Legislature(2003 - 2004)

04/07/2003 03:31 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                         April 7, 2003                                                                                          
                           3:31 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Thomas Wagoner, Vice Chair                                                                                              
Senator Fred Dyson                                                                                                              
Senator Ralph Seekins                                                                                                           
Senator Ben Stevens                                                                                                             
Senator Kim Elton                                                                                                               
Senator Georgianna Lincoln                                                                                                      
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Scott Ogan, Chair                                                                                                       
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 97                                                                                                              
"An Act relating to public interest litigants and to attorney                                                                   
fees; and amending Rule 82, Alaska Rules of Civil Procedure."                                                                   
     MOVED SB 97 OUT OF COMMITTEE                                                                                               
                                                                                                                                
CONFIRMATION   HEARING:   Kevin   Duffy,   Commissioner,   Alaska                                                               
Department of Fish and Game                                                                                                     
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
SB 97 - See Resources minutes dated 3/28/03.                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Al Sundquist                                                                                                                    
3384 Mt. Vernon Ct.                                                                                                             
Anchorage, AK  99503                                                                                                            
POSITION STATEMENT:  Opposed to SB 97                                                                                         
                                                                                                                                
Janel Wright                                                                                                                    
Disability Law Center                                                                                                           
3330 Arctic Blvd. #103                                                                                                          
Anchorage, AK  99503                                                                                                            
POSITION STATEMENT:  Opposed to SB 97                                                                                         
                                                                                                                                
June Pinnell-Stephens                                                                                                           
3140 Roden Lane                                                                                                                 
Fairbanks, AK  99709                                                                                                            
POSITION STATEMENT:  Opposed to SB 97                                                                                         
                                                                                                                                
Craig Tillery                                                                                                                   
Assistant Attorney General                                                                                                      
Department of Law                                                                                                               
1031 W 4th Ave.                                                                                                                 
Anchorage, AK  99501                                                                                                            
POSITION STATEMENT: Explained the changes to the proposed                                                                     
committee substitute to SB 97                                                                                                   
                                                                                                                                
Ken Jacobus                                                                                                                     
509 W Third                                                                                                                     
Anchorage, AK 99501                                                                                                             
POSITION STATEMENT: Opposed to the proposed committee substitute                                                              
to SB 97                                                                                                                        
                                                                                                                                
Al Burch                                                                                                                        
PO Box 884                                                                                                                      
Kodiak, AK 99615                                                                                                                
POSITION STATEMENT: Supports the confirmation of Mr. Duffy as                                                                 
ADF&G commissioner                                                                                                              
                                                                                                                                
Chris Garcia                                                                                                                    
PO Box 203                                                                                                                      
Kenai, AK  99611                                                                                                                
POSITION STATEMENT: Opposed to Mr. Duffy's appointment as                                                                     
commissioner of ADF&G                                                                                                           
                                                                                                                                
Janet Clucas                                                                                                                    
72880 Sterling Hwy                                                                                                              
Clam Gulch, AK  99568                                                                                                           
POSITION STATEMENT: Does not support Mr. Duffy's appointment if                                                               
he has been involved in the decline of the set net fishery.                                                                     
                                                                                                                                
Lynn Levengood                                                                                                                  
1008 16th Ave. Suite 200                                                                                                        
Fairbanks, AK 99701                                                                                                             
POSITION STATEMENT:  Opposed to Mr. Duffy's confirmation.                                                                     
                                                                                                                                
Ken Duckett                                                                                                                     
United Southeast Alaska Gillnetters                                                                                             
No address provided                                                                                                             
POSITION STATEMENT:  Supports Mr. Duffy's confirmation.                                                                       
                                                                                                                                
Jerry McCune                                                                                                                    
United Fishermen of Alaska                                                                                                      
211 4th Street, Suite 110                                                                                                       
Juneau, Alaska  99801-1172                                                                                                      
POSITION STATEMENT:  Supports SB 97                                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-24, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
VICE-CHAIR  TOM  WAGONER  called the  Senate  Resources  Standing                                                             
Committee meeting to order at  3:31 p.m. Senators Dyson, Seekins,                                                               
Elton, Lincoln  and Wagoner were  present. The committee  took up                                                               
SB 97.                                                                                                                          
                                                                                                                                
           SB 97-ATTY FEES: PUBLIC INTEREST LITIGANTS                                                                       
                                                                                                                                
VICE-CHAIR WAGONER told members  that a committee substitute (CS)                                                               
for  SB 97,  labeled  Version D,  had been  prepared  that is  no                                                               
longer specific  to natural resource related  litigation. He said                                                               
he plans to move this bill  to the Senate Judiciary Committee and                                                               
asked participants to limit their testimony to 2 or 3 minutes.                                                                  
                                                                                                                                
SENATOR SEEKINS moved to adopt Version  D of SB 97 as the working                                                               
document of the committee.                                                                                                      
                                                                                                                                
SENATOR  ELTON  objected  for  the   purpose  of  hearing  public                                                               
testimony.                                                                                                                      
                                                                                                                                
VICE-CHAIR WAGONER took public testimony.                                                                                       
                                                                                                                                
MR. AL  SUNDQUIST spoke in opposition  to SB 97. He  told members                                                               
that laws  of questionable  constitutionality must  be challenged                                                               
in the  public interest. Public interest  litigation provides the                                                               
most  effective way  to  defend  Alaskan's constitutional  rights                                                               
against encroachments by state or  local governments. SB 97 would                                                               
jeopardize  the  ability  of   individuals  to  hold  legislators                                                               
accountable for  misjudgments or  misconduct. He  asked committee                                                               
members to reject SB 97.                                                                                                        
                                                                                                                                
MS. JANEL WRIGHT,  legal director for the  Disability Law Center,                                                               
stated opposition to SB 97  for the following reasons. The public                                                               
interest  litigant   rule  protects   the  public's   ability  to                                                               
challenge  state decisions  on matters  of broad  public interest                                                               
without  the financial  hardship of  paying the  state's attorney                                                               
fees if  that litigation is  unsuccessful. SB 97  eliminates this                                                               
protection by  prohibiting courts from taking  into consideration                                                               
the public  interest nature of  a case when the  court determines                                                               
whether to award attorney's fees  to the prevailing party. A very                                                               
important  component of  the Disability  Law Center's  ability to                                                               
advocate  on behalf  of Alaskans  with disabilities  is judicious                                                               
pursuit  of state  court  remedies.  Eliminating public  interest                                                               
litigant  status will  effectively eliminate  the opportunity  of                                                               
individuals with  disabilities to  access the judicial  branch of                                                               
their government to enforce their rights.                                                                                       
                                                                                                                                
MS. WRIGHT  pointed out that  individuals with  disabilities have                                                               
the highest  unemployment rate nationwide  and, as a  group, have                                                               
the highest number living in  poverty. If faced with the prospect                                                               
of liability  for the defense  attorney's fees,  individuals with                                                               
disabilities  will  be unable  to  protect  their rights  in  the                                                               
court.  The public  interest litigant  exception does  not foster                                                               
frivolous lawsuits.  The Alaska Supreme Court  has clearly stated                                                               
that  anyone  bringing  a  frivolous  lawsuit  exposes  both  the                                                               
attorney and the client to defense attorney's fees.                                                                             
                                                                                                                                
MS.  JUNE PINNELL-STEPHENS  stated  opposition to  SB 97  because                                                               
when the  government makes  a mistake,  an individual  should not                                                               
have to pony  up the money to  go to court to  have it corrected.                                                               
Only by gathering together as  organizations can most individuals                                                               
hope to take on that sort of action.                                                                                            
                                                                                                                                
MR. CRAIG TILLERY, Assistant Attorney  General, Department of Law                                                               
(DOL), offered to answer questions.                                                                                             
                                                                                                                                
