sustainability or allow
the harvest of surplus stocks for the maximum benefit of all
resource users. The Board designs plans to act as guidelines for
fisheries managers but is unable to foresee the future. The
board is a reactionary body. ADF&G must have latitude to make
expedient actions that the board process cannot accommodate.
KPFA believes the commissioner is the best guardian of the
state's resources and is not distracted by allocation
implementation. Board agenda change requests are the exception
to the rule. He thanked members and offered to answer questions.
SENATOR WAGONER asked Mr. Shadura why the commissioner said he
did not have the authority to open the humpy fishery when there
was a surplus three years ago.
MR. SHADURA said the commissioner felt unsure about vetoing a
decision made by the Board of Fisheries because the statute says
the commissioner of ADF&G does not have that authority. Over the
years, the Board of Fisheries has been designing what emergency
order management tools the commissioner can use, leaving the
commissioner in an untenable position. Therefore, the only way
to clarify that was to petition the Board of Fisheries for
action. In this particular situation, he and others petitioned
the Board of Fisheries after General Oates came for an emergency
meeting when the area was declared a disaster area. General
Oates asked Commissioner Rue why the pink salmon fishery was not
opened and Commissioner Rue said he could open it but wouldn't.
Unfortunately, by the time the petition was filed, the majority
of humpies had already passed.
CHAIR OGAN said there has been mistrust on both sides of the
allocation issue and asked Mr. Shadura to suggest language
changes to alleviate the fears of fishermen on the Yukon-
Kuskokwim, the Copper River, and the upper Cook Inlet.
MR. SHADURA said there is a lot of fear about what might happen
with a pro-commercial Board of Fisheries. He said he personally
does not see the Board of Fisheries that way. However, SB 70
will protect those people with that fear. SB 70 directs ADF&G to
use its professionalism to manage on an abundance-based, in-
season management system. It's the system that makes Alaska
unique among the states.
CHAIR OGAN said he is aware of emergency openings and closures,
but those were consistent with the Board of Fisheries'
management plan. He asked that someone brief him on how the
process works and what is broken.
SENATOR SEEKINS asked Mr. Shadura if his comment about the
commissioner's statement that he did not have the authority to
exercise any emergency powers in the overabundance of pink
salmon is from a first-hand conversation with the commissioner.
MR. SHADURA said that question came up during a disaster
meeting, which he attended. General Oates directly asked the
commissioner why there was no opening to alleviate the disaster
and that was the commissioner's response.
SENATOR SEEKINS asked whether the commissioner attempted to
intervene and was rebuffed.
MR. SHADURA repeated the commissioner's comment was that he
could but wouldn't.
SENATOR SEEKINS questioned whether the commissioner did not want
to.
MR. SHADURA said the commissioner's explanation was that he
wasn't sure of his authority since the Board of Fisheries had
regulated emergency order authority.
SENATOR SEEKINS asked if anyone knows whether Commissioner Rue
wanted to intervene or wanted to hide behind the excuse that he
didn't have the power.
MR. SHADURA said he only knows the commissioner said he did not
believe he had clarification of his powers in that situation.
4:40 p.m.
SENATOR SEEKINS said it is hard for him to read into someone's
statement that he or she does not have authority without
attempting to exercise it.
CHAIR OGAN asked a representative from the Department of Law to
address the question of the commissioner's current authority.
MR. LANCE NELSON, assistant attorney general, told members the
commissioner would have to make a discretionary call as to
whether the information presented was important enough to issue
an emergency order in every case.
CHAIR OGAN asked Mr. Nelson if it is his opinion that the
commissioner had the authority to issue an emergency order in
the situation of the large return of pink salmon.
MR. NELSON said in that particular case, he vaguely recalls
discussions with the commissioner. His understanding was the
board had recently met and decided to keep the fishery closed
for a certain period of time. The board discussed and considered
the possibility of a large run in its decision. He said he
believes that was one of the factors that convinced Commissioner
Rue that new information was not available. He repeated the
commissioner has to exercise that discretion on a case-by-case
basis.
CHAIR OGAN asked whether the board considered the actual size of
the run or whether the commissioner could have issued an
executive order based on the fact that the board considered a
smaller run.
MR. NELSON said he did not remember exactly what the board
contemplated.
