Legislature(2003 - 2004)

03/24/2003 03:36 PM RES

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

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