SENATOR  DYSON  asked  Mr.  Tillery to  explain  the  changes  in                                                               
Version D  and how those  changes will  clarify that the  bill no                                                               
longer pertains only to resource related litigation.                                                                            
                                                                                                                                
MR.  TILLERY  told  members  that   Version  D  is  substantially                                                               
different  from  the  original bill.  The  original  version  was                                                               
focused on  particular decisions by particular  agencies. Version                                                               
D  takes a  different  approach and  completely abrogates  public                                                               
interest  litigant  fees  except  in those  instances  where  the                                                               
legislature  may  choose  to  amend   by  statute.  For  example,                                                               
currently,  full  attorneys  fees  are provided  by  statute  for                                                               
consumer protection cases.                                                                                                      
                                                                                                                                
SENATOR DYSON said  his impression is that this bill  is aimed at                                                               
stopping  frivolous  lawsuits  that impede  resource  development                                                               
through  the use  of  court injunctions.  If  those lawsuits  are                                                               
filed for illegitimate reasons, the  plaintiff would pay the cost                                                               
of the  litigation. He asked if  Version D broadens the  scope to                                                               
the extent  it will  have a  dampening effect  on someone  in the                                                               
disability  community  who  challenges a  government  action  for                                                               
valid reasons but loses the case.                                                                                               
                                                                                                                                
MR. TILLERY told members the  original bill was broadened because                                                               
of  concern about  an equal  protection challenge.  DOL felt  the                                                               
original  bill  would  pass constitutional  muster,  however  the                                                               
argument would  be more difficult than  if the scope of  the bill                                                               
was  broadened. In  addition, the  original version  of the  bill                                                               
started  "writing  in  what  is  excepted  and  it  becomes  very                                                               
difficult to apply."                                                                                                            
                                                                                                                                
Regarding  the  effect on  an  individual  bringing a  disability                                                               
lawsuit in the public interest,  MR. TILLERY said Version D would                                                               
require the individual to decide  the likelihood of prevailing on                                                               
the  merits  of  the  case  before  filing.  If  the  legislature                                                               
believes  people should  be  able  to bring  a  specific type  of                                                               
lawsuit,  the  legislature could  make  that  judgment by  making                                                               
exceptions  in statute.  This bill  puts  that decision  squarely                                                               
back in  the hands  of the legislature  by eliminating  the court                                                               
system's broad-brush approach.                                                                                                  
                                                                                                                                
VICE-CHAIR  WAGONER  announced  that   Senator  Ben  Stevens  was                                                               
present.                                                                                                                        
                                                                                                                                
SENATOR  SEEKINS  asked  how  many states  have  adopted  a  rule                                                               
similar to Rule 82.                                                                                                             
                                                                                                                                
MR. TILLERY said  that very few, if any, have  a similar rule. He                                                               
said  the federal  system  does  not have  one  either. The  U.S.                                                               
Supreme Court stated  it is not the province of  the court system                                                               
to make  those judgments; public interest  litigant status should                                                               
be determined by a congressional or legislative decision.                                                                       
                                                                                                                                
MR.  TILLERY  said  some other  state  legislatures  might  grant                                                               
attorneys' fees  in specific instances, for  example for consumer                                                               
protection or anti-trust cases.  Nevertheless, as a general rule,                                                               
those decisions are not in the court's purview.                                                                                 
                                                                                                                                
SENATOR SEEKINS asked  if the legislature passes this  bill as it                                                               
exists today [Version D], it  could exempt certain types of cases                                                               
through another piece of legislation.                                                                                           
                                                                                                                                
MR. TILLERY said that is correct.                                                                                               
                                                                                                                                
SENATOR  ELTON  said  during  the  subcommittee  discussion,  his                                                               
understanding was that no court  rule would have to be eliminated                                                               
because  public interest  litigant status  is an  exception to  a                                                               
court rule. However, he learned  that a 1993 Supreme Court Order,                                                               
No. 11-18,  established a  court rule that  will be  abrogated by                                                               
this legislation.                                                                                                               
                                                                                                                                
MR. TILLERY  said it is  DOL's view  that the court  created that                                                               
rule through  judicial exception.  To remove the  court's ability                                                               
to apply that  exception via this legislation  would not abrogate                                                               
a court rule  but simply require the court to  apply the original                                                               
rule.                                                                                                                           
                                                                                                                                
SENATOR ELTON asked  Mr. Tillery if he is familiar  with the 1993                                                               
Supreme Court Order No. 11-18.                                                                                                  
                                                                                                                                
MR. TILLERY said he did not have a copy of it.                                                                                  
                                                                                                                                
SENATOR  ELTON said  it would  be  helpful to  understand why  an                                                               
exception is not a de facto court rule.                                                                                         
                                                                                                                                
MR. TILLERY offered  to get back to Senator Elton  with an answer                                                               
to that question.                                                                                                               
                                                                                                                                
SENATOR LINCOLN  asked the amount  of general fund  dollars spent                                                               
in 2002 on public interest litigation.                                                                                          
                                                                                                                                
MR. TILLERY said  from FY 93 through FY 03,  the state spent $4.5                                                               
million.                                                                                                                        
                                                                                                                                
SENATOR LINCOLN asked  how much of the $4.5 million  was spent on                                                               
state resource agency cases.                                                                                                    
                                                                                                                                
MR. TILLERY  said he would  have to  get back to  Senator Lincoln                                                               
with an answer to that question.                                                                                                
                                                                                                                                
3:50 p.m.                                                                                                                     
                                                                                                                                
MR.  KEN JACOBUS,  an attorney  in private  practice and  for the                                                               
Republican Party, said his comments  to the committee were on his                                                               
own behalf.  He said  he had  no problem  with the  original bill                                                               
because it was designed to address  a specific area of concern to                                                               
the  Governor:  protection  of  natural  resources  and  economic                                                               
development.  Although  he  prefers  other  solutions,  he  could                                                               
support the original  bill. However, he is  opposed to broadening                                                               
the  bill  to include  all  public  interest litigant  cases.  He                                                               
reminded  members  that  when  the   government  loses  a  public                                                               
interest  litigant case,  there is  nothing wrong  with requiring                                                               
the government to  compensate for its wrongdoing.  He pointed out                                                               
that  a number  of Republicans  would not  be in  the legislature                                                               
were  it  not  for  the  redistricting  case,  which  was  public                                                               
interest  litigation. Also,  a number  of  legislators could  not                                                               
have  collected  campaign  contributions but  for  the  Singleton                                                               
case, which  allowed unlimited  soft money  contributions, again,                                                               
public  interest  litigation.  He  said   if  a  voter  wants  to                                                               
challenge an election for a  good reason, this bill would require                                                               
the individual  voter to pay attorney's  fees to the state  if he                                                               
or she  loses the  case. He doubts  anyone would  have challenged                                                               
the Lindauer candidacy if that were the case.                                                                                   
                                                                                                                                
MR. JACOBUS said  he disagrees with Mr.  Tillery's statement that                                                               
Alaska  Civil Rule  82 has  a catch-all  provision that  says the                                                               
courts may  vary attorney's fees if  the equities of the  case so                                                               
direct. The court  can take any factor into  account to determine                                                               
the inequities  of the case.  If the court  is no longer  able to                                                               
consider certain  factors, that is  the limitation on  the catch-                                                               
all provision of Rule 82. He  advised that he has no problem with                                                               
the legislature  protecting natural  resource cases.  However, to                                                               
take away  the rights  of public  interest litigation  across the                                                               
board  is  inappropriate  because   of  the  numerous  unintended                                                               
consequences.  He  asked  members  not  to  enact  the  committee                                                               
substitute [Version D].                                                                                                         
                                                                                                                                