CHAIR OGAN asked if the commissioner enforces the policy set by
the board so that, if the board had considered a bigger run, the
commissioner could not set a different policy.
MR. NELSON said that is a basic restatement of the PMA decision.
CHAIR OGAN said the policy question is how much more authority a
commissioner needs and whether the legislature should give the
commissioner more discretionary authority.
SENATOR WAGONER reiterated that SB 70 has nothing to do with the
board's authority. SB 70 has to do with unforeseen circumstances
that the board did not have information about at the time it
made its decisions. He reminded members that Mother Nature is
not predictable. When unusual circumstances happen, such as an
excess of fish, the commissioner will have a tool to address
that circumstance. He told members this authority will apply to
all fisheries, sport included.
CHAIR OGAN said he understands Senator Wagoner's argument and
clarified that the policy call is whether to expand the
commissioner's authority or whether the commissioner already has
that discretion and did not exercise it.
SENATOR SEEKINS asked if his interpretation of the PMA decision,
that the Supreme Court upheld the commissioner's ability to use
emergency powers to implement a fisheries management program of
any kind as long as the Board of Fisheries had not already
considered and rejected it, is correct.
MR. NELSON said it is.
SENATOR SEEKINS said in order for the legislature to do anything
to change what already exists, it would have to give the
commissioner the ability to overturn a decision that had already
been discussed, considered and rejected by the Board of
Fisheries.
MR. NELSON said that is correct because the commissioner already
has that power by virtue of the court decision.
SENATOR LINCOLN asked whether the bill will be held in committee
so that she can get a response to her question about the federal
subsistence board's decisions.
CHAIR OGAN said he would hold the bill in committee and that he
would also like to hear from the fish and game advisory boards.
SENATOR ELTON said that AS 16 references the PMA decision under
the section that delegates authority to the commissioner (AS
16.06.270). That section allows the boards to delegate authority
to the commissioner to administer the statutes; however, that
only applies when the Board of Fisheries has delegated its
rulemaking authority to the commissioner of the department of
fish and game. He asked Mr. Nelson to clarify his response to
Senator Seekin's question since there is no presumption that the
commissioner has the ability to make rules. That assumption must
be confirmed by an affirmative act of the board because of the
PMA decision.
MR. NELSON said there is a little confusion because one of the
other issues in the PMA decision was the Superior Court's
decision to use AS 16.05.270 as a method to resolve the
difference between the Board of Fisheries and the commissioner.
Section 270 was cited to refer the matter to the governor as
opposed to finding in favor of the board or the commissioner.
Both parties and the Supreme Court agreed that was an
inappropriate use of Section 270 because that remedy of
referring a conflict on to the governor only applied in a case
where there had been an actual delegation of regulatory
authority from the Board of Fisheries to the commissioner. The
PMA case was a conflict between the two under the rule making
authority of the board and the emergency order authority of the
commissioner, not under the delegation authority. Therefore, he
does not believe the reference to .270 applies to the issue the
committee is dealing with.
SENATOR ELTON asked Mr. Nelson if he is saying the commissioner
has the ability to make rules without a delegation from the
board.
MR. NELSON said under AS 16.05.060, the commissioner has
authority when he deems the circumstances require opening or
closing seasons and areas for fishing. If there is no regulation
on point and the board has not acted but the commissioner deems
it appropriate to open the fishery, he has the authority to do
so.
CHAIR OGAN continued to take public testimony.
MR. BRUCE KNOWLES listed the advisory boards in the northern
districts for members' information. He told members he served on
the Mat Valley advisory board until this past November. He said
his concerns with SB 70 surround the fact that the consumptive
users and commercial fishermen in the northern district have had
their harvest opportunity reduced. The only personal use fishery
in the northern district has not been open for the last several
years. Commercial fishermen had their harvest opportunity
reduced and they even agreed to reduce the number of nets they
used in August to provide more time in July to catch sockeyes.
Sports fishermen have had their Coho harvest reduced to two
fish. For the last two years, the escapement goals in the Yentna
River have not been met. The Board developed windows and created
area wide closures to allow northern district stocks to transit
central districts without over targeting certain areas. The
board opened an area on the east side to drift fishermen but
established windows to keep nets out of the water to allow fish
up through the Yentna. He sees SB 70 as a way to stop the
windows and allow area wide openings, which he is quite
concerned about.