SENATOR  ELTON  noted the  purpose  section  of Version  D  cites                                                               
increased   litigation,  arguments   made   with  little   merit,                                                               
difficulties in compromising claims,  and significant cost to the                                                               
state  and  private  citizens  as  reasons  to  eliminate  public                                                               
interest  litigant  status.  He  said  when  he  read  that,  his                                                               
immediate thought  was that it may  save the state money,  but it                                                               
creates a  difficult standard  for Alaskan  citizens to  meet. He                                                               
asked Mr. Jacobus if that is the focus of his testimony.                                                                        
                                                                                                                                
MR. JACOBUS  said some of  the statements in the  purpose section                                                               
are not  really true. A person  is unlikely to bring  an argument                                                               
with little  merit because if  one loses a public  interest case,                                                               
he or she does not get  reimbursed for attorney's fees. He agrees                                                               
that  the public  interest litigant  doctrine leads  to increased                                                               
litigation, but  it does not  encourage frivolous  litigation. He                                                               
said it does not increase  difficulty in compromising claims and,                                                               
although  it may  cost the  state more  money, that  cost is  for                                                               
wrongs that need to be redressed.                                                                                               
                                                                                                                                
SENATOR ELTON maintained  his objection to adopting  Version D as                                                               
the working draft  before the committee. He said  he has concerns                                                               
with the original  bill, but those problems are  magnified in the                                                               
committee  substitute.  He  felt   Mr.  Jacobus's  testimony  was                                                               
compelling. He  stated his belief  that the only way  many Alaska                                                               
citizens   feel  able   to   challenge   an  overreaching   state                                                               
bureaucracy is through this rule.                                                                                               
                                                                                                                                
SENATOR BEN STEVENS  asked how many of the  testifiers are public                                                               
interest   litigant   attorneys.   He  questioned   whether   the                                                               
testifiers  today are  attorneys whose  fees are  paid by  public                                                               
interest litigants.                                                                                                             
                                                                                                                                
SENATOR  DYSON  indicated  he   takes  significant  exception  to                                                               
Senator  Stevens'  statement  if  it was  an  indictment  of  Mr.                                                               
Jacobus's testimony or integrity.                                                                                               
                                                                                                                                
SENATOR BEN  STEVENS said he was  just making the point  that the                                                               
committee needs to take that into consideration.                                                                                
                                                                                                                                
VICE-CHAIR WAGONER announced a brief at-ease.                                                                                   
                                                                                                                                
SENATOR SEEKINS  withdrew his  motion to adopt  Version D  as the                                                               
working draft before the committee.   He then moved to pass SB 97                                                               
from committee with individual recommendations.                                                                                 
                                                                                                                                
SENATOR ELTON objected.                                                                                                         
                                                                                                                                
SENATOR  LINCOLN told  members  she will  be  voting against  the                                                               
motion. She said the cost of most  of the cases has been small so                                                               
for  the legislature  to tell  Alaskans  they have  to give  much                                                               
thought to paying  their own attorney fees for  a public interest                                                               
case is  wrong. She  noted she  just received  a letter  from the                                                               
Alaska Village Council Presidents who  said they were involved in                                                               
three public interest litigant cases,  the Kasillie (ph) case and                                                               
challenges  to state  agency decisions  about  fish and  wildlife                                                               
management. They  are very concerned this  legislation will deter                                                               
the common  person from filing  a lawsuit against a  state agency                                                               
thereby allowing some bad public decisions to be made.                                                                          
                                                                                                                                
VICE-CHAIR WAGONER said  he would be supporting  the bill because                                                               
he  has seen,  at times,  the unfairness  of the  public interest                                                               
litigant doctrine.                                                                                                              
                                                                                                                                
The motion  to move  SB 97 from  committee carried  with Senators                                                               
Seekins, Dyson, Stevens and Wagoner  in favor, and Senators Elton                                                               
and Lincoln opposed.                                                                                                            
                                                                                                                                
VICE-CHAIR WAGONER  announced the bill  would move to  the Senate                                                               
Judiciary Committee with its appropriate fiscal notes.                                                                          
                                                                                                                                
4:07 p.m.                                                                                                                     
                                                                                                                                
            CONFIRMATION HEARING - KEVIN DUFFY, ADFG                                                                        
                                                                                                                                
MR. KEVIN  DUFFY, Commissioner-designee of the  Alaska Department                                                               
of Fish and  Game (ADF&G), told members in his  previous roles as                                                               
deputy  commissioner  and  deputy  director of  the  Division  of                                                               
Commercial Fisheries  he has had  a chance  to meet with  most of                                                               
the committee members.  He prides himself as having  an open door                                                               
policy and will maintain that  policy as the commissioner. He has                                                               
been  employed at  ADF&G for  21 years.  He is  proud of  ADF&G's                                                               
professional staff.  ADF&G has a reputation  for sound management                                                               
that has  been earned in  both national and  international forums                                                               
that others  are envious of. He  is under no illusions  about the                                                               
challenges  of   the  position  of  commissioner   of  ADF&G.  He                                                               
recognizes  the controversies  associated with  the decisions  he                                                               
will  make. He  noted that  Alaskans  are very  connected to  the                                                               
resources  and are  comfortable expressing  their opinions  about                                                               
the  use  and management  of  those  resources. He  welcomes  the                                                               
public's input  to the department and  to the Boards of  Game and                                                               
Fisheries.  He  told  members  he is  committed  to  using  sound                                                               
science and biology when making resource management decisions.                                                                  
                                                                                                                                
VICE-CHAIR WAGONER  announced he would first  take testimony from                                                               
a person  with time constraints  and would then open  the hearing                                                               
to questions from committee members.                                                                                            
                                                                                                                                
MR. AL BURCH,  a resident of Alaska since 1953  and a resident of                                                               
Kodiak for 38 years, stated  support for Mr. Duffy's appointment.                                                               
He has commercially  fished during his entire adult  life. He has                                                               
worked with Mr. Duffy for a  number of years on the North Pacific                                                               
Fisheries   Management  Council   and  appreciates   Mr.  Duffy's                                                               
approach  to the  fisheries. He  believes  the key  words in  Mr.                                                               
Duffy's  testimony  were "good  science."  Mr.  Duffy will  bring                                                               
Alaska into  the 21st  Century of  fisheries management  and will                                                               
enable  Alaska's   coastal  communities   to  survive   with  the                                                               
development of a groundfish industry.                                                                                           
                                                                                                                                
VICE-CHAIR WAGONER entertained questions from committee members.                                                                
                                                                                                                                
SENATOR  LINCOLN asked  Mr. Duffy  about his  voting record  as a                                                               
member  of   the  North  Pacific  Fisheries   Management  Council                                                               
(NPFMC), on a policy which  requires crab fishermen to sell their                                                               
catch  to processors  who own  processor  shares and  on the  IFQ                                                               
program for  halibut sport  charter vessels.  She also  asked his                                                               
view  of the  Division  of  Habitat transfer  from  ADF&G to  the                                                               
Department of Natural Resources (DNR)  and how that can result in                                                               
more efficiency with fewer people to issue permits.                                                                             
                                                                                                                                
MR. DUFFY  said he supported  the concept of processor  shares in                                                               
the crab  rationalization program  before the NPFMC.  NPFMC spent                                                               
almost  four  years trying  to  design  the  future of  the  crab                                                               
program  in  the  Bering  Sea   and  Aleutian  Islands.  Congress                                                               
instructed  NPFMC to  look at  the impacts  of a  rationalization                                                               
program   on  communities,   harvesters  and   processors.  NPFMC                                                               
established a committee of industry  representatives from a broad                                                               
spectrum  of  interests  that  worked  for  about  two  years  to                                                               
identify a  series of alternatives  by which the Bering  Sea crab                                                               
fishery   could  be   rationalized.   NPFMC,   under  his   lead,                                                               
established a three-part program that included:                                                                                 
   · IFQs to individual fishermen at 100 percent, based on                                                                      
     particular years selected for catch history.                                                                               
   · Processor shares at 90 percent to processors with a history                                                                
     of processing crab in the Bering Sea and Aleutian Islands                                                                  
     based on a specific number of years.                                                                                       
   · Impacts to coastal communities. The Council was clear in                                                                   
     its record about rationalizing the Bering Sea crab fishery.                                                                
     That fishery is comprised of large vessels, a lot of non-                                                                  
     resident participation and a lot of stranded capital on the                                                                
     processing side.                                                                                                           
                                                                                                                                
NPFMC was  very clear that  the program should  not be used  as a                                                               
model or set a precedent  for other fisheries under consideration                                                               
for  rationalization,   the  next   being  the  Gulf   of  Alaska                                                               
groundfish  fishery. He  repeated that  he did  support processor                                                               
shares in  that particular fishery  and that a number  of caveats                                                               
were  included  to  protect  the interests  of  IFQ  holders,  or                                                               
harvesters.  The  processors  are  awarded 90  percent  of  their                                                               
historical [catch]  and the harvesters  have 100 percent  IFQs so                                                               
it is not  true that an individual fisherman is  required to work                                                               
with a particular processor. The  concept of 90-10 also created A                                                               
and B shares.  B shares can be sold to  anyone. When this program                                                               
was designed, it was incumbent upon  NPFMC to find a program that                                                               
was fair to all participants in the Bering Sea program.                                                                         
                                                                                                                                
TAPE 03-24, SIDE B                                                                                                              
                                                                                                                                
MR. DUFFY  said that decision  was made in  June of 2002  but the                                                               
processor share  aspect will  require congressional  approval. He                                                               
pointed out  this program took  almost four years to  develop and                                                               
was approved by a vote of 11 to zero.                                                                                           
                                                                                                                                
MR.  DUFFY   said,  in  response  to   Senator  Lincoln's  second                                                               
question, he  voted against  the halibut  charter IFQ  program in                                                               
the  fall of  2001 for  a number  of reasons.  He explained  that                                                               
NPFMC  had decided  to restrict  that industry  with a  guideline                                                               
harvest level prior to his  involvement. It decided the guideline                                                               
harvest level  for the charter  halibut fishery could grow  up to                                                               
125  percent of  its historic  percentage. If  the level  hit 125                                                               
percent,  the  fishery  would  be  ratcheted  down.  The  charter                                                               
halibut  program  was  set  up  for  Southcentral  and  Southeast                                                               
Alaska.  As a  new  NPFMC  member, he  reviewed  the record.  The                                                               
discussion  centered  on how  the  halibut  charter industry  was                                                               
exploding and  needed to be  controlled. It appeared to  him that                                                               
the halibut  charter industry  was growing  by leaps  and bounds.                                                               
His conclusion  was that  a guideline  harvest level  program was                                                               
the correct way to manage that fishery over the long term.                                                                      
                                                                                                                                
MR. DUFFY  pointed out the  halibut charter IFQ program  goes one                                                               
step  further and  awards individual  fishing  quotas to  charter                                                               
operators. He  did not  feel that was  a necessary  regulation in                                                               
the NPFMC  process. Others  felt differently.  He noted  that IFQ                                                               
programs for  recreational fisheries  are a  significant national                                                               
public policy  issue. He said  he believes  it will work  but did                                                               
not believe it was necessary at the time.                                                                                       
                                                                                                                                
Regarding Senator  Lincoln's third question, MR.  DUFFY said when                                                               
the   decision  was   made  to   transfer  Title   16  permitting                                                               
responsibilities from ADF&G  to DNR, he worked  with the division                                                               
directors to create  a structure to continue to  protect fish and                                                               
wildlife habitats  in the state.  That structure  retains certain                                                               
permitting functions within DNR  and certain permitting functions                                                               
at ADF&G.  Title 16  permitting functions were  moved to  DNR but                                                               
other habitat related activities were  retained at ADF&G. When he                                                               
and others undertook this permit  streamlining effort, their goal                                                               
was  to design  a system  with a  number of  trained professional                                                               
habitat biologists in DNR to  maintain an effective and efficient                                                               
permitting  system  that would  have  some  crossover ability  to                                                               
consult with ADF&G.  That system required a lot of  analysis by a                                                               
lot of people. The habitat  division had multiple funding sources                                                               
with  multiple duties  associated  with each  funding source.  To                                                               
unravel that  structure, the group  tried to identify  the amount                                                               
of money  and time  these individuals spent  on Title  16 habitat                                                               
permitting. The net result of  that analysis is what was proposed                                                               
in EO 107.                                                                                                                      
                                                                                                                                
VICE-CHAIR  WAGONER   pointed  out  that  four   of  Mr.  Duffy's                                                               
predecessors testified against EO 107  and time will prove who is                                                               
right. He said  he is willing to support  the Governor's proposal                                                               
but does not understand why  EO 107 places the ultimate authority                                                               
with the  deputy commissioner of  DNR and the state  forester. He                                                               
interprets that to mean that  decisions cannot be appealed to the                                                               
commissioner. Any decision will have  to be appealed in court. He                                                               
asked why the proposal was structured that way.                                                                                 
                                                                                                                                
MR. DUFFY  said his  understanding is  that putting  the decision                                                               
making  authority  at  the deputy  commissioner  level  will  not                                                               
actually  erode  any  of the  DNR  commissioner's  responsibility                                                               
because the commissioner will be held accountable.                                                                              
                                                                                                                                
SENATOR SEEKINS  asked how many  people will be  transferred from                                                               
the habitat division to DNR under this proposal.                                                                                
                                                                                                                                
MR. DUFFY answered  about 35 or 36, of which  29 are professional                                                               
biologists and the others are administrative positions.                                                                         
                                                                                                                                
SENATOR  SEEKINS asked  if that  is  the number  of positions  or                                                               
actual employees.                                                                                                               
                                                                                                                                
MR. DUFFY said  the collective bargaining process  binds ADF&G to                                                               
inform  the  ADF&G employees  who  could  be adversely  affected.                                                               
Under  the  collective  bargaining system,  some  employees  have                                                               
"bumping" rights.                                                                                                               
                                                                                                                                
SENATOR SEEKINS said  one of his concerns is  game management. He                                                               
asked Mr. Duffy what he  envisions the relationship to be between                                                               
the Board of Game and ADF&G.                                                                                                    
                                                                                                                                
MR.  DUFFY  replied  the  relationship  is  one  in  which  ADF&G                                                               
provides  scientific and  biological  expertise to  the Board  of                                                               
Game to use  when making allocation decisions.  ADF&G  acts in an                                                               
advisory  role to  the  Board  of Game.  In  addition, the  ADF&G                                                               
commissioner  and   the  Board  of  Game   have  a  collaborative                                                               
relationship.  When the  Board of  Game makes  certain decisions,                                                               
the commissioner  is statutorily required  to make a  finding. He                                                               
sees  the relationship  as one  in  which ADF&G  acts as  support                                                               
staff to the  board and, once decisions are made  - one being the                                                               
Board of  Game recommendation on  Unit 19D East for  the predator                                                               
control  program -  ADF&G provides  the  regulatory structure  to                                                               
implement   those   decisions.   In   certain   situations,   the                                                               
commissioner must  also make a  finding based  on recommendations                                                               
made by the Board of Game.                                                                                                      
                                                                                                                                
SENATOR SEEKINS asked, "Recommendations from  the Game Board - to                                                               
whom?"                                                                                                                          
                                                                                                                                
MR. DUFFY corrected himself and said "Direction."                                                                               
                                                                                                                                