MR. CHRIS GARCIA testified in support of SB 70. He told members
he has followed the fisheries issues for at least 40 years. He
attended the meeting at which General Oates spoke with
Commissioner Rue. He stated, "When you got one puppeteer running
the whole puppet show, all the puppets stand to sing." He said
SB 70 is necessary because the former Board of Fisheries went so
far as to write legislation. The former board took the emergency
order power away from the commissioner. He said through the
1970s and 1980s, openings and closures were done through
emergency orders. He said the resources in Cook Inlet were doing
very well. However, in the 1990s, when the board decided to do
everything politically, the fisheries declined. He said
fisheries management has to get back to being based on sound
biological principles for sustained yield.
MR. JESSE VANDERZANDEN, testifying on behalf of the Alaska
Outdoor Council (AOC), asked members to hold the bill in
committee to give others a chance to testify. He said AOC's
legislative committee and board reviewed SB 70. It is very
similar to a bill introduced by former Representative Scalzi
several years ago that AOC opposed. Similarly, AOC is very
concerned about this legislation. AOC's first concern is its
poor timing with a new governor, new appointments to the Board
of Fisheries, and a new commissioner. These people have assumed
their new roles based on long standing agreements and protocols.
AOC questions whether there is a problem so egregious or
unworkable at this time that the legislature needs to interject
itself into this process. He commented that one of the hallmarks
of our political system is stability during political
transition.
MR. VANDERZANDEN said AOC's second concern is that SB 70 is an
attempt to fix something that is not broken. He served on
Governor Murkowski's fish and game transition team. That team
was comprised primarily of commercial fisheries interests from
across the state and the team was presented with a lot of
information about a wide array of issues. No one from any
interest or user group suggested taking power from the Board of
Fisheries and vesting it with the commissioner. He said
regarding sections 2 and 3 of SB 70 that give the commissioner
more emergency order authority and the authority to deny agenda
change requests, the commissioner already has emergency order
authority to open and close seasons within board approved
management plans. The system is not broken. Allowing the
commissioner to unilaterally supersede these management plans
could usurp the public process used by the Board of Fisheries to
arrive at its decisions. Department staff, including the
commissioner, is present at the Board of Fisheries meetings and
often writes the master plan. If more flexibility or allowances
are needed for situations of over abundance, the ability to go
through a public process should be written into the management
plan. He asked that the committee hold the bill long enough to
hear from members of the Board of Fisheries. AOC believes the
current system has served the public well without
micromanagement by the legislature.
CHAIR OGAN asked all participants with prepared testimony to
send a copy to the committee.
MR. ROLAND MAW, representing the Upper Cook Inlet Drift
Association (UCIDA), stated support for SB 70. He gave members
the following examples of the reasons UCIDA supports this
legislation. If the Board of Fisheries was anticipating a run of
500,000 fish, it goes through the public process and allocates
between sport, commercial, subsistence and the personal use
fisheries. The allocation is implemented through limits on each
group as to days, times, and methods of catching fish. If an
additional 2 million fish show up in that run, policy makers
must decide how to deal with the additional fish. If nothing is
done, the additional 2 million fish will enter the stream and
can be caught by the end user, in fact creating a de facto
allocation. He said that does not meet the legislative intent of
the Constitution. The question then becomes how to put those
additional fish into a harvest regime. In the Kenai last year,
an additional 2 million Cohoes showed up. The board said that
extra emergency orders would not be allowed in the commercial
fisheries, based on the hypothetical run of 500,000. In the case
of the overabundance of pink salmon in 2000, the institutions
could not respond in a timely fashion.
MR. MAW said one of the intentions behind SB 70 is to provide
flexible authority to the commissioner to address these kinds of
situations without reallocating, but instead by fulfilling the
board's original intent. He said in the PMA case, the
commissioner tried to change an allocation out west, prior to
the season. At the time, the commissioner had no new information
to base his decision on. He urged members to support SB 70.
MR. JEFF BEAUDOIN, Kenai Peninsula Fishermen's Association
(KPFA), addressed the portion of the bill that deals with new
information. He said the Division of Commercial Fisheries
projected a return of 1.7 million sockeye in the Kenai River.