SENATOR SEEKINS  noted that a  number of  years ago the  Board of                                                               
Game determined  that the [game]  populations were  collapsing in                                                               
Unit 13 and  authorized a predator control program.  He asked why                                                               
ADF&G has not carried that out.                                                                                                 
                                                                                                                                
MR. DUFFY  said he cannot give  a detailed answer because  he was                                                               
not  directly  involved in  game  management  issues during  that                                                               
time. He said in the recent past,  the Board of Game gave ADF&G a                                                               
set  of  directions  on  Unit 13.  ADF&G  initiated  an  informed                                                               
consent  process. Over  the next  year ADF&G  will gather  public                                                               
input and try  to bring affected constituents up to  speed on the                                                               
issues to  come to  a set  of conclusions to  move forward  on an                                                               
effective  predator control  program in  Unit 13.  He anticipates                                                               
that he will make a decision  next spring on the predator control                                                               
program.                                                                                                                        
                                                                                                                                
SENATOR  SEEKINS asked  where the  requirement  for that  process                                                               
exists in statute.                                                                                                              
                                                                                                                                
MR. DUFFY said  he cannot specifically point to  the statute that                                                               
gives him that authority.                                                                                                       
                                                                                                                                
SENATOR SEEKINS  said he does not  think Mr. Duffy will  find it.                                                               
He said the Board of  Game's statutory process authorizes the use                                                               
of predator control programs. However,  no statute says after the                                                               
Board  of Game  has decided  a  problem exists,  ADF&G should  go                                                               
through the  survey process and  instigate a  stakeholder process                                                               
when ADF&G  biologists have  already advised  the Board  that the                                                               
problem exists.  He said although  Mr. Duffy supports  the survey                                                               
concept and  spending $56,400 on  it, the public  process already                                                               
occurred through  testimony to the  Board of Game. He  asked what                                                               
it is in this non-statutory process Mr. Duffy supports.                                                                         
                                                                                                                                
MR. DUFFY  said the  statutes he  operates under  as commissioner                                                               
give  him  some  fairly  broad powers,  duties  and  authorities.                                                               
Although he  cannot point  to the specific  statute, he  has some                                                               
latitude in programs that ADF&G moves forward with.                                                                             
                                                                                                                                
SENATOR SEEKINS  said he would  like to know where  that specific                                                               
authority  lies  in  statute  since   the  public  input  process                                                               
authority lies with the Board.                                                                                                  
                                                                                                                                
MR.  DUFFY said  Senator Seekins  is correct  in that  the public                                                               
process authority lies  with the Board of  Game. However, through                                                               
experience in game management, ADF&G  has found that providing an                                                               
informed  consent process  often  allows an  opportunity to  move                                                               
forward  on  controversial  programs and  [devise  a  sustainable                                                               
solution]. One of  his goals in initiating  this one-year process                                                               
is to  design a program that  would be consistent with  the Board                                                               
of  Game's  directive and  to  move  forward with  a  sustainable                                                               
program for Unit 13.                                                                                                            
                                                                                                                                
SENATOR SEEKINS  said the legislature  has vested  authority with                                                               
the Board of  Game but, in effect, the commissioner  can veto the                                                               
Board's decision to  implement an active management  program in a                                                               
district by initiating another public  process and not submitting                                                               
findings.                                                                                                                       
                                                                                                                                
MR.  DUFFY said  he cannot  "veto"  Board of  Game decisions.  He                                                               
believes he  has some  latitude once the  Board of  Game provides                                                               
direction to make a finding.  He has some discretion within those                                                               
findings. He  acknowledged that Senator Seekins  does not support                                                               
the approach  that ADF&G  has initiated but  he argued  that this                                                               
approach  may provide  a long-term  sustainable predator  control                                                               
program that may be much more effective in the end.                                                                             
                                                                                                                                
VICE-CHAIR WAGONER said he gets the  feeling that no one in ADF&G                                                               
wants  to do  predator control  because  they are  afraid of  the                                                               
threats  of  tourism  and  other   boycotts.  He  indicated  that                                                               
predator control programs have worked in the past.                                                                              
                                                                                                                                
MR.   DUFFY  said   staff  within   the   Division  of   Wildlife                                                               
Conservation focus  on the best scientific  information available                                                               
on which  to base decisions.  Within that confine, he  believes a                                                               
number  of  professionals  in  ADF&G  strongly  support  predator                                                               
control  programs. He  personally supports  them. He  pointed out                                                               
that ADF&G  is administering such a  program in Unit 19D  East in                                                               
McGrath right now.                                                                                                              
                                                                                                                                
SENATOR LINCOLN  noted McGrath is  in her district and  said this                                                               
issue has  been ongoing through  at least  three administrations.                                                               
The  issue boils  down to  implementing a  real predator  control                                                               
program  using airplanes.  She said  during Governor  Murkowski's                                                               
campaign, he  talked about  making a  decision based  on science,                                                               
not emotion. Most  people in the McGrath area  were enthused that                                                               
someone was  going to  take the  predator control  issue forward.                                                               
Very few  moose are left for  human consumption in that  area and                                                               
McGrath   residents  depend   upon  it   for  their   subsistence                                                               
lifestyle.  She  then  read  Mr.  Duffy's  recent  quote  in  the                                                               
Fairbanks  News Miner:  "When  predator  control is  implemented,                                                             
techniques   must   be   chosen  based   on   effectiveness   and                                                               
efficiency." She  said having been  raised in Rampart  and living                                                               
there now, she  knows that wolves are very hard  to trap. She has                                                               
seen wolves  kill moose  just to  show their cubs  how to  do it.                                                               
They do not always eat them.                                                                                                    
                                                                                                                                
SENATOR LINCOLN said  she has a real problem with  having to come                                                               
back to  this table  to talk about  predator control  every year.                                                               
She  expressed frustration  that Mr.  Duffy again  suggested that                                                               
ADF&G can send local people out  to trap wolves. That has not and                                                               
will not work because the  wolf population has increased so much.                                                               
She said  she was  hoping [this  administration] might  "bite the                                                               
bullet"  and  do  something  effective but  she  now  sees  ADF&G                                                               
backing away  to take  more public input.  She said  public input                                                               
has been  solicited on this issue  for at least eight  years. She                                                               
assured  Mr. Duffy  that ADF&G  will  hear nothing  new yet  that                                                               
process will take  one more year. She maintained  that the people                                                               
who live in that area depend  on moose for food and cannot afford                                                               
to wait one more year.                                                                                                          
                                                                                                                                
SENATOR LINCOLN  said the  Board of  Game clearly  reaffirmed the                                                               
previous  board's  position that  human  consumptive  use is  the                                                               
preferred use of  moose and that predator control  in the McGrath                                                               
area  is necessary  to help  restore the  abundance of  the moose                                                               
population to provide  for human harvest. In  addition, the board                                                               
recognized local  concerns and endorsed an  experimental predator                                                               
management program  in Unit 19D  East. She said this  problem has                                                               
already been documented  and the decision was  based upon science                                                               
and,  although  the  decision  has  been  controversial,  she  is                                                               
concerned about food for people who live in that area.                                                                          
                                                                                                                                
SENATOR ELTON  asked Mr. Duffy  if the Board of  Game recommended                                                               
that a  predator control program  be implemented in Unit  13 that                                                               
involved  helicopters and  biologists, and  the Governor  did not                                                               
support that idea, who Mr. Duffy would listen to.                                                                               
                                                                                                                                
MR. DUFFY  asked to first  respond to Senator  Lincoln's comment.                                                               
He said  she quoted some  of the decisions  made by the  Board of                                                               
Game on  Unit 19D. ADF&G chose  an approach for Unit  19D whereby                                                               
department   employees  would   fly   the  McGrath   experimental                                                               
management area in  fixed wing aircraft and  relay information on                                                               
the presence  or absence  of wolves. ADF&G  would then  use local                                                               
residents to participate in the predator control program.                                                                       
                                                                                                                                