The actual return was 3.1 million. Managers used every hour
available to them but could not issue one extra minute of
fishing time. He noted that ADF&G accurately determined the run
strength on July 20.
TAPE 03-16, SIDE A
MR. BEAUDOIN told members that a resurgence of pink salmon
returns to the Kenai River system occurred in 1998, 2000, and
2002. Approximately 5 million fish returned to the Kenai River
each of those years. The 2002 petition was denied. He said that
examples of the problem are numerous. He said the board
recognizes the commissioner's emergency order authority when a
stock needs to be protected: the commercial fisheries are
closed. Commercial fishermen understand the need to protect
those stocks but the commercial fisheries are excluded when
there is surplus stock and that is the issue that needs to be
addressed. He understands the parameters set up in the
allocation, but when all of the systems are being met in a mixed
stock fishery and the management plans are filled with
restraints, he is asking for the opportunity to harvest when
stocks are abundant.
MR. DOUG MECUM, Director of the Division of Commercial
Fisheries, ADF&G, told members he was available to answer
questions.
SENATOR WAGONER asked Mr. Mecum to comment on Mr. Nelson's
statement that without this legislation, the commissioner has
the authority to issue an emergency order in the following
hypothetical example. The board opens the Kenai gillnet and set
net fisheries two days per week. During the third week of July,
the peak of the red run, ADF&G estimates that instead of a run
of 2.1 million, the run will be about 4.5 million. If the
fisheries are not allowed additional time, those fishermen
cannot harvest the extra fish.
MR. MECUM said that SB 70 simply codifies the current law as
stated in the PMA case - that being the commissioner cannot
supersede or veto a regulation or management plan adopted by the
board without significant new information. He said he has been
directly involved with over the years in instances in which the
commissioner issued an emergency order that contravened a
regulation adopted by the board. In those cases, it was clear
that new information was available that had not been available
to the board. The emergency orders did not overturn any
allocations or other conservation or management objectives
identified by the board. He said the decision to issue an
executive order must be made on a case-by-case basis.
SENATOR WAGONER asked if he was restating what Mr. Nelson said,
that the authority already exists.
MR. MECUM said that is correct. He noted ADF&G felt the bill
introduced by former Representative Scalzi went too far into the
realm of allocation. He stated:
We don't believe the commissioner should substitute
his judgment for the Board of Fish on matters of
allocation. There's a reason why there's a
commissioner of fish and game and a board of fish and
there's some separation of power there with respect to
allocation.
He said the division worked with Representative Scalzi and the
Department of Law to modify that language and address that
concern, which is the language in SB 70. The division does not
believe that the language in SB 70, as relates to the
commissioner's emergency order authority, does anything other
than codify the PMA case.
MR. NELSON said he wanted to flag two issues for members, one in
Section 2, the other in Section 3. In Section 2, the simple term
"new information" could be interpreted very broadly because
there will always be at least a scintilla of new information
when the commissioner is considering use of emergency order
authority. He suggested adding a qualifier, such as
"significant" or "material," to narrow the scope. His concern
with Section 3 is that the language in response to a request to
consider a matter that is not on the adopted agenda could be
applied to board-generated agenda changes as opposed to just
requests that come from the public. He noted that Section
1(c)(3) says the intent is to follow the customary practice in
regard to board agenda requests, but the customary practice has
been that the regulations have never been interpreted to bind
the board itself but only in the way it responds to public
requests.
CHAIR OGAN asked Mr. Nelson to explain the customary practice.
MR. NELSON said the standards in the agenda change request
regulation have consistently been interpreted as applying only
to requests that come from outside of the board. They do not
restrict the board from changing its own agenda as it sees fit.
If the intent of Section 1 is to maintain the customary
practice, then it would only apply to outside requests. He
suggested the committee consider an amendment or provide
legislative history to clarify that Section 3 only applies to
agenda change requests coming from outside of the board and that
it would not interfere with the board's ability to move topics
from one meeting to another to allow more public input or to
gather more relevant information.
CHAIR OGAN asked Mr. Nelson to provide his suggestions to the
committee in writing. There being no further testimony, CHAIR
OGAN said he would the hold the bill in committee to allow
others to weigh in on it and adjourned the meeting.
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