SENATOR  LINCOLN responded,  "That  does not  work. It's  already                                                               
been tried."                                                                                                                    
                                                                                                                                
SENATOR ELTON said the same issues arise in fisheries.                                                                          
                                                                                                                                
MR. DUFFY said in terms  of his accountability as commissioner of                                                               
ADF&G, he is accountable to all  of the citizens of the state and                                                               
ultimately his job  is to protect, maintain and  enhance the fish                                                               
and wildlife resources  in the state. He said he  faces a dynamic                                                               
tension  when it  comes  to predator  control  programs. When  he                                                               
makes  a finding,  he  consults with  the  Governor's Office  and                                                               
collectively they  decide which  program to  go forward  with. He                                                               
said he is responsive to both  parties, the Board of Game and the                                                               
Governor. He wants  to do everything he can to  support the Board                                                               
of  Game's   decision-making  authority  and  to   implement  the                                                               
programs it suggests.  He also believes it is not  a perfect fit.                                                               
In making the findings he  also makes determinations based on his                                                               
direct boss, the  Governor. He said he wants to  be clear that he                                                               
will  be working  with the  Governor on  these decisions  and, in                                                               
doing so,  he will do everything  he can to support  the Board of                                                               
Game.                                                                                                                           
                                                                                                                                
4:53 p.m.                                                                                                                     
                                                                                                                                
VICE-CHAIR WAGONER said he understands  the position Mr. Duffy is                                                               
in, but it seems the Governor  has said in past speeches that the                                                               
resources   of  this   state  will   be  managed   on  biological                                                               
principles.  Mr. Duffy's  staff  has  supported predator  control                                                               
based on biological principles for  years. He asked how Mr. Duffy                                                               
and the  Governor couldn't  take the advice  of ADF&G  staff that                                                               
are being paid to make such recommendations. He stated:                                                                         
                                                                                                                                
     I think  we got  politicized at the  top again  and I'm                                                                    
     not so  sure - the  legislature anyway - is  willing to                                                                    
     sit  here and  watch one  more study  go by.  With that                                                                    
     study and the timing you've  given us, I believe that's                                                                    
     two seasons and  two more litters of pups  per pack and                                                                    
     not  only are  we going  to  be out  of control,  we're                                                                    
     going to be out of touch if that happens.                                                                                  
                                                                                                                                
SENATOR DYSON  said his sense  is that the legislature  will vote                                                               
to confirm  Mr. Duffy and  he appreciates  the fact Mr.  Duffy is                                                               
caught in the crossfire. He hopes  Mr. Duffy can convey the sense                                                               
of this committee to the  Governor: that biologists, the Board of                                                               
Game, local residents, and common  sense strongly support getting                                                               
on with  it. He  said the  delays are  very frustrating  and most                                                               
legislators do not believe they  are justified. He commented that                                                               
most  people who  are offended  by the  predator control  program                                                               
would not vote for the Governor anyway.                                                                                         
                                                                                                                                
SENATOR  SEEKINS said  he was  pleased with  Mr. Duffy's  opening                                                               
statement in  which he said  his management style would  be based                                                               
on  sound science  and  biology.  He said  when  he reviewed  the                                                               
survey [on  predator control] sent out  by ADF&G, it did  not ask                                                               
anything about  biological management.  It asked how  people felt                                                               
about  predator  control.  In  a  letter  of  explanation,  ADF&G                                                               
regional managers  said it is  important to know how  people feel                                                               
about  using short-term  contraceptives  to  control the  grizzly                                                               
bear population.  He asked  Mr. Duffy to  explain how  that human                                                               
dimension equates to biological management.                                                                                     
                                                                                                                                
MR. DUFFY  said he will  take Senator Seekins' concern  about the                                                               
survey to  his staff  but he  is not moving  off of  his position                                                               
that  he supports  decision-making based  on the  best biological                                                               
science at the game board level and internally at ADF&G.                                                                        
                                                                                                                                
SENATOR SEEKINS referred  to an ADF&G chart that  shows the moose                                                               
population in  Unit 13  has decreased from  27,000 to  8,000 from                                                               
1988 to 2001.  He asked if that decrease  represents a biological                                                               
emergency.                                                                                                                      
                                                                                                                                
MR.  DUFFY  said it  certainly  represents  a serious  biological                                                               
concern. He  would have to  consult with the  appropriate manager                                                               
at ADF&G before drawing that conclusion.                                                                                        
                                                                                                                                
SENATOR  SEEKINS   said  if  that  trend   continues,  the  moose                                                               
population will be  wiped out and that area is  very close to one                                                               
of the largest metropolitan communities  in the state. He said he                                                               
believes this  is a sociological  problem in that people  are not                                                               
being given a reasonable opportunity to harvest.                                                                                
                                                                                                                                
VICE-CHAIR WAGONER took public testimony.                                                                                       
                                                                                                                                
MR. CHRIS GARCIA said, from  a commercial fishing perspective, he                                                               
believes  the   higher-level  staff  at  ADF&G   have  given  the                                                               
commercial  fishing industry  a very  bad time  over the  last 20                                                               
years. For example,  in the Kenai, the 2  percent aquaculture tax                                                               
equals $187,594,500,  which was circulated in  the local economy.                                                               
By 1990, that amount was knocked  down to just under $10 million.                                                               
In his  opinion, continuing on  the current course will  kill off                                                               
the whole  peninsula. He recommended the  legislature not confirm                                                               
Mr. Duffy as the commissioner of ADF&G.                                                                                         
                                                                                                                                
MS. JANET  CLUKAS, representing  16 set  net fishing  families in                                                               
the Ninilchik  area, said  those families used  to make  a viable                                                               
income from  set netting,  however over the  last few  years they                                                               
have been  lucky to earn $2,000  per year. She said  if Mr. Duffy                                                               
has  been  involved  in  that  decline  of  income  for  set  net                                                               
fishermen,   she  cannot   endorse  him   for  the   position  of                                                               
commissioner.  She maintained  the fishery  was doing  well under                                                               
the  old management  plan until  the Knowles  Administration took                                                               
over.                                                                                                                           
                                                                                                                                
MR.   LYNN   LEVENGOOD,    representing   the   Alaska   Wildlife                                                               
Conservation Association,  said the Association's only  goal is a                                                               
return of  the abundance  of wildlife.  The Association  has been                                                               
shocked   by   the   acting  commissioner's   actions   regarding                                                               
interfacing with the  Board of Game. When the Board  asked him to                                                               
confirm  that ADF&G  biologists said  that predation  was causing                                                               
severe  prey declines  in  Unit 19D,  rather  than providing  the                                                               
board  with the  finding it  asked  for, he  provided a  document                                                               
saying ADF&G  would fly over the  area and tell the  local people                                                               
there are predators out there.  Mr. Levengood said that Mr. Duffy                                                               
is proud of  implementing a public opinion  survey about people's                                                               
feelings,  while  the  charts  provided by  ADF&G  show  that  an                                                               
emergency exists in Unit 13 and  that families will go hungry. He                                                               
said that  is not managing  by biology.  He urged members  not to                                                               
confirm Mr. Duffy.                                                                                                              
                                                                                                                                
MR.  KEN  DUCKETT, Executive  Director  of  the United  Southeast                                                               
Alaska Gillnetters'  Association, stated support for  Mr. Duffy's                                                               
confirmation. He  said he  had the opportunity  to work  with Mr.                                                               
Duffy on an allocation task force set up by the Board of Fish.                                                                  
                                                                                                                                
TAPE 03-25, SIDE A                                                                                                              
                                                                                                                                
MR. DUCKETT  said that allocation matters  between different gear                                                               
groups are  difficult. They worked  together on that  process for                                                               
about three years  and, without Mr. Duffy's  participation, he is                                                               
sure those endeavors would not have  been successful.  He said to                                                               
lay  the  problems of  the  fisheries  on  Mr. Duffy  because  he                                                               
happened to be  involved in the last administration  is not fair.                                                               
He asked members to give Mr. Duffy  a chance as he will do a good                                                               
job as commissioner.                                                                                                            
                                                                                                                                
VICE-CHAIR  WAGONER  informed   participants  that  although  the                                                               
committee  hearing was  noticed  as a  confirmation hearing,  Mr.                                                               
Duffy will stand for confirmation in  front of the full body, not                                                               
this committee.  The committee  will forward his  name on  to the                                                               
full panel.                                                                                                                     
                                                                                                                                
MR.  JERRY  McCUNE, Executive  Director  of  United Fishermen  of                                                               
Alaska   (UFA),   stated   strong   support   for   Mr.   Duffy's                                                               
confirmation. UFA  believes Mr.  Duffy will bring  ADF&G together                                                               
and get things working in favor of everyone in the state.                                                                       
                                                                                                                                
SENATOR SEEKINS asked Mr. Duffy  how the upper level structure of                                                               
ADF&G will change and what new positions will be added.                                                                         
                                                                                                                                
MR. DUFFY said  his deputy commissioner positions  are not filled                                                               
as  of yet.  The current  organization  of the  department has  a                                                               
commissioner, two  deputy commissioners, a special  assistant for                                                               
the Pacific Salmon Treaty, a  special assistant that is federally                                                               
funded and a legislative liaison.  The structure he is looking at                                                               
implementing would have a  commissioner, two deputy commissioners                                                               
for fisheries and  a chief wildlife scientist.  He said depending                                                               
on his confirmation,  and the level of expertise  of the selected                                                               
deputy commissioners, he may or may  not need to bring in someone                                                               
with scientific  expertise. The  Governor would  like to  see the                                                               
level  of  scientific expertise  ratcheted  up,  which Mr.  Duffy                                                               
supports.                                                                                                                       
                                                                                                                                
SENATOR SEEKINS  asked if  the directors  report directly  to the                                                               
commissioner.                                                                                                                   
                                                                                                                                
MR.  DUFFY said  the  division  directors do  not  report to  the                                                               
deputy commissioner.  They discuss  issues on  a daily  basis but                                                               
they report to the commissioner.                                                                                                
                                                                                                                                
SENATOR  SEEKINS  asked  if  the directors  are  required  to  be                                                               
degreed scientists.                                                                                                             
                                                                                                                                
MR.  DUFFY   said  yes;  all  current   division  directors  have                                                               
biological credentials.  Scientific  expertise resides within the                                                               
divisions.                                                                                                                      
                                                                                                                                
SENATOR  LINCOLN  mentioned  that Senator  Ted  Stevens  recently                                                               
challenged   the  Alaska   House  and   Senate  to   resolve  the                                                               
subsistence  issue.   She  asked   Mr.  Duffy's  position   on  a                                                               
constitutional  amendment for  a  rural  subsistence priority  in                                                               
Alaska and what  he intends to do in his  role as commissioner to                                                               
get the issue resolved.                                                                                                         
                                                                                                                                
MR.  DUFFY  said he  supports  the  Governor's perspective,  that                                                               
being to  adopt a constitutional  amendment for a  rural priority                                                               
and to make some modifications to ANILCA.                                                                                       
                                                                                                                                
SENATOR LINCOLN referred  to a letter the  Alaska Village Council                                                               
Presidents (AVCP)  wrote to the  commissioner dated March  18 and                                                               
noted the commissioner  responded that the [plan  for the habitat                                                               
division] transition for permitting  functions is moving forward.                                                               
She read  from the commissioner's  response, "I do not  believe a                                                               
formal  process   to  gather  public  input   about  the  changes                                                               
undertaken is  needed."  She said  she listened to Mr.  Duffy say                                                               
ADF&G  feels it  is necessary  to get  more public  input on  the                                                               
predator  control  issue,  which  is  the  opposite  of  what  he                                                               
emphasized to  the AVCP.  In his  response he  also said,  "And I                                                               
believe our mandate to achieve  greater profitability in Alaska's                                                               
resource extraction  industry is clear."  She asked Mr.  Duffy to                                                               
explain what  he meant  by that  last statement  and how  he will                                                               
combine that with his role as commissioner of ADF&G.                                                                            
                                                                                                                                
MR. DUFFY  told Senator Lincoln  that letter was drafted  for the                                                               
Governor's  signature but  in the  flurry  of letters  associated                                                               
with  EO 107,  he inadvertently  signed that  letter himself.  He                                                               
said the  letter talks about "my  plan" but he is  a commissioner                                                               
who works for the governor who  has a plan. He apologized for his                                                               
error. He said  regarding the public input comments,  at the time                                                               
the letter  was drafted, both  the House and Senate  were holding                                                               
hearings on EO 107. His  conclusion, given the short timeframe of                                                               
an executive order, was that  an appropriate public input process                                                               
relevant to  EO 107 was  being undertaken by the  legislature. He                                                               
said the public weighed in significantly on that issue.                                                                         
                                                                                                                                
SENATOR  LINCOLN commented  that the  letter was  written on  the                                                               
Commissioner's letterhead, not the Governor's.                                                                                  
                                                                                                                                
VICE-CHAIR WAGONER said  he distributed to members  and Mr. Duffy                                                               
copies of a letter he received  from a constituent. He then asked                                                               
Mr. Duffy  what he tends  to do to  correct the type  of mistakes                                                               
addressed in  the letter  and what  he would  do to  assure those                                                               
mistakes do not occur in the future.                                                                                            
                                                                                                                                
MR. DUFFY  said he wants  to reinforce  within ADF&G the  need to                                                               
provide  the  most  biologically  defensible  and  scientifically                                                               
credible information to  both of the boards. He  will hold people                                                               
accountable through the chain of  command for major mistakes that                                                               
are  made.  He  explained  that within  the  Board  of  Fisheries                                                               
process, proposals are combined  by subject matter; committees of                                                               
1,  2  or  3  board  members are  then  formed.  Committees  hold                                                               
meetings  with  members  of  the   public  to  discuss  potential                                                               
solutions  to the  issues. Senator  Wagoner's constituent  argued                                                               
that inadequate time  was provided to the public to  respond to a                                                               
committee report  and that  some of  the information  provided to                                                               
the committee was incorrect and may have had implications.                                                                      
                                                                                                                                
In response  to the constituent's  complaint, MR. DUFFY  said the                                                               
Board sets deadlines  for public review of  committee reports and                                                               
requires  meetings to  be  held within  the  original dates.  The                                                               
Board attempts  to make completed committee  reports available to                                                               
the public as  soon as possible for review  prior to deliberation                                                               
before the full  Board. There is a time crunch  but the committee                                                               
tries to  get the report  written as soon as  possible. Regarding                                                               
the  criticism  that 12  ADF&G  employees  were involved  with  a                                                               
committee, he  explained that only  board members are  members of                                                               
the  committee. ADF&G  staff attends  only  to provide  technical                                                               
advice, and  often only two  or three staff attend  meetings. The                                                               
fact that  12 employees  listened to the  issue might  have meant                                                               
that particular issue was of interest to them.                                                                                  
                                                                                                                                
Regarding the incorrect information  in the committee report, MR.                                                               
DUFFY said that was an unfortunate  mistake and, due to the tight                                                               
time  constraint, ADF&G  actually provided  percentages for  male                                                               
salmon  instead  of females.  However,  board  members were  made                                                               
aware of the incorrect data prior to deliberations.                                                                             
                                                                                                                                
VICE-CHAIR WAGONER  said his point  was the time crunch  needs to                                                               
be examined because  the state cannot afford to  make mistakes on                                                               
a critical fishery.                                                                                                             
                                                                                                                                
MR. DUFFY  concurred and  said he will  do everything  within his                                                               
power  to  make sure  ADF&G  is  providing the  best  information                                                               
available at the time.                                                                                                          
                                                                                                                                
SENATOR ELTON asked  Mr. Duffy whether the  Governor's Office was                                                               
informed of the  particular employees who may not  be retained in                                                               
the transfer  of the habitat  division or whether  the Governor's                                                               
Office provided  ADF&G with names  prior to notification  of non-                                                               
retention.                                                                                                                      
                                                                                                                                
MR. DUFFY said the short answer is no [names were discussed].                                                                   
                                                                                                                                
SENATOR ELTON asked  Mr. Duffy whether he will  delegate his seat                                                               
on the North  Pacific Fisheries Management Council  or whether he                                                               
will serve.                                                                                                                     
                                                                                                                                
MR.  DUFFY  said he  will  serve.  He  believes Alaska  needs  to                                                               
emphasize  the  need to  restructure  and  revitalize its  salmon                                                               
industry.  If  he  can  maintain   his  council  seat,  a  deputy                                                               
commissioner  will be  freed up  to put  greater emphasis  on the                                                               
commercial salmon industry.                                                                                                     
                                                                                                                                
SENATOR  ELTON said  that  from Mr.  Duffy's  description of  his                                                               
restructuring of  the Commissioner's Office, he  thinks the first                                                               
criterion for the second in  charge should be someone with strong                                                               
management  skills since  Mr. Duffy  plans  to keep  his seat  on                                                               
NPFMC.                                                                                                                          
                                                                                                                                
VICE-CHAIR WAGONER  said candidates  with both  strong scientific                                                               
and management skills are available.                                                                                            
                                                                                                                                
SENATOR ELTON  said his point  was that strong  scientific skills                                                               
should not be the threshold issue.                                                                                              
                                                                                                                                
SENATOR  SEEKINS thought  most commissioners  filled the  seat on                                                               
NPFMC in the past.                                                                                                              
                                                                                                                                
MR. DUFFY  said that changed,  depending on the  commissioner. He                                                               
said the previous  deputy commissioner sat on  NPFMC. In response                                                               
to  Senator Elton's  comment,  he  said when  he  talked about  a                                                               
revised structure  in the Commissioner's Office,  he talked about                                                               
two deputy commissioners - one  to focus on fisheries issues, the                                                               
other to  focus on  wildlife issues. Depending  on the  nature of                                                               
the skill  set of the people  hired, those people may  or may not                                                               
have very  strong scientific credentials.  He may  instead choose                                                               
to  hire someone  with strong  administrative skills  and a  long                                                               
term working  relationship with the  legislature. If that  is the                                                               
case,  he  may bring  in  an  additional person  with  scientific                                                               
expertise.                                                                                                                      
                                                                                                                                
SENATOR ELTON said that idea  scares him because given the budget                                                               
cut scenario  of 90 and 95  percent of general fund  dollars, the                                                               
only component with general fund  dollars will be the Division of                                                               
Commercial Fish.  Therefore, Mr.  Duffy will be  shifting general                                                               
fund dollars from that division to the commissioner's office.                                                                   
                                                                                                                                
VICE-CHAIR WAGONER asked  Mr. Duffy if he believes  the state has                                                               
the processing  capacity to handle  its current run of  salmon or                                                               
whether it  will need to allow  the Russians to come  into Alaska                                                               
waters to purchase salmon.                                                                                                      
                                                                                                                                
MR. DUFFY said  based on ADF&G's capacity survey  of the domestic                                                               
processors, Alaska  has adequate domestic processing  capacity to                                                               
handle the anticipated salmon return in 2003.                                                                                   
                                                                                                                                
SENATOR LINCOLN  asked Mr.  Duffy to  describe his  background in                                                               
wildlife issues  and how much time  he expects to spend  at NPFMC                                                               
meetings each year.                                                                                                             
                                                                                                                                
MR.  DUFFY said  his background  in  wildlife issues  is not  his                                                               
strong suit,  which is why he  believes it is incumbent  upon him                                                               
to rely  on the  expertise in  the division  and to  hire someone                                                               
with expertise.  In terms of time  spent on the Council,  he said                                                               
the Council  meets four  times per year;  each meeting  lasts one                                                               
week.                                                                                                                           
                                                                                                                                
VICE-CHAIR WAGONER asked Mr. Duffy if he supports SB 70.                                                                        
                                                                                                                                
MR.  DUFFY said  he believes  the attorney  general's office  has                                                               
participated  in  the  hearings  on  SB 70.  They  see  it  as  a                                                               
clarification of  the commissioner's  authority. If that  is what                                                               
it does,  he supports it with  the caveat that he  would be leery                                                               
of it if it puts him in  a situation where he would constantly be                                                               
second guessing  Board of Fish  allocation decisions  relative to                                                               
salmon. He  said he  would like the  opportunity to  consult with                                                               
the  attorney general's  office before  giving a  more definitive                                                               
answer.                                                                                                                         
                                                                                                                                
VICE-CHAIR WAGONER  asked Mr. Duffy  to get  back to him  with an                                                               
answer.                                                                                                                         
                                                                                                                                
SENATOR  SEEKINS  said he  understands  that  Mr. Duffy  was  not                                                               
personally  involved  in  some  of  the  decisions  made  in  the                                                               
management  or  mismanagement of  game  by  ADF&G over  the  last                                                               
several years.  However, many of  his constituents  feel strongly                                                               
that  ADF&G is  the department  of "watch  them and  count them,"                                                               
which  is not  management.  They  feel the  upper  levels of  the                                                               
department support a philosophy  of watching and keeping records.                                                               
He said these  people, both urban and rural, want  to put food on                                                               
the table  for their families.  He said that humans  harvest less                                                               
than 3  percent of the  annual harvestable surplus  of ungulates;                                                               
the rest go to predators. He  said the precipitous decline in the                                                               
reproductive  base  is the  result  of  predation, not  of  human                                                               
hunting. To see that this  Administration advocates further study                                                               
rather  than  biological  management  is shocking.  He  said  his                                                               
constituents  want to  know what  Mr.  Duffy plans  to do  within                                                               
ADF&G's structure to fix that.                                                                                                  
                                                                                                                                
MR.  DUFFY  said  during  the  first  three  months  of  the  new                                                               
administration, there  has been  a move  in a  positive direction                                                               
relative  to  predator  control  programs. It  may  not  be  what                                                               
everyone  wanted,  but  it  is  moving in  a  direction  that  is                                                               
responsive to  the public.  As commissioner, he  wants to  have a                                                               
strong working relationship with the game board.                                                                                
                                                                                                                                
VICE-CHAIR  WAGONER  asked Mr.  Duffy  what  is the  single  most                                                               
important factor in managing the state's fisheries resources.                                                                   
                                                                                                                                
MR. DUFFY  answered scientific and biological  credibility of the                                                               
information provided to the Board  of Fisheries by which it makes                                                               
allocation decisions.                                                                                                           
                                                                                                                                
There being no further questions,  SENATOR DYSON moved to forward                                                               
the name  of Mr.  Duffy to  the full  body for  consideration for                                                               
confirmation, with  the understanding that  a vote in  favor does                                                               
not   indicate  support   for  or   objection   to  Mr.   Duffy's                                                               
confirmation.                                                                                                                   
                                                                                                                                
With  no  objection,  VICE-CHAIR  WAGONER  announced  the  motion                                                               
carried. He then adjourned the meeting at 5:45 p.m.                                                                             

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